San Diego Law Review
We must begin with a sense of what theory is, and I shall derive mine from a question Herbert Wechsler often put to his students. "Ask yourself," he would say, "'Would I reach the same result if the substantive interests were otherwise?"" The challenge of the question is to the student who has determined where the right lies in a disputed matter, and who now must demonstrate that, even if every circumstantial particular of the case were varied-if the plaintiff were a woman instead of a man, if the object of hate speech was a descendant of someone who came over on the Mayflower rather than the descendant of a slave, if the publication subject to regulation were The New York Times rather than Hustler, if the organization requesting a permit were the Salvation Army rather than the Aryan Nation-both the result and the reasoning leading to it would be the same. This requirement, in all its severity and stringency, is the theory requirement, the requirement that cases be decided from a perspective-sometimes called the forum of principle, the realm of neutral principles, or the view from nowhere-unattached to any local point of view, comprehensive doctrine, partisan agenda, ideological vision, or preferred state of political arrangements. For some years now, I have argued that there is no such perspective, and that the abstractions usually thought to be its habitation are empty of content. Of
course, that is in fact another way of formulating the theory requirement-that it be empty of content. The theory of the kind I am interested in-grand theory, overarching theory, general theory, independent theory-claims to abstract away from the thick texture of particular situations with their built-in investments, sedimented histories, contemporary urgencies, and so on, and move toward a conceptual place
purified of such particulars and inhabited by large abstractions- fairness, equality, neutrality, equal opportunity, autonomy, tolerance,
diversity, efficiency-hostage to the presuppositions of no point of view or agenda but capable of pronouncing judgment on any point of view or agenda. When faced with opposing courses of action or conflicting accounts of what the law demands, one can ask of the contenders, "Which is most responsive to the imperative of fairness?" or "which most conduces to the achievement of equality?" or which will promote the greatest diversity?"
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol37/iss3/9