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Will Malson Normative Negative Page 1 of 13

Normative 1NC -- Index (1/2)

Normative 1NC -- Index (1/2) ...........................................................................................1


Contention 1: No Political Application..............................................................................2
Traditional debate, or normative legal thought, functions without real-world political application; solvency
that exists on the flow fails to translate to reality................................................................................2
Contention 2: Paralyzing Political Apathy.........................................................................3
Not only does traditional debate have no real-world political application, but it paralyzes any possibility of
real-world political application. Our traditional notions of “fiat” don’t solve anything, but only makes our
problems worse by paralyzing resistance............................................................................................3
Contention 3: Indifference..................................................................................................4
First, Traditional debate desensitizes us to the suffering of others; rather than proving a framework for
activism, this speculative mindset of “fiat” only rewards oppression and suffering of others.............4
Second, Normative discourse based on “fiat” desensitizes us to the suffering of others, perpetuates cruelty
and justifies violence against the other................................................................................................4
Contention 4: Re-conceptualization...................................................................................6
Re-conceptualizing debate as a forum for political action allows us to actively shape reality, breaking from
the regression of hypothetical discourse. Giving debaters the burden of linking solvency to out-of-round
actions avoids normative implications by providing a tool for interacting with the outside world. This
argumentative agency paradigm empowers debaters as political agents more effectively than imaginary
“fiat” ..................................................................................................................................................6
Contention 5: Our Criticism Raises Awareness..................................................................7
Our criticism itself solves by raising public awareness. Since discourse is not coercive, the discourse we use
shapes reality only insofar as we allow it to, as our minds are ultimately in control of our own actions. By
discussing the effects of our own discourse, we can actively combat or accept the implications........7
Turn: Normative discussion is NOT educational (1/2).......................................................8
First, Normative debate focuses on round-winning positions, which are unconnected to reality........8
Second, Normative discussion operates within its own system, equally as unconnected to reality......8
Turn: Normative discussion is NOT educational (2/2).......................................................9
Third, Endorsing a normative advocacy is uneducational, as it draws us into a stagnant mindset of accepting
what the affirmative claims is correct by authority ............................................................................9
AT: Normativity is inevitable...........................................................................................10
The crash of normative legal thought is inevitable; the only question is when academics take note. 10
AT: Wrong forum.............................................................................................................11
1. There is technically no “right forum”...........................................................................................11
2. No impact......................................................................................................................................11
3. This is the right forum...................................................................................................................11
AT: Nihilism....................................................................................................................12
1. Incorrect analysis..........................................................................................................................12
2. Turn: Aff is nihilistic......................................................................................................................12
3. Turn: Aff destroys intellectual autonomy -- Nihilism is a vacant word for the fear of difference; the
affirmative discourse is destructive to intellectual autonomy............................................................12
Will Malson Normative Negative Page 2 of 13

Contention 1: No Political Application

Traditional debate, or normative legal thought, functions without real-world political application;
solvency that exists on the flow fails to translate to reality
Pierre Schlag [Professor of Law @ Univ. Colorado, J.D., UCLA School of Law; B.A., Yale College],
“Laying Down the Law: Mysticism, Fetishism, and the American Legal Mind”, Pages 28-29, Chapter:
“The Top 10”, Section: “#6. Post-Modernist Shadow Boxing”, Publisher: NYU Press, October 1, 1998,
ISBN-10: 0814780547, ISBN-13: 978-0814780541, italics in original (HEG)
In fact, normative legal thought is so much in a hurry that it will tell you what to do even though there is
not the slightest chance that you might actually be in a position to do it. For instance, when was the last
time you were in a position to put John Rawls’s difference principle9 into effect, or to restructure the
doctrinal corpus of the first amendment? “In the future we should . . .” When wa the last time you were
in a position to rule whether judges should become pragmatists, efficiency purveyors, civic republicans,
or Hercules surrogates? Normative legal thought doesn't seem overly concerned with such worldly
questions about the character and the effectiveness of its own discourse. It just goes along and proposes,
recommends, prescribes, solves, and resolves. Yet despite its obvious desire to have worldly effects,
worldly consequences, normative legal thought remains seemingly unconcerned that for all practical
purposes, its only consumers are legal academics and perhaps a few law students -- persons who are
virtually never in a position to put any of its wonderful normative advice into effect. The possibility that
a significant umber of judges might actually be reading significant quantities of this academic literature
is undemonstrated and unlikely. The further possibility that judges might actually be persuaded by this
academic literature to adopt a position not their own is even more undemonstrated and even more
unlikely.10
Will Malson Normative Negative Page 3 of 13

Contention 2: Paralyzing Political Apathy

Not only does traditional debate have no real-world political application, but it paralyzes any
possibility of real-world political application. Our traditional notions of “fiat” don’t solve
anything, but only makes our problems worse by paralyzing resistance
Gordon R. Mitchell [Professor of Communications @ Univ. of Pittsburg. An NDT top speaker now
coaches debate at the University of Pittsburgh], "Reflexive Fiat: Incorporating The Outward Activist
Turn into Contest Strategy", The Rostrum 72 (January 1998): 11-20. This paper was presented at the
1995 SCA National Convention, (HEG)
How structural features of fiat shape political trajectory Most mainstream conceptions of fiat
contain a common structural feature, the idea that fiat is a construction which affords debaters the
latitude to make assumptions about external actors. The assumption that a specified agent will "carry out
the plan" if the affirmative team proves its desirability inscribes this externality by structurally
separating the advocate from the specified agent of change. Likewise, the idea that the negative team
"has the power" to mandate an alternative course of action by the same (or another) external actor
endorses this same kind of structural separation between debater and agent of change. Advocacy, under
this view of fiat, takes place on the plane of simulation. The power that backs a debaters’ command that
"we mandate the following ..." is a mirage, a phantasm allowed to masquerade as genuine for the
purpose of allowing the game of political simulation to take place. Debaters have no real authority over
the actors they employ to implement their ideas in plans and counterplans, yet the simulation of such
authority is recognized as an essential fiction necessary to allow the game of policy debate to unfold.
One problem with approaches to fiat which feature such a structural separation between advocate and
agent of change is that such approaches tend to instill political apathy by inculcating a spectator
mentality. The function of fiat which gives debaters simulated political control over external actors
coaxes students to gloss over consideration of their concrete roles as involved agents in the controversies
they research. The construct of fiat, in this vein, serves as a political crutch by alleviating the burden of
demonstrating a connection between in-round advocacy and the action by external actors defended in
Will Malson Normative Negative Page 4 of 13

plan or counterplan mandates. A second manner in which the structural features of this sort of fiat tend
to circumscribe active political involvement is through the containment of fiat action within the spatio-
temporal boundaries of the contest round. The fiction of simulated authority evaporates when the judge
issues his/her decision and the debaters disband and head to the next round. Advocacy, resting on the
ephemeral foundation of simulation, is here a casual and fleeting phenomenon that carries with it few
significant future ramifications or responsibilities. By cultivating an ethic of detachment from the actual
polis, this view of advocacy introduces a politically regressive dynamic into the academic debate
process.

Contention 3: Indifference

First, Traditional debate desensitizes us to the suffering of others; rather than proving a
framework for activism, this speculative mindset of “fiat” only rewards oppression and suffering
of others.
Gordon R. Mitchell [Professor of Communications @ Univ. of Pittsburg. An NDT top speaker now
coaches debate at the University of Pittsburgh], “PEDAGOGICAL POSSIBILITIES FOR
ARGUMENTATIVE AGENCY IN ACADEMIC DEBATE”, Page 3, Argumentation & Advocacy, Vol. 35
Issue 2, Page 43, 1998 (HEG)
The sense of detachment associated with the spectator posture is highlighted during episodes of
alienation in which debaters cheer news of human suffering or misfortune. Instead of focusing on the
visceral negative responses to news accounts of human death and misery, debaters overcome with the
competitive zeal of contest round competition show a tendency to concentrate on the meanings that such
evidence might hold for the strength of their academic debate arguments. For example, news reports of
mass starvation might tidy up the "uniqueness of a disadvantage" or bolster the "inherency of an
affirmative case" (in the technical parlance of debate-speak). Murchland categorizes cultivation of this
"spectator" mentality as one of the most politically debilitating failures of contemporary education:
"Educational institutions have failed even more grievously to provide the kind of civic forums we need.
In fact, one could easily conclude that the principle purposes of our schools is to deprive successor
generations of their civic voice, to turn them into mute and uncomprehending spectators in the drama of
political life" (1991, p. 8).

Second, Normative discourse based on “fiat” desensitizes us to the suffering of others, perpetuates
cruelty and justifies violence against the other
Richard Delgado [Professor of Law @ The University of Colorado, J.D. 1974, University of California,
Berkeley (Boalt Hall)], “SYMPOSIUM: THE CRITIQUE OF NORMATIVITY: ARTICLE: NORMS AND
Will Malson Normative Negative Page 5 of 13

NORMAL SCIENCE: TOWARD A CRITIQUE OF NORMATIVITY IN LEGAL THOUGHT”, Pages 7-8,


Copyright (c) 1991 The Trustees of The University of Pennsylvania, University of Pennsylvania Law
Review, 139 U. Pa. L. Rev. 933, April 1991 (HEG)
But what is the cash value of all this priest-talk in the law reviews, in the classrooms of at least the "better"
schools, and in the opinions of at least some judges? Are normativos better than other people? Are we better off
for engaging in normative talk, either as speakers or listeners? Pierre Schlag, for example, has described
normativity as a zero -- as a vacuous, self-referential system of talk, all [*954] form and no substance, meaning
nothing, and about itself. n82 This description may be too generous. Normativity may be more than a
harmless tic prevalent only in certain circles. 1. Permission to Ignore Suffering The history of organized
religion shows that intense immersion in at least certain types of normative system is no guarantee against cruelty,
intolerance or superstition. n83 In modern times, social scientists have tried to find a correlation between
religious belief and altruistic behavior. In most studies, the correlation is nonexistent or negative. In one study,
seminary students were observed as they walked past a well-dressed man lying moaning on the sidewalk. n84
Most ignored the man, even though they had just heard a sermon about the Good Samaritan. The proportion who
stopped to offer aid was lower than that of passersby in general. The researchers, commenting on this and other
studies of religion and helping behavior, hypothesized that religious people feel less need to act because of a sense

[EVIDENCE CONTINUES ON NEXT PAGE]


[EVIDENCE CONTINUES UNABRIDGED]

that they are "chosen" people. n85 I believe this anesthetizing effect extends beyond religion. We confront a
starving beggar and immediately translate the concrete duty we feel into a normative (i.e., abstract)
question. And once we see the beggar's demand in general, systemic terms, it is easy for us to pass
him by without rendering aid. n86 Someone else, perhaps society (with my tax dollars), will take care
of that problem. Normativity thus enables us to ignore and smooth over the rough edges of our
world, to tune out or redefine what would otherwise make a claim on us. In the legal system, the
clearest [*955] examples of this are found in cases where the Supreme Court has been faced with subsistence
claims. For example, in Lindsey v. Normet, n87 the Supreme Court considered a claim that housing is such a
basic necessity that it could only be denied or subordinated when a state is able to show a "compelling interest."
The Court summarily upheld Oregon's streamlined eviction procedure, rejecting in emphatic tones the idea that
there is a constitutional right to shelter or that "the Constitution . . . provide[s] judicial remedies for every social
and economic ill." n88 In San Antonio Independent School District v. Rodriguez, n89 the Court followed
Lindsey in holding that Texas's unequal school finance scheme did not deny children in tax-poor districts the right
to an education. Again, the Court responded by shaming the attorneys and litigants who had brought the novel
claim. It declined to apply strict scrutiny, ridiculed the idea that money can be equated with a good education and
held that the plaintiffs were complaining, at most, of a relative deprivation. n90 In Dandridge v. Williams, n91
the Court also rejected, even more emphatically than it had before, the idea that subsistence -- here, welfare -- is a
constitutional right. In Dandridge, a number of families challenged a state rule that provided a decreasing
schedule of welfare support for each person beyond the initial beneficiary and a fixed increment for families
larger than ten. The welfare recipients challenged these provisions as a violation of equal protection. A district
court agreed with them, but the Supreme Court reversed, holding that the state's fee schedule, although it
discriminated against large families, was a legitimate exercise of economic/social legislation and had to be
sustained if it had any reasonable basis. n92 These cases are telling because they forced the judiciary to confront
the harsh reality that our competitive free-market system creates losers as well as winners. What obligation do the
winners have to the losers? The answer, so far has been "none." We owe the poor no legal obligation because the
legislature did not think so; the poor are unreasonable; they are not poor enough; and money might not solve their
problem anyway (you know how they are). [*956] 2. Justifying Cruelty Toward Others Not only does
normativity help us justify indifference to others' needs, but we sometimes use it to rationalize
treatment of others that would otherwise be seen as injurious, if not downright cruel. As I pointed
Will Malson Normative Negative Page 6 of 13

out earlier, those in a position to dictate norms rarely, if ever, see their own favorite forms of
behavior as immoral. n93 Rather, we stigmatize the conduct of our enemies, people who are unlike us or do
things we do not like, for example, drug-taking or congregating on street corners. Then, when we punish
offenders from the other ("criminal") (sub-)culture, we are able to tell ourselves that imposing punishment is not
only good for society, but good for the offender. n94 Judges write with blood, n95 but normativity is the filter
that prevents us from seeing this. If focuses our attention on abstraction, when it is particularity and real-world
detail that alone move us. n96 Even when we do not pronounce outgroups' behavior positively vicious,
we may declare it lazy and indolent, so as to justify our own aggressive behavior. Warfaring
nations, for example, often gain ascendancy over more peaceloving nations (e.g., Native Americans).
The conquerors then decide it was their own spiritual, aesthetic, and ethical superiority that
enabled them to prevail, not their superior weapons, numbers, or bloodthirst. n97 Often, they
declare the conquered guilty of waste, of failure to use their own resources to the best advantage (e.g., by not
clear-cutting the land), so that the takeover was a moral duty. n98

Contention 4: Re-conceptualization

Re-conceptualizing debate as a forum for political action allows us to actively shape reality,
breaking from the regression of hypothetical discourse. Giving debaters the burden of linking
solvency to out-of-round actions avoids normative implications by providing a tool for interacting
with the outside world. This argumentative agency paradigm empowers debaters as political
agents more effectively than imaginary “fiat”
Gordon R. Mitchell [Professor of Communications @ Univ. of Pittsburg. An NDT top speaker now
coaches debate at the University of Pittsburgh], “PEDAGOGICAL POSSIBILITIES FOR
ARGUMENTATIVE AGENCY IN ACADEMIC DEBATE”, Pages 4-5, Argumentation & Advocacy, Vol.
35 Issue 2, Page 44-45, 1998 (HEG)
ARGUMENTATIVE AGENCY In basic terms the notion of argumentative agency involves the
capacity to contextualize and employ the skills and strategies of argumentative discourse in fields of
social action, especially wider spheres of public deliberation. Pursuit of argumentative agency charges
academic work with democratic energy by linking teachers and students with civic organizations, social
movements, citizens and other actors engaged in live public controversies beyond the schoolyard walls.
As a bridging concept, argumentative agency links decontextualized argumentation skills such as
research, listening, analysis, refutation and presentation, to the broader political telos of democratic
empowerment. Argumentative agency fills gaps left in purely simulation-based models of argumentation
by focusing pedagogical energies on strategies for utilizing argumentation as a driver of progressive
social change. Moving beyond an exclusively skill-oriented curriculum, teachers and students pursuing
argumentative agency seek to put argumentative tools to the test by employing them in situations
beyond the space of the classroom. This approach draws from the work of Kincheloe (1991), who
suggests that through "critical constructivist action research," students and teachers cultivate their own
senses of agency and work to transform the world around them.
Will Malson Normative Negative Page 7 of 13

Contention 5: Our Criticism Raises Awareness

Our criticism itself solves by raising public awareness. Since discourse is not coercive, the
discourse we use shapes reality only insofar as we allow it to, as our minds are ultimately in
control of our own actions. By discussing the effects of our own discourse, we can actively combat
or accept the implications
Gordon R. Mitchell [Professor of Communications @ Univ. of Pittsburg. An NDT top speaker now
coaches debate at the University of Pittsburgh], "Reflexive Fiat: Incorporating The Outward Activist
Turn into Contest Strategy", The Rostrum 72 (January 1998): 11-20. This paper was presented at the
1995 SCA National Convention, (HEG)
Such a preparatory pedagogy has a tendency to defer reflection and theorization on the political
dynamics of academic debate itself. For example, many textbooks introduce students to the importance
of argumentation as the basis for citizenship in the opening chapter, move on to discussion of specific
skills in the intervening chapters, and never return to the obvious broader question of how specific skills
can be utilized to support efforts of participatory citizenship and democratic empowerment. Insofar as
the argumentation curriculum does not forthrightly thematize the connection between skill-based
learning and democratic empowerment, the prospect that students will fully develop strong senses of
transformative political agency grows increasingly remote.
Will Malson Normative Negative Page 8 of 13

Turn: Normative discussion is NOT educational (1/2)

First, Normative debate focuses on round-winning positions, which are unconnected to reality
Gordon R. Mitchell [Professor of Communications @ Univ. of Pittsburg. An NDT top speaker now
coaches debate at the University of Pittsburgh], “PEDAGOGICAL POSSIBILITIES FOR
ARGUMENTATIVE AGENCY IN ACADEMIC DEBATE”, Pages 5-6, Argumentation & Advocacy, Vol.
35 Issue 2, Page 45-46, 1998 (HEG)
Within the limited horizon of zero-sum competition in the contest round framework for academic
debate, questions of purpose, strategy, and practice tend to collapse into formulaic axioms for
competitive success under the crushing weight of tournament pressure. The purpose of debate becomes
unrelenting pursuit of victory at a zero-sum game. Strategies are developed to gain competitive edges
that translate into contest round success. Debate practice involves debaters "spewing" a highly technical,
specialized discourse at expert judges trained to understand enough of the speeches to render decisions.
Even in "kritik rounds," where the political status and meaning of the participants' own discourse is up
for grabs, (see Shanahan 1993) the contest round framework tends to freeze the discussion into bipolar,
zero-sum terms that highlight competitive payoffs at the expense of opportunities for co-operative
"rethinking."

Second, Normative discussion operates within its own system, equally as unconnected to reality
Pierre Schlag [Professor of Law @ Univ. Colorado, J.D., UCLA School of Law; B.A., Yale College],
“Laying Down the Law: Mysticism, Fetishism, and the American Legal Mind”, Page 37, Chapter: “The
Top 10”, Section: “#6. Post-Modernist Shadow Boxing”, Publisher: NYU Press, October 1, 1998,
ISBN-10: 0814780547, ISBN-13: 978-0814780541, italics in original (HEG)
The problem for legal thinkers is that the normative appeal of normative legal thought systematically
Will Malson Normative Negative Page 9 of 13

turns attention away from recognizing that normative legal thought is grounded on an ut-terly
unbelievable re-presentation of the field it claims to describe and regulate. The problem is that
normative legal thought, rather than assisting in the understanding of present political and moral
situations, stands in the way. It systematically reinscribes its own aesthetic—its own fantastic
understanding of the political and moral scene.

Turn: Normative discussion is NOT educational (2/2)

Third, Endorsing a normative advocacy is uneducational, as it draws us into a stagnant mindset of


accepting what the affirmative claims is correct by authority
Richard Delgado [Professor of Law @ The University of Colorado, J.D. 1974, University of California,
Berkeley (Boalt Hall)], “SYMPOSIUM: THE CRITIQUE OF NORMATIVITY: ARTICLE: NORMS AND
NORMAL SCIENCE: TOWARD A CRITIQUE OF NORMATIVITY IN LEGAL THOUGHT”, Pages 4-5,
Copyright (c) 1991 The Trustees of The University of Pennsylvania, University of Pennsylvania Law
Review, 139 U. Pa. L. Rev. 933, April 1991 (HEG)
B. Functions Associated with the Performative Quality of Normative Discourse The ability of
normative assertion to change the way we perceive reality was demonstrated by Stanley Milgram in an
experiment now considered a classic. n40 Milgram, a psychologist at Yale University, told volunteers
that they would be participating in an experiment on learning. In fact, the purpose of the experiment
was to see whether the subjects could be induced to violate their ethical norms and inhibitions. Each
subject was seated in front of a console with a calibrated dial, and told that by turning the dial they
would administer electric shocks to a "learner" seated in another room. The subjects were told in no
circumstances to turn this dial beyond a point marked with red -- doing so could administer a fatal dose
of electricity to the other subject. After the rules were explained, a second investigator, wearing a white
coat and an authoritative demeanor, entered the room and directed the subjects to turn the dials to
particular settings. Each time, a trained actor in the other room emitted a realistic groan or exclamation
of pain. The investigator directed the subjects to turn the dial to higher and higher settings and
eventually to exceed the point marked in red. A [*945] high percentage of the subjects cooperated with
the experiment, even administering what they thought might be a lethal dose of electricity. Afterward,
many subjects confessed to doubts about what they were doing, but said they went along with the
experiment because, "If he (meaning the high-authority doctor in charge) said it was all right, then it
must be so." Apparently, the investigator's assurances that administering pain was permissible and part
of the experiment actually changed the way they saw their behavior. n41 Ordinary life is full of similar
Will Malson Normative Negative Page 10 of 13

examples in which the mere pronouncement of something as normatively good or bad changes our
perception of it. The decision in Brown v. Board of Education n42 changed the way we thought about
minorities. Reagan and Reaganomics changed things back again. n43 During war, we demonize our
enemies, and thereafter actually see them as grotesque, evil and crafty monsters deserving of their fate
on the battlefield. n44 Later, during peacetime, they may become our staunch allies once again.

AT: Normativity is inevitable

The crash of normative legal thought is inevitable; the only question is when academics take note.
Pierre Schlag [Professor of Law @ Univ. Colorado, J.D., UCLA School of Law; B.A., Yale College],
“Laying Down the Law: Mysticism, Fetishism, and the American Legal Mind”, Pages 30-31, Chapter:
“The Top 10”, Section: “#6. Post-Modernist Shadow Boxing”, Publisher: NYU Press, October 1, 1998,
ISBN-10: 0814780547, ISBN-13: 978-0814780541, italics in original (HEG)
Here, I’m just trying to help this disenchantment process along. Of course, it’s not as if this process
requires a great deal of help. On the contrary, we are just this far [ . . .] away from recognizing that
contemporary normative legal though is a par-ticularly shallow language game: “language game” in the
Witt-gensteinian as well as in the ludic sense,16 and “shallow” in the sense of . . . well, shallow. The
normative jurisprudential world, built of arguments upon arguments upon arguments –just hang-ing
there on the threads of normative structures marked out with concepts like fairness, consent, oppression,
neutrality, and policed by aesthetic criteria like coherence, consistency, certainty, ele-gance—is about to
crash. More accurately, it has crashed, and it is just a matter of time before the entire legal academy
takes notice. Now, of course, it may take considerable time for the academy to notice.17 Indeed, it is one
of the vexations of the condition in the legal academy, as elsewhere, that various kinds of thought
remain socially and institutionally operative (in fact dominant) long after their intellectual vitality has
dissipated. And so it is with normative legal thought. It remains socially and institutionally operative
within the legal academy, though it is a jurisprudential world that has already crashed. The significant
question is when and how the legal academy will take notice.
Will Malson Normative Negative Page 11 of 13

AT: Wrong forum.

1. There is technically no “right forum”


Academic debate constantly changes so there’s no static filter we can use to exclude critical advocacies.

2. No impact
Insofar as I’m able to access my advantages it doesn’t matter whether my advocacy is considered to be
in the correct forum.

3. This is the right forum


Our forum is a public venue – if we have something discursive to say that fits the venue, such as a kritik
of normative debate, then it is the right forum.
Will Malson Normative Negative Page 12 of 13

AT: Nihilism

1. Incorrect analysis
I’m not saying we can never act, I’m only saying we shouldn’t normatively discuss actions when the
actions lie outside our agency.

2. Turn: Aff is nihilistic


Aff is nihilistic; Aff is attempting to extend our agency to a bureaucracy, which is outside of our reach;
the only way their advantages can come about is if “fiat” is no longer imaginary; as such it is imaginary,
rendering his discourse vacuous.

3. Turn: Aff destroys intellectual autonomy -- Nihilism is a vacant word for the fear of difference;
the affirmative discourse is destructive to intellectual autonomy.
Pierre Schlag [Professor of Law @ Univ. Colorado, J.D., UCLA School of Law; B.A., Yale College],
"Normativity and the Politics of Form”, “Symposium: The Critique of Normativity", Pages 831-832,
University of Pennsylvania Law Review, Vol. 139, No. 4, pages 801-932, April 1991 (HEG)
As it has been transmitted to us, then, the opposition between normative legal thought and nihilism is
not particularly helpful to our attempts to understand normative legal thought. Because in this opposition
normative legal thought is everything and nihilism is virtually nothing, it is not clear at all what we
could possibly gain by thinking of normative legal thought in opposition to nihilism. Nihilism seems to
be the linguistic marker for a sort of free-floating and diffuse orthodox fear of difference, a fear of
otherness. The very abstraction and vacancy of the term "nihilism" in legal thought depletes the term of
any rich contrast by which to under-stand normative legal thought. Nonetheless, something valuable can
be learned from the encounter with this opposition. What can be learned from the experience of both
realist and cls thinkers is that attempts to question the orthodox form of legal thought are likely to
Will Malson Normative Negative Page 13 of 13

prompt nihilism-fear. We are so accustomed to demanding value judgments and normative stances in
legal thought that any intellectual approach that risks displacing or disorienting the normative system
that enables these value judgments and normative stances is likely to leave us with nihilism-fear. This
fear, in turn, is likely to lead us to resist, distort, and reject any approach that risks destabilizing our
normative commitments and the conceptual approaches that sustain them.87 Hence, legal thinkers
routinely think that they are already in possession of a rational mode of thought that enables meaningful
normative legal dialogue. In simpler terms, legal thinkers always already think that they are at another
fork in the road. This pre-reflective commitment of the legal thinker has significant anti-intellectual
consequences that dramatically limit what can be thought and what can be asked. If we are going to get
anywhere in legal thought, serious effort will have to be devoted to impairing the comfort of our own
pre-reflective commitments to this engrained tendency to jurisprudential happy talk.88

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