THE LEGAL
IMAGINATION
Studies in the Nature of
Legal Thought and Expression
45th Anniversary Edition
JAMES BOYD WHITE
®Wolters Kluwer
Copyright© 1973, 2018 James Boyd White.
Published by Wolters Kluwer in New York.
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CONTENTS
Foreword to the Anniversary Edition, :xxi
Preface to the Original Edition, xxv
Acknowledgments, xxxiii
Introduction to the Student, :xxxix
CHAPTER 1. THE LAWYER AS WRITER
A. Learning the Language of the Law, 3
Twain, Life on the Mississippi, 10; Dickens, American Notes, 13;
Parkman, La Salle and the Discovery of the Great West, 15; Levi-
Strauss, Tristes Tropiques, 17; Mailer, Of a Fire on the Moon, 19; Twain,
Huckleberry Finn, 21; Labov, The Logic of Nonstandard English, 27
Writing Assignment 1: A Variety ofLanguages, 34
Writing Assignment 1, Alternative A: What Do Different Speakers Wilnt
to Know, 36
Qyestions: Defining a Language System, 37; Qyestions: Drawing
Inferences from Speech, 39; Harvard Law Review, With the Editors,
41
Writing Assignment 1, Alternative B: What Has It Meant far You to
Learn the Legal Language System, 43
Qyestion: Who Will You Become? 47; James, The Art of Fiction, 48
B. Success for the Lawyer and Writer: Establishing the Right Relationship
with His Language, 49
1. Defining the Relationship Between Self and Language: Troilus and
Cressida, 51
2. Traditional Ways of Controlling a Language, 56
a. Metaphor, 57
Blake, 1he Sick Rose, 58; Conrad, The Mirror of the Sea, 60
b. Irony,64
Thoreau,Walden,65
c. Ambiguity, 67
Frost, The Road Not Taken, 69; Melville, Billy Budd, 70
d. The Power of the Language Maker, 76
x CONTENTS
Writing Assignment 2: Controlling a Language System, 77
Writing Assignment 2 (Alternative): Good Writing, 78
CHAPTER 2. THE LIMITS AND RESOURCES OF
LEGAL LANGUAGE: AN INTRODUCTION TO
YOUR LITERARY CIRCUMSTANCES
Introduction, 81
A. Your Language in a Universe of Languages -A Comparative
Anthology on Death, 83
1. What the Law Leaves Out: The Law Among Other Possibilities for
Expression, 84
a. The Georgetown Hospital Case: A Paradigm of Legal Speech? 84
Application of the President and Directors of Georgetown
College, Inc., 84
b. One Way the Lawyer Speaks About Death: The Will, 89
Casner, Will of Richard Harry Black III, 89; Will of Edmund
Burke, 94; Thomas, A Refusal to Mourn the Death, by Fire, of a
Child in London, 97; Ransom, Janet Waking, 98; Dickinson, The
Last Night That She Lived, 99
c. Versions and Conversions of Experience: Imagining What the
Law Would Do, 100
The Story of Burnt Njal, 101; Malory, Le Morte Darthur,
104; Clarendon, The History of the Rebellion and Civil Wars
in England, 107; Aeschylus, Agamemnon, 109; Adams, The
Education of Henry Adams, 110; Macaulay, The History of
England from the Accession of James II, 111
d. A Primary Distinction in Talk About Death: Humanity and
Inhumanity in Speech, 114
Cromwell, Letter to Colonel Walton, 114; Boyertown Burial
Casket Company, Shareholders Report, 117; Manual Outlines
"Perfect Sniper," 118; Hoess, Commandant of Auschwitz, 119;
People v. Sherwood, 122
e. Justifying a Language by Its Special Purposes, 126
2. Defining Viciousness in Language and Imagination: The Rhetoric
of the Death Penalty, 127
Royal Commn. on Capital Punishment, Report, 128; Colorado
Revised Statutes, 130; Camus, Reflections on the Guillotine,
131; Furman v. Georgia, 137; Donnelly, Goldstein, and Schwartz,
Criminal Law, 142; Dickens, A Tale of Two Cities, 149; Orwell,
Shooting an Elephant, 151
CONTENTS xi
3. Complications: False Pretenses and Rhetorical Resources, 153
Gibbon, The History of the Decline and Fall of the Roman
Empire, 153; Hume, The Life of David Hume, Esq., 157; Smith,
Letter to William Strahan, 160; Thucydides, History of the
Peloponnesian War, 165; Froude, History of England from the
Fall of Wolsey to the Death of Elizabeth, 166; Shakespeare,
Romeo and Juliet, 166
4. Professional Attitudes: Uses and Effects of Professional Rhetoric,
167
Joyce, A Portrait of the Artist as a Young Man, 168; Proust,
Remembrance of1hings Past, 170; Norton, The Treatment of a
Dying Patient, 174
Writing Assignment 3: Defining by Comparison the Literature efthe
Law, 181
Writing Assignment 3, Alternative A: 1he Law Controls the Speaker,
182
Writing Assignment 3, Alternative B: Drefting a Complaint, 182
Writing Assignment 3, Alternative C: A judicial Opinion in the
Georgetown Hospital Case, 186
Writing Assignment 3, Alternative D: 1he Lawyer's Conversations on
Death, 186
B. The Voices of the Lawyer, or: What Can You Say in the Language of
the Law? 187
Problem: The Sabbatarian and the Military Law, 188; Selective
Service Act of 1967, 189
WritingAssigmnent4: 1he Lawyer's Conversations, 192
Writing Assignment 4, Alternative A: 1he Voices efthe judge, 194
Writing Assignment 4, Alternative B: 1he Lawyer's Conversations on
Death, 195
C. Organizing Future Experience as a Lawmaker - How a Statute
Works, 195
1. The Statute as a Social Instrument: Establishing the Terms of
Cooperation with Your Audience, 198
a. One Version of How the Statute Is Put to Work: Stating Issues
and Defining Terms, 200
Tovey v. Geiser, 202; Young Women's Christian Home v. French,
206
b. Three Problems on Defining Terms and Stating Issues, 210
Problem: Stating the Issue, 210; Problem: Organ Transplant
Statute, 212; Problem: Drafting an Abortion Statute, 213
c. The Process of Cooperation Between Writer and Reader: The
Statute as a Way of Giving Structure to Conversations, 215
xii CONTENTS
2. A Case and Some Statutes on Wrongful Death, 218
Baker v. Bolton, 219; An Act for Compensating the Families of
Persons Killed by Accidents (Lord Campbell's Act), 220; Georgia
Code Annotated, 221; Illinois Annotated Statutes, 223
3. The Rhetoric of the Statute: How Is Such a Language to Be
Controlled? 225
a. The Fiction of Relief: Damages and Other Remedies, 225
b. Fictions II: The Intellectual Structure of the Statute, 227
Writing Assignment 5: Drafting a Statute on Wrong/it! Death, 240
Writing Assignment 5 (Alternative): Other Statutes, 242
CHAPTER 3. HOW THE LAW TALKS ABOUT
PEOPLE - "WHO IS THIS MAN?"
Introduction, 243
A. Possibilities for the Definition and Expression of Character: The Law
Among Others, 246
1. Character and Caricature, 247
a. Being True and False to Life, 247
Douglas, A Plea for Better Manners, 248; Forster, Aspects of
the Novel, 249; Macaulay, The History of England from the
Accession of James II, 251; Macaulay, Notes on the Indian Penal
Code, 253; Saki, The Talking-Out ofTarrington, 254; Saki, The
Open Window, 256; Hilton, Lawyers at Play, 259; Miranda v.
Arizona, 261; Dickens, Little Dorrit, 265; Dempsey, The Apple
Falls Close to the Tree, 267; People v. Haney, 268; Hoffa v. United
States, 272; Lamb, The Praise of Chimney-Sweepers, 27 4
b. The Alcestis of Euripides - A Play About Character and
Caricature, 27 4
c. The Uses of Caricature, 278
Forster, Aspects of the Novel, 279; Chaucer, The Pardoner's Tale,
281; Theophrastus,The Characters,284; Fiction and Reality in Talk
About People: The Truth of Generalization, 286; Pope, Preface to
The Iliad, 287; The Form of Solemnization of Matrimony, 288;
I. and P. Opie, Children's Games in Streets and Playground, 288
2. Other Possibilities for the Rendition of Character: Complications,
Inconsistency, and Detail, 289
Troyat, Tolstoy, 291; Lawrence, Women in Love,294; Shakespeare,
Antony and Cleopatra, 298
3. The Way Institutions Talk About People - A Fundamental
Paradox for the Law, 299
CONTENTS xiii
4. Real Talk About Real People: Is There Someone Out There? 304
Proust, Remembrance of Things Past, 305; Clarendon, The
History of the Rebellion and Civil Wars in England, 307; Adams,
The Education of Henry Adams, 311
5. Defining Character in Your Own Life and Relationships, 313
Writing Assignment 6: Talking About Others, 315
Writing Assignment 6, Alternative A: A Letter of Recommendation,
315
Writing Assignment 6, Alternative B: Problems far a Prosecutor, 316
B. Talking About People in a Language of Labels: The Insanity Defense,
317
1. Proposals and Practices, 319
American Law Institute, Model Penal Code, 319; The Problem
of Defining the Criteria oflrresponsibility, 320; Glueck, Law and
Psychiatry, 324
2. Talk About the Mind: The Fact of Difference, 328
Marais, The Soul of the White Ant, 329, 331; Marais, The Soul
of the Ape, 332; Tinbergen, The Study of Instinct, 333; Ferrin v.
People, 335; Dickinson, A Bird Came Down the Walk, 336
3. Mental Illness: A Medical Problem for Medical Experts? 336
Washington v. United States, 337
4. Using Labels by Following Purposes: The Living Language of the
Criminal Law, 351
a. The Purposes of the Insanity Defense, 351
Mental Health Act, 352
b. The Relation Between Label and Purpose in the Criminal Law:
Malice Aforethought, 354
People v. Conley, 354
Writing Assignment 7: The Insanity Defense, 360
Writing Assignment 7, Alternative A: Purposes ofPeople and ofthe
Law,362
Writing Assignment 7, Alternative B: Drefting Instructions, 363
C. Judgment Without Labels - The Sentencing Decision, 363
1. What Do We Do with Our Freedom? - Existing Law and
Practice, 365
Pennsylvania Statutes, 365; Commonwealth v. Ritter, 367; Glueck,
The Sentencing Problem, 376; Talk About People in Terms of
Groups, 386
2. Expressing Judgments of Others: The Sentencing Problem as a
Problem ofWriting, 388
Bralove, Wall Street's Hippies, 390; Clarendon, The History of
the Rebellion and Civil Wars in England, 394; Zeno, Life, 398;
xiv CONTENTS
Jane Austen's Pride and Prejudice: Writing About Judgment, 401
Writing Assignment 8: Sentencing judgments - Explanation and
Directions, 407
Qiestions: Cases on Sentencing, 410; United States v. Lewis, 411;
R. v. Power, 412
Writing Assigmnent 8 (Alternative): The judge De.fines Himself, 413
D. The Language oflnstitutional Disposition - Insanity, Sentencing, and
Others, 413
Gerard, Institutional Innovations in Juvenile Corrections, 414
Writing Assignment 9: Telling the Truth About an Institution, 423
Writing Assignment 9, Alternative A: Discovering the Truth About an
Institution, 424
Writing Assignment 9, Alternative B: Right to Treatment, 425
Parker, The Frying-Pan, 425
E. How Should the Law Use the Language of Race? The Legal Use of
Social Labels, 430
1. The Old Days: The Vicious Use of Racial Language, 432
Louisiana Civil Code, 434; Laws of Mississippi, 437; Laws
of Alabama, 439; Revised Code of North Carolina, 445; State
v. Jones, 447; State v. Hoover, 448; State v. Mann, 451; Dave v.
State, 455; Harper, Memoir on Slavery, 456; Hammond, Letters
on Slavery, 458; Dew, On Slavery, 460; Lincoln, Address on
Colonization to a Deputation of Colored Men, 462
2. Amelioration and Abolition, 463
Burke, Sketch of a Negro Code, 464; Illinois Revised Statutes,
471
Writing Assignment 10: The Abolition of Slavery, 474
Yetman, Life Under the "Peculiar Institution," 474; Lincoln,
Reply to a Committee from the Religious Denominations
of Chicago . . . , 477; Lincoln, Preliminary Emancipation
Proclamation, 478; Lincoln, Annual Message to Congress,
479; Lincoln, Letter to Gen. J. A. McClernand, 480; Lincoln,
Proclamation of Amnesty and Reconstruction, 481; Fleming,
Documentary History of Reconstruction, 482; Myrdal, An
American Dilemma, 485
3. These Days of Reform: The Benign Use of Racial Language, 488
Qiestions: Racial Talk in Modern Law, 490; People ex rel. Altman
v. Board of Education, 494
4. What Is a Race? 496
Hernandez v. Texas, 497; Stewart, Negro Dialect in the Teaching
of Reading, 500
Writing Assignment 11: Using the Language ofRace, 501
CONTENTS xv
Writing Assignment 11,AlternativeA: Race and the School System, 501
Writing Assignment 11, Alternative B: Race and the Law School,
502
Writing Assignment 11, Alternative C: Race in the judicial Opinion,
503
CHAPTER 4. RULES AND RELATIONSHIPS
Introduction, 504
A. Using the Rule to Organize Social Experience, 506
1. Learning How to Behave: The Formation and Management of
Social Expectations, by Rules and Otherwise, 506
Johnson, Growing Up in the Black Belt, 507; The Rules
of Amherst College, 512; Amherst College Bulletin, 513;
Perry, Williamstown and Williams College, 515; Mayberry v.
Pennsylvania, 518; Homer, Iliad, 522; Arnold, On the Discipline
of Public Schools, 525; Hughes, Tom Brown's School Days, 527;
Scott's Last fa.-pedition, 533
Writing Assignment 12: 7he Formation and Management ef Social
Expectations, 536
2. Vagueness, Specificity, and the Rule: The Implications of Form, 537
a. What Happens As a Rule Changes Form? 538
ABA Canons of Professional Ethics (1908), 538; ABA Code of
Professional Responsibility (1970), 539
Writing Assignment 13: 7he Form efEthical Rules, 542
b. The Constitutional Principle of Clarity- and the Practice, 543
Two Special Kinds of Legal Rules, 544
Writing Assignment 13; Alternative A: Reconciling Constitutional
Principles and Practices, 545
c. Rules and Happiness: An Impossible Combination? 546
Ripley, Letter to Emerson, 546; Constitution of Brook Farm, 547;
More, Utopia, 550; Levitt and Sons, Homeowner's Guide, 552;
Shakespeare, The Tempest, 554; Neill, Summerhill, 555; Pfaff,
Reconciliation Agreement, 558
Writing Assignment 13, Alternative B: Rulesfar Marriage, 565
d. What Are Rules Good For? 566
Wi·iting Assignment 13, Alternative C: What Are Rules Good For? 566
B. Where Several Must Cooperate - The Art and Craft of Making Rules,
566
1. Setting the Terms of a Complex System: The Prison as Example, 567
Texas Dept. of Corrections, Rules, 567, 568; Colorado State
xvi CONTENTS
Penitentiary, Rules, 571, 572; Wisconsin State Prison, Rules, 575;
Wisconsin Correctional Inst., Responsible Living, 578
2. Drafting Institutional Rules, 579
a. Increasing Confidence: Having Rules Work Both Ways, 580
Illinois Unified Code of Corrections, 580
b. Are There Any Limits upon the Principle That Rules Should
Work Both Ways? 583
Rule of St. Benedict, 584
c. Rules as a Way ofTalking to People: Addressing One's
Audience, 585
d. Particular Difficulties That Prison Rules Must Face, 586
e. What Remains to be Done After Your Rules Have Been
Formulated - Controlling the Terms of Cooperation, 589
Writing Assignment 14: Drafting Prison Rules, 593
Writing Assignment 14, Alternative A: Rules far a College, 595
Writing Assignment 14, Alternative B: Labor Contract, 595
3. How Should the Courts Speak to the Police? A Study in
Institutional Relations, 595
a. Watts and Miranda: Finding Just the Right Way to Say
"Involuntary," 596
Watts v. Indiana, 596; Miranda v. Arizona, 603; Qyestions:
Attitudes Towards the Police, 605; Qyestions: Attitudes Towards
the Suspect (I), 608; Attitudes Towards Confession, 608;
Qyestions: Attitudes Towards the Suspect (II), 610; Qyestions:
Attitudes Towards the Legislature - Choosing the Appropriate
Form for a Rule, 611
Writing Assignment 15: Rules far the Police, 614
Writing Assignment 15, Alternative A: 7he Exclusionary Rule, 614
b. When and How Should a Court Enforce the Constitution by an
Injunction Against the Police? 615
Wilson v. Webster, 615; Qyestion: In What Circumstances
Should a Court Issue an Injunction Against the Police? 616;
Hernandez v. Noel, 617; Qyestion: How Should an Injunction
Be Framed? 617; Wheeler v. Goodman, 618; Houser v. Hill, 620
Writing Assignment 15, Alternative B: Enjoining the Police, 621
CHAPTER 5. JUDGMENT AND EXPLANATION:
THE LEGAL MIND AT WORK
Introduction, 623
A. The Place of the Rule in Legal Judgment, or: What Does the Good
Judge Do with the Law - Cheat? 625
CONTENTS xvii
1. Rules and Justice: Plato's View, 625
Plato, 1he Statesman, 625; Plato, Theaetetus, 629; Plato, The
Republic, 631
2. The Process of Judgment and the Rule, 642
Qµestions: Making and Expressing Judgments, 642; Burke,
Speech to the Electors of Bristol, 645
a. Judgment and the Rule in the Law: The Nature of Equity, 646
Aristotle, Nicomachean Ethics, 647; Maitland, Equity, 648;
Maine, Ancient Law, 651
b. Judgment and the Rule: Outside the Law, 656
Fowler, Dictionary ofModern English Usage, 656; Post, Etiquette,
660; Johnson, Preface to Shakespeare, 664; Hooker, Of the Laws
of Ecclesiastical Polity, 670
Writing Assignment 16: Excellence in judgment and the Use ofRules,
683
Writing Assignment 16, Alternative A: Are Rules Always Tentative?
685
Writing Assignment 16, Alternative B: Ihe Place ofRules, 686
B. Making a Language of Judicial Criticism: How Should We Talk About
Legal Judgment? 686
1. Talk About the Working Mind: Metaphors, Plain Speech, and the
Language of Rationality, 688
a. Can You Flnd the Music in the Law? 688
b. A Famous Metaphor: Plato's Cave, 689
Plato, The Republic, 689
c. The Language of Rationality: The Mind as Machine? 694
Bentham, The Principles of Morals and Legislation, 695; Fuller,
The Forms and Limits of Adjudication, 698; Commn. on the
1hird London Airport, Report, 700; Whorf, The Relation of
Habitual Thought and Behavior to Language, 706
d. The Language of Judicial Rationality: Two Examples, 707
Freund, Rationality in Judicial Decisions, 707; Cardozo, The
Nature of the Judicial Process, 711
2. An Example for Analysis: Griswold v. Connecticut, 712
Griswold v. Connecticut, 712; Problem: Choice of Form Interest-
Balancing Versus Rules of Law, 725
3. Alexander Pope's Essay on Criticism: A Model for Judicial Criticism?
728
Writing Assignment 17: Ihe Enterprise ofjudicial Criticism,
733
Writing Assignment 17, Alternative A: Excellence in the judicial
Opinion - Rationality and Beyond, 734
Writing Assignment 17,Alternative B: What Do You Approve Of? 734
xviii CONTENTS
Writing Assignment 17, Alternative C: Explaining a Decision, 735
United States v. White, 736
CHAPTER 6. THE IMAGINATION OF THE LAWYER
Introduction, 757
A. Is the Judge Really a Poet? 761
1. The Message and the Rule: What More Do We Find in the Poem
and Opinion? 762
Boulton, The Language of Politics in the Age of Wilkes and
Burke, 763
2. Reading the Poem: The Education of the Imagination? 766
Frost, The Constant Symbol, 766; Frost, The Figure a Poem
Makes, 770; Frost, Design, 780; Frost, Directive, 780; Donne, The
Sun Rising, 783; Marvell, To His Coy Mistress, 785; Herbert, The
Pulley, 786; Browning, Up at a Villa - Down in the City, 787;
Dickinson, Our Little Kinsmen, 790; Thomas, Fern Hill, 791;
Wordsworth, Upon Westminster Bridge, 793; Keats, To Autumn,
793; Whitman, Out of the Cradle Endlessly Rocking, 795
3. More on the Judicial Opinion and the Poem, 800
Writing Assignment 18: 1he judicial Opinion as a Constant Symbol,
804
Writing Assignment 18 (Alternative): What Beyond Paraphrase?
805
B. The Activity of Argument, 806
1. A Classical View of Rhetoric: Ethos, Pathos, and Logos, 810
Aristotle, Rhetoric, 810; Carlyle, The French Revolution, 815
2. What Is at Stake Here? Argument Over What a Case Involves,
822
Douglas, Springfield Speech, 823; Gregory, Nigger: An Autobio-
graphy, 843
3. The Mystery of Persuasion, 845
Shakespeare, Macbeth, 846
4. The Cost of Argument: The Mind of the Sophist, 850
Clarendon, The Life of Clarendon, 853
Writing Assignment 19: 1he Legal Argument, 856
Writing Assignment 19, Alternative A: 1he Quarrel and the
Argument, 856
Writing Assignment 19, Alternative B: Argument as a Form 1hat
Destroys, 85 6
Writing Assignment 19, Alternative C: Making Up and Changing
Your Mind, 857
Writing Assignment 19, Alternative D: 1he Art efArgument, 857
CONTENTS xix
C. The Narrative Imagination and the Claim of Meaning, 858
1. Telling a Story and Saying What It Means: Addressing an
Incompatibility of Discourse, 861
a. Narrative and Analysis: The Differences Elaborated, 862
b. The Force of Narrative: A Pressure Towards the Inexpressible, 863
c. How the Story Begins: The Complicating Choices of Shape and
Direction, 866
Dickens, Little Dorrit, 870
d. The Ending as Cliche: Controlling Narrative Conclusion, 872
e. The Force of Narrative: A Pressure Towards Falsehood? 875
Tolstoy, War and Peace, 875
2. Reconciling the Demands ofimagination and Reality: The
Historian as Model for the Lawyer? 878
Macaulay, The History of England from the Accession of James
II, 879; Hume, History of England, 881; Macaulay, The History
of England from the Accession of James II, 882; The Nature of
Historical Narrative, 883
3. The Creative (the Delusive?) Imagination, 889
Gibbon, The History of the Decline and Fall of the Roman
Empire, 889; Burke, Reflections on the Revolution in France, 893;
Marvell, An Horatian Ode upon Cromwell's Return from Ireland,
898; Jonson, 1he Alchemist, 902
4. Placing the Private Self in a Narrative of the Public World:
Clarendon's History of the Rebellion, 903
a. The Narrative, 905
b. Putting the Qyestion: How to Live in Such a World? 919
Writing Assignment 20: Reconciling the Demands ofReality and
Imagination, 925
Writing Assignment 20, Alternative A: Telling a Story and Saying
What It Means, 925
Writing Assignment 20, Alternative B: Placing the Private Se!f in
the Public World, 926
Writing Assignment 20, Alternative C: Rewriting an Old
Assignment, 926
Writing Assignment 20, Alternative D: 1he Historian and the
Lawyer, 926
CHAPTER 7. THE EDUCATION OF THE LAWYER
Introduction, 927
A. Defining Our Subject Matter - What Is the Law and Where Can You
Find It? 928
De Burgh v. De Burgh, 928
xx CONTENTS
B. How Is the Law to be Learned? How Taught? 937
Abram, Educating the Lawyer as Policy-Maker, 938; Ascham,
The Schoolmaster, 943
Writing Assignment 21: The Lawyer's Education, 947
APPENDIX: SUPPLEMENTARY WRITING
ASSIGNMENTS
2-1: What Is a Good Conversation? 951
Oliver, The Endless Adventure, 953
2-2: Student-Talk and the Lawyer, 955
2-3: Metaphor and Cliche, 956
2-4: Translation, 957
2-5: Parody, 957
4: Giving Advice, 958
5-1: Making Directions Clear and Precise - More on the Statutory
Rule, 959
5-2: A Judicial Opinion on a Statute, 960
7: Explaining Behavior, 961
17-1: TheMindoftheJudge,961
17-2: A Document That Teaches, 962
17-3: Drafting an Opinion in Robinson v. California, 962
Robinson v. California, 963
Major Writing Assignment, 967
Bibliographical Note, 968
Index,971
FOREWORD TO THE
ANNIVERSARY EDITION
This book is an Anniversary Edition of the original version of 7he
Legal Imagination, published forty-five years ago this year.
I am honored that the publishers want to make this book available
once more, and to do so in its original form.
The Preface and Introduction to the Student do a fine job of intro-
ducing the book, and I need not repeat here what is said there. But a
few remarks may be welcome, as a matter of orientation.
This book was originally designed to teach law students how to
"write," that is, to come to productive terms with the nature and limits
of legal language in a way that does justice to the workings of their
own minds and to the experience of those whom the law may threaten,
injure, or assist. This is its main mission, but it has a greater reach than
this, for it confronts issues that are also present in other professions
and ways of life. I think it can thus be read not only by people of the
law, but by anyone with an interest in language and power, in writing
as a way of thinking and creating, or in culture as a reality and force.
I have made no revisions or updates or changes of any kind. This book
is a facsimile of the original. It has many of the virtues of a young per-
son's book and I am glad we are not changing it.
Does this mean that it is out of date, irrelevant to contemporary
concerns, in the law and out of it? I do not think so. Certainly most
of the substantive legal questions raised in the book are still with us:
the use of racial language, the proper way to think about abortion and
the death penalty, the insanity defense, discretionary sentencing, the
standards and values by which we should judge a judicial opinion, the
nature of equity, and what it means to try to create and live by a system
of rules. It is true that the rules oflaw on some subjects have changed,
xxii FOREWORD TO THE ANNIVERSARY EDITION
but I think the fundamental questions at issue are still with us. This is
even more plainly true of the broader issues relating to language and
character and culture.
I think in fact that this book may be of wider relevance now than
when it was first published, for its central concern is with integrity-
integrity of the law, of language, of the individual person - at a time
when integrity itself sometimes seems to be threatened as a value.
This book is not in form a jurisprudence book, but it is based upon,
and acts out of, a view oflaw itself, a view that strongly resists current
inclinations to reduce law to a matter of social policy, or theory, or
economics, or politics. Law has its own materials, its own life, and its
own way of being. It is - certainly from the point of view of lawyer
and judge - not a structure but an activity of mind and imagination.
I develop this view here, not by conceptual elaboration, but by per-
formance and implication, the only way I think it can be done. But
I can say this much: I think law is not merely a system of rules and
principles, nor is it reducible to policy choices or class interests, but
is rather what I call a language, by which I do not mean just a set of
terms and locutions, but a whole cluster of habits of mind and expres-
sion. It is an enormously rich and complicated system of thought and
expression, of social practices and definitions, which can be learned
and mastered, modified or preserved, by the individual mind. The law
makes a world. It is our task to acquire the art of reading and speaking
the language of that world.
Beginning on these assumptions, The Legal Imagination asks such
questions as these. How can one possibly begin to manage a discourse
that is based on something as apparently crude as a legal rule, which in
the nature of things always includes what it does not want to include
and fails to include what it wants to include? How one can sensibly
talk to a prosecutor, jury, and judge, when the statute under which your
client is charged seems to remove every issue of what might be called
justice? How does the law talk about people, and how should it do so,
in comparison especially with the literary artists who know how to do
this? How does the law use the language of race, rooted as it is in our
FOREWORD TO THE ANNIVERSARY EDITION xxiii
world-historical crime of racial slavery, and how should it do so? How
does the law talk about insanity and sentencing in the criminal law,
and how should it do so? What do we mean by "judicial reasoning,"
and when is it good, when bad? and so on.
In all of this I am imagining the law as a system of expression, a
language and a set of practices, that can be learned and used - and
must be transformed, in large ways and small, if justice is to be done.
The reader is invited throughout to compare legal texts with others,
drawn from high literature, from history, from philosophy, from psy-
chology, and from the ordinary stuff of life. Likewise, the questions
ask the reader repeatedly to call upon experiences of his or her own,
with the thought that they can provide an analogy or perspective from
which to examine the texts and issues before us.
This means that the book is not a standard text book, full of as-
sertions, but a kind of work book, full of questions. The questions are
invitations with which I hope both the student and the general reader
will want to engage.
In these ways the book establishes a conversation with the student,
a conversation which the general reader can overhear and participate
in at second hand. This is easier than might be thought because the
questions asked oflaw students can be seen, with very little change, to
speak as well to any person who seeks to use the materials of his or her
culture to speak to others and to manage relations with the people he
or she addresses - that is, to all of us.
The heart of this book is the relation I try to establish with its
readers, both students and others: at once demanding and supportive,
imaginative and realistic, serious and comic. I hope its emphasis on the
individual mind, individual experience, and individual responsibility
will be seen to be of particular value today.
One embarrassment I have not been able to remove is the remorseless
use of the male pronoun to refer to all human beings, and I wish I
could change them all to include women as well as men. I make no
defense of this practice, except to say that it was standard in those days.
But that could be said about lots of bad things.
xxiv FOREWORD TO THE ANNIVERSARY EDITION
There are also sensitive discussions here about the horrors of racial
slavery and our national efforts to respond to that legacy, which may
be difficult for the reader, especially if taken out of context. I hope I
have not spoken in ways that were careless or unaware, but ifl have I
hope the reader will be forgiving, and hear a youthful voice behind the
words, attempting to lead the discussion in a good direction.
JB.W
2018
