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100 Harv. L. Rev. 332 (1986-1987)
Can Nihilism be Pragmatic

handle is hein.journals/hlr100 and id is 350 raw text is: ARTICLE CAN NIHILISM BE PRAGMATIC? John Stick* In this Article, Professor Stick examines the relationship between the nihilist wing of Critical Legal Studies and the philosophers the nihilists rely upon for support. The author focuses the discussion upon Joseph Singer, a representative nihilist, and the philosopher Singer relies upon most, Rich- ard Rorty, who has revived American pragmatism. Professor Stick contends that Singer, in attempting to use Rorty's critique of traditional philosophy as a blueprint for his own critique of law and legal theory, both misinterprets Rorty and distorts traditional legal theory. The author concludes that nih- ilism, as an attempt to create an epistemological critique of law and legal theory, is misguided, and that Critical Legal Studies should pursue a more direct political critique. INTRODUCTION Agroup of scholars identified with critical legal studies who are often called irrationalists or nihilists,' either by themselves or by opponents, argue that law is indeterminate, contradictory, nonob- jective, historically and socially contingent.2 They attach these labels *Assistant Professor of Law, Tulane University School of Law. I would like to thank Ruth Colker, John Dzienkowski, Sheldon Leader, Richard B. Parker, Jeremy Paul, and Vincent Wellman for comments and suggestions. I I will use the words nihilist and irrationalist interchangeably in this Article to refer to the arguments and theorists described in the text and, for clarity's sake, will use nihilist in the bulk of the Article. Although the word nihilist has negative connotations that I would rather do without, it is appropriate for two reasons. First, it is the word used by the author I will discuss most, Joseph Singer. Second, it is technically more correct. One could argue for the distinction that an irrationalist does not believe that shared standards of rationality exist, whereas a nihilist believes in neither shared standards of rationality nor shared values. The theorists discussed in this Article accuse liberals of falsely assuming the existence of shared values. These theorists thus are better described by the term nihilist. See infra note io. 2 Many critical legal scholars incorporate nihilist strands of argument in their work, but are not full-fledged nihilists. An occasional use of nihilist arguments, however, does not differentiate them from any other group of legal scholars. As this Article demonstrates, see infra pp. 361- 69, 394-95, nihilism is only an extreme form of two aspects of the general intellectual heritage of American law: the epistemology of logical positivism and the value skepticism of liberal pluralism. Critical legal scholars differentiate themselves from other scholars by the political implications they draw from nihilist arguments. Critical legal nihilists separate themselves from other critical legal scholars by taking nihilist critical arguments to state general truths rather than pointing out local flaws in particular arguments. Nihilism is too strong a skeptical theory to be held consistently at all times. Every author who uses nihilist criticisms against others at times makes definite statements about law and so falls out of nihilism. Being a nihilist, then, is a matter of degree. I will call authors nihilist if 332

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