Abstract
For Professors James Boyd White and Jim Silk, and for my father,
in all of whom I found humility to live as an active virtue
What does it mean to trust another who lives – an author, a text, a speaker or listener, a friend, a fellow citizen, a judge, an institution? How is one to do so? And what is the relationship between this trust and the aspiration to ‘keep law alive’? The answers to these questions, I hope to argue in this short reflection on a most profound and essential work, rely centrally upon what Professor White calls a ‘fundamental humility’ (146). Humility is mentioned by name only at the very end of the book and then it is named only twice. But humility structures, at least to me, the entirety of the book’s moving rumination on what it means for the law to live – and, further still, for human beings to live along with it.
In the first instance, we find humility in a remarkable form and style of exposition. White writes in ‘two voices’ – the first that of a ‘legal expositor and critic’ and the second the voice of one who recalls at some distance what was just written and poses further reflections and questions for consideration (xv). This style of articulation will be familiar to those long inspired by White’s oeuvre, but Keep Law Alive is composed with distinctive solicitude and honesty. The asides that frame the body text of each chapter address the reader in the intimacy of the second person. Yet they do more than guide a reader in a less formal tone of instruction. White’s two voices are not only complementary, he himself notes, but also in a degree of tension with one another (xv). The voice in the asides reveals the hopes and anxieties behind the book’s substantive claims, the presuppositions with which the first voice speaks. White shares these with the reader as fragile intentions, always at risk of failure or misapprehension or neglect. The effect of this mode of exposition is an emotional proximity to the human being who writes and argues. We find a scholar still vulnerable to change, to doubt, whose thought is relevant and vibrant.
But this style of writing also expresses a vital philosophical claim about time and the structure of language: what it means to live with our ideas or experience those of another. Professor White once considered the structural role of silence in speech: ‘Silence is in fact necessary to any kind of speech’, he writes, ‘for without silence the words and phrases and syllables could not be distinguished from each other or from the noise that surrounds them’ (Living Speech 2006, 14). In Keep Law Alive, the structure of interruption and reflection attunes the reader to the passing of time – that duration over which words acquire meaning yet always begin to pass away into the surrounding noise. To press further, precisely this attunement to the passing of time gives the work its confessional air and makes White’s turn in the closing pages to Augustine all the more profound. White cites Augustine as the inspiration to see in the passage of time always the ‘razor edge of awareness’ (143) – a reminder that we experience time in every moment of our lives. ‘An hour’, Augustine writes, ‘is itself made of fleeting moments’ (Confessions, 11:15). One might read White’s exposition, then, as an attempt to slow down our experience of time, to extend the reach of our fleeting moments and to reflect upon the qualities they reveal – qualities of our thinking, qualities within ourselves and of our law.
In the interruptions and silences his text surfaces, White demonstrates a line of argument the integrity of which might at any moment be broken. His ideas are left to be imagined again in a future that lies beyond one’s powers of control (43). This deferral makes a relationship of trust, responsibility, and care between reader and author thinkable. The text becomes an invitation to participate in a way of living (142), laying claim to the reader’s imagination without which the author’s words cannot endure.
This same acknowledgment and claim to imagination, White suggests, keeps law alive. If the notion ‘to keep’ indeed implies a struggle to retain one’s attachment to law, the terms of such attachment remain bound to the passage of human time. This is why law is irreducible to a body of ‘propositions or rules’ beneath which human conduct would be subsumed and to which human judgement could be conceded. Legal knowledge must remain an ‘activity of mind’, a ‘cultural competence’ that is ‘not merely conceptual or factual but rhetorical and imaginative’ (7).
The humility of one’s vulnerability to time defines the character of legal thought in a confessional key. It rejects the misguided presumption, as Simone Weil warned, that justice could be maintained while dispensing with the need for human attention. Law’s work entails a particular form, first, of forbearance – in the acknowledgment of the limits of what is prescribed and known in the legal precepts one inherits; and, second, of imagination – in the response to law’s call, as White writes, ‘to act, not merely to repeat or invoke, but to make something new’ (42). If humility attends forbearance due to its rejection of a timeless meaning in law, it attends imagination in its acceptance of responsibility for the novelty of the judgment made. Humility testifies to a vision of law as an ‘inherently unstable structure of thought and expression’, with a ‘distinct set of dynamic and dialogic tensions’ (81): between legal language and ordinary language, between competing plausible readings of the law, between substance and procedure, between the particular and the general, between law and justice (85ff).
A privileged site where these tensions are to live is the legal opinion. Only to the extent an opinion indeed keeps law’s tensions alive does it exemplify a creative art of judgement (23), where the roles of reader and writer are unified in the judge. Consider the inspiration White takes from Justice Holmes and his dissent in Abrams v. United States. There, Holmes navigates a novel entry into First Amendment jurisprudence through a central analogical query: is the case at hand more akin to the state’s prosecution of persuasion to murder or, instead, does it concern the state’s erasure of certain ‘creeds’ it considers – however wisely – objectionable (36)? Holmes does not deduce his conclusions on the basis of a controlling proposition. He develops them through the composition of a story, which crafts for the judge and citizen alike a particular character – participants in an experimental republic whose living freedom depends on the ‘free trade of ideas’ (35–36, 40). Fleeting moments in criminal law – its requirements of intention and proximity – are made to live on in a new way, informing the limits of the regulation of speech.
Humility’s particular equipoise of forbearance and imagination requires movement. It is when we come to rest, when we no longer perceive our fleeting moments, that we accept too much too surely in ourselves. In his remarks on race in the United States, White confides regretfully that many white Americans can no longer convey a story of the ‘nature and intensity’ (58) of systemic oppression of Black Americans, let alone recount the history of that oppression and speak of its meaning for the present lives of all Americans. In a beautiful phrase, White writes that public thinking has, like Twain’s Huckleberry Finn, ‘run aground’ on the question of race (48). To paraphrase Derrida’s reflections on Mnemosyne, what happens when he who keeps a memory can no longer tell a story?
In the book’s substantive reflections on race, voting, affirmative action, torture and wealth inequality, White aims to recover sensitivity to these points of stasis, where a dying legal culture stalls imaginative thought. White connects substantive moral failings to structural transformations in legal education and to the disappearance of the voice of the judge in judicial craft. White finds law and economics particularly liable for the retreat of discourse about the character and meaning of public values, which it has replaced with a focus on striking the right ‘balance’ among interests whose meaning is already settled – a framing of the question that privileges technocratic, formulaic, mechanical and conclusory legal thinking (123). The far-reaching result – exemplified by ‘national security’ discourses and the ‘torture memos’ – is the objectification of human life and, with it, sanction of the cruellest, most Manichean normalisation of inhuman violence. Law disappears – ceases to live – when it no longer admits any form of human frailty and in turn can pay no deference to uncertainty. Such transformations entail the loss of a certain democratic bearing, for which a plurality of voices who might always change their minds is an essential virtue.
Amidst widespread mistrust of the legal voice, White’s lesson is well-timed to restore the place of legal institutions in democratic self-government. It complicates the stakes, for example, of efforts to pack courts or to strip down the judicial role in order to ease its counter-majoritarian strain. It perhaps might yet redirect the desires that motivate such efforts. For while White explicitly rebukes the xenophobic and racist assaults on law from the right, his work also thoughtfully amends strands of progressive legal thinking on the left. White’s emphasis on law as a culture of thought exceeding systemic calculation advises that equalising material power is an interpretive and not only a materialist struggle. Perceptions of structural injustice or political economy depend on the relationships to which we are attuned, which are reproduced by the interpretations we give of ourselves and our interests. The rectitude of political possibilities is imagined – the product of how a community learns and unlearns its understanding of harm. The rhetorical art of law is to this process far from epiphenomenal, a point ripe for further consideration.
This question of perceiving our emancipatory interest suggests a final dimension of law’s humility in White’s reading. In our fleeting moments, what also flees from us is the insular sense of who we are and what or whom we can presume to command. I have long been inspired by White’s work to see in law and literature an opening to the world, specifically to comparative and international law. In times of globalisation, regimes of international trade, financial capitalism, mass migration, climate change – many people are subjects of laws which they have not intelligibly authored. Viewed globally, the roles of citizens as authors and readers are disjoined and demand with particular urgency in law – and in the work of courts – the ‘repair of human culture and community’ (102).
Perhaps nowhere in Keep Law Alive is humility’s universalist strand more vivid than in White’s warning to the United States on the basis of Thucydides’ Melian Dialogue or his moving retelling of Antigone, through the lens of a beautiful adaptation by François Ost. It is here, at the edge and in the wake of empire, that White most convincingly suggests how the rule of law and the responsibility that comes in the space of judgement might not only protect those at the periphery from harm but also rescue the democratic character of those in the center – and thus, in the end, might chart a path for us to push the inequities of centre and periphery aside. I think here of Advocate General Mengozzi of the European Court of Justice whose opinion in X and X v. Belgium linked the fate of European citizens to that of asylum-seekers struggling for legal recognition – a humanitarian visa – by the European state. I think of Scott Warren, the humanitarian prosecuted by the United States for delivering life-saving aid to migrants in the Arizona desert. I think of their lessons for law and for civic acts of judgement.
But I think of them in this way only after encountering the ideals of law that Professor White has long defended. White’s work is transformative in its content – for what it asks of law and legal thought; and transformative in its form – for how the wisdom and humanity of White’s writing engage the expectations, sensitivities and attunements of the reader. The work does so, at heart, because one trusts his words. They, too, lay claim to a particular character – of the author, of reading and the activity of thought, perhaps of the reader as a human being. Thus when White turns our attention towards the end of Keep Law Alive to Augustine’s Confessions, the reader feels in full force an elegant reversal: it is through better perceiving the potential of law to live that we reimagine how we might yet live.
Legal thought in a confessional key reimagines the ‘intelligence, decency, and moral depth’ (137) that is possible in legal judgment; in so doing, it reimagines law as a poetic art of rhetoric and repair, alive in its sense of composition, the building of tension, of remembrance and anticipation. Such art requires humility for it must resist easy recourse to resolution – the judge to dispensing with judgment too quickly; the law student to learning doctrinal rules too eagerly; the citizen to seeking order and control without justice. White quotes Robert Frost: what poetry and law seek is not clarification of knowledge but ‘a momentary stay against confusion’ (102). And I am reminded, too, of the late W.S. Merwin, his voice in his poem ‘To the New Year’: so this is the sound of you here and now whether or not anyone hears it this is where we have come with our age our knowledge such as it is and our hopes such as they are invisible before us untouched and still possible
Keep Law Alive is a deeply humane book, with ambitions for law that are as well our ambitions, the ambitions of human beings – untouched and still possible.