James Boyd White

Law as Rhetoric, Rhetoric as Law: The Arts of Cultural and Communal Life

In this paper I shall suggest that law is most usefully seen not, as it usually is by academics and philosophers, as a system of rules, but as a branch of rhetoric; and that the kind of rhetoric of which law is a species is most usefully seen not, as rhetoric usually is, either as a failed science or as the ignoble art of persuasion, but as the central art by which community and culture are established, maintained, and transformed. So regarded, rhetoric is continuous with law, and like it, has justice as its ultimate subject. I do not mean to say that these are the only ways to understand law or rhetoric. There is a place in the world for institutional and policy studies, for taxonomies of persuasive devices, and for analyses of statistical patterns and distributive effects. But I think that all these activities will themselves be performed and criticized more intelligently if it is recognized that they too are rhetorical. As for law and rhetoric themselves, I think that to see them in the way I suggest is to make sense of them in a more nearly complete way, especially from the point of view of the individual speaker, the individual hearer, and the individual judge.

“Our meanings can never be the same”: Reflections on language and law

For me it is a starting point in all thought about language that, whatever I say or do with words, my expression will never mean exactly the same thing to you that it does to me; and of course yours will never mean exactly the same thing to me that it does to you. It cannot: each act of expression is a gesture against a context; it derives its meaning largely, perhaps entirely, from its relation to that context; and for each of us the context of every gesture is different, if only because one of us is doing it, the other observing. Think of the tennis game, and how differently the same shot is experienced by you and by me. From your point of view, having made the play, the ball disappears across the net into the larger scene from which it is about to be returned; for me, the ball emerges from such a scene to become increasingly the object of focus and potential action. For you the shot is something done; for me it constitutes a challenge: Can I respond? This is to focus on the difference between the sender and the receiver, between the person who writes words in her study, on a pad, then sees them printed and sent forth into the world to merge with all the other books and articles out there, and the other person, who finds this book or article among the others, idly glances at it, or chooses to read it with care, and thus locates it within the world of the other texts that he has known. This is one difference, but not the only one, for our sense of context and action is different in many other ways as well: our sense of the words themselves is different, for they have different histories for each of us; our sense of the way words are related by syntax varies too, since, as any language teacher knows, we inhabit different syntactical worlds; and our experience of the natural world, of other people, of institutions, of other gestures on other occasions-all of which provide parts of the context against which the particular performance occursvary too. My meaning can never be your meaning; all writing is a way of addressing, or avoiding, that fact. It is this theme that I wish to pursue in responding to the various articles written about my work, beginning with that by Eugene Garver.

An Old-Fashioned View of the Nature of Law

The law is a not an abstract system or scheme of rules, as we often speak of it, but an inherently unstable structure of thought and expression. It is built upon a distinct set of dynamic and dialogic tensions, which include: tensions between ordinary language and legal language; between legal language and the specialized discourses of other fields; between language itself and the mute world that lies beneath it; between opposing lawyers; between conflicting but justifiable ways of giving meaning to the rules and principles of law; between substantive and procedural lines of thought; between law and justice; between the past, the present, and the future. Each of these tensions is present whenever a lawyer or judge goes to work. None of them can be resolved by resort to a rule or other directive, but must be addressed anew by the lawyer and judge in each case as it arises, by the exercise of an art of language and mind that is defined by the nature of these tensions themselves.

The Fourth Amendment as a Way of Talking about People: A Study of Robinson and Matlock

One way to regard what the Supreme Court has done in the cases it has decided under the Fourth Amendment is to say that it has created a specialized discourse of adjudication, a language in which it can talk about and dispose of the repeated conflicts that arise between an officer engaged in the process of crime control and a citizen upon whose freedom or security he intrudes. The events which bring these two figures together are bewildering in their variety and complexity, and the claims on each side are deeply felt and strenuously made. It has not been easy for the Court to work out a coherent way of addressing these conflicts, and the cases accordingly reflect a considerable amount of uncertainty and confusion, especially if one examines the particular results. Can there be found, behind the complex and inconsistent surface of the cases, any general continuities of attitude, any agreed-upon and more or less permanent ways of defining the roles of officer and suspect and of regulating the relationship between them? Such definitions - if they existed in forms of which one could approve - would constitute an important social and intellectual resource, potentially serving as an expression of value and attitude of a far more stable and enduring kind than might at first be thought possible from examination of the cases themselves. I propose to trace some of the difficulties the Court has faced in trying to fashion a coherent discourse of Fourth Amendment adjudication, and to identify certain continuities of attitude. It is against this background that I examine United States v. Robinson and United States v. Matlock, as contributions to the discourse of the Fourth Amendment.

What's Wrong with Our Talk About Race? On History, Particularity, and Affirmative Action

One of the striking and original achievements of the Michigan Law Review in its first century was the publication in 1989 of a Symposium entitled Legal Storytelling. Organized by the remarkable editor-in-chief, Kevin Kennedy - who tragically died not long after his graduation - the Symposium not only brought an important topic to the forefront of legal thinking, it did so in an extraordinarily interesting way. For this was not a mere collection of papers; the authors met in small editorial groups to discuss their work in detail, and as a result the whole project has a remarkable coherence and depth. In this Essay I shall build on the idea of that Symposium, but do so in a rather different way from any of those who wrote for it.

Human Dignity and the Claim of Meaning: Athenian Tragic Drama and Supreme Court Opinions

I am going to bring together what may seem at first to be two extremely different institutions for the creation of public meaning, namely classical Athenian tragedy and the Supreme Court opinion.1 My object is not so much to draw lines of similarity and distinction between them, as a cultural analyst might do, as to try to capture something of what I believe is centrally at work in both institutions, in fact essential to what each at its best achieves. I can frame it as a question: How is it that the best instances of each genre (for I will be talking only about the best) work to resist the ever–present impulse to trivialize human life and experience–certainly well known in our own era-and instead confer upon the individual, and his or her sufferings and struggles in the world, a kind of dignity? I think that something like this is in fact the core of the most important achievements of both institutions, and that in both cases it is simultaneously imaginative (or literary) and political in nature.