The Estate Agent

It is one of the minor symptoms of the mental decline of the United States that Stanley Fish is thought to be on the Left. By some of his compatriots, anyway, and no doubt by himself. In a nation so politically addled that ‘liberal’ can mean ‘state interventionist’ and ‘libertarianism’ letting the poor die on the streets, this is perhaps not wholly unpredictable.

Stanley Fish, lawyer and literary critic, is in truth about as left-wing as Donald Trump. Indeed, he is the Donald Trump of American academia, a brash, noisy entrepreneur of the intellect who pushes his ideas in the conceptual marketplace with all the fervour with which others peddle second-hand Hoovers. Unlike today’s corporate executive, however, who has scrupulously acquired the rhetoric of consensus and multiculturalism, Fish is an old-style, free-booting captain of industry who has no intention of clasping both of your hands earnestly in his and asking whether you feel comfortable with being fired. He fancies himself as an intellectual boot-boy, the scourge of wimpish pluralists and Nancy-boy liberals, and that ominous bulge in his jacket is not to be mistaken for a volume of Milton.

What Fish has in fact done is to hijack an apparently radical epistemology for tamely conservative ends. Epistemologically speaking, he is a full-blooded anti-foundationalist for whom everything comes down to contingent cultural beliefs. These beliefs now occupy the loftily transcendental place vacated by previous candidates for the job, such as God, Geist or Reason. They are transcendental a prioris in the sense that you can’t ask where they come from, or whether they are valid or reasonable, since the answers to such questions will be shaped from within your own belief system. You are thus forced back on an old-fashioned fideism: nothing in the world could count as evidence for your beliefs, since what we gullibly call the world is simply a construct of them. And since you do not relate to your convictions as you relate to your socks, selecting a sombre or stylish brand as the fancy takes you, you are as lumbered with them as you are with the size of your feet. Beliefs are constitutive of the self, and so cannot be critically questioned by it. While I am believing I cannot stop believing, just as I cannot not be yawning as long as I am yawning. Convictions are more like influenza than intellectual acts. For Fish, a man has no more control over his beliefs than some ideologues believe he has over his penis. If everyone in the United States must nowadays be a victim of something, Fish is a self-confessed victim of his own assumptions, which exert their mindless tyranny over him as ruthlessly as Stalin held sway over the kulaks.

In a series of audacious bounds, then, we have argued our way from a ‘radical’ anti-foundationalism to a defence of the Free World. This leaves Fish in the enviable position of accruing cultural capital to himself by engaging in avant-garde theory while continuing to defend the world of Dan Quayle. A superficially historicist, materialist case – our beliefs and assumptions are embedded in our practical forms of life – leads not only to a kind of epistemological idealism, but to the deeply convenient doctrine that our way of life cannot be criticised as a whole. For who would be doing the criticising? Not us, since we cannot leap out of our local cultural skins to survey ourselves from some Olympian viewpoint; and not them either, since they inhabit a different culture which is incommensurable with our own. They may think that we are raiding their raw materials and exploiting their labour power, but that is just because they have never heard of the civilising mission of the West. The felicitous upshot is that nobody can ever criticise Fish, since if their criticisms are intelligible to him, they belong to his cultural game and are thus not really criticisms at all; and if they are not intelligible, they belong to some other set of conventions entirely and are therefore irrelevant.

This whole discreditable epistemology rests on a number of errors. In its credulous assumption that any thoroughgoing critique would need to be launched from some metaphysical outer space, it shares the delusion of the liberalism it detests. The only difference is that whereas some liberals used to think that there was such a vantage-point, pragmatists like Fish think that there isn’t. Nothing has otherwise altered. To imagine that we are either the helpless prisoners of our beliefs or their supremely disinterested critic is to pose the problem in an absurdly polarised form. Here as usual, Fish’s rather stagey relish for the melodramatic theoretical gesture leads him astray. It prevents him from seeing that a certain capacity for critical self-distancing is actually part of the way we are bound up with the world, not some chimerical alternative to it. His case fudges the question of how people come to change their minds, just as it adopts an untenably monistic view of the relations between a specific belief system and particular bits of evidence. It also suggests that we cannot ask where our beliefs come from because any answer to this question would be predetermined by our beliefs.

But the belief that our beliefs are bound up with a historical form of life is itself a belief bound up with a historical form of life. Fish’s penchant for the local and partisan, his aversion to human rights and abstract principles, his contempt for what he calls ‘mutual co-operation and egalitarian justice’, his macho scorn for tolerance and impartiality – all this belongs to a very definite advanced capitalist culture, although Fish, in ironic violation of his own tenets, appears to regard such doctrines as universally valid. Perhaps it is Fish, rather than some universalist abstraction called humanity, who is unable to distance his own beliefs and place them in a broader historical context.

Like most of his compatriots, Fish is not the most cosmopolitan of creatures. The essays in The Trouble with Principle deal with racism, pornography, abortion, free speech, religion, sexual discrimination, in fact most of the stock-in-trade of enlightened US academia. This, on any estimate, is a pressing agenda; but it does not betray the slightest sense that there is anything else in the political universe worth discussing. With typical American parochialism and self-obsession, Fish’s book is silent about famine, forced migration, revolutionary nationalism, military aggression, the depredations of capital, the inequities of world trade, the disintegration of whole communities. Yet these have been the consequences of the system of which the United States is the linchpin for many perched on the unmetaphysical outside of it. Being unable to leap out of your own cultural skin seems to mean in Fish’s case having no grasp of how your country is helping to wreak havoc in that inscrutable place known as abroad. One has the indelible impression that Fish does not think a great deal of abroad, and would be quite happy to see it abolished. He is strenuously opposed to hate speech, but appears utterly ignorant of the structural conditions in his own backyard which give rise to such ethnic conflict. Indeed, he champions the social and economic order which helps to breed the effects he deplores. He is rightly concerned about anti-abortion fanatics, but not, as far as one can judge, about the military, ecological and economic threat which his country represents for so much of the world. For him as for many of his ‘leftist’ colleagues, a good deal of morality seems to come down to sex, just as it always has for the puritanical Right.

The Trouble with Principle is a series of polemics against liberalism, and scores some splendid points against the creed. Being something of a bruiser, and furnished with the ferociously competitive instinct of a small boy, Fish is almost pathologically allergic to cosy pluralism, and sees shrewdly how it can spring from there being nothing much at stake in the first place. He understands how the procedural formalism of liberal doctrine can trivialise the actual content of passionately held positions, and how its tenderly sentimental equalising of all viewpoints can mask a callous indifference. Like a traditional ‘virtue’ moralist, he holds that what is at stake in political ethics is the substance of a way of life, not just who gets to determine it. He is alert to the bogus impartiality of a liberalism which has decided in advance what is to count as a viewpoint to be tolerated, and is agreeably scathing about what he calls ‘boutique multiculturalism’. Unlike many liberals, he does not make the mistake of seeing zero-sum conflict as necessarily destructive. On the contrary, he refuses to varnish the truth that there are a good many important contentions which someone is going to have to win and someone else to lose. Nor does he indulge in the liberal hypocrisy that power is ipso facto a bad thing, an opinion usually maintained only by those who have it. It is true that he might profit from relishing power a little less flamboyantly, but at least he seems to see that whether it is good or bad depends on who is doing what with it in which situation.

On the other hand, as the good liberals tend to say, Fish cannot for the life of him understand how someone can be tolerant and committed at the same time. If one cannot sit loose to one’s own convictions, then tolerance can only be a sham. Fish thus detests liberalism rather as a hill-billy might detest the rococo self-qualifyings of a Jamesian New Yorker too pussyfooting and polite to say what he means. For Fish, liberals really have no balls, and his aversion to them seems quite as temperamental as it is theoretical. But tolerance is not just a question of style, and it is perfectly compatible with passionate partisanship. Fish does not see this because he too often thinks of tolerance as a psychological affair rather than a political one. If I am tolerant, however, this does not necessarily mean that I hold my own opinions lukewarmly; it means that I allow you to hold yours as fervently as I hold mine. Indeed, I am quite as passionate about this as you are about your desire to have your own view prevail at all costs. It is not, as Fish tends to suspect, that liberals are eunuchs whereas the engagé like himself are real men. Not all liberals are Laodiceans, and how zealously one holds one’s own beliefs will not in itself tell us whether opposing opinions should be censored. Given the strength of my own convictions, I may find it inconceivable that others can hold the views they do, but this does not necessarily mean that I clamour for their suppression. Why she thinks Bill Clinton is a saint is a mystery, but she can broadcast the opinion from the rooftops for all I care. On the other hand, I may have quite a good understanding of what brings some people to be racists, and may well imagine myself feeling the same in similar circumstances, while firmly agreeing with Fish that racists should not be permitted to express their prejudices in public.

Phenomenologically speaking, I cannot imagine what it would be like not to believe that Bill Gates has a somewhat anaemic sense of the human soul. But I can imagine the kinds of condition which would compel me to abandon this prejudice, such as his suddenly publishing a novel of such metaphysical magnificence as to put The Magic Mountain in the shade. The opposite of tolerance in this respect is not conviction but dogmatism; and since dogmatism means among other things refusing to elucidate the grounds on which one holds one’s beliefs, Fish, for whom beliefs would seem as mysteriously given as the planet Venus, is guilty of the offence. When A.J.P. Taylor remarked that he had extreme views but held them moderately, he may have meant, as Fish would be bound to claim, that he did not really hold them at all. He was, after all, being interviewed for a Magdalen College fellowship at the time. But he may have meant that, though he indeed believed what he believed, he did not believe in pushing his opinions down people’s throats, or hanging others bound and gagged from the rafters while he hectored them. Fish, by contrast, sees all conviction as necessarily authoritarian, since he imagines that the political institution of tolerance is just a fancy way of not having the courage of one’s convictions. And this is the rather sinister side of his sometimes bracing critique of liberalism.

The Trouble with Principle is quite right to insist that there are views which should not be tolerated, and that free speech is thus in any absolute sense an illusion. It is salutary that no one in Britain for quite some time has been able to utter certain sorts of insult in public without running the risk of criminal prosecution. But Fish, with his usual eye for theatrical effect, enlists this for a swingeing assault on the principles of tolerance, impartiality and mutual respect, as though the fact that they, like any principles, have to allow for important exceptions must necessarily invalidate them altogether. Nor is it anything but sophistry to claim that, since all speech acts are socially conditioned, no speech is really free. This is rather like claiming that since swanning around the Savoy all day is quite as shaped by social convention as labouring in a salt mine, guests at the Savoy are no freer than miners.

Fish dislikes principles because they are abstract, universal, neutral, formalistic and inflexible. By defining all principle in such sublimely Kantian terms, he engages in his usual custom of straw-targeting his antagonist in order to ensure himself a Pyrrhic victory. Everyone is against this kind of principle, just as everyone is opposed to sin. But without certain general principles we would not even be able to identify concrete situations; and when Fish tells us, as though he were telling us news, that abstractions such as justice or equality must be further specified, he is maintaining that it is these abstractions which must be thickened up, rather than, say, the principle that all children under six should be tortured. To that extent, at least, he is committing himself to the language of liberalism. On his own view of things, how could he not, since he is a historical product of it?

In any case, once one begins to spell out why one wants to promote certain partisan interests, it becomes notoriously hard to avoid the language of generality altogether. Even Fish’s opposition to hate speech must presumably include, somewhere along the line, the fact that the vilified group is a collection of humans rather than a bunch of hollyhocks, if one may employ a term (‘human’) which some pragmatists find rather distasteful. The Trouble with Principle veers accordingly between a tough but implausible case (all general principles are bogus) and a mild but boring one (all principles must be concretely specified, and will alter in the process) to which hardly anyone, least of all Hegel, would take exception. Like almost all diatribes against universalism, it has its own rigid universals: in this case, the priority at all times and places of sectoral interests, the permanence of conflict, the a priori status of belief systems, the rhetorical character of truth, the fact that all apparent openness is secretly closure, and the like.

Fish’s appeals to history are almost always gestural. He means by history something like what Henry Kissinger means by it – that is, as far back as he can remember. This is a pity, since if he had a rather richer sense of the past he might recognise that the universalist liberal principles he abhors were once the last word in iconoclasm. In the age of Enlightenment, appeals to difference, specificity and local interests were often enough reactionary, and claims to universality could topple princes from their thrones. For a true pragmatist, general principles are as general principles do; at some times and places they may be a lot more subversive or emancipatory than at others. And if lots of local cultures find universal principles useful things to adhere to from time to time, as they plainly do, why should a pragmatist like Fish be so universally dismissive of them?

What these essays do, in effect, is what so much Post-Modern thought does when confronted with a ‘bad’ universality – which is to say, set up a ‘bad’ particularism in its place. They fail to grasp that such militant particularism is just the flipside of the vacuous universalism it deplores, rather than a genuine alternative to it. Stanley Fish is the flipside of John Rawls rather as tribalism is the terrible twin of globalism, or the view from nowhere is inevitably countered by the view from us alone. In this respect, Fish is a fully paid-up tribalist who, like Slobodan Milosevic, champions a unique people moulded by its own peculiar customs and traditions. It is just that to Milosevic these people are known as Serbs, and to Fish as academics. One might even dub him something of a communitarian (several of his objections to liberalism, such as his view of the relations between belief and selfhood, are of this kind), were it not for the fact that he despises all such gooey human togetherness for much the same reasons that one imagines Clint Eastwood does.

In the teeth of all such soppy consensus, Fish is a Hobbesian and Machiavellian who enjoys conflict, believes only in what he can taste and handle, and likes to win. He sees his dislike of universal essences as anti-Platonic, though much of the time this is just a high-toned way of saying that he has the outlook on life of an estate agent. It is unclear how winning and intolerance go together, since you cannot be said to have beaten a rival whom you have tethered to the starting blocks; but it is clear enough how this philosophy, which Fish implicitly recommends as universally valid, fits rather better with being the dean of a US university at the turn of the millennium than it does with being a sixth-century Scottish hermit.

To refer to Fish the Dean, however, is to reveal the fact that there are two Fishes, Little and Big. Little Fish is a sabre-rattling polemicist given to scandalously provocative pronouncements: truth is rhetoric, free speech is an illusion, unprincipled behaviour is best. Big Fish is the respectable academic who will instantly undercut the force of these utterances by insisting that they are descriptive rather than normative. Far from being radical recommendations, they simply describe what we do anyway without always knowing it, and ‘theory’, the Trumps of this world will be relieved to learn, thus has no effect whatsoever on practice. Anti-foundationalism is therefore unlikely to alienate the New York foundations, and Fish can buy his reputation as an iconoclast on the cheap.

Little Fish is in hot pursuit of a case which will succeed in alienating absolutely everyone; he is the cross-grained outsider who speaks up for minorities, and himself Jewish, comes from one such cultural margin. Big Fish, by contrast, has a consensual, good-boy disdain for rebels, whose behaviour is in his eyes just as convention-bound as those they lambast. It is fortunate for this schizoid character that there is a place where aggression and consensus go together. It is known as the US corporation, of which the campus is a microcosm. In academia, you can hammer your colleagues, safe in the knowledge that, since you all subscribe to the same professional rules, it doesn’t really mean a thing.

There is an evident contradiction between the self-interested behaviour of advanced capitalism, and the consensual character of its liberal ideologies. Into this embarrassing gap, The Trouble with Principle inserts its mischievous, sub-Nietzschean thesis that we should acknowledge that the God of consensuality is dead and come clean about the self-interest. So far, the system has always resisted this seductive solution to its contradiction, in the belief that hypocrisy was a price worth paying for a few rags of ideological respectability. Fish’s work may be one straw in the wind turning an increasingly self-discrediting social order towards this more insolently up-front self-apologia. And if Fish is Nietzschean enough in this, so is he in the eternal recurrence of his writing. He now seems to have written the same book several times over – after you have stated that everything comes down to cultural beliefs, it is hard to know what to do next but to say it again, this time with a few different examples. Perhaps, in order to break new ground, Fish will just have to wait for his beliefs to change, as a man might await the moment when his cell door swings open.