Abstract
Coming from a gentle scholar if there ever was one, the first striking thing in James Boyd White’s latest book is the exhortatory character of its title. Keep Law Alive is not quite an imperative, but it is more than a simple suggestion. It is not the low-key, positive reinforcement known in behavioral economics as nudging, either. The exhortatory title expresses a deep wish and yearning, perhaps even an invocation, because in the face of current uncertainty and daily corrosion of the rule of law, there are no guarantees that law will be kept alive–and we cannot take it for granted that it will. The tone of the book is introspective and personal, and the hope, several times repeated in the foreword, sounds less optimistic and confident than on former occasions. Some readers might relish the prospect of a world without law, especially when law has recently been so frequently associated with oppression, victimization, repressive policing, criminalization, racial profiling, and class privilege. But the book shows that some of these forces do very well, and in fact thrive, in the absence of law. The book thus aims indirectly to reappraise law by showing us what we would lose if law were not alive to help in checking these forces.
A second noteworthy feature of the title is that the verb is not expressed in the gerund. The effect of the imperative mood of the verb appears to distance the book from the action it advocates. If so, what kind of action does the book perform? We will come back to this intriguing question later, but for now I suggest that the book functions more like a record of what law was, and can still be, if we are able to conjure from our practices something like “the genie of law.” At the same time, the threats that White identifies are so serious and prevalent that the lack of the gerund in the title may indicate a lack of confidence in the book’s own power to reverse course. Indeed, having diagnosed that the circumstances facing us today are as dire as those suffered by the Melians at the hands of the Athenians in Thucydides’ famous dialogue, it is hard to imagine how we can keep law alive.
White’s book hinges on a middle chapter (four) where law is presented as built upon a set of structural tensions continuously to be addressed. In the first two chapters, the art of law is illustrated; two other chapters follow (three and five) describing the forces threatening this art–racial inequality, wealth disparity, the logic of dehumanization, and the cost-benefit mentality colonizing it all. The book’s final chapter (six) concludes on a note of contemplation with Augustine’s Confessions, and a retelling of Antigone by Belgian author and noted jurisprude François Ost, who beautifully updates the tragic conflict in the context of a school ban on the Muslim veil.
If we want to keep law alive, the first thing to know is what about law is worth maintaining and carried forward. To put the matter differently: what exactly might we be losing if we fail to keep law alive? This question can confound the legal novice and the veteran alike, though for different reasons. People not trained in law bring the expectation that learning law is knowing the black-letter rules where law is written down; seasoned practitioners tend to be more cynical and realize that judges and other actors often dispense with the rules. For instance, the very influential judge and scholar Richard Posner argues that, deep down, legal questions are a matter of cost-benefit analysis and the rest is rhetoric. White’s manner of answering the question “What would we lose?” upsets both groups equally. To the novice he says: here is a short list of all the rules that you will learn if you take my course; you can memorize these in one hour at most; after this, whatever else you learn won’t be the rules (99 fn 11). To the seasoned judge and scholar he responds: what you contemptuously dismiss as “rhetoric” is nothing less than the entire world of law (120).
Let White’s response sink in for a moment, because therein lies the full spectrum of the law he wants to keep alive. Clearly, White does not mean by law particular statutes and regulations, nor concrete institutions, nor even the foundational principles of democracy and the rule of law (separation of powers, independent judiciary, due process, etc.), although he takes some of these for granted. Rather, he is concerned with law as an art of language and imagination—a form of life—that has the value of justice at its heart (xiv).
White’s first two chapters examine how this art comes to life in legal statutes and judicial opinions. As illustration, he selects the Modern Penal Code and several of Justice Holmes’s seminal First Amendment cases, but arguably he could have chosen any of thousands of statutes, opinions, legal briefs, or memoranda to the same effect (135). Concerning the Model Penal Code, White highlights the remarkable innovation of sorting out different degrees of culpability in order to calibrate blameworthiness. To us moderns, these categories may seem natural, almost obvious, but such a view hides the enormous historical novelty introduced in the legal universe by the Model Penal Code, which enabled lawyers and jurists to speak more intelligently than before.
White brings his appreciation of this novelty to bear on two early cases in First Amendment jurisprudence, whereby Holmes created an entirely new manner of thinking about protected speech, articulating the language of “clear and present danger” (Schenck) and of “free trade [and competition] of ideas” (Abrams). With what seems like an accident (33) and without full realization of its implications, Holmes exemplifies the genie of law: he found a way to give meaning to legal text by imagining the world, including himself and others in it, in a new and coherent way (36). But at the same time, White warns of language such as the “free market of ideas” becoming an unthought mantra, repeated uncritically without attention to the particularities of context, a form of dead language. For White, “legal knowledge” cannot be reduced to a program or set of techniques to be handed off to students like a bag of rhetorical tricks (42). Rather, it is a form of cultural competence, an art of language that engages the entire self and the imagination, even though sometimes the language and the people using it are hopelessly inadequate—as White more fully elaborates in chapter three when talking about our limited ways of addressing racial inequality, including in law school admission policies.
In the central chapter of the book, the most significant from a jurisprudential perspective, White develops the idea that law is built around a series of structural tensions. (An extended version of this chapter was published in a special Law and Humanities issue in No Foundations: An Interdisciplinary Journal of Law and Justice 9 (2012), edited by myself and M. López Lerma.) This is a powerful chapter, where White presents his own alternative to positivism, legal realism, sociological jurisprudence, and natural law. (At times the position comes close to Lon Fuller’s, but White is not interested in establishing a set of criteria of legality.) White’s framework is not a coherent conceptual system but a dramatic and dynamic rhetorical process (99), which keeps law in tension like the poles of a tent. (On the metaphor of the tent, see the reference to Robert Frost’s poem “The Silken Tent” in Living in a Law Transformed: Encounters with the Work of James Boyd White, J. Etxabe & G. Watt eds. (Michigan Publishing: Ann Arbor, 2014), editors’ introduction.) White mentions at least eight such tensions, but the list is not exhaustive: (1) between legal language and ordinary language; (2) between different specialized languages; (3) between opposing lawyers; (4) between competing versions of the law; (5) between substance and procedure; (6) between particular and general; (7) between law and justice; and (8) between the past, present, and future. The nonexhaustive character of the list is a marker of White’s jurisprudential style, profoundly skeptical of theoretical closures.
Rather than search in vain for law’s “necessary and sufficient conditions,” as many jurisprudes obstinately continue to do, White seeks to understand how law comes to life. For example, different jurisprudential schools give alternative answers to how judges must resolve legal disagreements. Hartian positivists (and realists) emphasize judicial discretion; Dworkinians speak of principles of moral and political philosophy; originalists speak about legislature’s intention; natural lawyers invoke natural conceptions of the good; institutionalists and pragmatists rely on analogy (92). White is less interested in adding his own voice to the mix than in establishing the fact that these tensions cannot be theoretically neutralized. They must be addressed afresh through an art of judgment, whereby an eventual resolution is, in Robert Frost’s words, but a “momentary stay against confusion.” In White’s jurisprudence, law does not speak a single language of authority but is many-voiced, working through translation (and mistranslation), confronting languages, actors, and perspectives across silences and inexpressible experiences. White opposes abstract, mechanical, impersonal, and bureaucratic conceptions of law, which narrow rather than broaden the human capacity for experience, understanding, and empathy. For White, to focus on law as a system and not on what happens when that system meets the world—and the people of the world–is to strip law of its difficulty, its life, its meaning, and its value (103).
This form of life is under attack, the book claims. Chapter five is a personal and politically charged indictment of contemporary America, but neither the setting nor the situation are uniquely American—and the symptoms and fallout are spreading like a contagious virus in the midst of a global pandemic. A first set of phenomena centers around economic inequality and the accumulation of vast wealth among the higher classes, accompanied by the feeling that nothing can be done about it—a form of learned helplessness, which leads to political disillusionment, despair, cynicism, and/or the rise of reckless leaders. The second set of circumstances revolves around the disappearance of law from even its traditional places. About judicial opinions, White mentions low-quality, formulaic judgments, based on crude political calculations and written in bombastic and bullying tones. He also notes the transformation of law schools into public policy think tanks, replacing law with cost-benefit analyses that dismiss everything that cannot be quantified or ideologically explained. A third source of toxicity is the dehumanizing forces that are exemplified by attempts at legalizing torture, slavery, and institutional racism. The conclusion that White reaches is stark: the United States has become an Empire, both externally, in its relations with other countries, and internally, in its relations with its own citizens. Moreover, it needs the power imbalance it has created. Like in the Melian dialogue, power has supplanted law.
But what is the evidence for the waning of law? Are the phenomena that White describes connected? Is the diagnosis correct? These are good questions and we would do well to keep them in mind, but they are also beside the point. The chapter offers evidence, but White is not trying to construct a sociological argument. Instead, he is trying to raise a concern: if anything like the world he describes rings true, and the current circumstances of generalized corruption have only heightened the perception, then the law that White wants to keep alive will become less and less possible to imagine, let alone practice. As a teacher, practitioner, academic, and citizen who has seen these changes in his own lifetime, White can sense the advent of a world in which law has vanished.
It is this bleak prospect that perhaps prompts White to turn to Augustine’s Confessions in the final chapter. Augustine’s musings about the unreliability of memory, the fleetingness of time, eternity, and the absolute reflect the true depths of the changes in perception that are needed to recognize the difficulties we are currently experiencing. But even as someone who has derived so much meaning from law throughout his career and now finds himself floundering, White does not look to Augustine for a simple lifeline. White wants us to look even deeper into the abyss, to contemplate what it would be to live in a world where law has ceased to exist.
As a book written by an inspiring legal scholar and teacher, Keep Law Alive speaks most compellingly to those who may feel a disconnect between ourselves and the larger culture, who feel irrelevant and unable to keep law alive (152). The book memorializes the kind of law that was once practicable, and asserts: I was there, I saw it happen, I practiced it, I taught it. It is a book of testimony that offers participation in the life of law. But it is also a humble recognition of its own limits. White knows that we cannot simply turn back the clock or stem the tide on our own. To keep law alive, we need people, lots of people (152). This gives us a hint as to the kind of action the book itself is performing. Keep Law Alive is offered to readers who are willing to take up the challenge that the title urges. The book thus performs what the Romans called a traditio: a literal handing over of an object to another person with the intention of conveying ownership. The book is an act of cultural transmission, a passing of the torch. What a responsibility—and what a gift!