Law as Language? - Steven D. Smith

• Citation: Vol. 63 No. 3
• Publication year: 2012

Law as Language?

by Steven D. Smith*

It is an honor for me to be able to participate in this Symposium with such distinguished company, and I want to thank the Mercer Law Review and the symposium organizers for inviting me. I do feel a bit awkward, though, commenting on Professor Marianne Constable's paper.¹ As it happens, I agree with most of the sentences in the paper, taken one-by-one, but I am not sure that I catch the larger vision that the paper seeks to convey, and I am also unsure how Professor Constable's astute observations about law and language respond to the overall theme of this symposium-namely, "Citizenship and Civility in a Divided Democracy."² So here I will try to discharge the duties of commentator by attempting to explain my difficulty with the paper and offering some very tentative observations about points Professor Constable may be making.

Professor Constable's paper is devoted to describing various ways in which law is bound up with, or is, language. Lawyers and judges work in and through language. Contracts consist of written or spoken language. Perjury laws punish particular forbidden uses of language. The First Amendment³ protects various kinds of uses of language against government regulation. "[L]anguage is the medium of law," Professor Constable explains.⁴ "It is more than a tool or resource; it

* Warren Distinguished Professor of Law, University of San Diego. Brigham Young University (B.A., 1976); Yale Law School (J.D., 1979). I want to thank Larry Alexander for helpful comments on an earlier draft of this paper.

1. Marianne Constable, Democratic Citizenship and Civil Political Conversation: What's Law Got to Do with It?, 63 Mercer L. Rev. 877 (2012).

2. See Purpose Statement, Mercer University Law Review Symposium 2011, Citizenship and Civility in a Divided Democracy: Political, Religious, and Legal Concerns, Mercer Law (Oct. 7, 2011), http://www.law.mercer.edu/content/law-review-symposium-2011.

3. See U.S. Const. amend. I.

4. Constable, supra note 1, at 877.

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constitutes the shelter from which we know the world and act in it... . Our claims of law happen through our words in the world."⁵

All this seems to me perfectly true-too true, maybe. That is because on first reading or hearing (and maybe on second reading as well, but possibly not on third hearing?), Professor Constable's insistence that law works pervasively through language seems to have all of the virtues, but also all of the limitations, of an obvious truism.

Imagine a group of portrait painters who are discussing different techniques for using light and color and perspective to convey a subject's character. Now suppose someone joins the conversation and soberly remarks, "In reality, you know, the essence of portrait painting consists of the careful, artful use of paint. It is all about putting the paint on the canvas in the proper form." Or suppose a group ofbuilders is comparing different ways of constructing houses-different architectural strategies, different construction methods, and so forth-and someone sidles up and says, "With all due respect, the truth is that houses are made of wood and brick and concrete and plaster, and the real art of building houses lies in putting the materials together in an efficacious way."

In each case these observations would be perplexing, not because they are not true, but because they state what everyone already knows, in a way that is not helpfully responsive to the questions being addressed, but with a revelatory air suggesting that some important insight has been delivered or some telling criticism has been laid down. The portrait painters and the builders might be tempted to dismiss these observations as the product of some sort of peculiar category mistake. And yet ... it is possible that a hasty dismissal might miss some insight of real significance.

So, what might be the deeper significance of Professor Constable's seemingly truistic observations about the linguistic character of law? Here, I need to be tentative. But in part Professor Constable evidently intends her emphasis on language to present an alternative to a more obsessively rule-oriented understanding of what law is or how it works. And in this respect, I think she has a valid point.

For generations, of course, law teachers have routinely tried to make a...