Theory FAIL

[In a certain type of literary criticism] there is simply the conviction that the facts exist in their own self-evident shape and that disagreements are to be resolved by referring the respective parties to the facts as they really are. In the view that I have been urging, however, disagreements cannot be resolved by reference to the facts, because the facts emerge only in the context of some point of view. It follows, then, that disagreements must occur between those who hold (or are held by) different points of view, and what is at stake in a disagreement is the right to specify what the facts can hereafter be said to be. Disagreements are not settled by the facts, but are the means by which the facts are settled...
-"What Makes an Interpretation Acceptable?" in Is There a Text in This Class?, 338.

What's wrong with these assertions by Stanley Fish? Disagreements are indeed not settled by the facts, but are the means by which the facts are settled--I have no problem with that. But is this the same thing as saying that what is at stake in a disagreement is the right to specify what the facts can hereafter be said to be?
I don't think so. Why? Disagreements in critical activity concerning the facts of a text may be the means by which we actually produce the facts that we are referring to in our disagreement. All this outlines is a process by which the facts--indeed the texts themselves that are under consideration--are produced or constructed by the effort of referring to them as evidence for one's criticism, rather than just pre-existing elements that are simply taken up. Facts, in other words, are not cited or pointed to from the outside, from a position that is not also complicit in setting them up, in construing them, in arranging them--in short, in producing them themselves.
But this does not mean that what a disagreement is about in being a disagreement about the facts is the right to produce these facts. Facts can be produced, rather than be pre-existing things, but this claim alone does not prove that any contestation about the facts can't still be about those facts themselves. And even if it isn't about the facts themselves, but about the process by which the production of a fact goes about its business, this again does not prove that the contestation contests the right of the process to proceed as it does. The process of producing a fact--of citing it as evidence, in the sense we've elaborated alongside (and in agreement with) Fish--is not the same thing as the assertion of a right or an authority to produce. In fact, this process could even produce an assertion of the authority of this process itself, and it still would not mean that the process itself was an assertion of its right.
It is the slippage between these two things that will allow Fish to appear (if you take him seriously) to take apart countless numbers of critics, groups, institutions, or basically just anyone or anything he wants to appear to destroy over his long career (he still does it). If he kept to himself, as he does in his best work, that would be fine, but it is the need to force the slippage here onto others that is wrong, because it is done so easily and can sound legitimate if it is voiced with enough authority (and Fish doesn't lack that). All Fish has to do is claim that your reference to a text is also an assertion of your right to refer to that text--and then treat this claim as if it means that your reference to a text is precisely the same thing as your assertion of your right. So he can move on two levels, grabbing people who are merely referring to a text or pointing out a fact, and then, by saying that they are claiming something more than this (to which they will probably admit merely because they are trying to account for unforeseen possibilities of what they say--though it doesn't really matter for Fish either way), and then gobble them up by proceeding as if this act of claiming more is precisely that of asserting a right to claim something more.
And asserting this right is, for Fish, always a question that can be settled by referring to whether these people (whoever they are) do have this right or not--that is, by referring to what their "job" stipulates, such that they are either "doing their job" or "doing something other than their job" (claiming a right that actually is the right of someone else). In the case of critics, asserting this right will be a question of whether a critic is demonstrating "competence"--that horribly vague term--such that she or he can be considered the member of a community of people who are supposed to possess the right she or he is claiming: a particular community of critics.
And what exactly is the "competence" of this community? Nothing other than the way that they claim the right that they appear to possess. The "competence," then, of an interpretive community is really a non-concept, or (what is better) a tautology, even if, as Fish will always claim, it is composed of a "set of practices," and--what's more--this is so even if we can indeed enumerate various practices that critics actually engage in. For in reality, this "set of practices" can really mean anything (any collection of practices), so long as they together are seen by Fish as demonstrating this "competence;" in other words, so long as they constitute the precise ways in which a community, appearing to possess a right, claims the right it appears to possess--or, put more simply and more accurately, the way a community, appearing to possess a right, appears to possess a right.
Notice, then, that this way that a certain community of critics will claim a right--their demonstration of "competence"--is not at all the same thing as their all having a similar way of producing or referring to the text (put differently, their way of having this similarity is precisely the practice that Fish can't account for). They can produce the text or refer to it in a particular way, but have a way of asserting their rights (if we really think that rights are asserted) that is different than this process of production. If Fish blurs the distinction between producing a text and claiming the right to produce a text, he also blurs the distinction in the opposite way: that is, between claiming the right to produce a text and producing the text. As we can see, the entire concept of an "interpretive community," with its insistence on "competence" and "practices," is constructed to do this work in the opposite direction.
This all occurs, though, because of that first move: taking the act of producing the text or facts that one is referring to--that is, taking these facts not as pre-existent before this reference--as the assertion of a right to produce those facts. In other words, it is seeing the act of not taking facts as pre-existent as a something that is (and this is the crucial part) "irreducibly interpretive," as Fish in the essay we are considering (but it is wherever he talks of "right") will go on to say ("text, context and interpretation all emerge together, as a consequence of a gesture (the declaration of belief) that is irreducibly interpretive," 340). In other words, the assertion of a right to (or--they are the same for Fish--the declaration of belief that one can) construe or produce a text in a certain way is the very same thing as the act of construal itself because this assertion (or belief) itself is interpretive. Claiming a right and what one does in the act or gesture are both interpretive acts.
But, I would object, this remains a really, really impoverished concept of what the assertion of a right or the declaration of a belief actually is, or in what they consist. "Irreducibly interpretive" here means that at some point, all that this assertion of a right or a belief consists in is in being the same as the procedures by which we refer to a fact. But wouldn't admitting the reference itself to a fact is distinguished from the assertion of a right be precisely that which allows for a rich assertion of right or belief? Indeed, Fish is claiming that insofar as we maintain that there is anything there to which we are pointing or referencing, we have a belief or are asserting a right. But isn't this belief--the belief that we are indeed pointing to something--a different sort of belief than a belief about something, or a claim to a right concerning something? To deny this difference is to say that something more like the expectation of the success of an action is the same thing as a profession of faith. All that a belief like this would be about would be that it is a belief about something. And this is just absurd, because if this were the case it would precisely require the revaluation both of belief (or the assertion of right) and the act of reference not merely in terms of each other, which would still presuppose their difference. And this Fish adamantly refuses to do (in precisely making them both merely the display of "competence," or an "interpretive community" at work). It seems clear to me that we can and probably must distinguish the procedure of interpretation from the assertion of a right to interpret, rather than, like, Fish, trick people into thinking we are using their sense of these words by entertaining their difference and then trying to expose them as fools by suddenly using them interchangeably.