An Old-Fashioned View of the Nature of Law

Abstract

The law is a not an abstract system or scheme of rules, as we often speak of it, but an inherently unstable structure of thought and expression. It is built upon a distinct set of dynamic and dialogic tensions, which include: tensions between ordinary language and legal language; between legal language and the specialized discourses of other fields; between language itself and the mute world that lies beneath it; between opposing lawyers; between conflicting but justifiable ways of giving meaning to the rules and principles of law; between substantive and procedural lines of thought; between law and justice; between the past, the present, and the future. Each of these tensions is present whenever a lawyer or judge goes to work. None of them can be resolved by resort to a rule or other directive, but must be addressed anew by the lawyer and judge in each case as it arises, by the exercise of an art of language and mind that is defined by the nature of these tensions themselves.