History, Memory, and the Law

Analogical Reasoning and Historical Change in Law: The Regulation of Film and Radio Speech

Analogical Reasoning and Historical Change in Law: The Regulation of Film and Radio Speech G. Edward White I Two recurrent questions have surfaced in the efforts of scholars to arrive at a more precise formulation of the relationship of law to its social context. Are legal doctrines and legal institutions the equivalent of cultural artifacts, embodying and reflecting the context in which they are situated, or do they possess some intrinsic professional features that endow them with a degree of autonomy and insulation from that context ? And, if one concludes that law retains a dimension of autonomy and insularity from the larger culture, where are the sources of that autonomy located? An adequate understanding of the above two questions has been obscured by a persistent tendency among lawyers, in writing about their own profession, to give a celebratory spin to the autonomy of law, and an equally persistent tendency among social historians to react against that spin. On the one hand we have Roscoe Pound emphasizing "the tenacity of a taught legal tradition" in order to argue that judges from different class and regional backgrounds nonetheless cohered around a set of doctrinal principles in tort law. Pound's message was not simply that legal decisions could not be made fodder for crude "economic interpretations" of American history; it was also that the "taught legal tradition" signified fidelity to a higher set of established HISTORY, MEMORY, AND THE LAW precepts and principles that made law more than simply a mirror of current social attitudes.1 On the other hand we have Lawrence Friedman announcing, in his History of American Law, "This book treats American law ... not as a kingdom unto itself, not as a set of rules and concepts, not as the province of lawyers alone, but as a mirror of society. It takes nothing ... as autonomous, everything as relative and molded by economy and society."2 Friedman's refusal to treat law as "a kingdom unto itself" and as "the province of lawyers alone" suggests that he has been provoked by the implication, in commentators such as Pound, that only those versed in "the taught legal tradition" can understand its significance , and thus the history of law can only properly be written by lawyers. Friedman also refuses to characterize law "as a set of rules and concepts." Presumably he is rejecting the notion that there is a "taught legal tradition" possessing the causative power assigned to it by Pound. Pound's "taught tradition" assumes that legal decisions are expressed in a distinctive professional discourse containing its own concepts, vocabulary, patterns of reasoning, and codes of implementation , and that the subjects of the decisions, although based on the raw materials of society at any point in time, are given legal significance by the discourse. Recent work on the relationship of law to its social context appears to have largely abandoned the idea that law can be viewed entirely as a "mirror of society," containing no autonomous elements. Robert Gordon , for example, has argued that "legal forms and practices" do not simply "shift with every realignment of the balance of political forces," but rather "tend to become embedded in 'relatively autonomous' structures that transcend and, to some extent, help to shape the content" of social issues. Gordon recommends "study elaborating [the] peculiar internal structures" of legal discourse. Similarly Duncan Kennedy has sought to identify "legal consciousness as an entity with a measure of autonomy." Kennedy defines legal consciousness as "the body of ideas 1. Roscoe Pound, "The Economic Interpretation and the Law of Torts," Harvard Law Review 53 (1940): 365, and The Formative Era ofAmerican Lau' (Boston: Little, Brown, 1938), 82. 2. Lawrence M. Friedman, A History ofAmerican Law (New York: Simon and Schuster , 1973), 10. ANALOGICAL REASONING AND HISTORICAL CHANGE IN LAW 285 through which lawyers experience legal issues," a "set of concepts and operations that evolves according to a pattern of its own."3 Let us assume the validity of this conception of law as "relatively autonomous," situated in a cultural context but at the same time possessed of an internal professional consciousness and discourse, as a working hypothesis. Then let us see if we may derive from that hypothesis a more precise sketch of the relationship of the social meanings of events-the process by which events in a culture are translated into social issues-to the legal meanings of those events. II. The Role ofAnalogical Reasoning...