Law's tragedy

Abstract

Perhaps fullest expression of contrast between as a set of rules or as a bureaucratic system and as literature or rhetoric or language' is work of James Boyd White. In a series of books and articles, White has explored a cultural critique of by considering life of to be a kind of discourse that engenders a special kind of ethical and political community.2 While my main intent is critique, I want to begin by celebrating position that underlies what White calls literary or rhetorical character of law: fundamental recognitions that shapes perception and directs action, and that texts create communities. In White's words, law constitutes a world of meaning and action: creates a set of actors and speakers and offers them possibilities for meaningful speech and action that would not otherwise exist; in so doing establishes and maintains a community, defined by its processes of language (White 1990, xiv). While Professor White has been object of a variety of criticisms, I will focus on two criticisms that accept position that is fundamentally discursive, while expressing concerns about White's conception of role of power in communication. First is position represented eloquently by late Robert Cover-that, while is integrally interpretive, differs fundamentally from other interpretive activities because law, unlike literature or poetry or drama, is necessarily coercive.3 Since interpretation takes place in a field of pain and death, wrote Cover, its texts must attend to the conditions of effective domination (Cover 1986, 1601). Even violence of weak judges is utterly real-a naive but immediate reality, in need of no interpretation, no critic to reveal it (1609). A second, related, critique is that White's vision of community is insufficiently attentive to operation of law's ideological power. The problem is not that White ignores power or that, as Richard Posner would seem to have it, literature is but a sidelight to real operations of and legal institutions (Posner 1988). As White notes, whoever controls our languages has greatest power of all (1988, 747). His reaction has been to offer new ways to read and to write of power. My concern is that he does not account for resistance to change that is built into social form and social practice of legal discourse. Linguistic practices run deep;