[*PG291]CHRONICLERS IN THE FIELD OF CULTURAL PRODUCTION: COURTS, LAW AND THE INTERPRETIVE PROCESS
This paper unearths the cultural basis of judicial authority in the project of producing and reproducing cultural norms, that is, the unconscious “common sense” of “things” from which we draw all rules of social conduct. It does so from two perspectives. The first considers authority from the perspective of the sorts of pronouncements of “law” that judges purport to make. The second looks to ingrained and submerged cultural patterns of “hearing” for the model by which individuals and societies in the West submit to and obey the judicial voice. Identification and memorialization provide the key to understanding the weightiness with which judicial speaking is heard. Courts act judicially, and therefore say something worth hearing, only when they engage in acts of identifying and articulating points of social consensus. The very act of pronouncement serves to reinforce and memorialize the consensus articulated. But the weight given to judicial pronouncements also engages the hearer in the more subtle act of repeating and reinforcing basic cultural patterns of speaking and hearing. Courts pronounce in three different cultural voices: the Homeric, the Delphic, and the voices of Job’s companions. The two Greek voices speak with measured tones and single-minded linear confidence; they are transmissions from the divine which must be obeyed. The voices of Job’s companions adds a layer of messiness and conflict to the authority of judicial pronouncement. Biblical patterns of cultural speaking also create within the court the possibility of change. The courts provide a site for the articulation of prophetic voices. These are the voices, within and without the law, that are the harbingers of change.
My purpose here is to explore the nature and process of norm making within culture as it is expressed through what we identify as “law.” I do so by focusing both on law as an expression of cultural [*PG292]standards/models/patterns regarded as mandatory, as well as on courts as a place from which these standards are articulated. My objective is twofold. First, I question the commonplace notion that law is something that “acts on” culture, i.e., that law disciplines culture. Second, I show that, contrary to a most cherished late twentieth century Western delusion, neither our common law, our courts, nor our legislatures can serve as the engine that produces any sort of coercive law capable of transforming these standards/models/patterns.
The construction of social norms is not a function of law. Nor does law create rules by which society governs itself. Law may confirm; it does not initiate.1 Law does not exist as an autonomous “legal” person, independent of the social hegemonics from out of which it is produced. Law and social hegemonies are strategies by which power takes effect; each is the embodiment of a general design or institutional crystallization of power.2 Law exists within and reflects the culture from which it operates. As Girardeau Spann suggests, “[T]he Court is institutionally incapable of doing anything other than reflecting the very majoritarian preference that the traditional model requires the Court to resist.”3 It is, therefore, with some irony of reinterpretation that I subscribe to Foucault’s observation of legal discourse as “essentially politico-historical, an indeterminately critical and, at the same time, extremely mythical discourse in which truth functions as a weapon to gain partisan victory.”4
I propose a different way of understanding both law and the nature of the authority with which courts pronounce law. Courts function as chroniclers of the norms through which people sharing a common culture understand themselves. The primary functions of courts are to identify cultural practice and then to memorialize that practice as law. Juridical expressions of law are essentially descriptive; standing alone, their pronouncements cannot coerce cultural practices. As such, law is an enterprise of affirmation.
[*PG293] Yet the juridical serves as an important site for the production and affirmation of culture. Courts are the great vehicle for the institutionalization of cultural aesthetics on a perpetually grand scale. Courts speak authoritatively only in this sense, but the authority of the juridical in this enterprise of cultural aesthetics is both messy and complex. Society listens and learns because—and only when—it chooses to do so. Society internalizes what it hears to the extent it feels it must. The dynamics of this relationship between speaker and audience are deeply ingrained within ancient cultural patterns of the aesthetics of authoritative voice. To understand the function of law, one must first understand the cultural basis of juridical authority.5
Courts engage in authoritatively cultural production using one of three voices: one of two Greek voices, the Homeric or the Delphic, or the Hebrew voice of the Biblical Job’s companions. The two Greek voices speak with measured tones and single-minded linear confidence. The Homeric voice articulates tradition: it is the voice of repetition and reminder, the voice of our oral tradition. The Delphic voice speaks with the authority of the seeress touched by the divine. This voice articulates “that which is becoming,” thus illuminating value-movement within culture. The Biblical voice adds a layer of messiness and conflict to the authority of judicial pronouncements. The voices of Job’s companions are always incomplete, flawed, or misdirected. We might listen to these voices with half an ear, and we might successfully rebel against it under the right circumstances. Stripping the divine from the voice that articulates, these Biblical voices provide a societal exit from the duty to obey and submit
Each of these voices serves as a metaphor for deeply ingrained cultural patterns of speaking authoritatively. The voices are neither complementary nor reconcilable. The invocation of these deeply embedded forms of authoritative voice confirms the authority of the courts to speak. Yet, embedded as well in the very form of voice through which the courts speak are the clearly drawn limitations of that authority.
However, the authority of courts does not lie merely in their authority to pronounce. The courts themselves also function as a space in which the non-juridical may speak with authority, for courts provide a site for the articulation of the Biblical voices of the proph[*PG294]ets. The courts are the platforms, their opinions the microphones through which voices such as those of Jeremiah, Isaiah, and Ezekiel speak to the people. Society has been culturally trained to respect, if not always to harken to the prophetic voice. For every moment when society acts like the cultural Hezekiah,6 there will be countless times when society listens to the prophetic like the Biblical Jezebel.7
It is only in this culturally prophetic sense that courts exist as the place for the struggles and contestations which may produce cultural movement. In this arena, “losing” arguments are also articulated and memorialized. Thus produced, the prophetic find their way back into non-judicial social discourse. In this function, and in this function only, might courts indirectly serve as a means of cultural movement. A good American example is Justice Harlan’s voice of dissent in Plessy v. Ferguson.8 Once articulated, this argument became a part of the cultural dialogue suggesting an alternative vision of “what is.” When that vision changed, the problem of the articulation of accepted social norms of race relations returned to the Court in Brown v. Board of Education.9 This time, however, the Court invoked its oracular voice to identify as the norm the cultural construct rejected in Plessy. It did so not because the Plessy dissent won the day as a matter of logic or jurisprudence, but because the popular culture had embraced the notions articulated in that dissent.10 Thus, the Plessy dissent produced culture which produced law.
Neither courts nor laws function as we have been taught to expect. An understanding of courts as chroniclers in the field of cultural production, as well as the site for the struggle over that production, tells us why. Once we understand courts as part of the process of cultural production—that is, as the site for the identification and memorialization of culture norms—we can focus more consciously on using them to engage in culture dialogue.
[*PG295] I begin by discussing the role of courts as the institution that identifies and memorializes norms in the form of law. I then explore the identification-memorialization process in two contexts. The first context is that of the European Court of Human Rights’ margin of appreciation jurisprudence, and the second is that of the construction of general principles of community law by the European Court of Justice. Identification-memorialization engages the courts in the process of cultural production to the extent that courts speak or provide a site for authoritative articulation.
I then explore the culturally evocative voices that courts use. These voices—the Homeric, Delphic, and Jobian cacophony—describe the complex and dynamic interactions between law, courts, and culture. Our judges function as a discordant and polyphonic cultural choir. From this choir will come articulations of cultural reality—more or less authoritative, more or less temporary, and more or less clear—in the form of rules and consequences for breaking taboos. Courts also and simultaneously serve as a site for challenging the authority to voice and patrol social and political space. To the victor of these struggles belongs a greater authority to pronounce convincingly those standards/patterns/models of the normal which may be enforced by the countless disciplines marshaled by society for that purpose.
I end by suggesting some complexity in this seemingly simple aesthetics of norm and authority. Complexity and ambiguity follow from our understanding that courts may speak simultaneously in multiple voices. Neither society nor “law” provides an unimpeachable arbiter of these voices. Society can never know for sure which voice speaks “truth,” even momentary “truth.” At the most general level of complexity, I eliminate the simplifying constraint that culture exists in unique spaces. Culture itself must be understood in the plural, even when the institutions of cultural production are conceived in the singular. The culture in which courts operate shares space with multiple competing cultures. The struggle over the authority of one culture to speak for the others in its midst through the institutions of formalized power suggests a complex and dynamic interaction that, in turn, affects the authority of courts to speak.
Culture functions “as a meta-system by containing within it all possibilities, all combinations, possible given the set of basic assumptions which define a group as ‘distinct.’”11 Popular culture is the way in which we selectively and collectively evidence culture in practice. Popular culture represents the production of culture at any particular time; it represents merely an implementation of the possibilities inherent in culture, not the totality of the possibilities of culture itself. We implement culture individually and collectively through an endless attempt at replication. In this sense, popular culture can be understood as the “prejudices,” or what I would characterize as value choices, of the extant communal tradition.12 Such is the fundamental nature of our interpretive community.13
Courts and law participate in the production and replication of popular culture. However, neither courts nor law participate as one would expect—as the engine through which popular culture can be directed and transformed. We now understand better what Gerald Rosenberg meant when he said that “the conditions enabling courts to produce significant social reform will seldom be present because courts are limited by . . . constraints built into the structure of the . . . political system.”14 The Courts are “institutionally incapable of doing anything other than reflecting the very majoritarian preferences that the traditional model requires the court to resist.”15 Instead, courts [*PG297]engage in the field of cultural production as chroniclers. Their function is to declare and preserve culture. They do not function to create or transform. Theirs is a passive function—to provide a post facto imprimatur to the current iteration of popular culture. The courts’ contribution to the production of culture is thus the very declaration “what is,” or “what is becoming.” Except in the popular imagination, courts do not engage in the struggle over “what might be.”
Thus, one of the primary post facto functions of the court is to identify the current normative framework of popular culture. This normative framework is at once “law” and the basis on which “law” can be “named.” It is the process of becoming conscious of “what is” as opposed to a process of imposing “that which was not.”16 Law, as the description of existing social norms identified by courts, is something very different from our popular conception of law as the creation of courts which make law for the purpose of changing conduct.
The notion of courts as some sort of agent for social change has developed a certain currency among so-called traditionalists in the United States. In a well-known book, former judge and failed Supreme Court nominee, Robert Bork, bitterly attacks the notion of courts as a “legislative” power, one that imposes its personal views on an unwilling population.17 Of course, this argument draws much from liberal criticism during the 1960s of the process-oriented theories of the 1940s and 1950s.18 At the same time, several generations of social [*PG298]activists, composed mostly of the traditional “left,” as well as identity and interest groups, have also come to believe that courts are a viable means of radical social change.19 Indeed, the seeming ability of African-Americans to use the courts in the United States to win equal treatment and coerce integration has assumed archetypical proportion.
Despite the hopes of these groups, and the fears of conservatives, most attempts to impose judicially ordered changes in social norms have been miserably unsuccessful. For instance, judicial activism has yet to coerce Americans into recognizing that citizens have a fundamental right to social benefits.20 The courts have yet to impose an obligation on Americans to accept gay men and lesbians as citizens.21 Similarly, American courts have shied away from strictly rationing economic benefits or business benefits on the basis of race.22 Some American critical race theorists have come to accept the notion, if somewhat reluctantly, that the judiciary cannot successfully compel radical change.23
Even those decisions advertised as models of successful judicial social compulsion—for example, abortion rights, gender equality in the workplace and school, and workplace integration—confirmed, but did not change, whatever emerging social consensus there might have been at the time of the decisions. Thus, such “successes” were not really successes at all. School desegregation, it is true, has been compelled by Brown v. Board of Education.24 Brown did articulate a so[*PG299]cial consensus of the highest aspirations of American society.25 Yet, almost fifty years after that decision, American society continues to resist the coercive power of Brown. The decision has altered residential patterns and rates of private school attendance, and increased the allure of “states rights” politics. The decision has substantially failed to force integration of American public schools. The courts appear ready to abandon that effort.26 Likewise, Roe v. Wade27 permitted women the right to an abortion. However, twenty-five years after the decision, changing patterns of social organization and norms have significantly increased the difficulty of obtaining even a “legal” abortion. Medical schools do not emphasize instruction in abortion procedures, hospitals do not permit the procedure, and fewer doctors perform the service for fear of retaliation.28
Indeed, a great sin of modernist liberal theory is to confuse the identification of law with the creation of law. Our modernist commonplace is that courts “create” law. This lazy commonplace misunderstands the very real differences between identification and creation. Identification postulates the existence a priori of the conduct norm encompassed by judicial law-making. As such, the act of cultural production by courts is in the naming of the norm identified. This identification is significant but of a vastly different order than that of the wholesale creation of law. Creation, in contrast, assumes the independence of law and its power to assert independent coercive effects on society and social behavior. In this guise, law, like corporations, becomes something apart from the society that created it, and it affects society as an embedded but independent entity. However, there is also a touch of the divine in this anthropomorphized conception of law. For having achieved a status outside of the body of the society on which it acts, this conceptualization of law also assumes a primary place in the social hierarchy. Law assumes the place once held in traditional societies by God or the sovereign. In the West, this sort of [*PG300]transformation of the law into divinity has been hailed as good—the “rule of law” is God.29
Thus, courts created neither Plessy v. Ferguson30 nor Brown v. Board of Education31 half a century later. Each decision was heavily embedded in the popular culture of the time. Yet because the courts articulated the norms giving rise to the rulings in those cases, we have tended to treat the norms as having been created by the courts. These ways of perceiving law-making implicate Pierre Bourdieu’s concept of the “power of naming” in the juridical field.32
Symbolic acts of naming achieve their power of creative utterance to the extent, and only to the extent, that they propose principles of vision and division objectively adapted to the pre-existing divisions of which they are the products. . . . In other words, the specific symbolic effect of the representations, which are produced according to schemas adapted to the structures of the world which produce them, is to confirm the established order.33
The civil law does not escape the bifurcation. It is true enough that civil law courts have only admitted to functioning as interpreters of the law created by the sovereign. However, even here, civil courts identify and memorialize social common understandings. The interpretive power of the civil courts is never as innocent as it might sound in theory. Interpretation provides an excellent vehicle for conforming the word of the sovereign to the common practice of the citizen.34
In other words, the judge will have to conform his decisional output to election-day results. This criterion implies that, al[*PG301]though a judge should never act as the red-robed puppet of the powerful, it is equally indisputable that judicial authority and legitimacy will erode if, for lengthy periods of time, the judge pursues policies which fly in the face of some prevailing value-consensus in society.35
Moreover, as in common law countries, the sovereign, that is, those institutions with the theoretical authority to “pronounce the law,” are subject to the same constraint—the practical authority of social practice. The Roman Catholic Church, the quintessential civilian jurisdiction, may well have commanded priestly celibacy from the time of the collapse of the Western Roman Empire, yet for centuries the power of that enactment extended no further than the codices on which it was written.36 The former codices of Spain and France are littered with the detritus of commandments of the sovereign which were dead letter from the date of enactment.37
The second primary post facto function of courts is to memorialize the norms identified as law. Memorialization serves several important functions. On one level, the project of memorialization stabilizes the court’s message and makes it appear immutable. On another level, memorialization provides a place through which identification can be transmitted. This process, however, also creates another significant confusion of liberal modernist theory: the fact of memorializing does not make more solid or enduring that which was memorialized. Though judicial pronouncement once made may be “etched in stone,” the cultural matrix that gives it immediacy of meaning is “sand in the wind.”38 Memorialization cannot slow the process of the pro[*PG302]duction and reproduction of culture. The modernist suggests that law freezes culture.
Memorialization preserves a record of shared norms at the time of their making. Reuel Schiller has demonstrated well the process of identification and memorialization in the context of labor law.39 During the period after World War II, the Supreme Court applied the norms flowing from notions of group pluralist process to construct a system of labor management interaction within the parameters of the labor laws. A social consensus had developed during that time which reflected a common understanding that “democratic politics were driven by interest group interactions, with the government as a passive agent, responding to their desires.”40 As a result, the Supreme Court constructed rules of exclusive representation,41 a very limited approach to fair representation,42 and a concentration on the free speech rights of unions over the speech rights of union members.43 By the 1960s, social consensus had shifted. A participatory rights based policy-making ideal had replaced the group pluralist ideal. Many of the constructions of the basic rules of labor-management engagement formulated in the period before 1960 were reformulated in light of the new ideal.44 In neither case, though, did the Supreme Court attempt to coerce from labor or management a way of understanding the norms of such relationships at odds with their conception of how such relationships ought to work.
Memorialization touches on what Bourdieu describes as “this special linguistic and social power of the law ‘to do things with words’”:45
[*PG303]This power inheres in the law’s constitutive tendency to formalize and to codify everything which enters its field of vision. . . . [Bourdieu] argues that this formalization is a crucial element in the ability of the law to obtain and sustain general social consent, for it is taken (however illogically) as a sign of the law’s impartiality and neutrality, and hence of the intrinsic correctness of its determinations.46
However, impartiality and neutrality are functions as much of the court’s limited purpose or competence to declare as it is of the court’s task of memorialization. There is much truth to Bourdieu’s insight on legal formalization:
There is no doubt that the law possesses a specific efficacy, particularly attributable to the work of codification, of formulation and formalization, of neutralization and systematization, which all professionals at symbolic work produce according to the laws of their own universe. Nevertheless, this efficacy, defined by its opposition both to pure and simple impotence and to effectiveness based only on naked force, is exercised only to the extent that the law is socially recognized and meets with agreement, even if only tacit and partial, because it corresponds, at least apparently, to real needs and interests.47
Yet, I think this insight better serves when it is turned on its head. Because legal text must correspond to “real needs and interests,” it is perceived as socially productive: The formalization—the memorialization of its social text—becomes efficacious within the field of cultural production.
Chronicling, then, in the form of the identification-memorialization methodologies of courts in the production of law, suggests that the cultural product of courts is both socially produced and socially productive.48 Yet, the “magisterial discourse”49 of the courts at least appears to be the opposite of what Jean-Francois Lyotard has posited for this core institution of the Western Enlighten[*PG304]ment modernist project. For Lyotard, this magisterial discourse of the courts concocts those socially coercive stories which have passed for western foundationalist reality since the time of the French Revolution. Worse, the stories are false—at least to the extent they evidence more the power of the story teller to define the parameters of the narrative than the reality of the narrative’s object(s). Mirroring the pattern of imposition established by the master narratives of Western thought, the magisterial narratives uttered by courts are authoritative because courts take on the power not only to utter narrative, but also to determine “the conditions of truth” against which these narratives are to be tested.50
Authoritative utterances, including judicial utterances, then serve to limit and coerce. These utterances are unproblematic as such but for the fact that they bear no relationship to the “will of the coerced.” It follows, for those who adhere to this view, that this form of postmodernist project constructs authoritative utterances as an imperial and colonizing evil. Consequently, the authority of the magisterial voice must be rejected, or at least resisted, as an excluding voice. An inversion of voices should follow, perhaps investing the weak with the mantle of authority of the magistrate.51 Ironically, this sort of argument minimizes the postmodernist project to the role of cultural prophet. As such, postmodernism becomes an actor within culture rather than a site for creation of an alternative meta-narrative.
Moreover, if the mechanics of the exercise of the magisterial voice I have outlined above are correct, then perhaps we must problematize this postmodernist notion of “master narrative.” It is far too easy to demonize this Western foundationalism in a simplistic manner.52 It is wrong to consider this narrative as both fundamentally [*PG305]“false” and “imposed” on the social consciousness by the conscious design of some cabal privileged by the web of social relations, which uses narrative to maintain its privilege within the web by the manipulation of truth and the “foundations of social organization.” As the sections which follow demonstrate, the reality may be more subtle and less binary, less gnostically Christian, than what postmodern theory would have us accept.
The process of identification-memorialization by which courts participate in the field of cultural production can be appreciated more fully in context. For that purpose, I propose looking briefly at two clear manifestations of this process:53 the “margin of appreciation” jurisprudence of the European Court of Human Rights and the construction of general principles of community law by the European Court of Justice.
Europe has invested a great deal of effort in the creation of a supra-national system for the protection of fundamental rights of individuals. These protections are memorialized in a Convention for the Protection of Human Rights and Fundamental Freedoms (Convention).54 The guardian and oracle of this system is ultimately the European Court of Human Rights (ECHR). The recent “transsexual cases” of the ECHR55 illuminate the ways in which the ECHR has incorpo[*PG306]rated the basic principle of identification within its decision-making process. Fundamental to the interpretive project of the ECHR is the “margin of appreciation” doctrine.56 The ECHR has explained that where there exists “little common ground between the Contracting States,” national entities enjoy “a wide margin of appreciation.”57 The ECHR, in effect, will interpret the actual content of the fundamental rights guaranteed under the Convention principally on the basis of the norms common to the peoples bound by the Convention. Where no such common understanding exists, the ECHR will not strain to impose an interpretation which compels substantial change of social habit. Change must come first; law follows. “Although some contracting States would now regard as valid a marriage between a person in Miss Cossey’s situation and a man, the developments which have occurred to date cannot be said to evidence any general abandonment of the traditional concepts of marriage.”58 Thus, “margin of appreciation” works as a limiting principle on the European supra-national human rights regime. The limit, in this case, is common understanding of what is generally accepted among those bound by law. The primary function of the ECHR is to confirm social behavioral norms “which are.”
Yet, the very lack of nation-state consensus, which gives the margin of appreciation its widest power to limit the interpretive power of the ECHR, can sometimes serve as a vehicle to overcome the domination of that principle—especially where consensus, while divided, is interpreted to be changing in a particular direction. In this role, and in this role only, does the ECHR exercise a power to identify “what is becoming.” For example, in the transsexual cases, the consensus gap transformed itself into something problematic when the European [*PG307]Court of Human Rights became “conscious of the seriousness of the problems facing transsexuals and the distress they suffer. Since the Convention always has to be interpreted and applied in the light of current circumstances, it is important that the need for appropriate legal measures in this area should be kept under review.”59 “Current circumstances” analysis permits the European Court of Justice some discretion to balance the interests of the community and the individual, “the search for which balance is inherent in the whole of the Convention.”60 However, when the balance tilts in favor of the individual, the margin of appreciation disappears. Essentially this “current circumstances” analysis permits the ECHR the ability to reinterpret the bare words of the rights inscribed in otherwise immutable statutes in light of emerging social mores. A consensus gap pointing the way to a particular new social consensus, of course, was also what the dissenting judges argued in Cossey.61
The power to reinterpret the immutable, to articulate the emerging consensus, was the essence of the ECHR’s interpretive odyssey in the “homosexual sodomy” cases.62 During the first ten years of the Convention, several applications were filed against the Federal Republic of Germany challenging Article 175 of its penal code, which prohibited adult homosexual sodomy. Until recently, the Strasbourg tribunals rejected all of these applications because the laws were deemed necessary for the protection of morals.63 The ECHR also took comfort in the sanitizing language of medicine.64
[*PG308] Norris v. Ireland defined the parameters of the newly recognized political reality.65 Thereafter, the cases were not hard. In Europe, popular cultural norms, the habits of ordinary European citizens, make it exceedingly difficult to find particularly serious reasons that create a pressing social need to criminalize sexual activity between men. Before the court, the government argued that the “moral fibre of a democratic nation is a matter for its own institutions and the Government should be allowed a degree of tolerance, . . . a margin of appreciation that would allow the democratic legislature to deal with this problem in the manner which it sees best.”66 The court rejected this argument, stating that to make such a determination, “the reality of the pressing social need must be proportionate to the legitimate aim pursued.”67 The court rebuffed the government’s attempt to preclude it from review of Ireland’s obligation not to interfere with an Article 8 right when it deals with the “protection of morals.” The Court also noted that serious reasons must exist before government interference can be legitimate for purposes of Article 8. Once again, citing a portion from Dudgeon v. United Kingdom regarding the lack of evidence showing that the non-enforcement of Northern Ireland’s relevant law had been detrimental to the moral standards of its people or that there was public demand for stricter enforcement of the law, the court held that “it cannot be maintained that there is a ‘pressing social need’ to make such [homosexual] acts criminal offenses.”68
Yet in none of these cases did the ECHR attempt an “empty” interpretation of the relevant provisions of the Convention. Each of the cases provided the usual context for interpretation: the European Court of Human Rights constructed a context for interpretation based on the social customs and understandings of the people on whom the interpretation falls. Interpretation in the context of margin of appreciation analysis is little more than identification and memorialization of current practice. More than that, however, it amounts to a conscious assurance that the “law” applied will always be contextualized within current social habits; the law will “evolve.”
The European Court of Justice (ECJ) has established the practice of fashioning substantially extra-constitutional principles, which it then applies to its interpretation of the “quasi-constitution” of the European Union (EU) as “General Principles of Community Law.”69 Principles of law are rules of conduct “prescribed in the given circumstances and carrying a sanction for noncompliance.”70 General rules or principles work like doctrine “though they can be vindicated like any particular rule, they serve a dual purpose: as pointers to interpretation by the courts and as indication of policy to legislators.”71 As such, “new principles are adopted into law through judicial decision making.”72
Of course, the primary sources of European law may appear to provide at least some small theoretical opening through which the [*PG310]ECJ can justify the articulation and application of “general principles.”73 The ECJ has used this mechanism to articulate and apply consciously and deliberately a number of general principles of Community law.74 These general principles include fundamental principles of human rights, which have been read into the jurisprudence of the European Union,75 as well as principles of equality of treatment and a number of principles derived from continental law.76
[*PG311] The process of identifying and interpreting general principles of community law by the ECJ, like the ECHR’s interpretive project with respect to the Convention, is based on the identification of behavioral consensus and the memorialization of such consensus in the interpretation of the basic documents of the EU in the context of the matters that come before the court. Both implicate the need for inherent normative consistency based on cultural consensus in the emerging meta-system of human rights. This normative consistency is simultaneously superior to and in opposition to the meta-systems of self-determination and respect for cultural and national difference.77
The ECJ sex discrimination cases Puk v. S. & Cornwall County Council78 and Grant v. South-West Trains, Ltd.79 vividly demonstrate this opposition principle within the European Union. The former case represents the juridical role of identifying “that which is becoming;” the latter case represents the juridical role of identifying “that which is.”80 In Cornwall County Council, the ECJ relied on its expansive interpretation of “one of the fundamental principles of Community law” to determine that this fundamental principle prohibited employment discrimination against a transsexual.81 The ECJ rejected Britain’s argument that termination of employment “because he or she is a transsexual or because he or she has undergone a gender reassignment operation does not constitute sex discrimination for the purposes of [*PG312]the directive.”82 The British, of course, were right in a way; discrimination applied equally to men becoming women, as well as to women becoming men. Instead, the ECJ accepted the finding of the ECHR that transsexuals “form a fairly well defined and identifiable group.”83 As such, discrimination against transsexuals could fall within the generous ambit of fundamental interdiction of sex discrimination.84 “To tolerate such discrimination would be tantamount, as regards such person, to a failure to respect the dignity and freedom to which he or she is entitled, and which the Court has a duty to safeguard.”85 Here, the ECJ determined that transsexuals had become generally accepted as a sex. On that basis, it was neither new nor odd for the ECJ to apply the law of sex discrimination to them.
The ECJ did not glean any such duty to safeguard when the discrimination complained of was based on the complainant’s sexual orientation. In Grant, a female public employee sought to challenge a rule denying her partner, also a woman, travel concessions that the employer made available to unmarried couples of the opposite sex who were in a meaningful relationship. The ECJ could not here bring itself to apply the expansive interpretation of fundamental law it had recently articulated because that would have required the articulation of a standard of acceptable norm which it did not believe was yet either a norm or generally acceptable. In the space between transsexual and sexual orientation, the ECJ marked the boundary between identification and creation. Thus the arguments, which the court swept aside as ineffectual in Cornwall County Council, became compelling in Grant. Britain made the same argument it had made in Cornwall County Council—that the regulations do not constitute discrimination on the basis of sex. This time the ECJ agreed. Orientation is not gender; “[s]ince the condition imposed by the undertaking’s regulations applies in the same way to female and male workers, it cannot be regarded as constituting discrimination directly based on sex.”86 This language differs from that in Cornwall County Council, in which the same court declared such “discrimination [against transsexuals] [*PG313]based, essentially if not exclusively, on the sex of the person concerned.”87
More importantly, the ECJ refused to determine whether there was an equivalence between relationships among people of different sexes and those between people of the same sex. First, the Community had not specifically legislated this equivalence, and, therefore, it was not the ECJ’s place to do it for them.88 Second, none of the Member States had yet recognized the equivalence: “in most of them it is treated as equivalent to a stable heterosexual relationship outside of marriage only with respect to a limited number of rights, or else is not recognised in any particular way.”89 Third, even the ECHR had refused to recognize the equivalence.90 Indeed, the ECHR had refused to extend the rights of transsexuals to marriage.91 Ms. Grant fared no better in her attempt to draw a direct equivalence between sex and sexual orientation. The ECJ just would not push European norms when facing what it determined, through its political or social organs, to be the reluctance of society to practice those norms as a matter of course. Thus, even though the ECJ traditionally has been aggressive in applying international human rights instruments in its interpretations of Community fundamental principles, it chose to resist such expansion in a fairly uncharacteristic way for the ECJ—it relied on the limitation of the competence of the Community! The general principle of equality, at the heart of the expansive language of Cornwall County Council, crashes on the shoals of a limited view of Article 199’s prohibition of sex discrimination.92 The ECJ ended by tossing the issue [*PG314]back to the overtly political process: The Treaty of Amsterdam93 provided for the political resolution of the issue of discrimination on the basis of sexual orientation. It was, therefore, no business of the courts to resolve the issue before the political process had worked things out.94 This opinion is worthy of its American parallel, Bowers v. Hardwick.95
Thus, general principles of Community law serve as a meta-principle limiting the autonomy of law, even with respect to areas where the state has legislative authority. The U.S. equivalent is the enunciation of federal constitutional principles against the power of both federal and state political units. General federal constitutional principles supply the interpretative norms with which we understand our legislation.96 Constitutional principles, like general principles of Community law, are examples of the ways in which even the fundamental law of multi-state systems are bent to the will of contemporary common understandings of social norms. The European Court of Justice, like the U.S. Supreme Court, interprets the will of the sovereign as set forth in legislation through the lens of identification of common understandings. Each court memorializes “what is” or “what is becoming” through the act of interpretation. In this sense Cornwall County Council and Grant, essentially civil law cases, function much like U.S. federal constitutional cases, each wrestling with principles of interpretation in the service of the current sense of good practice.
Courts speak authoritatively when they identify and memorialize. Whether identification is focused on Logos (the so-called “rule of law”) or vox populi (the will of the people), such pronouncements are accorded a certain amount of respect and, therefore, autonomy. It is this authority that stays the hand of those with the power to resist. The authority is so great that even Presidents of the United States will comply in the face of decisions reached by a furiously divided Supreme Court. President Truman, who had ordered the seizure of steel mills in the United States during the Korean War to secure the production of war material, ordered the mills returned to their owners on the strength of an order of the Supreme Court,97 even though he bitterly disagreed with the judgment of the Court.98
To understand why society defers to the pronouncements of judges, we must understand how courts are understood when they speak, that is, we must give cultural context to the voices of the court. This exploration implicates the way in which the act of identification-memorialization itself forms part of the core aesthetics of Western culture. This aesthetic involvement is neither linear, nor “clean.” As the Biblical author Paul suggested, the way we have mediated this aesthetic conflict within the dominant culture is through a religiously aesthetic device: “there is neither Jew nor Greek, there is neither slave nor free, there is no male and female, for ye are all one in Christ Jesus.”99 But of course, here again, saying it does not make it so.
[*PG316] Judges derive authority from speaking the divine. Only when judges lose their individual humanity, when they become the conduit for the vocalization of the voice of God, can we say that judges speak with authority. Judges speaking personally, no matter how chic today, carry no authority. Such speaking is as powerful as the physical power of the speaker. Therefore, this power is never very great or durable. The nature of the voice with which the U.S. Supreme Court speaks has become a lively topic of debate within the opinions of the Court itself.100 Yet when judges transcend the individual, when they serve as the vocal chords of the divine, then they speak with authority. Even the reluctant submit to such voices, whether the divine resides within Logos or as the common law of a fickle society.
Identification-memorialization implicates four constructs of basic engagements between institutions and society in the struggle to produce and reproduce popular culture. Two of these cultural patterns of authority are Greek and two are Hebrew. These constructs reflect the basic tension at our cultural bedrock between the Greek and the Hebrew. Their relationship is simultaneous and complex. They exist tightly bundled in the modern West. By unraveling them, we can begin to appreciate the pulsating and contradictory impulses out of which our engagement with the authority of the judge is crafted. We can also begin to appreciate why judges are not priests, and why priests are not God.
The two Greek constructs of authority are oracular and immanent engagements. The divine here routinely intervenes and explains. This judicial voice is singular and uncontestable. It is the authority of Teiresias, “whose soul grasps all things, the lore that may be told and [*PG317]the unspeakable, the secrets of heaven and the low things of earth.”101 It is also a voice to which society grudgingly submits, though submit it will—and by its own hand. There is also a bit of Cassandra in all such speech.102 The Greek engagements in identification-memorialization suggest the culturally expected pattern of pronouncement. Pronouncement, in this sense, is both orderly and ordered. Control and moderation, observation and detachment, are the metaphors of this force of pronouncement. The implication is one of perfect sight—either perfect vision of the past or of the present. These suggest place and stasis; there is no place to go. Within this voice is the culturally significant authority which must be obeyed.
The two Hebrew constructs are cacophonous and tumultuous. The divine is present here but ultimately unknowable. All authority represents a striving to recapture the divine voice, which is both necessary and doomed to at least partial failure. Here, drawing on the cultural power of Job’s companions, the judicial voice is tentative and open to challenge. In the cultural form of the prophetic voice, authority moves from the court to the dissenting voices within the court. The Hebrew engagements suggest the culturally expected pattern of engagement and hierarchy of truth. Humankind attempts to seek the way to the divine, comply with the law, or know the word of God: “Yet Thou hast cast off, and brought us to confusion. . . . Wherefore hidest Thou Thy face And forgettest our affliction and our oppression?”103 These engagements acknowledge the inevitability of always failing to attain complete and immutable truth or knowledge. Pronouncement, in this sense, is, by definition, incomplete and always potentially incorrect. Moreover, the process of arriving at pronouncement will always contain within it its antithesis, the seeds of that pronouncement’s own doom. These voices suggest a journey to perfection back to the place from which we came. With this voice is the culturally significant authority to disobey.
Judges act within the context of the Greek construct when they engage in the field of cultural production in their roles as “Homer” [*PG318]and as “Delphic Apollo.” The court acts within the context of its Hebrew construct when it engages in the field of cultural production in its role as “The Friends of the Job” and in its role as site of the articulation of the Prophetic voice—of dissonance in the field of cultural production. Each of these constructs originates within our culture. Each is patterned after a process of cultural communication whose signifiers are so well understood that they form part of our unconscious foundation of communication. Thus, in using these voices, courts need not affirm or define either their authority or their role. At the same time each voice carries with it the limits of its authority—the extent of its competence within the field of cultural or normative production. I will speak to each of these roles in turn.
When courts speak with the Homeric voice, they chronicle “what is.” They speak here with the voice of the preserver—of the identifier and memorializer of our common traditions. This voice has thoroughly internalized the past.104 It is the voice of reassurance, the voice that reminds us that what we know “is.” It is the storyteller of our oral tradition. Here we find ourselves at the core of the identification-memorialization matrix, the competence of the Homeric courts limited to retelling the old stories and reassuring us of the continued power of these retold stories.
The Homeric is the voice of our parents whom we beg to retell us the story we heard a hundred times before.105 Like that particular parental voice, the voice of the Homeric court is a voice that we demand perform in a very particular and limiting way. The story must be retold exactly as it was told before, and the context must remain unchanged. If we hear the story in bed before we fall asleep we demand the story be told always when we are in bed before we fall asleep. The [*PG319]recitation itself becomes fetish and assumes a divinity of its own, sanctified in tradition.
The language of American judges is full of the Homeric. While examples of the Homeric voice of courts are numerous, I content myself here with examples of just a few. The voice of Justice Scalia assumes the Homeric with some regularity. In Romer v. Evans,106 the justices of the Supreme Court all spoke Homerically, but focused on different and conflicting strands of the common social understanding of the way things ought to be. On the one side stood Justice Scalia, fiercely reciting the story of the defense of common understanding of morality. On the other side stood Justice Kennedy, equally fierce in his defense of the bedrock understanding of American republicanism. I have suggested that:
Romer illustrates the power of decisions which recognize at some subliminal level that sex is politics. In a sense, the Court merely confirmed what our political society had long held true—that everyone should be allowed to “play” the game of republican politics. . . .107 “Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the state constitution.”108 The majority sought to do little more than to identify the basic rules within which republican principles of politics works [sic] in this country. These are not new rules, or rules with no connection to ac[*PG320]tual practice. The majority directed its inquiry to understanding the way in which Americans played the political game of republicanism in this century.109 Indeed, the majority relies on tradition to support their [sic] decision.110
Justice Scalia, in his dissent, correctly states—though he seems to fail to understand—the strength of that argument.111 Scalia’s dissent, ironically, is also based on tradition, but of a different kind.112 In the end, Justice Scalia’s traditional values had to give way to those championed by the majority, and sensibly so—Colorado’s legislature is as capable of protecting traditional moral values as is the population it represents. In the end, our founders chose for our political home republican Rome, not democratic Athens.113 That choice imports with it a sense of the dignity of each of the citizens of that polity. Romer is a case in sync with that core social reality.
Social policy is also an area ripe for the Homeric voice, especially in the United States. Consider the reasons a reputedly very liberal Court refused to construe the American Constitution as imposing on [*PG321]the state the fundamental obligation to provide social welfare benefits to all of its people:
For here we deal with state regulation in the social and economic field, not affecting the freedoms guaranteed by the Bill of Rights, and claimed to violate the Fourteenth Amendment only because the regulation results in some disparity in grants of welfare payments to the largest AFDC families. For this Court to approve the invalidation of state economic or social regulation as “overreaching” would be far too reminiscent of an era when the Court thought the Fourteenth Amendment gave it power to strike down state laws “because they may be unwise, improvident, or out of harmony with a particular school of thought.”114
Sex tends to bring out the Homeric in the European courts. The European Court of Justice attempted the Homeric voice in Grant.115 The ECJ patiently explained the reality of social norms for those who would attempt to legislate social equality between heterosexual coupling and homosexual coupling where no such social equality existed in fact within Europe.116 Ironically, both the House of Lords and the European Court of Human Rights spoke Homerically in R. v. Brown,117 though each emphasized a different common understanding. In the former case, the House of Lords took a very traditional view of sex play, and determined that what the defendants in that case engaged in was anything but sex: “They may be playing with the private parts of others, but they are not engaging in sex as the courts are willing to define it.”118 Having attempted an encyclopedic explanation [*PG322]of the traditional boundaries of permissible sadism and masochism, as it apples to sporting events and body mutilation, the Law Lords then distinguished unlawful sex play from other forms of sadism and masochism as a function of the common practices of British society.119 The European Court of Human Rights, in contrast, spoke Homerically about the traditional boundaries of sex play. While sado-masochistic sexual practices may well be “sex,” it is the sort of violent activity which a state may suppress.120 This sort of sex can be suppressed because, frankly, it terrifies and disgusts according to the common understanding of European society.121 Because a European consensus seemed to permit suppression of such conduct, the “margin of appreciation” built into the European right of sex “free” of interference could be limited.122
Common law courts have internalized the Homeric voice in the concept of stare decisis. Here we confront the lingering authority of past recitations of “what is.” Such prior recitations are now invested with omniscience, clarity and unity. That which is “must be” continues unless something fundamental changes. Thus, stare decisis, as a Homeric device of authority, played a critical role in the determination [*PG323]that abortion remained a fundamental right of American women.123 In this case, the act of judges transcending themselves to make a pronouncement of the divine is clearly visible. Had the justices voted their personal beliefs, the result might have been quite different.124
When courts speak as the Delphic Apollo they chronicle “what has become.” They speak with the voice of the seer—not the seer into the future, but rather the seer of the present. This voice appears to create through the act of speaking; this voice is that of Justice Cardozo in Ultramarine Corp. v. Touche,125 which appears to create a new reality from out of the rubble of the old.
This voice of the courts seems to transform things: legislators in judicial drag according to so-called conservative pundits. Of course, it is no such thing. What courts create in their role as Delphic Apollo is awareness of a thing. This is the Delphic form of identification. The Delphic Apollo does not, by giving voice to it, create the thing voiced. Yet it is this critical distinction between the creation of awareness through the identification of “what has become” and the creation of the norms themselves to which liberal modernism remains oblivious.
Awareness is a powerful form of identification, especially as expressed in the language of the juridical. It becomes all the more powerful with the Delphic when awareness comes for the first time. In this form, the memorialization of the identified norm or rule functions as the means for definition and articulation of “that which has become.” Memorialization in the Delphic context serves to make that which was identified more “real.” It conforms and propagates the awareness attained through the Delphic pronouncement of that “which has become.” The creation of the shareable norms function of memorialization assumes great significance in this context. Unlike the context of the Homeric voice, there is no history of similar pronouncements on [*PG324]which memorialization can rest. Thus, here we find identification-memorialization at its most fluid.
In the United States, Roe v. Wade126 provides an archetypical example of Delphic pronouncement. Brown v. Board of Education127 provides another. In each of these cases, the justice speaking for the majority of the Court chose the moment to articulate consciously, and as persuasively as possible, the changed social landscape as seen by the Court. In one, the Court attempts to identify, and to memorialize, the new social consensus on the power of a woman to determine the fate of her fetus. In the other, the Court speaks of a new social understanding of the nature of the relationship between races in the United States. In both cases, the articulation of “what is becoming” aroused a tremendous reaction among those who would compel the State to continue to enforce “that which was.”
The reinvention of fairness as a general principle of the American constitutional law of procedure provides another view of the Delphic. The definition of fairness, “meaningful notice and meaningful opportunity to be heard,” was not changed. However, the common understanding of what those words meant in context changed radically. What had been the traditional means of depriving people of property pending suit through ex parte proceedings in replevin was found to violate basic principles of fairness.128 Now, after two hundred years, common social consensus had changed; fear of unjust deprivations had become more important. As a consequence, the Supreme Court determined that fairness required notice and a hearing prior to the deprivation.129 Though the Supreme Court modified this bright [*PG325]line definition in subsequent cases,130 its initial pronouncement announced a sea change in the understanding of fairness, and, in that sense, it was Delphic.
The human rights cases of the ECJ provide a catalog of Delphic utterances. For example, prohibitions of discrimination on the basis of sex have taken on a life of their own in the ECJ and have become more normalized within western European society.131 Law, long dormant on the books of the European Communities, suddenly has come to life. It is unlikely that sufficient social consensus existed to support the great crusade against sex discrimination until the 1970s in Europe. The ECJ’s extension of this principle to transsexuals, discussed above, was also Delphic. Unthinkable in the 1970s, transsexual rights became acceptable enough twenty years later.
The ECHR’s project of distilling European standards of moral conduct and imposing those standards throughout Europe evidences the Delphic project:
In those matters where there has been a given legislative trend in several Member States of the Council of Europe it might seem possible to try to distill certain European standards. This is the case regarding the trend of decriminalizing homosexual conduct between consenting adults in private or, as in the recent Soering case, the practical abolition of the death penalty.132
The first of the Hebrew voices is a cacophony that introduces us to the collective voices of courts, none of which can speak with total [*PG326]clarity or coherence, and all of which grasp the object of cultural production—but only imperfectly, incompletely, and temporally.133 Here the quality of the voice of the courts stands in contrast to the “Greek” voices of the court. The Hebrew voice is a non-linear voice, a human voice, rather than a divine voice. It is a shaky voice, confident but without the ability to rely on a direct connection to the divine.
The Greek voice of Homer is confident in its recollection of historical norms. The Delphic voice is confident in its ability to see “that which has become” amid the swirls of culture. However, the Hebrew voices operate without the patina of certainty. These voices are as confident as those of the Greeks, but they are also voices consciously in a world of imperfect knowledge.
Who are these friends of Job?134 As you might recall, after Job had been afflicted by God for the purpose of seeing if Job would curse God, three of his friends came to comfort him and help him understand the reasons for his condition. Each of them sought to identify the cause of Job’s afflictions and to suggest the means by which such affliction could be overcome. A fourth friend then reviewed the efforts of the first three friends, found the answers advanced unsatisfactory, and attempted a better understanding of the reasons for his suffering. Let us examine each in turn:
Job was suffering because he had sinned. To ameliorate the suffering, Job would have to go to God and lay his cause before Him. “Blessed is the man whom God corrects; so do not despise the discipline of the Almighty.”135 But of course, Eliphaz misread what he saw, as Job had not sinned.
Job was suffering because he would not admit that he had sinned—Job suffers for a failure to acknowledge wrongdoing (as opposed to suffering solely for the wrongdoing). To ameliorate the suffering, Job must admit the offense and then plead with the Almighty. [*PG327]“Does God pervert Justice; Does the Almighty pervert what is just?”136 But of course Bildad also misperceives, for Job has no sin to acknowledge. To acknowledge sin where none exists is to engage in empty gestures.
Job was suffering not merely because he sinned or failed to acknowledge such a possibility, but because he knew he sinned, refused to acknowledge it, and, when confronted with the reality that the sin was observed, sought to hide it. Job thus suffers for covering up the sin. “Surely he recognizes deceitful men; and when he sees evil, does he not take note?”137 Zophar was wrong, however; Job has no sin to cover up or confess.
He rejects the counsel of the other friends as partially correct and suggests that Job was suffering to be trained and molded by God. Job must be satisfied to take instruction and learn what he can from the experience.
The story of Job ends with a twist that we find unable to replicate within culture. God interrupts the great cacophony of argument among the friends of Job. He delivers the “right” answer which the friends attempted to identify and memorialize as “written” on the body of Job. The right answer is that there is no answer that we are capable of identifying or understanding. “Where were you when I laid the earth’s foundation?”138 “Would you discredit my justice? Would you condemn me to justify yourself? Do you have an arm like God’s and can your voice thunder like His?”139
Our Jobian voices of authority bring us face to face with the juridical as human, stumbling to understand the divine. These are the “feet of clay” of our Greek perfection. For courts can approach identification; they may memorialize their understanding of “what is” or “what is in the becoming,” yet both enterprises remain incomplete and, therefore, deceptive, if only by omission. Utterances in the Greek voices are comforting because they speak to us in a single voice about a single perspective. We can understand these and act accordingly, if [*PG328]we are of such a mind. Or we can rebel, understanding the object and nature of our rebellion. But Eliphaz, Bildad, Zophar, or Elihu remind us that the juridical (and even the legislative) voice can also be polytonal. What is implicit in the cultural undergirding of our Greek voices—the gods each speak with a singular voice, but there are many gods working at cross purposes—is at the heart of the authority of the Biblical voices of the juridical.
Polytonality in authority is so ingrained in law-making within common law systems that we are no longer even conscious of its fundamental influence in shaping the way in which society hears and processes the voices of authority. Still, we understand its dynamics. Who but a person steeped in common law traditions can see its workings so brilliantly portrayed in the disputation scene of the learned doctors of Jewish Church law in the Strauss opera Salome.140 Who has not heard this scene repeated in any of the multiple opinions common to the British tradition? Who has not heard the American analogue in the multiple opinions common in the most contentious cases before the U.S. Supreme Court?
Yet, it is not enough that the Biblical voices are polytonal; the Hebrew voices evidence transitoriness as well. Culture has attributes of the divine; it is dynamic. Its presence can be felt, and it provides force and structure, but it cannot be contained within any system of [*PG329]pronouncement and systemization. This description is as true of unitary systems of pronouncements as it is of polytonal systems. All such systems, all such pronouncements, will necessarily be contingent and partial. However, the process of identification-memorialization remains a static enterprise. It captures a moment’s pause in the relationship between people; it also captures the momentary consensus in the engagement of groups with the social text that defines the behavioral rules governing their interaction.
The polytonality of the courts reminds those who listen that no pronouncement of the present is either stable or comprehensive. Likewise, the voice of perfection—the voice of Homer or the Delphic Apollo—can serve only as a temporally limited stopping place. They are markers within a dynamic system that point to their own obsolescence. They provide comfort—the understanding of the place “where we have been” or “where we have arrived”—but they cannot provide either repose or tranquility. The cacophony of the juridical provides the imperfect noise within which we can engage in cultural hermeneutics. Within the juridical we are all Eliphaz, Bildad, Zophar, or Elihu. We are sure of our knowledge of what we see and confident of our authority to declare and impose.
Consequently, our courts declare in the “perfect” tense of our Greek voices. The courts rely on their ability to Hellenize their voices to assert a perfect authority for the acceptance of their particular pronouncement. Yet this perfect tense can be heard in the “imperfect” tense of Hebrew challenge. Behind these Hellenized voices are the uncertainties, the blindness to the divine, at the core of our Hebrew voices. The four friends of Job also provide our foundational metaphor for the necessary uncertainty and, therefore, the cacophony of the juridical voice. American postmodernists might describe this uncertainty as the limitations arising from the “situatedness” of juridical analysis.141 The divine has drawn a curtain separating itself from humanity, yet leaves it to humankind to reach the divine without the benefit of divine knowledge. We may witness, we must accept, but we can never really know that we are right. Consider that not one of the friends of Job is possessed of the whole of wisdom; each can see only as far as the wisdom accorded him permits, but lacking the whole of wisdom, none can speak entirely authoritatively.
[*PG330] Each of the friends of Job possesses a part of what makes wisdom complete; that is, each holds a partial key to divine wisdom. For Eliphaz, the key to wisdom and divine authority is observation and experience of life; empirical data provides authority to declare.142 Bildad finds wisdom complete in history: knowledge and understanding inherited from the past provide the key to authority for future action; tradition provides its own authority.143 Zophar demonstrates the way in which intuitive understanding provides authority; logic and inspiration provides its own authority.144 Elihu finds that with authority comes acceptance of “that which is”: authority comes from obedience: “I get my knowledge from afar; I will ascribe justice to my Maker. Be assured that my words are not false; one perfect in knowledge is with you.”145 The ECHR’s long struggle with the age of consent for consensual sexual relations between people of the same sex contains flashes of the imperfect wisdom of the friends of Job.146
Possession of only a part of divine wisdom permits our judges to be completely wrong. The only source of unsituated or complete wisdom in the story of Job is God. But God alone, of all of the participants in the Jobian story, will not speak. The juridical voices aspire to divinity—absolute authoritativeness. However, the Jobian story makes clear that such authoritativeness is to be denied us.147 When judges are perceived to speak with the voices of any friends of Job, such pronouncements made in those voices lose much of their authority. These are judicial voices which cannot be ignored, but which can be discounted. An alternative is available; it is humankind speaking, not the divine.
At first blush, this might appear to be a tragic moral. But the opposite is true. For the Biblical voice confirms our liberation from the absolute tyranny of human authority. The Jobian voice is a liberating voice by its very marginality. For in this story, all of us are outside the juridical; we are Job himself. We overrule or ignore the declarations [*PG331]made on our behalf. We are well used to the art of limiting cases to their facts. We are also well versed in the art of ignoring declarations and pronouncements we find “unhelpful.” Even courts will act like Job from time to time. Romer v. Evans provides a wonderful example of this art. In a case about the power of the state to limit the availability of the political process to sexual non-conformists, the majority ignored the most significant case declaring “what is”—Bowers v. Hardwick148—in favor of a different declaration.149
Indeed, because Jobian voices limit authority, there is a significant likelihood that Jobian pronouncements will be tested and re-tested. Until there is social consensus and juridical articulation of that consensus, the issue will continue to plague the courts. Thus, race relations, homosexuality, and abortion, to name only a few issues in the English-speaking world, remain problematic in society and before the courts. Examples of the voices of the friends of Job abound. Moreover, many common law multi-judge courts appear to operate like the friends of Job. When all judges speak, and they say different things, they may appear as the friends of Job, though each of the judges speaking assumes the voice of Homer or that of the Delphic oracle.
The six opinions filed in Adarand Constructors, Inc. v. Peña150 provide a striking example of the Jobian paradigm in American constitutional jurisprudence. In that case, the U.S. Supreme Court determined that all racial classifications imposed by the state must be analyzed under the strict scrutiny standard, virtually assuring that no such classification program would survive.151 Together, the opinions overlap like a complex, intertwined coiling ball of snakes. Justice O’Connor:
announced the judgement of the Court and delivered an opinion with respect to Parts I, II, III-A, III-B, III-D, and IV, which was for the Court except insofar as it might be inconsistent with the views expressed in the concurrence of [Justice] Scalia . . . and an opinion with respect to Part III-C. Parts I, II, III-A, III-B, III-D, and IV of that opinion were joined by [Chief Justice] Rehnquist, and [Justices] Kennedy [*PG332]and Thomas, . . . and by [Justice] Scalia . . . to the extent heretofore indicated; and Part III-C was joined by [Justice] Kennedy. [Justices] Scalia . . . and Thomas . . . filed opinions concurring in part and concurring in the judgment. [Justice] Stevens filed a dissenting opinion, in which [Justice] Ginsburg joined. . . . [Justice Souter filed a dissenting opinion, in which [Justices] Ginsburg and Breyer joined. . . . [Justice] Ginsburg filed a dissenting opinion in which [Justice] Breyer joined . . . .152
Each of the judges sought to speak with a Greek voice. Taken together, however, the voices blend together into a Jobian cacophany. The polyphony itself steals the divine fire from the court’s pronouncement. The effect, of course, is to lessen the impact of the formal decision.153 The only decision of the Adarand court that is likely to survive is that society is in transition and critically undecided about the value of minority preference programs because they violate certain economic core taboos. The Adarand problem will be raised again [*PG333]and again.154 When the court babbles like the friends of Job, society is free, like Job, to reject the authority of the pronouncements.
Yet even civil law-based courts without true multiple opinions, like the ECJ, will sometimes show the faces of the friends of Job. A recent case, interesting in this regard, was Grant, in which the ECJ departed from the recommendation of the advocate general.155 That fissure has not been closed by the magisterial and somewhat patronizing tone of the ECJ opinion. A careful reader of both advocate general and court will clearly see where the consensus has unraveled with respect to the ambit of tolerance allowable to sexual non-conformists. The old consensus, that gay men and lesbians should be grateful that they are left alone, is under attack. The new consensus, that the relationships of gay men and lesbians should be treated with a dignity equal to relationships between men and women, is subject to ferocious resistance. Neither side won a clear-cut victory in Grant. Uniformity would have been impossible in a society which has not made up its mind on the matter. Only time will tell whether the court or the advocate general spoke with the more authoritative voice.156
The Brown case suggests patterns of engagement and conflict within English society.157 The old social consensus on the boundaries of sex are being tested. The results so far are inconclusive even within British society.158 The final result in Britain and, thereafter, within the ECHR, though reflecting a conclusion with binding effect, more read[*PG334]ily demonstrates the fissures in the old consensus within Europe as well. The divergence between the House of Lords and ECHR at the margins of the opinions attests to the fact that the boundaries of sex and violence have been significantly problematized. No adequate substitute has been proposed. Litigants will surely press the courts to revisit this issue again and again until a new social consensus is established. The fissures reveal the Jobian in the process of European norm-making through law.
With the prophetic voice, we confront a different kind of court in the field of cultural production. The voice that becomes paramount in this form of juridical cultural production, or norm-setting, is not the “voice” of the court. Beneath the outward formal product of the court—the opinion of the court, or the statement of the “law”—is a most significant byproduct of the production of juridical declarations. The court, in producing the official identification of “law” also identifies those voices that may have challenged the view officially adopted. This identification of rejected views may simultaneously create “byproducts” as important for the production of cultural “truth” as the formal opinion itself. As such, the act of identifying and memorializing provides a site for the expression of “rejected” visions of “what is” or “what has become.” The courts provide a site for contestation of our interpretation of “what is.” It is here that the voices of the prophetic may speak.
Consider the nature of the prophetic—voices raised against the current iteration of behavioral norms:159 “And I will turn My hand upon thee, And purge away thy dross as with lye, And will take away thine alloy; And I will restore thy judges as at the first, And thy counselors as at the beginning.”160 These voices are of transformation; they compel change. These voices reject the act of identification in favor of creation. The prophetic compels; law exists apart from, yet acts on, society. Social custom and general agreement do not constitute law; [*PG335]law descends from a greater source, already constituted and requiring obedience.161 This voice punishes; it is the voice of Ezekiel—stern, uncompromising, promising punishment for failure to conform conduct to the vision of the prophet. This voice is that of norms unadopted. The prophetic holds the promise of the future; yet at the same time, the prophetic holds the danger of oblivion for those who enjoy the present. “And I will scatter thee among the nations, and disperse thee through the countries; and I will consume thy filthiness out of thee. And thou shalt be profaned in thyself, in the sight of the nations; and thou shalt know that I am the Lord.”162
For the prophetic speaker, the cultural imperative of the prophetic is judgment. Social customs are judged deficient. The community is given a choice: conform to a different standard of conduct or suffer the consequences. The cultural imperative of the prophetic is also punishment. We are well aware of the destruction of Sodom, the Kingdom of Israel, and the Kingdom of Judea for failure to conform to “law.” Layered above judgment and punishment is the cultural imperative redemption. Had God but found ten righteous people, Sodom would have been spared.163 Yet for the listener, for society and culture, the cultural imperative of the prophetic is that it must be ignored and reviled, at least for a time. For good or ill, our cultural practice compels the marginalization of the voices of prophets. After all, these are the voices which would make over social practice, the voice of deluded romantics. The abolition of slavery, the prohibition of alcohol consumption, equality between the sexes, universal suffrage, respect for the rights of animals, marital rights between men or between women—all of these have been or are romantic vision, and [*PG336]those who give them voice are considered crazy for a time.164 Some of these voices are still considered crazy today.
The prophetic are therefore the popularly rejected voices chronicling “what should be.” By custom, we reject this voice on first hearing. So rejected, the prophetic should have little effect in the work of producing culture, but the opposite is true. It is true that this construction of the culturally expected pattern of the prophetic—providing a site for the expression of the currently unattainable— creates a source for the expression of normative possibilities which can then be digested by the culture or not. Had Israel and Judea but conformed to the “law” rather than to the evolving consensus of acceptable social practices, then they too would have been spared.165
Yet there is a cultural positive to the voice of the prophetic. In our cultural bones we have been taught to regard the prophetic as divine communication. This voice must be heeded eventually; we have been well-taught to heed the words of the prophetic. We may not come around to it in the lifetime of any set of listeners, but we have been taught to listen. The penalty for extended deafness is severe.
Indeed, the lesson of listening and the fear of the consequences of heedlessness are built into the structure of our memorialization of the formal expressions of norm identification by the courts. Consider the function of opinions in the United States. In a sense they serve to chronicle the declaration of the authority, but, at the same time, they serve as a record of the expressions of the Prophets. So memorialized, they may work within culture as it seeks to interpret and reinterpret itself. Within the narratives that courts spin as jurisprudence is precisely the place where the rhetoric of transformation may be most effective at what it can do best—pursuing the public good. Professor Lobel has the right of it in his very interesting study of famous cases in which the Supreme Court refused the invitation to “transform” the [*PG337]law.166 He argues that losing cases, arguments made and rejected in the courts, “represent a prophetic vision of law, stemming from the Old Testament prophets such as Amos who viewed justice as ‘a fighting challenge, a restless drive.’”167 Unlike Professor Lobel, I believe that the “prophets” theory applies both to cases in which the court rejected the invitation to “transform” society and those in which it did not. Both Bowers and Romer serve the same purpose. Both will be equally effective in changing social mores (which is to say, hardly at all).
The importance of the juridically prophetic within the production of culture, and then through the production of culture, back to the juridical identification of culture, is archetypically exemplified by the odyssey from Plessy to Brown. The Court in Plessy acted as the Homeric voice, expressing the reality of social convention with respect to the construction of boundaries between peoples classified in accordance to this thing we named “race.” The Court rejected out of hand the prophetic voice of Justice Harlan, who in dissent eloquently pleaded for the adoption of a different vision of “what ought to be.” Yet the prophetic voice was not suppressed. It was accorded a dignity equal to that of the Homeric expression of the majority in the process of memorialization. Thus memorialized along with the majority expression of “what is,” the prophetic vision coursed back into the non-juridical (social) fields of cultural production, there to provide guidance to individuals and groups attempting the process of applying and reapplying, interpreting and reinterpreting, the working rules of popular culture.168 Fifty years later, the prophetic reappeared before [*PG338]the Court. However, in Brown, the Court identified what had been the prophetic voice in Plessy as the “what is” of Brown.
I have developed the notion of the limits of the competence of a court’s role in the field of cultural production within the concept of identification-memorialization. I have then addressed the issue of communication within the identification-memorialization matrix by positing that the courts use language models drawn from the deepest recesses of our culture. These models are the basis of the authority to pronounce and contain within them the limits of the power of the pronouncement. I have also suggested that these communicative roles are not neat, and they make flesh one of the more interesting tensions within Western Christian culture—a tension which has been unresolvable for the last 2000 or so years, the tension between our Greek and Hebrew constructs. I have also attempted to identify the potentially conflicting and cacophonous voices and to demonstrate their limitations in the production of the culturally identifiable and its memorialization.
I want now to place this model in the context of the messiness which is our cultural engagement. This messiness suggests Panu Minkkinen’s reading of Foucault’s examination of “law as matrix.”169 Minkkinen seeks an understanding of the juridical within the domain of power-knowledge. The structural regularity of diverse social practices reveals the epochal matrices that Foucault understands as law, and law, in turn, designates the way in which the matrical framework of the visible domain of an epistYmY both forms the discursive domain and enables its dissemination. Law is, then, not a practice, be it discursive or non-discursive, but the ‘juridico-epistemological’ matrix of a given epoch through which the social world penetrates language. Through its formative or ordering aspect, law enables the recognition of the social in language, but, at the same time, its disjunctive or conflictive aspect accounts for the dissemination of a discursive corpus into new utterances of a second order.170
However, these interactions also proceed internally, within the juridical. In particular, the dialogue within the juridical reflects the [*PG339]complexities, the nonfixitivity, within the juridical matrix which mirrors the dialogue between law, the speakers of law, and the social domain. There is as much structural regularity within the juridical as within the object of juridical mediation, that is, between law and the social domain.171
I suggest that juridical voices within cultural communication exist as a series of contingencies which defy the power to draw lasting comfort from the process of juridical pronouncement. Juridical speaking is a complex act. The simple model for judicial authority based on culturally significant Greek and Hebrew voices represents the weave of our cultural conversations unraveled. I want to consider the nature of the complexities of such speaking by reweaving these strands of cultural authority.
First, courts are not unitary actors; they are not monolithic entities. Courts are multi-voiced, and multi-sited. Any particular pronouncement may well be in multiple voices. Courts may speak as the Delphic Apollo, while providing the site for the prophetic and slipping into the voices of the friends of Job. The juridical matrix is multi-headed. Each judge is permitted an independence that belies the unity of the discourse about the juridical. Though we choose to speak of the juridical the way we speak of the Divine, the juridical is not a singularity. Most judges tend to attempt the Homeric or Delphic voice. Those voices, after all, provide the most commanding posture for a judge seeking to maximize the authority of his or her pronouncement. Ironically, many such speakings tend to become more Jobian than Greek. Once uttered, judicial pronouncements are characterizable primarily by the audience of people who must determine the quantum of authority they wish to confer on such pronouncement.
Second, all combinations are possible. The process of pronouncement is messy. There is no rule book for limiting voice or interpreting discourse. Sites for the pronouncement of law are neither conscious of the voice of authority on which they rely, nor can they control a shifting of that voice even within any particular panel of authority. Just as there is no singularity within the juridical, so there is no predictable singularity within the juridical. Multi-judge courts, like most appellate and high courts, become sites for simultaneous speak[*PG340]ing in all possible voices. Recall that in Romer, both Justices Scalia and Kennedy spoke Homerically, yet each drew on very different traditions to come to opposite conclusions. Both the Law Lords and the judges of the ECHR spoke of traditional common understanding, yet one was convinced that no sex had occurred and the other that the state was free to regulate the sex that took place.
Third, no culture “speaking,” and especially no juridical “speaking,” comes with its own definitive evaluation. There is no “God” or arbiter to tell us when courts speak in which voice or how long culture stops to affirm and practice what has been identified as “law.” The collective “we” are, in this sense, as a group, always in the place of Job or perhaps in the place of the suppliant before the Delphic Apollo. We are audience and not arbiter in a large sense. We are deluged with conflicting voices of the juridical, all pronouncing, all definitive, all deficient. One can really understand the frustration of Herod in that famous disputation from the opera Salome or the anger of Job.
Yet we must all also perform the role of arbiter on a personal level. As we attempt to internalize pronouncement, or understand the application of norms in our practice of culture, we do interpret, accept, reject, and apply, in individual ways, that which may be identified to us by these voices of authority. Here is the form of the dialogue between practice and pronouncement. Authority is measured by compliance.
Fourth, there is no one “culture” to which the juridical speaks. We may speak of “dominant culture,” that is, coercive culture or disciplinary culture, as the primary target of the identification-memorialization process of the juridical. For that purpose, we must accept the notion of the juridical as a site for discipline. In this sense, one can understand the identification-memorialization process as one of protecting or projecting hegemony. It is a popularizer and socializer of acceptable conduct and acceptable thought.
However, the juridical permits the expression of the prophetic as well. The prophetic works against the present; to the extent it exists, it represents the potential for modulation of culture. Here, I conceive of culture as the collective of behavioral or thought taboos. But the prophetic may speak to non-dominant hegemonies as well. It provides a basis for resisting the colonization and harmonization implicit in the dominance of dominant culture.
Most importantly, dominant culture rarely stands alone. The voices of the juridical speak with far less authority to sub-dominant culture. Sub-dominant culture has its own voices for identifying and policing the current iterations of the form of its hegemonies. These [*PG341]may well be impervious to the voices of the instrumentalities of the dominant group. Consider the ability of the people of Israel to insulate themselves from some (but not all) of the disciplining effects of dominant Christian culture from the beginning of the common era to the present. Resistance, of course, is never complete—how can it be? We understand the power of colonization and normalization of the dominant. Where a minimum of necessary harmonization is unachievable—in the eyes of the group with the greatest coercive power—then rejection and expulsion become the means of dealing with fundamental difference.
Complexity comes to those who may belong to multiple hegemonies. How does the devout Muslim in America interpret, with what authority does he hear, the pronouncements of the juridical on the status of women? With what ears does the devout Catholic hear the Delphic voice of the court identify the reality of the cultural acceptance of reproductive autonomy for women? Within this complexity, the authority of the juridical may be softened through the trope of “interpretive mistake.”172 As products in the field of cultural production, the judicial voice may be discounted as speaking on issues of cultural interpretations outside the field of the juridical. We accept the notion of the possibility of mistake, even from the divine Greek voices of the court. Indeed, the friends of Job provide a deeply embedded cultural form of processing mistake.
Moreover, culture does not provide a group or individual guide for interpreting mistake. We may measure obedience, but we are leery of gauging interpretive mistake within culture. The limiting case is the overthrowing of the core taboo itself, but the power to conclude that an interpretive mistake is possible is also the power to limit the authority of those products of the juridical production of culture.173 In this enterprise we are permitted a substantial amount of individual space in our private affairs. We are given substantially less space within the cultural public space.174
I have posited a complex model of juridical speaking within the context of the production of culture norms-behavior models. The model posits that there is no “production” of law; rather, law and juridical pronouncements are part of the production of culture. This model views the juridical enterprise in a manner fundamentally different from that which has come to be accepted as “truth” within the Anglo-American West. The modernist model with which we have been raised misunderstands both courts and the litigation processes they oversee in its attempt to separate law and juridical pronouncement from the cultural fields in which they are embedded. Modernism also errs by investing them with powers and qualities that are alien to their structure as well as to their siting within society.
Both lawyers and non-lawyers have been raised, especially as participants within the juridical field, on the notion of juridical speech in the messianic voice.175 The juridical process and, especially, its formalization in the “litigation process,” as well as the “product” of that process—”law”—have been given positive functions. Law transforms; it moves society in peculiar and predictable ways—as long as we can get courts or legislatures to “go along.” Law and the process of pronouncement by courts become autonomous functions. When coupled with the unquestioned authority of the judicial voice (though why the voice is unquestioned defies explanation other than one deriving from the strength of force of arms), juridical cultural production is assertively transformative. It works on this other autonomous “thing” (culture), forces it to accept its prescriptions for conduct, and then uses the culture so domesticated to force compliance by the obedient populace.
[*PG343] In place of that model, I have offered something considerably more passive and complex. It is messy and hard to gauge, even as a matter of history. In this sense, we will always be the creatures of our own interpretive limitations or matrices. It is a model which makes it more difficult to commit the modernist sin of essentialism—”courts are always this” or “courts are invariably that.”
Yet this model I have described here does contain within it the possibilities of manipulation, though of a vastly different order from that assumed possible under our current modernist conceptualizations. Litigation and law, understood as part of the process of cultural production, can be mobilized consciously in the production of popular culture. Litigation is an excellent site for the articulation of different interpretive visions within culture, which, when freed, can work in society to modulate the ways in which cultural rules are interpreted.
I leave you with examples to which I have already referred. Plessy was not overturned in an act of imperial will by the court in Brown. Rather, the interpretive, if prophetic, possibilities, inherent even in the days of Plessy, were freed to roam and percolate through society for several generations, to come back triumphally as the formal voice of “that which is becoming” when the court was confronted fifty years after Plessy, with the need to acknowledge the ways in which culture had modulated. Likewise, the ECHR could not force the societies under its jurisdiction to tolerate gay men to an extent greater than they desire, nor was it willing to compel such a action by bringing the age of consent into parity. Neither the English nor the European courts would impose on their societies an acceptance of practices generally considered disgusting, especially when compounded by the fact that the activity was engaged in by gay men, a group just barely tolerated. The prophetic voices generated by those cases will need to roam within our culture for a while. Should the day come when that prophetic vision embraces “that which is becoming,” then will the courts identify and memorialize the change.