JANE B. BARON AND JULIA EPSTEIN
LANGUAGE AND THE LAW: LITERATURE, NARRATIVE, AND LEGAL THEORY
THE law is its own form of language, as any first-time reader of a statute or judicial opinion will attest. To begin with, law is characterized by a highly specialized vocabulary; students must be initiated into the proper use of such terms as perpetuities, bills of attainder, promissory estoppel, and scores of others integral to the basic law school curriculum. But legal usage transforms even the familiar vocabulary of ordinary speech. Pleadings, motions, affidavits, and court orders differ distinctly in form and intelligibility from newspaper articles, letters, or novels, even though they are often composed of nonspecialized terms.
What can be said in the language of the law? In theory, anything that can be said in ordinary language. In the past twenty years, two groups of scholars have called attention to the limits of legal language--highlighting what it omits, the ways it can be inaccessible, and how it tends covertly to privilege certain points of view. The first of these two groups focuses on law and literature, while the second focuses on law and narrative.
Both groups rely on materials (such as novels, plays, or stories) and theories (such as New Criticism, hermeneutics, or deconstruction) outside the usual realm of law. Both also seem to reach in the same general direction, toward the humanities. Thus, one would expect the paths of the two movements to connect or overlap in some way. Surprisingly, the connection is thin and weak. Both movements question the adequacy of legal language to express the experiences and aspirations of all members of the community--the powerless as well as the powerful--but the parallel ends there. From similar starting points, the movements travel in quite different directions.