Law as a Language, Law as an Art: Reflections on James Boyd White's Keep Law Alive

I. Introduction

For almost half a century, the idea of “law and literature” as a serious field of inquiry and debate has been closely linked with James Boyd White, whose pathbreaking book The Legal Imagination addressed questions of legal meaning by treating seriously the embodiment of law in texts that can be read as literary works.1 Over that period, law and literature has become a recognized and even mainstream mode of American legal scholarship, a fact which makes it easy to forget that at the time White began writing, he and other scholars were engaged in a serious intellectual struggle over how to understand law and what it means to study law critically.2 White was not proposing an elegant but essentially abstract theory; his call to attend to the literary and rhetorical aspects of the law was an existential challenge to understand, teach and practice law in a particular manner. And White's literary understanding of law entailed a warning as well: he sought to persuade his readers to question or reject approaches to legal thought that would convert it into something resembling – or pretending to resemble – a value-free science.

In his recent book Keep Law Alive, White once again offers a vision of law, a vision that is continuous with that he first proposed long ago, but developed and presented with a clarity that comes only with long reflection on a governing idea. And it is, once again, a vision that is also an invitation and a warning. The title Keep Law Alive expresses vividly the urgency White wants us to feel about the task he is summoning American readers to undertake. “This is a moment,” perhaps the last moment, “before [law] changes or goes entirely, when we can see it, and hear it, and think about it.”3 The context in which White is writing is a time when all that American law has been, or aspired to be, may disappear forever, and his book seeks to bring to full consciousness the practices and implicit commitments of that law at its best before those practices and commitments disappear. I fully share White's alarm, and his belief that those of us who know something of the American tradition of law from the inside have a special responsibility to act. I know of no other work on law that as powerfully urges action in and for the law.

At the same time, I can imagine a skeptic, and not necessarily someone simply being captious, asking just what White, or I, can possibly mean. After all, it is hardly the case that public life in the United States lacks for arguments over law, invocations of law, threats of legal action, accusations and counter-accusations of law-breaking. Depending on the critic and the particular controversy in view, the institutions of law—courts, the profession, the police, even (occasionally) law teachers and law schools—are praised or damned with tedious regularity. But even the negative commentary generally assumes that law and the judiciary are highly significant factors in the life of the nation. Concern about the law isn’t limited, furthermore, to talking heads or opinion columnists: it is widely believed that significant numbers of voters care enough about who fills federal judgeships to choose a presidential candidate on that basis. Law in some sense is alive and well. So just what is this “law” that White warns us is under threat and may disappear, that we must take steps to keep alive?

The answer that Keep Law Alive provides cannot easily be summarized: law, as James Boyd White has long understood law, resists abstraction and over-simplification. But two aspects of the rich portrait he has given us particularly stand out to me, and in this essay I want to reflect on what it means to say that law is a language, and that law is an art.4 By talking about these descriptions of law separately I do not mean to suggest that White treats them as discrete and unrelated. Quite the opposite: Keep Law Alive talks about law as a language that can be used or reshaped through artistry or craftsmanship, and the art of law is a “language art” in the most literal sense, dependent on the lawyer-artist's mastery of its words and grammar, and her ability to translate human experience into the law's terms and the law's concerns into ordinary language. If we keep the two ideas apart for the moment, however, I think we will be able to see more clearly what White means by each description of law, and indeed how they relate to one another.

II. Law as a language.

Keep Law Alive is written throughout in a personal tone unusual in legal scholarship, but only to be expected from White. “Living speech,” speech that matters and can be taken seriously, brings the reader into contact with the mind and thought of the writer, because the latter has put himself into his work.5 White's work is always living speech, and he explains his assertion that the law is a language by drawing the reader into his personal experience.

When I was an undergraduate I studied Greek, and I found myself asking questions like the following: … What are the forms of thought and imagination that this language invites and makes possible? What, in short, can be said and done in this language that cannot be said and done in English? When I came to law school I felt that in learning law I was also learning a new language. It was like learning Greek, except that it was a language in which to think about and debate important contemporary questions of our shared existence. … The questions I had for it were much the same as those I had about Greek.6

In the past, the point of law school was often said to be learning to think like a lawyer, an image that might suggest a cerebral and even individualistic accomplishment. White's experience was that law school more closely resembled the process of coming to participate in a new linguistic community, a community that existed to serve the “shared existence” of Americans in general but to do so through “forms of thought and imagination” that cannot easily be said or acted on in the natural languages spoken by the Republic's people.

As a description, a phenomenology, of what goes on in law school, the image of learning the law as learning a new language seems to me, as a former law student and long-time law teacher, entirely convincing. Even after many years, I recall how difficult it was at first simply to understand what was being said in an opinion or statute, while as a teacher of first-year law students I find it very useful to understand what I am trying to help them do in terms of becoming fluent in a new tongue: I have no direct access to how they are thinking about law, but in almost every class I listen to students and attempt to shape how they are talking the law. But the value of describing law as language is not limited to the way it captures the experience of legal education.

Earlier in the book, White explained what he means by calling the law a language in a less personal manner: legal knowledge, what one knows as a lawyer, “is a species of cultural competence, like learning a language … for what a lawyer knows at the center is how to speak and write the language of the law, in actual situations in the world—how to use legal language to create legal meaning.”7 The common non-lawyer belief that “the law” consists of a lengthy list of rules, and that what distinguishes the lawyer from others is that she knows the list's contents, mistakenly treats the law as a closed system of directives that map onto the world in a straightforward manner. In reality, however, law is “an open system, like a language” that creates “a set of possibilities for original thought and expression” and “not only mak[es] creativity possible, but requir[es] it.”8 Learning a new language enables one to read hitherto inaccessible texts, to express oneself in ways not previously available, but the new language does not dictate what must be said. It expands the new speaker's “set of possibilities” for effective learning, thought and expression, but the speaker must decide what to read and say. In the same way, law as a language makes it possible for the lawyer to address many disputes and issues in the community's life in potentially effective ways, but it does not script for her how she deploys the law's language.

Envisioning law as a language also enables us to see more clearly three other truths about law. First, law cannot be reduced to some other form of human discourse that can tell us what is “really” important or “really” the issue in some controversy. People with appointments on contemporary American law faculties are especially prone to think that law is a façade behind which the real subject matter lurks, waiting to be unveiled by the use of economics, say, or another social science, or some sort of policy study, or history, or a moral philosophy (whether John Locke, John Dewey, or John Rawls). Ideally, the methods and findings of the real discourse simply displace anything that is distinctively legal in the process of decision making.9 But languages don’t work that way: they require translation rather than substitution. “Neither economics nor sociology nor psychology nor any other field can address, let alone resolve, the distinctive legal questions about the identity and meaning of authoritative texts and about the degree of deference due the judgments of others. … [I]n no case can the language of the external discipline substitute for that of the law; it must be translated into it.”10 Other fields of knowledge very often have critical roles to play in sound legal thought, but lawyers must translate what they have to contribute before the legal system can make effective use of the contributions. The Iliad can speak with power to fundamental questions about conflict, personal and social, but it must be translated by those with the ability to do so before Homer can play a role in Anglophone culture.

Because law can be seen as a language, second, becoming a good lawyer is not a matter of mastering an expansive set of facts about rules as the non-lawyer may imagine—as if one could become fluent in a natural language by memorizing a dictionary and a list of grammatical rules. We know someone truly knows a language when through practice she has become skillful in its use, able to understand nuance and complexity, and in turn to communicate with clarity and beauty. Becoming fluent in the law demands a parallel process of practice at using the words and concepts of the law to answer what White calls “the distinctive legal questions.” And we know someone is a good lawyer when she can address, and give persuasive answers to, complicated questions about the meaning of the law's authoritative texts and relationships among its institutions and speakers. Some law professors who believe in the law-as-façade mistake barely conceal a kind of contempt for colleagues whose expertise lies in the language of the law, but even the less arrogant are committed, by virtue of their understanding of law, to a view of legal education and legal research that relegates distinctively legal knowledge to a secondary role. Seeing law as a language makes the errors in this view obvious.

Understanding law as a language, third, enables us to see that what is problematic or wrong about a flawed legal doctrine or decision is often rooted in the limitations of the linguistic tools lawyers employ. A natural language enables its speakers to see and think and express ideas not available to non-speakers, but by the same token it sets limits to their capacities of thought and imagination. And any language can be used in obfuscating or degrading ways. White illustrates these facts in a powerful chapter on “What's Wrong with Our Talk about Race?” The answer he gives in the end to this question is that “our”—the American, not just the legal—“language of race works like a language of war … since its origins were as a language of war, a language that would justify the war of whites against blacks—their seizure, sale, and total subjugation, by torture and murder if necessary.”11 Americans cannot speak well about issues involving race because the very language we use, even if we intend to reject racism altogether, has been shaped by the moral horror of chattel slavery. The American language of law has not escaped this profound warping: most of our legal discussion of race employs terms and concepts so abstract that they obscure the unique place in American life played by the enslavement of African Americans and its aftermath of white Americans’ racism toward black Americans.12 The result is that legal decisions tend to transform questions about “the power of the state to address our gravest and deepest social evil” into calculations about the relative costs and benefits of programs that existing constitutional doctrine does not even allow Americans to discuss in terms of that evil.13

The vision of law as a language in Keep Law Alive offers a deeply traditional, and to me entirely persuasive, alternative to the strong tendencies in contemporary American public and professional life to treat law as reducible to a closed system of pre-determined answers, or that view law as the packaging to be removed from the extra-legal substance that counts, or that dismiss attention to distinctively legal questions as a political smokescreen or, at best, an intellectually uninteresting distraction that the cognoscenti should ignore. Keeping law alive will require Americans to regain or reassert a robust confidence in law as a distinctive and meaningful language that cannot be replaced without profound injury to the American community's ability to pursue its highest, humane ideals.

III. Law as an Art.

Keep Law Alive tells us that the young Jim White found himself, first as a student of Greek and later as a student of law, asking various questions about the language he was learning. One that the book specifically mentions concerned the ways in which this new language would broaden the range of ideas and actions open to him: “What are the forms of thought and imagination that this language invites and makes possible?” The answer the Jim White of today gives us is that learning the language of law invites and enables the student of law to practice an art, and this vision of law as an art is central to Keep Law Alive.14 But just what does it mean to see law as an art rather than, say, a science or a form of mathematical or economic calculus?

To some degree, the assertion that law is an art works to show what law is not according to White: “I have been resisting an image of laws as rules and policy, but behind those things there is a deeper vision to resist: of law as abstract, mechanical, impersonal, essentially bureaucratic in nature, narrowing rather than broadening the human capacity for experience, understanding, and empathy.”15 Such a vision of law as “anti-art” strives to eliminate the role of personal evaluation and traditional legal argument in reaching legal conclusions in favor of an allegedly objective set of tools borrowed from some other discipline, often economics (or in constitutional law, history), that can turn legal analysis into a science delivering incontestable “results” rather than judgments that are necessarily open to discussion and challenge. By arguing that law is an art, White is asserting that law cannot be the exercise in algorithmic decision making, or value-neutral policy analysis, or plain-or-original-meaning textualism that so many law professors (and unfortunately some judges) apparently long for.16 The image of law as an art identifies law as fundamentally incompatible with any of these fashionable attempts to deny the role of the individual and of his or her judgment in legal argument and decision.

More often, however, White talks about what follows from recognizing law as an art in affirmative terms, and specifically identifies the ways in which the knowledge and practice of law broadens human capacity and human understanding, individually and interpersonally. Except when the term is bandied about as an empty compliment, to call a human activity an art is to imply that its practitioners are personally involved in the creation or performance of the art, and that the art calls on its recipients to participate meaningfully in what the artist has fashioned.

My own sense is that what law calls for in those who practice it, or teach it, or live with it in other ways, is at heart an art, an art of language and composition. The law in this living sense is … an activity of the mind and imagination—a form of life—that has the value of justice at its heart.

[The] kind of knowledge [law] requires and makes possible … is knowledge not just of rules or concepts, but of an art that is essentially literary and compositional in nature.17

I will return to White's observation about justice later. For now, let us focus on three other features of law as an art to which these passages point.

First, law is an art of language. That might seem obvious or banal—after all, no one denies that the law uses words—but it is clear here and elsewhere that White is not offering us a truism. Law, he tells us, is an art of language that involves at its heart composition, the creation of new texts (whether written or oral), and not just the deciphering of an authoritative oracle.18 Law as an art is therefore “essentially literary,” and what good lawyers are engaged in is more like writing (or reading) a poem than solving an equation. For that reason, the appropriate mode of evaluation for legal texts such as judicial opinions is “by judging [the writers’] work as performances of an art” rather than by our “political agreement or disagreement with the outcome.”19 And if law is a literary art, then its performances—at least when they are skillful—will be constituted, of necessity, by the interplay of tradition and creativity. A lawyer who tried to ignore “the inheritance of thought and experience expressed in what we call the materials of law—prior cases and statutes, existing understandings and expectations” would not be engaged in law at all.20 But a lawyer who thinks that those materials supply all the answers to all possible questions is deluding himself, or in the grip of one of the “abstract, mechanical, impersonal” accounts of law that attempt to reduce law to rules or extra-legal policies.

That law is an art entails, second, that it is far broader than the austere ratiocination some anti-art visions of law praise. Both the legal speaker and the lawyers who answer or evaluate her work must call on not only the logical and technical skills of the mind, but the creative and intuitive faculties of the imagination. Indeed, for all the traditional talk about thinking like a lawyer, law being a learned profession, and so on, “at its deepest, legal knowledge is imaginative in character.”21 What lawyers know is not so much facts of any kind (including the facts of what one can find in the statute books or case reports) but how to identify and construct “patterns of thought and imagination” that connect the legal and historical past to the facts of today or tomorrow that demand the lawyer's attention.22 “[T]he life of the law is full of opportunities and occasions … for imagination, for invention, for creation in language, or what I call ‘writing.’”23

Keep Law Alive's chapter on “Reading (and Writing) a Judicial Opinion” provides an extended example of how seeing law as an art that engages the imagination as well as the intellect can deepen our understanding of the relationship between law and the society it serves and to some degree constitutes. The chapter focuses on Justice Oliver Wendell Holmes's celebrated opinions in the 1919 Schenck and Abrams decisions, opinions that are universally recognized as the inauguration of serious Supreme Court thought about the first amendment's protection of freedom of speech. Much of the writing on those much-written-about opinions has taken one of two tacks. Holmes's switch from rejecting the first amendment claim in Schenck in the spring to accepting it in his Abrams dissent in the fall has always been intriguing, and scholars have often tried to work out just what in Holmes's thinking changed and why. Others have been more concerned with the conceptual content of Holmes's enigmatic but powerful discussion of free speech's importance in Abrams. White, instead, invites us to see how Holmes the artist of law was “almost without knowing it [beginning in the spring in Schenck] to provide material for thought about” the first amendment, materials that he then used in the fall in Abrams to construct “a way to give meaning to the text by imagining the world in which it occurs, including himself and others within it, in a new and coherent way.”24

What is of critical importance and lasting significance about the Abrams dissent is not its doctrinal content, which in any event is more hinted at than developed, but the shift in perspective that Holmes achieved and then provided his readers. Rather than leaving the free speech clause an almost empty or formal rule, “Holmes found a way to imagine the world in such a way as to give the first amendment meaning and scope … a way of imagining that is not ideological or mechanical in character.” The Constitution broadly protects speech, even speech “that we loathe and believe to be fraught with death,”25 because doing so makes sense in the world that Holmes has (in one way) called into being, but also (in another way) constructed out of the materials and tools the American legal tradition provided him.

For his imagined universe is populated with people who are striving to understand and speak, disagreeing to the point of war, claiming power, asserting truth, and he says that this activity, in which he himself is engaged, in this very paragraph and throughout his work as a Justice, is one that must be in its nature local and provisional. Just when we are most sure we are right, we must recognize that we may be wrong; and not only about matters of truth, as he puts it, but about matters of justice as well.26

Almost at the end of Keep Law Alive, White returns to Holmes, and expands on how he understands the role of imagination in Holmes's 1919 first amendment opinions.

This is a crucial moment in the development of law, as it would be in the making of any composition … from history to philosophy to music or painting; the moment, that is, when a person who is engaged deeply and sincerely, and with an open mind, in a practice of thought and imagination finds unconscious resources within the self that produce a new direction, a change in the way the enterprise is imagined. Holmes does that, not by a kind of leap, but by building on his tradition, which he keeps alive as he remakes it.27

Law at its best, law practiced as an art as Holmes wrote his opinions in Schenck and Abrams, is like other arts both a profoundly individual activity and one that always takes place within a tradition and a history that define the art and its limits, but always does so provisionally, open to moments, performances, that transform the art and the artists.

In light of White's insistence that law as an art engages more than just the calculating mind, the third aspect of his vision of law is unsurprising. Law as an art is a “form of life,”28 and to practice law in that manner is to make a deeply personal commitment. One of the most striking aspects of Keep Law Alive is the unguarded and self-revealing way in which White writes about law and his relationship to law.

What I hope comes through more than anything else is the love that I have for the law that I am trying to make real for my reader. It has been a blessing to be able spend my life doing it.

This book is driven by love of something that seems now to be under threat. I do not want to lose it.29

Legal writing often aspires to an impersonal and even Olympian tone,30 but Keep Law Alive consistently adopts the opposite approach. No reader can miss White's passionate concern for a practice and tradition that has shaped his individual experience and identity—or White's desire to communicate his passion and commitment.31 (Note White's reference to “my reader.” The book, furthermore, frequently addresses his reader directly, as an individual whom White seeks to inspire as well as inform.) Nor does White distance himself as a person from what he writes about controversial or disturbing topics, most strikingly in his chapter on “What's Wrong with Our Talk about Race?” “To put it bluntly, I think that we whites are as a general matter much more racist in our attitudes towards blacks than towards any other group, and that this shows up in our behavior and in the social structures we fashion and support.”32

To speak about loving the law is to invite condescension from those uncomfortable with or dismissive of emotive and self-involving language; to write candidly, as a white American, about white American racism is to risk condemnation from more than one perspective. That Jim White does not hesitate to do so, but in fact repeatedly invites the reader to respond to the person he is showing himself to be,33 might seem either naïve or courageous.34 But I think White would respond he could not truly write Keep Law Alive in any other way. Because his assertion that law is an art is not just as a vague compliment but a serious and substantive description of law as he understands law, White was obliged to make his own involvement—moral and emotional as well as strictly intellectual—clear. There is simply no other honest way to speak about law as an art.

At this point, we should turn to the facet of law as an art that I deferred earlier, White's claim that the art of law that is “an activity of the mind and imagination—a form of life—that has the value of justice at its heart.”35 This claim is central to White's understanding of law as an art, as he makes clear: “the main goal of law is … justice … Justice in fact is part of the definition of law;” the legal tradition is “a continuing and collective effort to imagine justice into reality;” every judicial decision “performs an answer to the question: ‘What are our institutions of justice? How well—how justly—do they work?’”36 The obvious problem, as White fully recognizes, is that American society is shot through with disagreement over fundamental issues of justice that we have no apparent means of resolving. “There is no arbiter, no one who can tell us that this is truly just, that truly unjust. We are debating competing conceptions of social justice.”37 How then can American law have justice as its goal or end, when it is unimaginable that the American political community will ever agree on which legal outcomes are just?

I do not think White ever fully answers this last question, although as I explain below I think this is a strength, not a weakness or oversight in his book. But first let us see what partial answers Keep Law Alive provides. There are, first, two explanations of the statement “the end of American law is justice” that I think White clearly rejects. He is not offering or assuming a view of “justice” that would limit the concept to a thin notion of purely procedural regularity or fairness.38 Still less is White the moral relativist that Justice Holmes is sometimes accused of being. Americans disagree over issues of justice “as a social fact,” but that doesn’t mean there are no right answers to such questions. For White, ethical judgments are debatable claims about moral reality rather than incorrigible assertions of private preference; as he puts it in discussing Holmes's Abrams dissent, “we may be wrong; and not only about matters of truth, as [Holmes] puts it, but about matters of justice as well.”39

And here, I think, we begin to see part of what it means to say that justice is at the heart of law. One of the questions the young Jim White asked himself as he was learning the language of law is “what will it mean for me to give myself the mind and character of a lawyer, of one who speaks this language?”40 There is no mystery about the assumption here that language shapes character; to give a painful example, as White shows in his powerful chapter on the American language of race, the ways in which white Americans speak about black Americans, and about race more generally, distort our perceptions, our emotions, and our moral characters. The same is true about misogynistic and xenophobic habits of speech. But not all languages are morally objectionable or problematic,41 and White believes that law as a language and an art can shape the mind and character in deeply positive ways.

Consider what a skilled litigator must do in building the case for her client. She will argue that the outcome in her client's favor is “required by the law,” and seek to substantiate that claim by offering the strongest possible technical arguments from the relevant statutes and precedents. She will also argue that a decision for her client is “fundamentally just. An argument that … admitted that the result was unjust, would be profoundly incomplete.”42 But she cannot advance her moral claim by talking about “justice” or “fairness” abstractly; the claim must take account of the institutional context in which legal decisions are made. “We [lawyers] recognize that power and authority are already distributed among many actors, present and past, each of whom has his or her own zone of authority. If made within their jurisdiction, their judgments are entitled to some degree of respect even if we disagree with them—the precise degree of respect being an important question of law and justice.”43 And she will craft her claims about law and justice on the assumption that the judge will take them seriously, and evaluate their cogency fairly and intelligently rather than treat them as window-dressing for a political or ideological position: “we talk to the judge not as the bundle of prejudices and beliefs and commitments and character traits that form part of his or her character, but as an ideal judge, one who is always seeking to do justice under the law.”44

Of course, “[o]ften enough lawyers or judges are thoughtless, crude, unimaginative, inarticulate, and dull.”45 White is portraying an aspirational ideal, but it is an ideal that can shape, when all goes as it should, the words and actions of the imperfect lawyers and judges who actually make up the legal system. Precisely because she wants to be effective in a practical sense, an able litigator must display respect and even a kind of humility, not only toward the judge in the case, but as well toward the judges, legislators, and others whose decisions and actions make up the legal materials relevant to the case.46 In doing so, she is acting to that extent as a just person herself—“Justice requires us to find open and respectful ways of imagining ourselves and each other”47—and contributing to the culture of respect for all that is central to equal justice under law.48 And she must assume that it is meaningful to talk about “justice” in a context where there is no preordained agreement about debatable moral issues, and that the ultimate decision will reflect “open-mindedness and intellectual honesty—the core of judicial ethics.”49 The art of law thus demands that its participants (including judges) embody virtues of good faith and respect for others, and employ the language of justice in explaining their arguments and decisions.50

The answer to the young Jim White's question about what learning to speak the law would do to him as a person is that law's language commits one to speaking about, and therefore thinking about, justice. Law's art, furthermore, is “a way of being a grown-up: learning to live in a world in which people think differently from each other and to respect the judgments of those with whom we disagree.”51 While no lawyer grows completely into the just person the law presupposes, and some do not try at all, the practice of law and the pursuit of justice overlap. And in that overlap we see a justification, in part, for White's claim that justice lies at the heart of law. But only in part. A “real aspiration to achieve justice”52 is a highly admirable personality trait, but justice is more broadly the central characteristic of a decent and humane society: “nothing is more important to a healthy community than justice.”53 But one has only to think about the long history of legal discrimination against African Americans to wonder if White is right to say that the goal of American law as an art is justice.

To this concern, I think White does not, and indeed by his own understanding of law and justice cannot give a complete answer. In some context other than law, it is possible to talk about justice simpliciter, as if we were “writing on a clean slate.”54 Of course no person can in fact discuss justice wholly free of his or her cultural, historical, philosophical and religious context, but White's image makes the point vividly that a moral philosopher, say, or indeed anyone thinking about his or her personal views on justice, is under no a priori obligation to take the views of others into account. In contrast, the lawyer is always under such an obligation, if she is practicing the art of law. As we saw above, White stresses the fact that “[b] oth lawyer and judge constantly turn to other texts, composed by other persons, who have made judgments which they are bound to respect.”55 This dramatically shifts the basis on which one can speak about justice or identify what is just and unjust.

“[I]n the world of theory,” the world in which we can speak about justice in itself or in the abstract, “the rightness of [a particular] result depends upon its congruence with the theory,” and if our particular theory permits, we may be able to give a complete account of what is just and unjust.56 But “the world constructed by the law is one that distributes the power to decide such questions [of institutional authority and substantive justice] differentially to various public and private agents,” and it is not possible, even in principle, to resolve in advance the tensions and potential conflicts within those legitimate sources of legal authority that will bear on the specific questions law may have to address. A moral theory can be authoritarian and absolute since it rests on “the commitments of those who are persuaded by it,” and one of those commitments may involve rejecting other theories or viewpoints as simply wrong and unreasonable. In contrast, “what the law teaches us is that we live in a world in which different people can have different, decent, and reasonable views [and] that we need a way to respect these views and judge among them fairly, that is, openly and honestly.”57 Because the law's goal is justice within that world, any specification of what justice requires must recognize that it is provisional and open to further consideration and debate.

IV. “Can These Bones Live?”

Keep Law Alive is not an optimistic book. As I noted at the beginning of this essay, Jim White speaks of the present time as a moment when it is still possible to “see … and hear … and think about” American law, “perhaps more clearly than we could before the threat [to law as language and art] occurred.” But in the final sentence in the Afterword, White describes his “aim in this book” as giving “to the law, and to the culture of which it is a part, a voice that might be heard in a different world.”58 Much of his book seems to accept that this different world, a world without law in White's sense, already has the upper hand in American public life, including the life of American legal institutions.59

White gives ample reasons for pessimism about law's fate,60 but I think Keep Law Alive is also a deeply hopeful book.61 Because law is a language, it will live as long as there is a community that speaks it. Because the art of law is a form of life, not simply a set of governmental practices, we can “keep a version of law alive as a way of approaching life itself, even if in its institutional forms it withers away.”62 This does not mean that Americans who know and love the law can simply retreat into private conventicles of the like-minded: “The law is interwoven in the world in an inescapable way.”63 But the difficulty, in this moment, in seeing how Americans are to maintain or restore the law's vital role in public life is the same difficulty in principle that law has confronted, and successfully overcome, at other junctures in the past. As Holmes did in his day, in order to give meaning and life to the first amendment, so we too in our day, must “imagin[e] the world in which [law] occurs … in a new and coherent way” in order to keep law alive and meaningful.64 That will be no easy task, but there is reason to hope that it is within the “capacity of the imagination and the heart” that law evokes and nourishes.65 Like the ancient prophet, we may not yet see how dry bones are to live again, but as he also recognized, we can look for the vision.66