The Rhetoric of Law

Imagining the Law

Imagining the Law James Boyd White My aim in this paper is to trace out a certain line of thought about what it might mean to think of law rhetorically.l In doing this I shall be resisting the impulse, quite common in our culture, to see the law from the outside, as a kind of intellectual and social bureaucracy; rather I am interested in seeing it from the inside, as it appears to one who is practicing or teaching it. Throughout I shall conceive of the law as a system of discourse that the lawyer and judge must learn and use, and of which we can ask what meanings it createsor enables us to create-for our individual and collective lives. Ways of Imagining the World I wish to begin with the basic point that as human beings we perpetually imagine and reimagine the world and reflect what we imagine in the ways we talk. If I start to talk or write about an academic institution, for example-about Amherst College, say, or the University of Michigan-I will immediately begin to define that institution in a certain way: as a place where classes are given, or where The discussion of the poetry of Robert Frost is drawn in part from my book, IIThis Book of Starres": Learning to Read George Herbert (Ann Arbor: University of Michigan Press, 1994). 1. For especially valuable work on the way we imagine the world, see Kenneth Boulding, The Image: Knowledge in Life and Society (Ann Arbor: University of Michigan Press, 1956), and Northrop Frye, The Educated Imagination (Bloomington: University of Indiana Press, 1964). For a fuller statement of my general views on rhetoric and law, see IIRhetoric and Law: The Arts of Cultural and Communal Life," in James Boyd White, Heracles' Bow: Essa.ys on the Rhetoric and Poetics of Law (Madison: University of Wisconsin Press, 1986), chap. 2. 3° THE RHETORIC OF LAW young people complete their growing up, or as a competitor with other institutions, athletically or intellectually, or as the grantor of certain credentials. I cannot help imagining a past, as well as a future, for actors such as these-the roots of Amherst College in a nineteenthcentury reaction to the godless unitarianism of Harvard, for example, or of the University of Michigan in its early commitment to a new idea of the possibilities of graduate education. Often, of course, I will be unaware that the way I talk reflects a particular way of imagining. Usually I just talk, as though the world were the way I imagined it, and there were nothing problematic in my speech. But whatever we may consciously think, in fact all of us are constantly imagining the world. It is also true, though perhaps less obviously so, that when we talk or write we imagine both our audience and ourselves, and again this is so whether or not we are aware of it. I think of myself as simply giving a lecture, for example, or teaching a class, my students as simply attending one, as if all this were instantly comprehensible, not in the least odd nor the proper object of critical attention; yet these are in fact peculiar social practices, which people differently situated from us might find most odd. Despite our usual inattention to them it is possible to make our ways of imagining the world, and our action within it, the object of reflection. In fact, one of the functions of great literature, and I shall argue of the law as well, is to do just this, to make conscious, and thus render the object of critical examination, the ways in which our speech imagines at once a larger world that we claim to inhabit and an immediate world we create with our audiences. Consider for example this brief poem by Robert Frost: Range-Finding The battle rent a cobweb diamond-strung And cut a flower beside a ground bird's nest Before it stained a single human breast. The stricken flower bent double and so hung. And still the bird revisited her young. A butterfly its fall had dispossessed A moment sought in air his flower of rest, Then lightly stooped to it and fluttering clung. [To view this SRHP, refer to the print version of this title.] IMAGINING THE LAW On the bare upland pasture there had spread 0'ernight 'twixt mullein stalks a wheel of thread...