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Hastings Law Journal

Abstract

Few would dispute that law and legal procedures lie at the core of American self-identity and are woven deeply into the fabric of our culture. Indeed, our nation's faith in law has frequently been the subject of criticism. Most recently, self-proclaimed "communitarian" commentators have warned that our insistence on legal solutions is encouraging us to become a society of litigants whose attachment to "rights talk" and legal battles is thwarting our ability to reach consensus on social issues or instill shared values in our communities. While there are many possible responses to such a critique, this Essay offers one that is perhaps less familiar. Instead of simply arguing that law is a necessary evil or an important counterweight to majoritarian pressures, Professor Berman asks whether we can conceive of ways in which law actually helps foster community by creating a forum for useful discussion and debate among differing worldviews.

In order to explore the possible benefits to be gained from using "law talk" to address societal conflicts, Professor Berman draws on his prior research concerning trials of animals and inanimate objects in medieval and early modem Europe and in ancient Greece. These seemingly bizarre legal proceedings may provide a useful thought experiment that allows us to imagine three possible social functions of law more generally. First, the mere assertion of legal jurisdiction may, in and of itself, help to define the boundaries of membership in a community. Second, law provides a rationalizing framework and a formal discourse that encourages a dialogue built on appeals to broader philosophical and legal principles. In addition, the ritualized nature of legal discourse may itself be a source of comfort in times of traumatic stress. Third, and perhaps most importantly, legal and quasi-legal discourse, particularly when it is widely dispersed within a culture, may provide a useful language both for debating and contesting social and political issues and for adjudicating among the multiple narratives that are inevitably present in a heterogeneous society. Thus, law may function as a symbolic terrain of engagement for competing worldviews. In this vision, our supposed national tendency to wage legal battles may not be a sign of true divisiveness, but rather of the constructive need for a discursive forum to tell alternative stories.

If law can actually play such a generative discursive role, then perhaps our nation's abiding legal faith is not solely the albatross we have been led to believe it is. Perhaps our faith is also an opportunity. By creating both a forum and a language for conversation among diverse cultural narratives, and by establishing a commitment to a culture of conversation about competing values, legal debates can foster dialogue in a postmodern culture where most historical verities have been exposed as products of hierarchy. Such dialogue, because it includes the possibility for continuous self-criticism and re-creation, may even open the space for generating bridges to a transformed future.

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