There is No Such Thing as a Safe Space
| Date | 01 May 2019 |
| DOI | http://doi.org/10.1111/1468-2230.12418 |
| Published date | 01 May 2019 |
| Author | Richard Mullender |
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Modern Law Review
DOI: 10.1111/1468-2230.12418
There is No Such Thing as a Safe Space
Richard Mullender∗
Stanley Fish,Winning Arguments: What Works and Doesn’t Work in
Politics, the Bedroom, the Courtroom, and the Classroom,NewYork,
NY: Harper Collins, 2017, 214 +ix pp, pb, £9.99.
INTRODUCTION
Stanley Fish draws the introduction of Winning Arguments to an emphatic close.
He tells us that ‘argument is everywhere, argument is unavoidable, argument
is interminable’.1He also declares that ‘argument is all we have’.2He means
by this that the arguments we advance successfully deliver the world to us
‘in a particular shape’.3He also tells us that, if we are to argue successfully,
we must do so in ways that are ‘context-specific’.4These claims concerning
argument will be familiar to anyone who has read Fish’s earlier writings on
law and literature. The idea that what we call ‘fact’ is theory-laden looms large
in these works. To embrace this idea is to take the view that our concepts
and the arguments in which they feature shape our understanding of the
circumstances in which we find ourselves.5Fish has also given currency to
the idea that we owe the concepts and arguments that we use to make sense of
our circumstances to interpretive communities. On his account, interpretive
communities are authoritative, intersubjective reference points in controversies
that concern the objects to which their members devote attention.6This is
because the individuals (eg, lawyers) who make up such a community share
∗Professor of Law and Legal Theory, Newcastle University. I am grateful to Conall Mallory, David
McGrogan, Matteo Nicolini, Patrick O’Callaghan, Ian Ward, Ola Wawrzyszcuk and Max Weaver for
their helpful comments on earlier drafts. I am also grateful to the MLR’s two anonymous referees. I
have also benefited fromconversations with T.T. Arvind and Ole Pedersen on Stanley Fish’swr itings.
Finally, I owe thanks to two of the MLR’s editors for their assistance and encouragement.
1 S. E. Fish, Winning Arguments: What Worksand Doesn’t Workin Politics, the Bedroom, the Courtroom,
and the Classroom (New York, NY: Harper Collins, 2017) 3.
2ibid.
3ibid, 16.
4ibid,7.
5 C. Kutz, ‘Just Disagreement: Indeterminacy and Rationality in the Rule of Law (1993) 103 Yale
LJ 997, 1014-1015.
6 S. E. Fish, Is There A Text in This Class? The Authority of Interpretive Communities (Cambridge,
Mass: Harvard University Press, 1980) ch 13.
C2019The Authors. The Moder n LawReview C2019 The Modern Law ReviewLimited. (2019)82(3) MLR 549–576
Published by JohnWiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 101 Station Landing, Medford, MA 02155, USA
There is No Such Thing as a Safe Space
a sense of relevance as to what is at stake in the fields that concern them.7
Consequently, they (rather than a text or the intentions of its author(s)) are
the centre of interpretive gravity in the contexts effectively constituted by the
understandings that unite them.
While these points will be old hat to anyone familiar with Fish, Winning
Arguments brings into sharp focus a set of assumptions at work in his mind
that have great relevance to law. Fish tells us that he is ‘making an argument
about argument and its relationship to the human condition’.8He develops
this point by identifying argument as ‘the medium we swim in, whether we
want to or not’.9He also tells us that the purpose of argument is not to achieve
a consensus that wins the support of all rational people. Rather, it affords a
means to prevail at the expense of others: eg, where the ‘adherents of different
partisan frameworks’ of thought seek to triumph at their opponents’ expense.10
In this example, Fish drives home the message that aggression lies at the heart
of argument. He reinforces this message when he states that ‘words are aimed,
they are sent out in volleys, . . . they are sprayed around like bullets’.11
These are features of Winning Arguments and Fish’s writings more generally
that call to mind the jurisprude Carl Schmitt. Schmitt descr ibed politics as
a struggle between friends and foes – to which he added the point that the
upshot could be a conflict that ultimately takes a violent and perhaps even ex-
terminatory tur n.12 Readers will search Winning Arguments in vain for chilling
statements of this sort. However, Fish pursues a theme that has affinities with
Schmitt’s account of friend-versus-foe politics. He tells us that argument may
sweep away th e poli tico -leg al fra meworks, or n orm ative wor lds, we m ake and
inhabit and that invest our lives with a sense of significance and security. On this
view, we are always vulnerable to the depradations of those who could prevail
at our expense by means of argument. Thus there is no ‘oasis’ or ‘safe space’
that is entirely secure (whether it be a society-wide politico-legal framework
or the spaces that people share in intimate or other relations with others).13
This article will not seek to gainsay this view. However, there are reasons for
thinking that it may be possible to establish a normatively appealing, enduring,
but not entirely safe politico-legal space. We will (in the penultimate section
of the article) explore this possibility by reference to Britain’s legal order (and
the liberal political philosophy that is, on the analysis below, at work within
it). As we will see, Fish (notwithstanding the fact that he has declared himself
to be ‘against liberalism generally’) lends support to the claim that it may be
7 S. E. Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and
Legal Studies (Durham, NC: Duke University Press, 1989) 364 (on ‘thinking like a lawyer’).
8 Fish, n 1 above, 2.
9ibid.
10 ibid, 62.
11 ibid, 23.
12 C. Schmitt, The Concept of the Political (London: University of Chicago Press, expanded ed, 2007
[1932]) 26-27 and 29.
13 Fish, n 1 above, 3 and 120. (‘Safe space’ is a term that has gained a range of associations
(for example, trigger warnings and microaggressions) that make it a source of live controversy.
However, Fish uses it to denote liberal politico-legal frameworks that shield those who inhabit
them from the adverse consequences of argument. See S. E. Fish, The Trouble with Principle
(London: Harvard University Press, 2001) 189, see also, 214-215 and 297.)
550 C2019 The Author s. The Modern Law Review C2019 The Modern Law Review Limited.
(2019) 82(3) MLR 549–576
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