Saying What the Law Is

Abstract

Exploring what it means to take formal law as an ethnographic object—a social phenomenon that both reflects and affects the society that produced it—this essay analyzes the legal doctrine governing the judicial review of administrative agency action. This doctrine splits agency actions into two types: those that interpret the law and those that implement it. These categories, however, do not map onto the actual structure of agency action, as interviews with agency administrators reveal. Rather than reacting to the inherent realities of their object, then, these doctrines instead instantiate a language ideology that pits the saying of law against the doing of it. I show the linguistic and legal realities that this language ideology erases, and trace out the way it recursively ramifies in other areas of legal thought. Obscuring the speech-act nature of law, the saying-versus-doing language ideology helps commentators paint a picture of ideal judges as neutral, passive interpreters who merely report on the intrinsic meaning of law, as opposed to less ideal others who implement policies. I also consider what a new language ideology—one that recognizes that the meaning of legal language emerges in part through its effects in the world—might do.