'Supreme' Courts and the Imagination of the Real: An Essay in Honor of Mirjan Damaška
“The Administration of Justice - Past Experiences and Challenges for the Future” a festschrift in honor of Mirjan Damaska (2016 Forthcoming)
39 Pages Posted: 26 Jun 2015
Date Written: June 24, 2015
In Local Knowledge, Fact and Law in Comparative Perspective, Clifford Geertz brought his interpretive method of cultural analysis to bear on the relationship between local systems of law and the cultures in which they are situated. Geertz’ argument can be summed up by his aphorism: “Law is but part of a distinctive manner of imagining the real.” I explore this puzzling statement by examining the role of supreme courts in constructing and maintaining the “imagined real” of the society in which they function. Using the Supreme Court of the United States as my principal example I claim that these courts are among the institutions that validate commonly held but culturally constructed notions of time, place, and the collective self. The focus is not on the content of judicial decisions but on the institutions and their practices. A brief conclusion situates my arguments within the broader point that fundamental socially constructed beliefs are created and sustained by the institutions through which they are expressed.
Keywords: culture, constitution, courts, Geertz, interpretive method, supreme courts
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