“WHAT AM I DOING?” STANLEY FISH ON THE POSSIBILITY OF LEGAL THEORY

Abstract

I. INTRODUCTIONStanley Fish says that theory does not exist, and because it does not exist, it has no consequences. This is doubly disturbing for someone who thinks of himself or herself as a legal theorist. While it is one thing to be dismissed as an impractical ivory tower type, out of touch with the real world of practice, it is quite another to be told that you do not exist at all. If legal theory does not exist, what have I been doing these past years? Indeed, what is it that Fish himself has been up to in his many books and articles devoted to jurisprudential issues?Most of his law-related writings have been collected in Stanley Fish, DOING WHAT COMES NATURALLY: CHANGE, RHETORIC AND THE PRACTICE OF THEORY IN LITERARY AND LEGAL STUDIES (Duke University Press, 1989); Stanley Fish, THERE’S NO SUCH THING AS FREE SPEECH . . . AND IT’S A GOOD THING, TOO (Oxford University Press, 1994); and Stanley Fish, THE TROUBLE WITH PRINCIPLE (Harvard University Press, 1999). Moreover, simply existing is not the limit of a legal theorist’s ambition. We want what we do to have significance, and Fish’s claim that theory has no consequences denies us that status.