What is “law”? By what processes do judges arrive at opinions, those documents that justify their belief that the “law” dictates a conclusion one way or the other? These are among the oldest questions in jurisprudence, debate about which has traditionally been dominated by representatives of two schools of thought: proponents of natural law, who see law as intertwined with a moral order independent of society’s rules and mores, and legal positivists, who see law solely as embodying the commands of a society’s ruling authority.
Since the early 1970s, these familiar questions have received some new and surprising answers in the legal academy. This novelty is in part a consequence of the increasing influence there of academic disciplines and intellectual traditions previously unconnected with the study of law. Perhaps the most influential have been the answers given by the Law and Economics school. According to these legal economists, law consists and ought to consist of those rules that maximize a society’s material wealth and that abet the efficient operation of markets designed to generate wealth. More controversial have been the various answers provided by members of the Critical Legal Studies movement, according to whom law is one among several cultural mechanisms by which holders of power seek to legitimate their domination. Drawing on related arguments developed in anthropology, sociology, and history, the critical legal scholars contend that law is an expression of power, but not, as held by the positivists, the power of the legitimate sovereign government. Rather, it is an expression of the power of elites who may have no legitimate authority, but who are intent on preserving the privileges of their race, class, or gender.
In the mid-1970s, James Boyd White began to articulate yet another interdisciplinary response to the traditional questions, and in so doing spawned what is now known as the Law and Literature movement. White has insisted that law, particularly as it is interpreted in judicial opinions, should be understood as an essentially literary activity. Judicial opinions should be read and evaluated not primarily as political acts or as attempts to maximize society’s wealth through efficient rules, but rather as artistic performances. And like all such performances, White argues, each judicial opinion attempts in its own way to promote a particular political or ethical value.
In the recent Justice as Translation, White argues that opinion-writing should be regarded as an act of “translation,” and judges as “translators.” As such, judges find themselves mediating between the authoritative legal text and the pressing legal problem that demands resolution. A judge must essentially “re-constitute” that text by fashioning a new one, which is faithful to the old text but also responsive to and informed by the conditions, constraints, and aspirations of the world in which the new legal problem has arisen.