What is Law

What is “law”? By what processes do judges arrive at opinions, those documents that justify their belief that the “law” dictates a conclusion one way or the other? These are among the oldest questions in jurisprudence, debate about which has traditionally been dominated by representatives of two schools of thought: proponents of who see law solely as embodying the commands of a society’s ruling authority.

Since the early 1970s, these familiar questions have received some new and surprising answers in the legal academy. This novelty is in part a consequence of the increasing influence there of academic disciplines and intellectual traditions previously unconnected with the study of law. Perhaps the most influential have been the answers given legitimate authority, but who are intent on preserving the privileges of their race, class, or gender.

In the mid-1970s, James Boyd White began to articulate yet another interdisciplinary response to the traditional questions, and in so doing spawned what is now known as the Law and Literature movement. White has insisted that law, particularly as it is interpreted in judicial opinions, should be understood as an essentially literary each judicial opinion attempts in its own way to promote a particular political or ethical value.

In the recent Justice as Translation, White argues that opinion-writing should be regarded as an act of “translation,” and judges as “translators.” As such, judges find themselves mediating between the authoritative legal text and the pressing legal problem that demands resolution. A judge must essentially “re-constitute” that text by fashioning a new and aspirations of the world in which the new legal problem has arisen.