(Fwd from Teresa Collect) re: Stanley Fish article

[Eugene Volokh]

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Stanley Fish has an article that might be of interest to this list.    See 97
Colum. L.Rev. 2255 --- it's on Westlaw) entitled "Mission Impossible:
Settling the Just Bounds BetweenChurch and State."The opening paragraphs read:


        The thesis of this Article can be simply put: All of
liberalism's efforts to  accommodate or tame illiberal forces fail,
either by underestimating and  trivializing the illiberal impulse, or by
mirroring it.  Michael Walzer provides a concise example at the
beginning of his book On  Toleration: "I won't have much to say," he
says, "about the arrangements that  get ruled out entirely--the
monolithic religious or totalitarian political  regimes." [FN1]  That
is, he won't have much to say about those forms of  thought indifferent
or hostile to the tolerance that is his subject.  There are  two
problems here.  First, it seems odd to begin a book on tolerance by
ruling  out forms of thought and organization without even giving them a
hearing.  Second, by so circumscribing the scope of his argument, Walzer
assures its  success at the price of its interest.  If the case for and
analysis of  tolerance is made with respect only to regimes and
discourses already  predisposed to it, what is the point?  As Thomas
Nagel observes, "liberalism  should provide the devout with a reason for
tolerance." [FN2]  That is, it is  the devout--those who feel compelled
by their religious faith to acts of  judgment and exclusion--who put
liberal tolerance to the challenge, and it is  my contention that it is
a challenge liberal tolerance can only meet by turning  into its
opposite.  The incoherence of toleration, both as an ideal and as a
basis for a politics, seems obvious even on a moment's reflection.
Nevertheless, toleration has such a hold on the liberal imagination that
no  demonstration of its inherent contradictions (including the one I am
about to  offer) can lessen its appeal.  Indeed, as I shall argue below,
the vocabulary  of toleration--fairness, impartiality, and mutual
respect--survives even in the  writing of those who set out to debunk
it.
        In this Article I take up the arguments of three kinds
of theorists:  (1) those who urge fairness and deliberative rationality
as ways of securing  political order against disruptive energies,
especially the energies of  fundamentalist religions, (2) those who
believe that fairness and deliberative  rationality are stalking horses
for a political agenda that will not announce  itself, and (3) those
(actually one) who offer as an antidote to disorder more  of the same.
These theorists contend mightily and discover in one another no  end of
confusions, but they are all in the same line of work, and as I shall
argue, that line of work is empty.

It advances some of the arguments he made in his piece in First Things.

Teresa S. Collett
South Texas College of Law of Texas A&M University



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