212
Conclusion
Generally insensitive to context, legal analysis as it is reflected in judicial opinions
can leave out much that seems relevant to an assessment of whether justice has been
done. I cannot count the number of times that I have come to the end of an opinion
and been perplexed and dismayed because some essential fact or element seemed to
be missing. The opinion could not possibly contain the whole story. There had to be
something else about the particular circumstances
or the larger setting, which frames
it, that would have made the parties’ actions explicable or the courts’ rulings more
intelligible.
11
Auerbach comments that “relentless doctrinal analysis [has] . . . severely restricted
the range and depth of inquiry.”
12
Although the legal profession has typically sought to understand this restric-
tion as serving the ends of objectivity, the omission of some aspects of context and
not others has never occurred without subjective and socially shaped input. Elkins
notes:
A lawyer’s world view acts as a perceptual screen for incoming sensory data. Language
concepts [i.e., linguistic categories] screen and structure one’s perception and allow
one to organize information and experiences. . . . At the
most rudimentary level of
perception, then, what the lawyer characterizes as “out there” is not a true picture
of an objective event or scene but a personal and social assessment. This subjectivity
of factual data has significance for both the postulates of the legal system and for prac-
tical lawyering. The legal persona, with its particular world view, excludes a vast body
of information from its awareness.
13
This study provides empirical evidence supporting Austin’s and Elkins’s as-
sessments. We have excavated with some precision the ways morality and social
context are pushed to the margins of discourse, not only in the language of law
school
classrooms, but also in the legal discourse that is taught to students. In this
reformulation, law students learn to perform surface readings that in a sense gobble
up social context while preventing this kind of context from entering the core of a
legal approach to text.
The Genius and Danger of the Common Law:
A Language of Abstract/Concrete Reasoning
In Chapter 6, we briefly considered the relationship between this core legal approach
to text and aspects of capitalist epistemology. Social theorist Moishe Postone has
pointed out that there is a “double character” peculiar to capital, time, and labor
in capitalist societies: they exist as at once abstract and concrete categories.
14
The
“impersonal, abstract, and objective” mediation of the
abstract level conceals the
way people are disadvantaged, their concrete labor alienated or taken from them.
There is an appearance of freedom in that individuals are at “liberty” to sell their
labor power on the impersonal market, but in fact there are strong constraints lim-
iting individual freedom and bargaining power. As Postone notes, the move to an
abstract level in capitalist societies does actually open up some new, potentially
Legal Language and American Law
213
liberating
possibilities, freeing workers from the more direct compulsion and force
used to extract labor in feudal societies. At the same time, there is more risk that
the indirect form of compulsion will be concealed, leaving a false illusion of free-
dom to lull those in its sway.
Although the parallel is not exact, the legal epistemology discernable in law
school pedagogy also has an interestingly double quality, sweeping myriad con-
crete details into constantly developing abstract categories.
The legal system ap-
pears to provide an “impersonal, abstract, and objective” mediation of social
conflict, leading ordinary citizens to expect fairness and freedom to pursue jus-
tice through the courts.
15
Yet, as we have seen, this abstract level of legal discourse
can also conceal the injustices and power inequalities that continue to be enacted
through the legal system. Indeed, the move to abstract legal categories itself omits
some kinds of context while including others—thus actually perpetuating forms
of cultural dominance and invisibility while appearing neutral.
Thus, there is a danger that lies right beside a certain genius in the common
law system.
On the one hand, it contains a potentially liberating movement be-
tween abstract categories and concrete social detail that can erase some forms of
prejudice, insisting that people who are similarly situated with regard to doctrinal
categories be treated in similar ways. This opening has permitted people with less
social power than their adversaries to win some victories in court, appealing to
abstract legal doctrines surrounding concepts such as rights, with their at least
aspirational correlate of equal application. As Patricia Williams explains in her well-
known essay:
Rights are to law what conscious commitments are to the psyche. This country’s worst
historical moments have not
been attributable to rights
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