The Law's Mystery

37 Pages Posted: 7 Jun 2012

See all articles by Linda L. Berger

Linda L. Berger

University of Nevada, Las Vegas, William S. Boyd School of Law

Jack L. Sammons

Mercer University School of Law

Date Written: June 5, 2012

Abstract

This is a co-authored article as is the abstract that follows.

This article offers an unusual theory about a way of understanding the law and judicial opinions and then puts this theory into practice by analyzing Justice Harlan’s opinion for the Court in Cohen v. California, the 1971 U.S. Supreme Court decision that will always be known as the “Fuck the Draft” opinion. The article is an experiment really, one in which one author offers something to the other to see what she makes of it, and, in this, to teach him what he has said and what value it might have.

The theory begins in a recognition of the “law” as resting upon mystery and uncertainty, which is also the source of the law’s enchantment for us, however little we may now acknowledge it. It is this enchantment that we depend upon for law to be authoritative over us, as we hope it will be, rather than authoritarian and reducible to the political and thus to power. In simple terms, the mystery of the law — its being beyond us in this way — is its legitimate authority over us. This law, which discloses itself to us, does so through the openings that language provides. For our culture, judicial opinions are its primary way of doing this. Yet judicial opinions can do this only when judges resist temptations towards control and avoidance and are sufficiently humble before the law that they are willing to become inconsequential to opinions they have written in order to permit the law to speak.

In the practice section, the article explores whether it is possible to bring to the surface the tracings of a “great” judicial performance, using “great” in the sense suggested, that is, as revealing an opening through which the law discloses itself. This section describes one reading of a judicial opinion, a reading that aims to discover whether through the performance of the opinion, its author has uncovered something that is “of the essence” of our community.

The article finally raises questions about what it would mean to legal education and law practice if judicial opinions were able to be evaluated without destroying the law’s mystery. What would it mean if we thought of judges as preservers of this mystery? What would it mean if readers of an opinion started thinking in terms of their own experience of the opinion rather than as critics of it? And what would it mean if lawyers saw their task as related to the word that upsets all of us, “truth”?

Keywords: judicial opinions, free speech, Heidegger, Jame Boyd White, aletheia, legal truth, poetic truth, poetry, music, Beethoven, Ode to Joy, Christo, The Gates, inevitability, necessity, Cohen, Harlan, reading opinons, writing opinions, judicial ethics, virtue, phenomenology, legal education, Keats

Suggested Citation

Berger, Linda L. and Sammons, Jack Lee, The Law's Mystery (June 5, 2012). UNLV William S. Boyd School of Law Legal Studies Research Paper Series, Available at SSRN: https://ssrn.com/abstract=2078547 or http://dx.doi.org/10.2139/ssrn.2078547

Linda L. Berger (Contact Author)

University of Nevada, Las Vegas, William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

Jack Lee Sammons

Mercer University School of Law ( email )

Walter F. George School of Law
1021 Georgia Ave.
Macon, GA 31207-0001
United States
4783192989 (Phone)
478-301-2259 (Fax)

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