Two Stanleys and Two Types of Talmudist: Comment on the 1992 Carl Vinson Lecture—"A Conversation between Profs. Fish and Hauerwas on the Character of the Law"

The Talmud tells of a dispute among the Babylonian sages over who should head the rabbinic academy at Pumbedita. One side stumped for Ray Joseph. Alluding to his encyclopedic knowledge of traditional teachings stretching all the way back to Mount Sinai, it proclaimed, "Sinai takes precedence!" To that, the other side countered, "The uprooter of mountains takes precedence!" Its choice was Rabbah, a scholar of legendary skill at argumentation-sharp enough, it was said, to overturn even practices enjoined at Sinai long ago. Wonder what Rabbah's conception of law practice might look like seventeen centuries later?

Then take a look at Stanley Fish's notion that a practice earns its distinctive place in the world through acts of intellectual inventiveness. Says Fish, the practice of law does not stand or fall on some correspondence to an "ideal template or model, whose true home is the mind of God, or a realm of Platonic ideas." Instead, practices like law depend for their continuing existence on a kind of performance art, a linguistic tour de force of elaborating "the vocabulary which rather than matching up to antecedent facts, obligations, interesting problems, produces facts, obligations, and interesting problems."