Stanley Fish lists his areas of expertise as “the American academy, the nature and history of professionalism, the theory and history of disciplines, sixteenth- and seventeenth-century English Literature, Freud, literary theory, legal theory, philosophy of language, contract law, first amendment jurisprudence, affirmative action, the jurisprudence of church and state, [A]nglo-American liberalism, university administration, the teaching of composition, American television shows.” He is a prominent authority on Milton, and he has made contributions to the other listed areas in a series of books and articles that have attracted much academic commentary. He has lectured in law schools as well as English departments. He has been a university administrator as well as a university professor. He had a blog in the digital edition of The New York Times, and appears on television and the public lecture circuit. He was the model for the Morris Zapp character in three of David Lodge’s comic novels about academic life. In summary, he is a major contemporary thinker with an influence beyond the academy, and beyond the shores of his homeland. So by one measure Stanley Fish is a very broad thinker. But by another measure he is narrowly, even obsessively, focused on drawing out the implications in these different contexts of the same few philosophical commitments. Although he is not a professional philosopher, a particular set of philosophical issues is a consistent and major preoccupation for Fish.
The primary philosophical issue is the nature of the self, and Fish’s commitment is to a conception of the self that could be described as falling within the communitarian tradition. Fish argues that the attributes that people acquire by being socialised into different institutions, and by being embedded in particular local contexts, are not secondary attributes of a deeper, more enduring self. Rather the self is constituted by its local commitments. Take them away, and you would not have an essential, stripped-down self, rather you would have no self at all.
The second philosophical issue is epistemology, and here Fish’s commitment follows logically from this conception of the self. Fish calls it anti-foundationalism, a position which he acknowledges is related to the American pragmatist tradition of James, Peirce and Dewey. Simply put, anti-foundationalism holds that there is no unmediated perception of the world, and hence no direct perception, in a positivist sense, of any extra-human “foundations” for truth and knowledge. Any human thinking, perceiving, and acting is enabled and structured by the background commitments already in place as a result of the socialisation and local embeddedness that constituted the human perceiver. Experience of the world which was not mediated in this way might be available to God, Fish claims, but not human beings. Fish asserts that it is the human condition always to live in a world which is given shape, order, and significance by humanly-generated categories, beliefs and values which we hold (or which hold us) because we are embedded in particular communities.
Such an epistemology is often associated with relativism, but Fish not only denies that he is a relativist; he also denies that anybody could be a relativist. His argument is that if humans are constituted by their local commitments, then they can never achieve the distance from them that relativism would require. In particular, Fish insists that accepting anti-foundationalism as an epistemology does not permit or enable you to distance yourself from your constituting commitments. His position is that it would be inconsistent to claim that human selves are necessarily constituted by local commitments, and then to claim that realising that fact allows you to rise above or transcend or hold at arm’s length and doubt all of your local commitments. A self who could do that would not be constituted by its local commitments.
Fish also holds that our background commitments and the traditions of inquiry they enable can deliver to us objective truth and knowledge. He acknowledges that those with different background commitments or traditions of inquiry will not see and accept the truths we see, and that we have no mechanism or algorithm which must compel them to do so, but this is no reason for us to doubt our findings. It only explains the source of their error. To yearn for a stronger sense of objectivity is again to yearn to experience the world as a god might, i.e. as an unembedded self.
The third philosophical issue is the nature and role of theory, and here Fish’s commitment is to a strongly deflationary account of theory. He holds that any human practice (such as law, literature, philosophy or baseball) has its own distinct enabling background and its own distinct jobs or tasks to perform. This thesis of the autonomy of practices leads him to the conclusion that the project of interdisciplinarity is impossible. Different practices cannot be unified into one large practice, nor does one discipline have to take account of what goes on in any other discipline. He does acknowledge that “interdisciplinary borrowing” is possible, but what happens there is that those performing practice A take something from practice B to use in advancing the goals and values and projects of practice A. The fact that those engaged in practice B might see this as a complete misuse or misunderstanding of the item borrowed is of no relevance to those in practice A, who are not interested in advancing the projects or concerns of practice B.
One implication of this analysis is that philosophy is mistaken in holding itself out as a practice which has something useful to contribute to other practices. Debates within philosophy, such as the one between foundationalism and anti-foundationalism, have no consequences for practices outside philosophy, Fish says. (This is another reason why he holds that no relativistic consequences follow from anti-foundationalism.) When people leave the philosophy seminar room and enter particular concrete contexts, they are gripped by the background commitments and concerns that come with those contexts. The issues and principles that were relevant when the background commitments and concerns of the discipline of philosophy were in place now have no weight and can get no grip. (Unless these principles have been contaminated by the very contestable substantive commitments which they claim to have transcended.) In the performance of other practices, such as law or partisan politics, “theory-talk” might be borrowed as a rhetorical tool to increase the chances of achieving a goal within the borrowing practice, but it is not driving or directing the practice.
It is with these three philosophical commitments in place that Fish develops his positions on political and legal theory – positions that have struck some as outrageous and ludicrous, but which are much more comprehensible when their philosophical roots are kept in mind.
Fish’s targets in political theory are any impossible projects that require the self to detach itself from its constituting commitments. Liberalism, for example, wants to find neutral principles which can stand apart from the contest of substantive conceptions of the good and regulate it in a way that is not biased in favour of any of the contestants. Liberalism also wants to use neutral reason to deal with conflict peacefully. For Fish, no principles or reasoning can be neutral in the strong sense that liberals crave; they will always be shaped by the partisan or local background commitments that enable them. He backs up this claim by providing fine-grained analyses of the liberal principles of freedom of religion and freedom of speech, in each case showing the partisan substance beneath the veneer of neutrality.
Liberals like Rawls are not the only political theorists who would require the self to detach itself from its constituting commitments. Fish says that Habermas also does so with his “ideal speech situation”, and that postmodernists do so when they think that accepting an anti-foundationalist epistemology releases you from the grip of your local commitments and enables you to more tolerant, or open-minded, or multi-cultural, or democratic. He even thinks that his fellow philosophical pragmatist, Richard Rorty, is guilty of this at times. So his contribution to political theory is to claim that some of the deepest hopes of Western culture are impossible dreams – the forum of neutral principle, tolerance for all and the brotherhood of man, transcending the limitations of the local to grasp the universal and the timeless, resolving disputes through reason alone, and similar matters.
In the area of jurisprudence, or legal theory, Fish equally iconoclastic. Much orthodox legal thinking is concerned with the unconstrained legal actor and the threat this actor poses to the rule of law, especially if he occupies the role of judge. But Fish holds that the unconstrained legal actor is an illusory fear, a bogeyman. Once the competent legal actor has had his consciousness shaped by his legal training, the background categories and goals and values of the law are something that he thinks within, rather than something he thinks with. He can never escape the constraint of this enterprise-specific background; it is only because he is completely constrained by it that he is able to act in a recognisably legal way.
In his decade-long debate with the legal philosopher Ronald Dworkin, Fish insisted that while Dworkin was correct that the moral and political commitments beneath the law were important, Dworkin was wrong to think that lawyers had to be urged to pay attention to them and consciously craft their decisions as extensions of them. On Fish’s account, there was no need to urge lawyers to pay attention to this background, and no reason to fear that they might stray from it, because it was this background that structured and enabled their performance as competent legal practitioners. Whereas Dworkin thought that lawyers should approach this background as philosophers and interpret it so as to achieve the maximum coherence in law, Fish replied that the background for law operated in the same way as the background for baseball. In neither case did a successful practitioner need to consciously advert to it or look to it for guidance.
Fish has attracted notoriety, but also little appreciation of what his positions actually are and the merits of his arguments. Because he likes to put his points polemically, he is often dismissed too quickly. Also his output dealing with philosophy, politics and law consists of many articles written over three decades. In these articles he works out different aspects of his position, but he has never consolidated all of this material together in a way that displays the underlying coherence and linkages. Finally, according to his own analysis, the apprehended meaning of a text is a function of the already-in-place background beliefs etc. of the interpretive community whose members are encountering the text. This has implications for how Fish’s texts themselves are apprehended. The already-in-place backgrounds of the communities who engage in the practices of philosophy, political theory or jurisprudence have been accumulating over many centuries. They have elements that originate in the liberalism that began in the seventeenth century, and elements that originate in the eighteenth-century Enlightenment. With those backgrounds in place, it is completely understandable that the members of those communities who encounter Fish’s texts see them as saying something other than what Fish actually meant. They are, in fact, constrained by their backgrounds to understand Fish’s texts as clearly saying something false and outlandish, to see him as a sceptic and a relativist, for example. Not only do the already-in-place backgrounds of the relevant interpretive communities virtually assure that Fish will be misunderstood, even by very intelligent and sophisticated readers, it is also the case that this state of affairs is not easily altered. Fish himself has insisted that, simply because a background is socially constructed, it does not follow that it does not constrain tightly, or that it can be changed at will. In his philosophical, political and legal writings Fish is trying to change large elements of the relevant in-place backgrounds, but by his own reasoning this is a very difficult task.
