The Decline of the Fish/Mammal Distinction?

Abstract

The public/private distinction was “slain” in 1982. That year, at the Symposium of the University of Pennsylvania Law Review, Professor Duncan Kennedy set forth his six Stages of the Decline of the Public/Private Distinction, outlining the sequence by which liberal categorizations descend “from robust good health to utter decrepitude.”

Professor Kennedy’s famed article concerned the history of legal thought over the course of the twentieth century. He described that history as one of “decline”—not just of the public/private distinction, but of numerous other distinctions said to “constitute the liberal way of thinking about the social world.” He pronounced on the lifecycle of these ideas and the way in which they—and the public/private distinction in particular—had become unjustifiable in legal thought. It was “[h]ard cases with large stakes” that were the first sign of trouble, precipitating compromise until distinctions all but collapsed, only to be reanimated as “continua” or pro/con “balancing” formulae6 until they became something “we can’t believe in ... any more.”

In this Essay, I put to one side legal history and turn attention to the process of decline itself. For it is not only legal distinctions that are problematic. There are, indeed, many errant categorizations that fit the story of decline. My target is the so‐called fish/mammal distinction. “Fish,” it will be shown, is an indistinct category. But if it nonetheless remains acceptable for people (and biologists) to speak in terms of fish, might it be okay for people (and lawyers) to speak in terms of private law?

Keywords: QI, No Such Thing as a Fish, critical legal studies, legal realism, deconstruction, epistemology, theory of adjudication, public/private distinction, private law