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  • 2/15/2006

Justice as Translation:

An Essay in Cultural and Legal Criticism
James Boyd White

Product Details:
Format:Paperback, 313pp
Pub. Date:October 1994
Publisher:University of Chicago Press
Edition Description:Digital Reprint
Barnes & Noble Sales Rank:517,809


A pioneer in the law and humanities, James Boyd White here develops a way of criticizing the work of judges that he then uses as the basis for a more general method of cultural criticism. White argues that analytic philosophy and economics are inadequate as modes of legal criticism. He turns instead to the practice of translation to expose the intellectual and ethical center of legal experience and to connect it with other forms of cultural action. The unified vision of law and cultural process defined in this book provides a ground both for the criticism of law and for a general understanding of the ways in which we negotiate our identities and build our communities through language.



In an easily accessible style, White (law, English, and classics,U. of Michigan) explores the cultural and political significance of language--particularly that of analytical philosophy and of economics--as used in the legal interpretation and composition of judicial opinions--particularly Supreme Court opinions dealing with race inAmerica. Our test shows acidic paper although alkaline paper is claimed. (booknews.com)

John Brigham

This is a collection of essays by James Boyd White, professor of law, English and classical studies at the University of Michigan. He is one of the foremost proponents of the interpretive approach to law which draws its method from literary criticism and ordinary language philosophy. Most of the essays appeared before, in law reviews during the mid to late 1980s. They have been woven into a book designed "for the general reader." The book begins with the philosopher Ludwig Wittgenstein's claim that, "To imagine a language means to imagine a form of life." White applies the view of language behind this claim to law. He presents this unconventional perspective clearly and provides an introduction to the field in this collection just as he has since he organized the cases and materials which he called THE LEGAL IMAGINATION around the theme almost twenty years ago. Along with another casebook by William R. Bishin and Christopher D. Stone, and a few monographs, White followed the lead of H.L.A. Hart to show Americans the jurisprudential insight to be gained from the study of language. JUSTICE AS TRANSLATION is in three parts, "Looking at our Languages," "The Judicial Opinion as a Form of Life," and "The Activity of Translation." These are wonderful divisions. He treats the nature of language and some specific applications to law first and then turns to the most pervasive form of legal language, the judicial opinion. The summary chapter on the judicial opinion could be a fine introduction for political scientists -- who have often been more hooked on opinions than have lawyers. Finally, there is a short concluding section that explains the translation idea and links it to White's quest for justice. The treatment of "The Language and Culture of Economics" or the discourse of the Law and Economics movement in law in Chapter 3 is particularly useful for political science be- cause it applies the analysis of language to a conservative political movement that has very successfully spread itself through the institutions of law. This sort of interpretive attention to the movement carries both an implicit and an explicit critique. Simply by interpreting law and economics claims in this way White brings a critical self consciousness to what movement proponents would have taken as science. Here, he goes further and calls attention to the tragic absences due to the formalism of movement discourse. Page 83 follows: The middle seven chapters or the bulk of the book focus on judicial opinions explicating such things as "original intent," search and seizure, the exclusionary rule and other constitutional concepts. This is always done with an eye to something deeper -- precedent, meaning, "the constitutive character" of legal doctrine in the case of the exclusionary rule, and judicial opinion itself. The insight to be gained from the interpretive approach comes from treatment of all these concepts in terms of forms of life. For instance, with regard to the exclusionary rule, White shows how the rule has defined the various actors that it addresses, the citizen, the officer, and the court. In doing so he criticizes the propensity to see the rule as a secondary deterrent to official violation rather than a primary and substantive part of the Fourth Amendment. In fact, White finds the "exclusion" more central to the amendment than the procedural protections -- probable cause, warrant, specificity. These have been treated as the heart of the protection under a formalist framework because they are mentioned in the text of the Constitution. Here, the community that is constituted by language as a form of life would be the heart of the protection rather than the text. In the thematic discussion of the judicial opinion White clarifies his view on forms of life. This involves explaining the extent to which he believes language constitutes social relations. This discussion helps us to understand the extent to which learning to talk like a lawyer is transformative. White takes the position that the legal form of life is like art not bureaucracy so that "different lawyers and judges present different versions of their common language" (pp 215-216). In my view, this amounts to a relatively weak picture of language which amounts to an unwillingness to go all the way with the Wittgensteinian proposition. Wittgenstein would have said that in a language there are different expressions or concatenations of the words but the language is one, thus the form of life is one, if it is a form of life. White's perspective is an opening for "many voices." This is an orientation that is quite evident in his conclusion where he wants to make language do a normative kind of work. Thus, the claim "reflection on the nature of language is a way of talking about "excellence in law, and excellence beyond it as well." This, however, is the kind of work Wittgenstein was attempting to get away from. Those working within a Wittgensteinian framework have had to choose the sort of work they would have the framework do. For many it has been an invitation to relativism, a new expression of contesting values with which social science has been so comfortable, particularly in America. This is the "many voices" group in which I would place theorists like William E. Connolly, Michael Shapiro and lawyers like Martha Minow and Carrie Menkel-Meadow. For others, like Sanford Levinson, Stanley Fish, and Timothy O'Neill, the insight about Page 84 follows: forms of life with which White begins has been an invitation to seriously investigate the constitutive quality of systems of meaning. These scholars have focused on the communities within which language was embedded and they lay the basis for sociological investigation of the connection between social relations and symbols. Identifying as a Jamaican or a lawyer, whether in America, Jamaica, or somewhere else, is hardly a relative matter. Yet, this is exactly the sort of thing Wittgenstein meant when he said "imagine a form of life." He didn't mean having an opinion, or a political orientation; he meant having an identity. While White begins with "forms of life," he proceeds to suggest we create them. Of course, as a society we do create forms of life, but not as individuals. That is, the process of linguistic change is a social rather than an individual activity. The tragedy of the path White takes is that this choice comes at the end of an illuminating journey which, like language itself, is wonderfully rich even if it doesn't go where one might want it to go. He puts to rest our inclination to see language as neutral. White amplifies the work of the later Wittgenstein and embraces a community of kindred spirits. His erudition is joyful and current. Yet, he has chosen the legal academy as his form of life and the result is less self-conscious to the scholarship on interpretation than one might hope for. While he pays little attention to Stanley Fish, he pays no heed at all to such influential figures as Levinson and Stephen Mailloux. This is unfortunate. Nevertheless, White's engagement in the contemporary life of jurisprudence is useful to political scientists as long as we recognize that his place is well within the legal community.

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