Normative Negative

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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

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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

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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

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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 spatiotemporal 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

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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

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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.

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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.

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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

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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

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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.

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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.

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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

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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