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An Old-Fashioned View of the Nature of Law
James Boyd White
Theoretical Inquiries L. Vol. 12, no. 1 (2011): 381-402
Excerpt: pp. 387-389
II. TENSIONS IN LEGAL THOUGHT AND EXPRESSION
Exactly what are the tensions of which I speak, and how do they work? How are they to be addressed? What does it mean that the law is built upon them? These are my next questions.
I should tell you at the outset that much of what I am going to say about them may seem very basic. Indeed it is basic. At one time perhaps we could even have taken much of what I am going to say for granted. At the time when I was a student and a young lawyer this set of perceptions might not have been wholly conscious, but I think it was there in the legal culture, and did not need stating. This is why I call it an old-fashioned view of law.
A. Between Legal Language and Ordinary Language
It may help us uncover some of the tensions upon which legal discourse is built if we think of a day in the life of the lawyer I was preparing to become, starting with the moment when the client comes into our office seeking our help.
This client – whether a person or corporation or government body will have a story to tell and a language in which to tell it. Perhaps he will tell us about domestic violence that he or his children have suffered; perhaps about an idea that he and two others have for forming a corporation that will create and sell computer software; perhaps about the bank’s threat to foreclose the mortgage on his house.
The problem can be mundane and ordinary, or sophisticated and rare, but in any case our client will have his own sense of what is wrong, of what he wants, and of after all, only when he sees that he needs help.
His story will be cast in his ordinary language, the way he usually thinks and speaks. Our job is to listen to him talk in his language, and then to ask questions that will prompt him to say more. For our knowledge of the law should enable us raise issues that he will not have thought of, and in this way encourage a fuller statement of his story in the language of the law.
When is his story complete? When do we have everything we need to know? A very good question. The sea of possibly relevant facts is infinite, and there is no clear way of knowing when we have enough. In such conversations there is a circular dependence between facts and law: the facts determine what law is relevant, the law determines what facts are relevant. In principle we could go on forever, but we stop when we think we have enough to enable us to develop his case.
No rules could tell us when we have reached this point; our sense of completeness is a judgment we gradually make, as we go back and forth between his story and what we know of the law. It rests upon our educated intuition.
Our second task will be to translate what we have been told by our client into legal language. This requires us to go from his or her language to the law and back again, over and over, checking both his story and our translation of it. As with all translations, this process is inherently imperfect and distorting. It cannot be done to a formula or rule, but requires the exercise of an art.
Sometimes the gap between our languages seems on the surface rather small, for example at closing argument, when we are speaking to the jury and do so in a language as close to ordinary English as we can manage. Sometimes the gap is enormous. When our client hears us make an argument about choice of law – maintaining, for example, that Nebraska law should apply, not Iowa law, or federal law rather than state law – she may not see any connection at all with the problem she brought to us. But the choice of law problem, ifit is a real one, is one ofthe ways the law gives meaning to her case. It may even be that what this case will ultimately stand for in the law is a new and persuasive approach to choice of law, something she may not care about at all.
Our first tension in the law, then, is the one between ordinary and legal language. The lawyer has to speak both languages; he or she has to translate, as well as possible, both ways, into the law and out of it, a process that is at every stage defective or imperfect. Sometimes the defect will be fatal: we will simply not be able to say in the language we are given what we think should be said about this case.
This tension can be found not only in interviews with the client, but throughout the process, and in many forms: in the lawyer’s examination or cross-examination of lay witnesses, for example; in her closing argument to the jury, who are of course untrained in the law; and even in her arguments with the opposing counsel and to the judge, for it is common there to resort to ordinary life and language for images with which to make a point. Everyone wants to be able to say in ordinary terms what she is saying in legal terms, and vice versa.
This tension is made more difficult by the existence of a related one, between language of any kind at all and the mute world of inexpressible experience. In an important sense the client’s story can never fully be told even in ordinary English. There is always a level of experience that cannot be adequately expressed in any language: what a broken arm actually feels like, for example, or the helpless rage and agony of seeing your children hurt by your spouse, or the mute sense of outrage or betrayal at a business partner’s disloyalty. Everything that we say, in any language, floats as it were on a sea of inexpressible experience.
So we face not only a tension between legal and other forms of language and expression, but a tension between the world of words and the world of mute experience that underlies it.
These tensions are inherently unstable, never fully resolvable. Responding to them is not a matter of logic, or ends-means rationality, or conceptual analysis, but requires an art, an art of language and judgment.
7 1 owe this observation to Professor Albert Sacks, who made this illuminating comment in a classroom more than 45 years ago.
8 This appearance can be illusory. Beneath the surface of ordinary English one can often discern important legal judgments and arguments.
9 In such a case we are effectively silenced. I discovered this when I represented a young man who refused induction into the armed services on the ground that the compulsory medical treatment he would receive in the service would violate his religious beliefs. He was not a draft dodger, but a kind of misfit in the law. I imagined myself making a grand argument to the jury, urging them to do justice to his case, but then realized that under the relevant statute the only question before the jury would be whether he had refused induction. The issue of the propriety of his draft classification was for the court, which was in fact required to affirm if the classification was supported by any basis in fact. If the case had gone to trial I
would have nothing at all to say to the jury. For more about this case, see JAMES BOYD WHITE, THE LEGAL IMAGINATION 187-95 (1973).