Ladies and Gentlemen, this man needs no introduction: Stanley Fish is an academic rock star. He’s a punk. A provocateur par excellence. His opponents arguments quickly decompose in the light of his critical knowledge and sharp pen. To wit: Fish threw down the gauntlet this week in his New York Times op-ed, “Intentional Neglect” (the thesis of which is in part the upshot of a debate he had with Ronald Dworkin in the 80s). Pre-empting the now endless talk about Judge Roberts, Fish declared that “words and phrases like ‘originalist,’ ‘strict constructionist,’ ‘textualist,’ ‘judicial activist’ and ‘intentionalist’,” stand for different styles of interpreting the Constitution that nobody could employ because they are, so to speak, crimes that nobody could commit. Those who think otherwise “are wrong.” Every judge is necessarily an intentionalist, for “intentionalism is not a style of interpretation, it is another name for interpretation itself.” Interpretation for Fish is just the asking and answering of the question, “What is it that is meant by these words?”
Classic! This is classic Stanely Fish. This particular strategy was highlighted by Dworkin in the early 80s. According to Dworkin, Fish is known to impose meanings on phrases used within judicial practice, “which are, in fact, wholly alien to the way in which these phrases function in that practice. He then announces, as important conclusions, that the crucial distinctions made through these phrases are bogus.” This is exactly what Fish does in his NYT op-ed, announcing that except for intention-bound interpretation, the above ways of interpretation are bogus. (As he himself notes in his op-ed, the thesis that however one establishes a meaningful interpretation one will at the same time be assigning an intention for an utterance, does not tell us anything at all about how someone will interpret a particular text and, if the thesis were true, it would be unnecessary because it would describe what every member of the Court in fact does under the title “interpretation”).
But, of course, Fish knows that the matter is not as simple or straightforward as that. “The matter of intention,” he wrote elsewhere, is “a vexed topic that usually brings out the worst in everyone.” What Fish means by this can be seen in the famous Fish-Dworkin debate. I just love to read the back-and-forth of bitter insults.
It all began with Dworkin’s essay, “Law as Interpretation.”1 Fish responded in the same issue in his essay, “Working on the Chain Gang: Interpretation in Law and Literature.”2 Fish concludes that essay rather humbly by saying “if we…grant [Dworkin’s] thesis its strongest form, he will certainly have a position, but it will be, in every possible way, wrong.” Dworkin responds in an essay with a tremendous title: “My Reply to Stanley Fish (and Walter Benn Michaels): Please Don’t Talk about Objectivity Any More.”3 In it he calls Fish’s understanding “incompetent,” “bizarre,” an “extraordinary career of error,” “stunningly irrelevant,” and thus Fish winds up having “nothing to say that is relevant to my essay, for all the heavy weather he makes.” Zing!
Dworkin thinks he has won, but Fish, a true warrior intellectual, parried Dworkin’s rebuttal with his essay, simply and subtly titled “Wrong Again.”4 He says of Dworkin’s strategy what one might say of lawyers more generally: “He does not embrace contradictory positions because he wants to gain an advantage over his readers (although that may be in fact what happens) but because he is confused.” Then comes the coup de grace: “That, I think, about covers it, and I will only add that in deference to Professor Dworkin’s request, I have not once used the word ‘objectivity,’ although I have now mentioned it.” Game, set, match, Fish.
1 Dworkin, "Law as Interpretation," Texas Law Review 60 (1981-1982): 527-550.
2 Fish, "Working on the Chain Gang: Interpretation in Law and Literature," Texas Law Review 60 (1981-1982): 551-567
3 Dworkin, "My Reply to Stanley Fish..." in The Politics of Interpretation, edited by W.J.T. Mitchell (University of Chicago Press, 1983): 287-313.
4 Fish, "Wrong Again," Texas Law Review 62 (1983-1984): 299-316