FIRING LEGAL CANONS AND SHOOTING BLANKS: FINDING A NEUTRAL WAY IN THE LAW JEROME McCRISTAL CULP, JR.* Whether you turn to the right or to the left, your ears will hear a voice behind you, saying, “This is the way; walk in it.” Isaiah 30:21 I. IntRopuction The search in the humanities and history for a canon, a way of instruction and a mode of discourse, has affected the law. There is no single widely accepted canon. Canon has taken on a number of mean- ings inside academia. The notion of canon initially grew out of the use of a “rule” to decide what ought to be included inside the Bible.* In the humanities the battle over canon has three parts—the battle over the bbooks, the battle over the acceptable methods for choice of the books to form that canon or canons, and the battle over what the canon will accomplish. I am using this very broad notion of canon to include not only the subject of our inquiry but a battle over how the inquiry is * Professor of Law, Duke University Schoo! of Law. 1, Several uses of canon have been made by scholars. Canon descends from an ancient Greek word, kanoa, meaning a “reed” or “fod” used as an instrument of measurement. In later times kenon devel- coped the secondary sense of “rule” or “law”, and this sense descends as its primary meaning into modern European languages. The sense of the word Important to literary critics fist appeared in the fourth century A.D., when “canon” was used to signify a lst of texts or authors, specifically the books of the Bible, In this context “canon” suggested to its users a principle of selection by which some texts or authors, specifically the books of the Bible and the early theologians of Christianity... . Hence the “canonizers” of early Christisnity were not concerned with how beautiful texts were not ‘with how universal their appeal might be. They aoted with a very clear con- cept of how texts would “measure up” to the standards of their religious community, or conform to their “rule.” They were concerned above all else with distinguishing the orthodox from the heretical. In recent years many literary erties have become convinced that the selection of literary texts for “canonization” (the selection of what are con- ventionaly call the “classics") operates in a way very like the formation of the biblical canon. J. Guitiony, CRITICAL Tens For Lrrerary Srupy 233 (1990). See also H. Gates, ‘Authority (White) Power, and the (Black) Criti: Its all Greek to me, in Tae NATURE ‘np Context oF Minority Discourse (1990) (The creation of a black canon can be used by criti to explicate black perspectives.) 185186 SAINT LOUIS UNIVERSITY PUBLIC LAW REVIEW [vat 10:85 structured and what the ultimate goal of the inquiry ought to be. Ac- cordingly, when I speak of canons I mean our notion of epistemology in Jaw as well as what is thought important and how we measure impor- tance. Members of the legal academy have begun to discuss what the legal canon should look like even if they do not do so in terms of canons. ‘Much of the jurisprudential history of the academy over the last 100 years is an effort to define such a canon. The search for such a single perspective for law has been futile for two reasons: 1) Law is profoundly instrumental and practical; and 2) this practical quality forces law to collide with competing paradigmatic constructs. Judges and lawyers are constantly asking how to make law function in an im- perfect world, It is not possible for law to completely remove itself from interchange with other related disciplines without quickly losing touch with the real world, If law is not autonomous—and it is not in our post- Realist world—then law must hear and incorporate the notions in other disciplines. Law has adopted a number of these disciplines. Some disci- plines, for example, law and literature and law and economics, have become deeply embedded in the legal enterprise by law professors.* Other disciplines bring new approaches to looking at existing legal problems that draw on both familiar and different experiences. Such efforts are often heartily resisted by the existing order. Critical race theory and black legal scholarship are examples of efforts that are not firmly entrenched in the legal academy and which are heartily resisted by the incumbent norm.* Still other approaches hang on the periphery of the law demanding entrance, with the participants inside the acad- emy unsure of the motives and potential of these approaches. The best example of the last approach is game theory.* 2._ See R. PosweR, EcoNoMIc ANALYSIS oF Law (34 ed. 1986)(Economic analy. sis applied to an array of legal problems); WHITE, JUSTICE AS TRANSLATION: AN ESSAY 1 Cutrurat aN Lecat Certiciss (1990)(Literacy criticism applied to a number of legal texts) 1 was reminded how deeply imbedded both disciplines have become in the legal academy wen ata conference onthe economics ofthe Constitution in the Fall of 1980 at Stanford Law School, it was clear that the structure of the discussion of statutory and cor al interpretation eannot take place without some deference being paid to both disciplines. 3. See Kennedy, Racial Critiques of Legal Academia, 102 Hanw. L. Rav. 1745 (1989) Racial critiques, what Ihave termed eitical race theory or black legal scholar- ship, have not made an effective and conventional case for their adoption into the legal discourse) But see, Culp, Toward a Black Legal Scholarship: Race and Original Un- derstandings Dust L. J. (in press) (Black authors including Randall Kennedy have Started to ereate a discernible and different eitque of legal enterprise.) 4. Game theory his become increasingly important to economic theory taught in economics departments. See eg, Fisher, Games Economists Play: A Noncooperative View, 20 RAND J. ECON. 113 (1989). “The ascendancy (of game theory] appears fairly complete. Bright young theorists today tend to think of every problem in game-theo- relic terms...” Shapiro, The Theory of Business Strategy, 20 RaNp J. ECON. 1251991) FIRING LEGAL CANONS 187 Given this cacophony of approaches is it possible to find a neutral way of treating these different approaches to legal scholarship and legal formation? The response by at least some in the legal academy is to attempt to create a canon with which legal scholarship and formation can be judged. However, some of these efforts have been dismissive of alternative approaches to the scholarship. It is not possible to success- fully change canons into cannons that will eliminate alternative ap- proaches to legal formation and scholarship by firing explosive charges. Efforts to establish canons that act like cannons are bound to failure. It is possible to require legal scholars to be consistent but not neutral. ‘An example of the failure of such approaches to legal scholarship is the claim of originalism. Judge Posner's new book on jurisprudence, and his book review of Judge Bork’s book on a similar topic, deal with this issue by someone who cannot be seen as a knee jerk liberal.° Judge Posner demonstrates that the originalist view of the text of the U.S. Constitution is unsatisfactory as a basis for jurisprudence, and he sug- gests that he is aware of the difficulty of creating neutral norms for legal scholarship in general. Efforts by Judge Bork to use originalism as 1 judicial canon will not work. Similarly Professor Wechsler’s article on neutral principles could not be written in today’s legal academy.* Pro- fessor Wechsler’s notion of neutrality has become outmoded. We can- ‘not completely screen out the important policy choices that we make about the real world. Such policy choices can only be apolitical in a world where there is a broad homogenous concensus about the world. We do not have such a society. I will briefly survey the various strands of current legal discourse in section II below. I will then return to a brief description of how this modern Babel leaves the legal academy. TL, LEGAL PARADIGMS AND OTHER Discourses We are all realists now. All legal scholars today research in the aftermath of the profound changes brought about by the legal realist, movement. We can describe the existing structure of paradigms in the legal academy (our legal canons) in two fundamental ways. Some legal scholars are direct descendants of the legal realist movements, These (1989), Industrial organization research is terminated by game-theoretic models. Ay- 105, Playing Games with the Law, 42 Stan. L, Rev. 1291 (1990). Seminars, economic Journals and Ph.D. dissertations are awash with game theoretic models of economic ‘Phenomena. However, game theory hes been rejected by many legal scholars. See et, Wiley, Antitrust and’ Core Theory, $4 U. Cut. L. Rev. 356 (1987). '5. R. Poswer, THE PROBLEMS OF JURISPRUDENCE (1990); Posner, Bork and Bee- thoven, 42 Staw. L. REV. 1365 (1990). 6. Wechsler, Toward Neutral Principles of Constitutional Law, 73 Hany. L. ‘av 1 959) Cinta aerpeaon aught to be bed apo + staf aa les, but he could not find a satisfactory set of neutral principles for the Brown dedsion, This troubled him)