Legal Canons

Jack Balkin, Sanford V. Levinson

• Publisher: NYU Press
• Year: 2000
• ISBN:
  9780814739464
• Topic: Diritto
• Subtopic: Diritto pubblico

Every discipline has its canon: the set of standard texts, approaches, examples, and stories by which it is recognized and which its members repeatedly invoke and employ. Although the last twenty-five years have seen the influence of interdisciplinary approaches to legal studies expand, there has been little recent consideration of what is and what ought to be canonical in the study of law today.

Legal Canons brings together fifteen essays which seek to map out the legal canon and the way in which law is taught today. In order to understand how the twin ideas of canons and canonicity operate in law, each essay focuses on a particular aspect, from contracts and constitutional law to questions of race and gender. The ascendance of law and economics, feminism, critical race theory, and gay legal studies, as well as the increasing influence of both rational-actor methodology and postmodernism, are all scrutinized by the leading scholars in the field.

A timely and comprehensive volume, Legal Canons articulates the need for, and means to, opening the debate on canonicity in legal studies.

Table of Contents

Part I
Introduction

Chapter 1
Legal Canons
An Introduction

J. M. Balkin and Sanford Levinson

I. Introduction

To some readers, a discussion of “legal canons” might suggest a treatise on church law, or perhaps, for creative spellers, a discussion of gun control. Our subject is somewhat different. It concerns what is and what ought to be canonical in the study of law. In our view, there is no better way to understand a discipline—its underlying assumptions, its current concerns and anxieties—than to study what its members think is canonical to that discipline. The study of canons and canonicity is the key to the secrets of a culture and its characteristic modes of thought.¹

In the liberal arts, debates about “the Western canon” have been going on for some time, often through controversies about what texts should be assigned in basic humanities courses.² Analogous debates about canonicity have occurred in the legal academy too, but by other names and using different vocabularies. They have been debates about interdisciplinarity, about narrative scholarship, about identity politics, about the structure of the law school curriculum, and about the preservation of the liberal precedents of the Warren Court and early Burger Court eras as normative icons. Legal academics have their own ways of discussing what is canonical, even if they never use that particular word.

Questions about legal canonicity have arisen during a time of great excitement and ferment in the American legal academy. In the past twenty-five years, legal scholars have witnessed the entry (some would say invasion) of interdisciplinary approaches, the ascendance of law and economics, the development of feminism, critical race theory, and gaylegal studies, and the increasing influence of both rational-actor methodology and postmodernism. The demographics of the law school have also changed dramatically: More and more women and minorities have attended law schools, and slowly but surely they have gained entry to the ranks of the legal professoriat. Simultaneously, the comparatively insular American law school is “going global.” After many years of smug self-assurance, American legal education is finally showing interest in the legal systems and constitutional problems of other countries. To be sure, this newfound concern is partly a means of exporting American legal culture to other lands, but it also reflects an increasing curiosity about how things might be done otherwise here in the United States.

It is precisely at such times of ferment, growth, change, and innovation that anxieties about canons arise in any discipline. The discipline seeks either to reconstitute itself or to close ranks by considering what, if anything, can be said to be canonical about its practices, its methods, or its materials of study. In discussions about the legal canon, analogies to debates that have taken place in the liberal arts at Stanford and other universities have proved too tempting to resist.³ After all, such debates have drawn considerable controversy and press coverage, with some of the participants suggesting at times that nothing less than the future of Western civilization depends on accepting their particular position in the debate.

Nevertheless, such comparisons conceal as much as they reveal. In this essay, we want to consider both the similarities and the differences in debates over literary and legal canons. More importantly, we want to consider what is really at stake in asking whether any field of law is constituted by a canon. The question of what is canonical must be approached sociologically as well as prescriptively. We cannot debate the content of “the canon” until we understand the purposes for which the question is being asked and the reasons why the question is being asked at a particular moment in the development of legal culture. Moreover, we must understand debates about canons with reference to their particular institutional contexts, for these debates are part of more general forms of ideological and cultural development and struggle. Because we are both teachers of constitutional law, we draw many of our examples from that field, but we hope that the reader will see these as exemplary of more general features of legal canons.

In this chapter, we discuss the different ways of constituting or defining a canon. We argue that what is regarded as canonical in law depends very much on the audience for whom and the purposes for which the canon is constructed. For example, legal materials can be canonical because they are important for educating law students, because they ensure a necessary cultural literacy for citizens in a democracy, or because they serve as benchmarks for testing academic theories about the law. Because legal materials have multiple audiences and functions, there is no reason to think that law, or any field of law, has a single canon. By contrast, different forms of canonicity are more closely linked with one another in the liberal arts than they are in law, and this linkage gives the appearance of a unified canon over which participants fight. Finally, we argue that some of the most important forms of canonicity have less to do with the choice of materials than with the tools of understanding that people use to think about the law—the background structures of “law-talk” that shape conversations within and concerning the law.⁴ These elements of “deep canonicity” include characteristic forms of legal argument, characteristic approaches to problems, underlying narrative structures, unconscious forms of categorization, and the use of canonical examples.

II. Pedagogy, Cultural Literacy, and Academic Theory

When we think about debates over the canon in the liberal arts, we normally focus on the question of what books or authors should be assigned and read in university courses. But in fact, many of the books actually assigned in liberal arts courses are collections of preselected materials in the form of anthologies. Consider a sampling of the books offered by the Norton Publishing Company: The Norton Anthology of American Literature,⁵ The Norton Anthology of Short Fiction,⁶ The Norton Anthology of English Literature,⁷ The Norton Anthology of World Masterpieces,⁸ The Norton Anthology of Modern Poetry,⁹ The Norton Anthology of Literature by Women: The Tradition in English,¹⁰ and The Norton Anthology of African American Literature.¹¹ These anthologies save the harried liberal arts professor time and energy both by choosing what books and poems to assign and by editing the chosen works, and that is one reason why they are so popular. Nor is this economy accidental. Offering people ready-made categories to think with and providing texts to think about are some of the most important functions of canon construction. This labor saving is due to the work of anthology editors, who carefully screen and select the relevant materials, providing updates as required. In fact, there have been multiple editions of several of these anthologies, suggesting either that the category of “world masterpieces” is not altogether stable,¹² or, more happily, that new “world masterpieces” are being published every year.¹³

In any case, the editors’ decisions as to which among many potential candidates will be canonized in these anthologies may call for exquisite judgment.¹⁴ As Sandra Gilbert and Susan Gubar discovered when they published a Norton anthology of literature by women that purported to offer “The Tradition in English,”¹⁵ anthology editors are often subjected to severe criticism, both for their choices and for those choices’ pretensions to hegemonic status.¹⁶

Law professors also rely on anthologies, though we call them “casebooks.” Indeed, it is safe to say that no part of the academy relies more on anthologies than do American law schools. Energetic law professors sometimes add supplemental materials of their own devising and may even recommend a hornbook or two, but for the most part American law students are fed a steady diet of increasingly thick (and increasingly expensive) casebooks.¹⁷

Just as literature professors decide what poems and novels to teach, editors of casebooks decide what “cases and materials” students ought to be exposed to on their intellectual journey from uninitiated laypersons to well-educated, “disciplined” lawyers. We have no doubt that the purposes and agendas of the people who create these collections often differ; we are equally certain that the academy would benefit from a far more explicit (and contentious) debate than the present muffled discussion about what visions of law underlie any given casebook. Thus, one purpose of this commentary is to provoke a long overdue discussion among would-be constructors of the legal canon about the reasons for their particular decisions—a discussion not simply about what texts they include and exclude, but also about why these texts are included or excluded.¹⁸

We begin, however, with a legal document that generates no contention at all: John Marshall’s opinion in McCulloch v. Maryland,¹⁹ which established an expansive view of national power under the U.S. Constitution. At least within the field of constitutional law, almost everyone seems to agree that McCulloch is canonical. Indeed, in a recent study of eleven major constitutional law casebooks entitled “Is There a Canon of Constitutional Law?” McCulloch was one of only ten cases included in all of the casebooks.²⁰ This unanimity only confirms the intuition that every law student should be exposed to McCulloch and should be able to offer some informed commentary about its holding and arguments.²¹ Yet articles about McCulloch rarely appear in American law reviews.²² If one attempted to determine what is canonical by examining the work product of legal academics as revealed in American law reviews, McCulloch would leave almost no traces at all.

In short, we may find a wide divergence between what professors of law teach and what they write about. Liberal arts professors are in a somewhat different position. Contrast the law professor’s treatment of McCulloch with the literature professor’s treatment of Shakespeare’s plays. These plays are not only taught to the young, but also continue to be written about with great zeal by many important members of the literary academy, even—and perhaps especially—when these scholars apply trendy contemporary methods of interpretation like deconstruction, the new historicism, and Lacanian psychoanalytic theory.²³ Methodologies wax and wane, but each one gets applied to Shakespeare in turn.

What is “canonical” in law varies according to how the canon is defined, and how the canon is defined depends on the purpose ...