The Origins of Historical Jurisprudence

Source: https://core.ac.uk/download/pdf/160249914.pdf

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

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Since the early 1970s, these familiar questions have received some new and surprising answers in the legal academy. This novelty is in part a consequence of the increasing influence there of academic disciplines and intellectual traditions previously unconnected with the study of law. Perhaps the most influential have been the answers given by the Law and Economics school. According to these legal economists, law consists and ought to consist of those rules that maximize a society’s material wealth and that abet the efficient operation of markets designed to generate wealth. More controversial have been the various answers provided by members of the Critical Legal Studies movement, according to whom law is one among several cultural mechanisms by which holders of power seek to legitimate their domination. Drawing on related arguments developed in anthropology, sociology, and history, the critical legal scholars contend that law is an expression of power, but not, as held by the positivists, the power of the legitimate sovereign government. Rather, it is an expression of the power of elites who may have no legitimate authority, but who are intent on preserving the privileges of their race, class, or gender.

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In the mid-1970s, James Boyd White began to articulate yet another interdisciplinary response to the traditional questions, and in so doing spawned what is now known as the Law and Literature movement. White has insisted that law, particularly as it is interpreted in judicial opinions, should be understood as an essentially literary activity. Judicial opinions should be read and evaluated not primarily as political acts or as attempts to maximize society’s wealth through efficient rules, but rather as artistic performances. And like all such performances, White argues, each judicial opinion attempts in its own way to promote a particular political or ethical value.

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

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1. Which one of the following best states the main idea of the passage?

(A) Within the last few decades, a number of novel approaches to jurisprudence have defined the nature of the law in diverse ways.

(B) Within the last few decades, changes in society and in the number and type of cases brought to court have necessitated new methods of interpreting the law.

(C) Of the many interdisciplinary approaches to jurisprudence that have surfaced in the last tow decades, the Law and Literature movement is the most intellectually coherent.

(D) The Law and Literature movement, first articulated by James Boyd White in the mid-1970s, represents a synthesis of the many theories of jurisprudence inspired by the social sciences.

(E) Such traditional legal scholars as legal positivists and natural lawyers are increasingly on the defensive against attacks from younger, more progressive theorists.

2. According to the passage, judicial opinions have been described as each of the following EXCEPT:

(A) political statements

(B) arcane statements

(C) economic statements

(D) artistic performances

(E) acts of translation

3. Which one of the following statements is most compatible with the principles of the Critical Legal Studies movement as that movement is described in the passage?

(A) Laws governing the succession of power at the death of a head of state represent a synthesis of legal precedents, specific situations, and the values of lawmakers.

(B) Laws allowing income tax deductions for charitable contributions, though ostensibly passed by lawmakers, were devised by and are perpetuated by the rich.

(C) Laws governing the tariffs placed on imported goods must favor the continuation of mutually beneficial trade arrangements, even at the expense of long-standing legal precedent.

(D) Laws governing the treatment of the disadvantaged and powerless members of a given society are an accurate indication of that society’s moral state.

(E) Laws controlling the electoral processes of a representative democracy have been devised by lawmakers to ensure the continuation of that governmental system.

4. Which one of the following does the passage mention as a similarity between the Critical Legal Studies movement and the Law and Literature movement?

(A) Both offer explanations of how elites maintain their hold on power.

(B) Both are logical extensions of either natural law or legal positivism.

(C) Both see economic and political primacy as the basis of all legitimate power.

(D) Both rely on disciplines not traditionally connected with the study of law.

(E) Both see the practice of opinion-writing as a mediating activity.

5. Which one of the following can be inferred from the passage about the academic study of jurisprudence before the 1970s?

(A) It was concerned primarily with codifying and maintaining the privileges of elites.

(B) It rejected theories that interpreted law as an expression of a group’s power.

(C) It seldom focused on how and by what authority judges arrived at opinions.

(D) It was concerned primarily with the study of law as an economic and moral agent.

(E) It was not concerned with such disciplines as anthropology and sociology.

6. Proponents of the Law and Literature movement would most likely agree with which one of the following statements concerning the relationship between the law and judges’ written opinions?

(A) The once-stable relationship between law and opinion-writing has been undermined by new and radical theoretical developments.

(B) Only the most politically conservative of judges continue to base their opinions on natural law or on legal positivism.

(C) The occurrence of different legal situations requires a judge to adopt diverse theoretical approaches to opinion-writing.

(D) Different judges will not necessarily write the same sorts of opinions when confronted with the same legal situation.

(E) Judges who subscribe to divergent theories of jurisprudence will necessarily render divergent opinions.

7. Which one of the following phrases best describes the meaning of “re-constitute” as that word is used in line 54 of the passage?

(A) categorize and rephrase

(B) investigate and summarize

(C) interpret and refashion

(D) paraphrase and announce

(E) negotiate and synthesize

8. The primary purpose of the passage is to

(A) identify differing approaches

(B) discount a novel trend

(C) advocate traditional methods

(D) correct misinterpretations

(E) reconcile seeming inconsistencies

Answers: A,B,B,D,E,D,C,A