BERMAN'S BIOGRAPHY

Harold J. Berman was one of the great polymaths of American legal education, and he taught for sixty years before his death in 2007. Born and raised in a conservative Jewish family and community in Hartford, Connecticut, Berman went to Dartmouth College where he came under the inspiration of the great German intellectual, Eugen Rosenstock-Huessy, whose work would have a lifelong influence on him. He completed his LLB and MA in history at Yale, following military service in World War II from 1942 to 1945, where he served as a cryptographer, breaking Russian code for the Allied Forces in Europe. He began his teaching career at Stanford Law School in 1947, but the following year, he moved to Harvard Law School, where he taught until 1985. At Harvard, he served first as the Joseph Story Professor of Law and Legal History, then as the James Barr Ames Professor of Law. He also served as the founder and the director of Harvard Law School's Liberal Arts Fellowship Program in Law, as a fellow of the Russian Research Center of Harvard University, and as a member of the Legal Committee of the US-USSR Trade and Economic Council.

From 1985 to 2007, Berman taught at Emory Law School, serving as the first Robert W. Woodruff University Professor of Law. He was also a fellow at the Carter Center at Emory University, the founding director of the American Law Center in Moscow, the founding director of the World Law Institute at Emory Law School, and a senior fellow at the Center for the Study of Law and Religion at Emory University.

In the first three decades of his career, Berman's scholarly energies were focused on the Soviet legal system and the law of international trade. He developed several new courses, testified frequently before courts, commissions, and Congressional committees, and traveled regularly to Europe and the Soviet Union—fifty-five times to Russia alone. He spent the 1961–62 academic year at the Moscow Institute of State and Law, where he encountered, among others, a rising young star named Mikhail Gorbachev.Footnote ⁷ In the spring of 1982, he served as a Fulbright professor at Moscow State University. He produced a massive body of new writing in this early period. Of these writings, his Justice in the U.S.S.R. (1950; rev. ed. 1963)Footnote ⁸ will long endure as a classic, as will several of his lengthy law review articles on the lex mercatoria.Footnote ⁹ Other publications from this period that were important for his study of law and language were his exquisite translations of sundry Soviet laws—nearly 2,800 printed pages in English translation.Footnote ¹⁰

In the first three decades of his career, Berman also developed a keen interest in bringing legal education into the undergraduate college—a different exercise in translation, now involving the translation of professional legal language, concepts, and methods into something accessible to young students of the social, humane, and exact sciences. These pedagogical interests he distilled in two other signature titles, On the Teaching of Law in the Liberal Arts Curriculum (1956)Footnote ¹¹ and The Nature and Functions of Law (1958),Footnote ¹² the latter now a standard text in American college courses on law. He extended these interests further in arranging the multilingual series Talks on American Law, which started as Voice of America broadcasts. Here was yet another early example of legal translation and transmission—making the intricacies of American public, private, penal, and procedural law accessible to radio audiences throughout the Americas, Europe, Africa, Asia, Australia, the Middle East, and even the Soviet bloc countries.Footnote ¹³

In the last three decades of his career—with Law and Language coming right at the transition point in his scholarly focus and thinking—Berman expanded his legal scholarship to include legal philosophy, legal history, and law and religion. He produced a series of pathbreaking volumes, most notably The Interaction of Law and Religion (1974),Footnote ¹⁴Faith and Order: The Reconciliation of Law and Religion (1993),Footnote ¹⁵ and his massive Law and Revolution: The Formation of the Western Legal Tradition (1983)Footnote ¹⁶ and Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Tradition (2003).Footnote ¹⁷ The final volume of this series—on the American, French, and Russian revolutions—was on his writing desk when he died, along with a dozen articles in progress.

Berman left a scholarly legacy of 25 books and 458 articles, book chapters, and book reviews. These writings were collectively published in 21 languages; a few of his books are still being translated, and his new book, Law and Language, will deserve translation, too. A comprehensive collection of his writings and some of his correspondence from 1948 to 1985 are included in the Red Set of faculty publications in the Harvard Law Library.Footnote ¹⁸ Digital and hard copies of all his (published and unpublished) non-book writings from 1938 to 2007 are available through the Emory University libraries.Footnote ¹⁹ His work continues to be mined and cited with alacrity in the main fields in which he worked. This new book, Law and Language, will provide a further window, if not a gateway, into his writings and the development of his legal thought.

Berman taught some 8,000 law students at Harvard and Emory, more than 300 of whom have become professors in at least 33 countries. His students and colleagues honored him with three Festschriften,Footnote ²⁰ and three law journal symposia are dedicated to his work.Footnote ²¹ He was a member of both the American Academy of Arts and Sciences and the Russian Academy of Sciences. He received more than a hundred prizes and awards for his scholarly achievements, including the prestigious Scribes Award from the American Bar Association, as well as honorary doctorates from the Catholic University of America, the Virginia Theological Seminary, the University of Ghent, and the Russian Academy of Sciences. The newly dedicated Harold J. Berman Library in the Center for the Study of Law and Religion at Emory University houses some of his personal books and effects. The Harold J. Berman Lecture Series at Emory Law School offers regular lectures on the many legal topics that Berman long championed.

BERMAN'S MAIN SCHOLARLY THEMES

Throughout his long career, Berman had the remarkable ability to think above, beyond, and against his times. In the 1950s and 1960s, the dominant Cold War logic taught that the Soviet Union was a lawless autocracy. Berman argued, to the contrary, that the Russians would always honor contracts and treaties that were fairly negotiated.Footnote ²² His views prevailed and came to inform various nuclear treaties, trade agreements, and East-West accords. In the 1970s and 1980s, the conventional belief persisted that the Middle Ages were the dark ages, as the West waited impatiently for the Enlightenment and modernization. Berman argued the contrary, that the medieval era was the first modern age of the West and the founding era of our Western legal tradition, a view that is now standard.Footnote ²³ In the 1980s and 1990s, jurists fought fiercely over whether legal positivism, natural law, or some other perspective was the better legal philosophy. Berman called for an integrative jurisprudence that reconciled these views with each other and with other perspectives on law, particularly historical jurisprudence.Footnote ²⁴ This view now prevails in a world dedicated to interdisciplinary legal study. And, in the 2000s, with the world hell-bent on waging “a clash of civilizations,”Footnote ²⁵ Berman called for a world law, grounded in global structures and processes and in universal customs and principles of peace, cooperation, and reconciliation.Footnote ²⁶ This view holds so much more promise than the jingoism and jihadism of the past two decades.

“First it was Russian law, then it was Western law, now it is world law. What's next, cosmic law?” This is how Professor Berman's beloved wife, Ruth, once summarized for me (with a blend of exasperation and astonishment) the stages of Berman's storied legal career. There is keen insight in this statement. For Berman, every legal system—even the budding legal system of the world—must ultimately be founded on cosmic commandments and contemplation, divine examples and exemplars. Berman long prophesied that those legal systems built on immanent and material foundations alone would fail. The spectacular failure of the Soviet legal system in the later twentieth century was ample vindication of his insight into the essential religious foundations of law.

Berman repeated this message in China when, in 2006, as a still-energetic eighty-eight-year-old, he gave a series of lectures on law to packed houses at a dozen universities. One of his Chinese respondents asked whether one needed to believe in God in order to have a just legal order. “It would certainly help!” Berman quipped immediately. “But no,” he went on diplomatically:

Such views reflect, in part, Berman's lifelong effort to integrate his religious faith with his legal learning. In his chapel talks delivered in Harvard Memorial Church over more than thirty years, Berman contrasted “the wisdom of the world” with “the wisdom of God.” The wisdom of the world, he declared, “assumes that God's existence is irrelevant to knowledge, and that truth is discoverable by the human mind unaided by the Spirit.” Jewish and Christian wisdom, by contrast, “seeks God's guidance . . . in order to discover the relationship between what we know and what God intends for us.” Knowledge and intellect are “intimately connected with faith, with hope, and with love,” and “God does not call us to be merely observers of life; rather he calls all of us—even the scholars in all that we do—to participate with him in the process of spiritual death and rebirth which is fundamental religious experience.”Footnote ²⁸

Early on, Berman made clear that dialogue was essential to our relationships with God, neighbor, and self, and that language was an essential sinew of all our relationships. God is a God of words, Berman believed, drawing on the Bible: “In the beginning was the Word, and the Word was with God, and the Word was God” (John 1:1, italics added); and “In the beginning God created the heavens and the earth” (Genesis 1). And God did so through speech: “And God said, ‘Let there be . . .’” is how each day of creation starts. The creation of men and women was accomplished through dialogue, through conversation, first among the members of the Trinity, then between God and humanity: “Let us make man in our image, after our likeness,” the Trinitarian God says to its members (Genesis 1:26). And thereafter, God “walked and talked” with the man and the woman whom he created, though he talked with no other creature (Genesis 3). For Berman, humans, created in the image of God, are given the capacity for language and for dialogue with each other and with God.Footnote ²⁹ In a 1969 sermon in Harvard's Memorial Church, he proclaimed:

Dialogue was key, in Berman's view, to teaching and reaching reconciliation and for building community both locally and globally. Both Jewish and Christian theology, he reminded his church listeners, teach that persons must reconcile themselves to God, neighbor, and self. For Berman, building on St. Paul, this meant that there can be “no real division between Jew and Gentile, slave and free, male and female”Footnote ³¹—or, for that matter, between black and white, straight and gay, old and young, rich and poor, citizen and sojourner. For every sin that destroys our relationships, there must be grace that reconciles them. For every Tower of Babel that divides our voices, there must be a Pentecost that unites them and makes them understandable to all.Footnote ³²

Such spiritual sentiments could shackle the narrow-minded. They liberated Berman from conventional habits of mind and traditional divisions of knowledge. He challenged Max Weber, Karl Marx, and Jeremy Bentham for their separation of fact and value, is and ought.Footnote ³³ He criticized Alexander Solzhenitsyn for his contradistinction of law and morals, law and love.Footnote ³⁴ He fought against the divisions of the very world itself into East and West, old and new, developed and undeveloped. His favorite jurists were Gratian, Matthew Hale, and Joseph Story, who wrote concordances of discordant canons.Footnote ³⁵ His favorite philosophers were Peter Abelard, Philip Melanchthon, and Michael Polanyi, who developed integrative holistic philosophies.Footnote ³⁶

“The era of dualism is waning,” Berman wrote in 1974. “We are entering into a new age of integration and reconciliation. Everywhere synthesis,” the overcoming of false opposites, is “the key to this new kind of thinking and living.” Either-or must give way to both-and. Not subject versus object, not fact versus value, not is versus ought, not soul versus body, not faith versus reason, not church versus state, not one versus many, “but the whole person and whole community thinking and feeling, learning and living together”—that is the common calling of humankind, Berman wrote.Footnote ³⁷

Berman applied this gospel of reconciliation and integration most vigorously to his legal studies. He called for the reintegration of the classic schools of legal positivism, natural law theory, and historical jurisprudence—which, in his view, had been separated since God was cast out of the legal academy. He called for the integration of public law and private law, of common law and civil law, of Western law and Eastern law into a global legal system. He urged that law be given a place among the humanities and enrich itself with the ideas and methods of sundry humane disciplines. He urged that legal language be cast in terms understandable to all, and that it be enriched by the power of poetry, liturgy, literature, and art. And he urged most strongly that the subjects and sciences of law and religion be reconciled to each other. Their separation was, for him, a theological “heresy” and a jurisprudential “fallacy” that could not survive in the new era of synthesis and integration. “[L]aw and religion stand or fall together,” he wrote. “[I]f we wish law to stand, we shall have to give new life to the essentially religious commitments that give it its ritual, its tradition, and its authority—just as we shall have to give new life to the social, and hence the legal, dimensions of religious faith.”Footnote ³⁸

Berman's talk of the death of dualism and the birth of an age of synthesis points to his further belief in a teleological, if not providential, view of history. Both Jewish and Christian theology, he reminded his readers, teach that time is continuous, not cyclical, that time moves forward from a sin-trampled garden to a golden city, from a fallen world to a perfect end time. Berman was convinced that, slowly but surely, all the peoples of the world would come into contact with each other and that, ultimately, after revolutionary struggle and even apocalyptic explosion, they would seek finally to be reconciled with each other forever.Footnote ³⁹

Berman's grand account of evolution and revolution in Western history, set out in his Law and Revolution series, is rooted in this basic belief about the nature and pattern of time. There is a distinctive Western legal tradition, he argued, a continuity of legal ideas and institutions, which grows by accretion and adaptation. The exact shape of the ideas and institutions is determined, in part, by the underlying religious belief systems of the people ruling and being ruled. Six great revolutions, however, have punctuated this organic, gradual development: the Papal Revolution of 1075; the German Lutheran Reformation of 1517; the English Puritan Revolution of 1640; the American Revolution of 1776; the French Revolution of 1789; and the Russian Revolution of 1917. These revolutions were, in part, rebellions against a legal and political order that had become outmoded and ossified, arbitrary and abusive. But, more fundamentally, these revolutions were the products of radical shifts in the religious belief systems of the people—shifts from Catholicism to Protestantism to Deism to the secular religion of Marxist-Leninism. Each of these new belief systems offered a new eschatology, a new apocalyptic vision of the perfect end time, whether that was the Second Coming of Christ, the arrival of the heavenly city of the Enlightenment philosophers, or the withering away of the state. Each of these revolutions, in its first radical phase, sought the death of an old legal order to bring forth a new order that would survive the Last Judgment. Eventually, each of these revolutions settled down and introduced fundamental legal changes that were ultimately subsumed in and accommodated the Western legal tradition.Footnote ⁴⁰

In this new millennium, Berman believed, the Western legal tradition is undergoing a profound integrity crisis, graver and greater than any faced in the past millennium. The old legal order of the West is under attack both from within and from without. From within, Western law is suffering from the critical and cynical attacks relentlessly issued by jurists and judges—a “form of lawyerly self-loathing,” he once called it. These legal skeptics have dismissed legal doctrine as malleable, self-contradictory rhetoric. They have depicted the law as an instrument of oppression and exploitation of women, of minorities, of the poor, of the different. They have derided the legal system for its promotion of the political purposes of the powerful and the propertied. This assault from within the law, from within the legal academies and within the courts—devoid as it is of a positive agenda of reconstruction—reflects a cynical contempt for law and government, a deep loss of confidence in its integrity and efficacy. The “secular priests of the law,” its officials and its educators, no longer seem to believe in what they are doing.Footnote ⁴¹

From without, the radical transformation of economic life and the rapid acceptance of new social forms and customs, many born of Eastern, Southern, and New Age thinking, have stretched traditional Western legal doctrines to the breaking point. Each of the major branches of Western law—contract, property, tort, family, criminal, commercial, and constitutional law—have transformed several times over in the past two generations. Many of these changes may well have been necessary to modernize the law, to adapt it to contemporary social needs and ideals, to purge it of obsolete ideas and institutions. But as a consequence, Western law—always something of a patchwork quilt—has become more of a collection of disjointed pieces, with no single thread, no single spirit holding it together and giving it integrity and direction. This also has led to profound disillusionment with and distrust of the law.Footnote ⁴²

For Berman, these are signs of end times. We are reaching the end of an age, and the end of the Western legal tradition, as we have known it. Western law is dying, he wrote, and a new common law of all humanity is struggling to be born out of the counterforces of violent balkanization, radical fundamentalism, and belligerent nationalism that now beset us all. Western law, rooted in the soils and souls of Christianity, Judaism, and their secular successors, will have a place in this new common law of humanity. But so will the laws of the East and the South, of the tribe and the jungle, of the country and the city, each with its own belief system. What needs to be forged in this new millennium, Berman argued, is a comprehensive new religious belief system, a new pattern of language and ritual, a new eschaton that will give this common law of humanity its cohesion and direction. We need a new common law and a new common faith on a world scale, a new ius gentium and fides populorum for the whole world. We need global structures and symbols, global processes and principles. These cannot be sought only in worldwide science and commerce, or in global literature and language. They must be sought also in a new “world law” and a new “world religion.” For law and religion are the only two universal solvents of human living that can ultimately bring true peace, order, and justice to the world.

A streak of mystical millenarianism colors Berman's historical method, much of it already conceived while he was a young man witnessing the carnage of World War II and still brimming with the heady instruction of his Dartmouth mentor, Eugen Rosenstock-Huessy.Footnote ⁴³ Description and prescription run rather closely together in his account, occasionally stumbling over each other. Historical periods and patterns are rather readily equated with providential plans and purposes. But here we have one of the deepest sources of many of Berman's insights and ambitions as a legal scholar. He was, as he put in an April 17, 1966, letter to Rosenstock, on a scholarly “pilgrimage.”

THE EMERGENCE OF LAW AND LANGUAGE

All of these cardinal themes of Berman's life work can already be seen in Law and Language, written right in the middle of his legal career. The book distills some of the keen insights he had developed in his earlier international and comparative law work. It anticipates crisply some of the key themes that he went on to explore at great length in his Law and Revolution series and in other writings on legal history, law and religion, and legal philosophy. And the book has a typical Berman-like interdisciplinary edge, with the methods and insights of jurisprudence, history, sociology, psychology, anthropology, theology, philosophy, and more, all adeptly and seamlessly integrated into his analysis.

What makes the book all the more interesting is that Berman wrote the manuscript in the early 1960s, when interdisciplinary approaches to legal study—including the study of law and languageFootnote ⁴⁵—were only in their infancy. The regnant legal philosophy at the time was still the legal positivism that had dominated American, and broader Western, legal education for the first half of the twentieth century. Law, according to legal positivists, was simply the sovereign's rules. Legal study was simply the analysis of the rules that were posited, and their application in particular cases. Why these rules were posited, whether their positing was for good or ill, and how these rules affected society, politics, or morality were not relevant questions for legal study. It was rather common to read in legal textbooks of the day that law is an autonomous science, that its doctrines, language, and methods are self-sufficient, that its study is self-contained. It was rather common to think that law has the engines of change within itself; that, through its own design and dynamic, law marches teleologically through time “from trespass to case to negligence, from contract to quasi-contract to implied warranty.”Footnote ⁴⁶

To be sure, American legal positivism was not without its detractors. Already in the 1920s and 1930s, sociologists of law argued that the nature and purpose of law and politics cannot be understood without reference to the spirit of a people and their times—of a Volksgeist und Zeitgeist as their German counterparts put it.Footnote ⁴⁷ The legal realist movement of the 1930s and 1940s used the new insights of psychology and anthropology to cast doubt on the immutability and ineluctability of judicial reasoning.Footnote ⁴⁸ The revived natural law movement of the 1940s and 1950s saw in the horrors of Hitler's Holocaust and Stalin's gulags the perils of constructing a legal system without transcendent checks and balances.Footnote ⁴⁹ The international human rights movement of the 1950s and 1960s pressed the law to address more directly the sources and sanctions of civil, political, social, cultural, and economic rights.Footnote ⁵⁰

By the 1960s, the confluence of these and other movements had exposed the limitations of a positivist definition of law standing alone. Berman was in the vanguard of leading jurists—which included his colleagues Roscoe Pound and Lon Fuller as well as Jerome Hall, Karl Llewellyn, and others—who were pressing for a broader interdisciplinary philosophy of law. Of course, they said in concurrence with legal positivists, law consists of rules—the black letter rules of contracts, torts, property, corporations, and sundry other familiar subjects. Of course, law draws to itself a distinct legal science, an “artificial reason,” as Sir Edward Coke once put it.Footnote ⁵¹ But law is much more than the rules of the state and how we apply and analyze them. Law is also the social activity by which certain norms are formulated by legitimate authorities and actualized by persons subject to those authorities. The process of legal formulation involves legislating, adjudicating, administering, and other conduct by legitimate officials. The process of legal actualization involves obeying, negotiating, litigating, and other conduct by legal subjects. Law is rules, plus the social and political processes of formulating, enforcing, and responding to those rules.Footnote ⁵² Numerous other institutions, besides the state, are involved in this legal functionality. The rules, customs, and processes of churches, colleges, corporations, clubs, charities, and other non-state associations are just as much a part of a society's legal system as those of the state. Numerous other norms, besides legal rules, are involved in the legal process. Rule and obedience, authority and liberty are exercised out of a complex blend of concerns, conditions, and character traits—class, gender, persuasion, piety, charisma, clemency, courage, moderation, temperance, force, faith, and more.Footnote ⁵³

Legal positivism could not, by itself, come to terms with law understood in this broader sense. In the 1960s, American jurists thus began to turn with increasing alacrity to the methods and insights of other disciplines to enhance their legal formulations. This was the birthing process of the modern movement of interdisciplinary legal study. The movement was born to enhance the province and purview of legal study, to refigure the roots and routes of legal analysis, to render more holistic and realistic our appreciation of law in community, in context, in concert with politics, social sciences, and other disciplines.Footnote ⁵⁴

Berman's pithy little volume Law and Language, like his equally pithy little volume The Interaction of Law and Religion, published ten years later, is a valuable artifact from these early days of interdisciplinary legal study in America. N. E. H. Hull calls this kind of early work “bricolage jurisprudence,” given its “marvelously far-ranging and free-thinking eclecticism.”Footnote ⁵⁵ Hull got this term from French anthropologist, Claude Lévi-Strauss, who used it to refer to the work of creative French handymen—bricoleurs—who worked with “whatever [was] at hand,” with tools that were not designed for the present task.Footnote ⁵⁶ Berman and other early interdisciplinary legal scholars, like Pound and Llewellyn, similarly “collect[ed] ideas from their vast reading of their predecessors in jurisprudence, as well as of economists, social psychologists, sociologists, and historians.”Footnote ⁵⁷ Eclecticism was the spirit of the times, and Berman was exuberantly broad in his use of sources from all manner of disciplines to aid his study of law.

While intellectual eclecticism was the new fashion of legal education in the early 1960s, political danger was the perennial worry. The world was gripped by a deep fear born of the Cold War and the Cuban Missile Crisis while still reeling from the devastation of World Wars I and II. For Berman, the academy was no ivory-tower refuge. “Two world wars, and the threat of a third,” he wrote, with the Cuban Missile Crisis just averted, “have joined all mankind in a common destiny. We are all in contact with each other. Paradoxically, the human race is becoming unified by its capacity for self-destruction.”Footnote ⁵⁸

The Cold War between the United States and the USSR, in particular, shaped Berman's efforts in Law and Language to work out a theory of “communification”: to form sympathetic bonds of community through better mutual understanding of each other's cultures, languages, and laws, and to facilitate more conversation to overcome the “tragic disunity which now threatens to destroy us.”Footnote ⁵⁹ In the 1950s and 1960s, he published a series of popular articles in the American press, designed to promote greater understanding of Russian families, farms, and workers, of Russian religion, morality, and values, and of Russian science, education, and sports.Footnote ⁶⁰ He also wrote popular articles and longer law reviews recommending concrete legal measures to open up commerce, trade, and travel between the USSR and the United States—a theme to which he returned many times.Footnote ⁶¹ He saw more international trade and travel as essential initial steps of communication and intercourse that would lead to deeper and more stable understanding and peace.Footnote ⁶² He also arranged to have his series Talks on American Law broadcast into the Soviet Union and Eastern Europe, to give Russian listeners a better and a clearer understanding of what American law was all about.

These were first steps in Berman's gradual development of the field of comparative legal studies—especially comparisons of the Soviet and American legal systems, analyses of particular Soviet legal institutions, and linguistic analysis and translation of Soviet codes, statutes, and other legal materials.Footnote ⁶³ Mastering the legal language and legal concepts of another people would prove to be a lasting feature of Berman's scholarly work, not only on Russia in these early days, but also, eventually, on other big foreign legal systems like China and Japan.Footnote ⁶⁴ He pressed his students relentlessly to learn foreign languages and to translate their work into and from foreign languages. He also urged his readers to learn to parse closely the letter and spirit, the anatomy and physiology, of foreign legal materials. He demonstrated that hermeneutic brilliantly in his many translations of Russian private, public, and military laws, and in his careful linguistic analysis of the recent Soviet Criminal Code, in which he uncovered the many layers of ancient Christian morality and socialist innovation in the palimpsest of Soviet criminal law.Footnote ⁶⁵

In Berman's view, a comparative legal scholar had to understand not only the law on the books, but also the law in action. And that required him to be on-site in the nations he studied—to interview judges and lawyers, to observe the legislature and courts in session, to have open talks with fellow scholars, ambassadors, and state officials about their legal systems and the American legal system. Russia was again his most critical laboratory in the years in which he wrote Law and Language. In the late 1950s and 1960s, he pressed relentlessly to get visas to travel to Russia. When state bureaucrats on both sides blocked him, he began writing directly to Soviet chairman Nikita Khrushchev. On February 13, 1955, he sent this cable:

Within a month, Berman had his visa and took the first of his many trips to the USSR. A few years later, he applied for a visiting law professorship in Moscow, and he again got caught up in miles of red tape. He again wrote to Chairman Khrushchev revealing his belief in comparative legal study as a source of better mutual understanding between nations:

Berman followed this up with a direct appeal to Chairman Khrushchev at a reception in New York, following Khrushchev's famous shoe-banging speech at the United Nations. When he met the chairman in the receiving line, he explained urgently—in fluent Russian, which impressed the chairman—why he wanted to come to the Soviet Union to teach. Khrushchev listened intently, nodded, then instructed an aide to “take care of him.” Berman soon got his visa to teach in Moscow for a year.Footnote ⁶⁸ There, he finished the new edition of his classic monograph, Justice in the USSR.

THE MAIN THEMES OF LAW AND LANGUAGE

It was in that same year of 1963, flush with interdisciplinary and international ambition, that Berman began work in earnest on Law and Language.Footnote ⁶⁹ In five chapters, he lays out his interdisciplinary theory of language, of legal language, and of the development of legal language—in general, in comparative perspective, and in American history. A stirring conclusion, “Can Communication Build One World?,” sets out his optimistic agenda for the development of a world law and world community—no small dream in the bitterly divided 1960s—and a call for Christians, in particular, to take up the great cause of fostering justice, peace, and unity within diversity.

Berman's basic aim in his book is to provide an understanding of law that reveals its ability to build community and foster peaceful relationships among individuals and nations. Berman was convinced that the Western legal tradition, and the world community altogether, had the resources in its linguistic heritages to overcome its most dangerous tensions and divisions. Candid, learned, empathetic, and peaceful conversation across religions, cultures, and nations was the key.

“Communification” is Berman's new term for the process by which humans make and sustain communities, from the local to the global.Footnote ⁷⁰ Language plays a critical role in this process, since language is ultimately a social phenomenon. Though words mean particular things, language, as a practice, is as much about meaning-making as it is about the “reciprocal transfer of meaning.”Footnote ⁷¹ We need a new verb, “speak-listen,” Berman writes, to capture this reciprocal dynamic in language.Footnote ⁷² This heritage of language, its socializing function, defends society from dissolution and disintegration:

Language is also the historical deposit of a community's social life, Berman continues. Each community has, in a sense, its own language, and we all inhabit many communities with distinctive languages. The loss of these linguistic communities, or the inability of these communities to speak to each other, is a grave threat. This was particularly true during the Cold War, when propaganda machines and censorship campaigns on both sides violated the vital community-building power of language. The Cold War divisions were exacerbated by the inability of each side to understand the other's language, culture, and law, which stymied meaningful negotiation. But since all humans use language, and since all language bears similar marks and performs similar functions in each community, even bitter enemies can form communities through the common experience and judicious translation of their most essential texts, not least their legal texts. Translation and conversation, Berman argues, are the beginnings of peacemaking and the basis for lasting peace. The words we share, the common language we build, become symbols of our budding new community. Though there are no easy solutions to deep conflicts, especially those as vast as the Cold War, understanding the other in our own language, and having a common language through which to understand the tensions that exist on both sides, is an essential starting point.

“Conviviality”—from “con” and “vivere” meaning “living together”—is another term that captures part of Berman's efforts in Law and Language. While words are important for Berman, he always moves outward, towards the whole. Words are part of language, which is the substance of a community's social life. This social life takes shape in rituals and rites that are marked by “conviviality.”Footnote ⁷⁴ Language and tradition are the stable ground of a community's life together, giving people with common cause the common means to talk together, to work together, and to live peaceably together. “Even faculty meetings serve a necessary function in this respect,” Berman writes, “and academicians are wrong to disparage them.”Footnote ⁷⁵ (Professors: please lower your eyebrows, and read on.)

This also serves as a reminder to traditionalists that traditions serve the purpose of allowing individuals to share life together—amid conflict—rather than to obfuscate and exclude. Berman was quite aware of the dangers of specialization in modern, industrialized society: “[A]ll are threatened by a polyglot culture, in which the only words that everybody hears or reads are the slogans of commercial advertisements and of political propaganda. Our common speech is threatened with debasement.”Footnote ⁷⁶ The tension between expertise and generality, between cultures and legal traditions, is the same: “[T]he health of any society depends upon its ability to maintain and develop its common language without destroying the identity of the separate languages into which the common language is continually being broken.”Footnote ⁷⁷ Law is especially susceptible to this problem, since legal language is almost continually maligned as an alien tongue.

When it functions properly, however, legal language creates venues for speaking of and hearing about conflict and how to resolve it. Legal language also creates channels for negotiating and cooperating, and for planning our lives together. In this way, law serves an important communifying function, since it works to prevent disintegration and injustice in a community by “creating order and giving orders,” convincing and exhorting. Instead of just “referring” to things, Berman writes, legal terms create relationships and rights among persons. For these purposes, legal language needs formality and ceremony—words that show the legal relationships overlying the parties, and settings like the courtroom that show that justice is being done with impartiality and authority:

Given the essential relationship between language, experience, community, and law, Berman argues further for an historical approach to law. Such an approach gives proper place to tradition in the process of creating law and maintaining legal meaning:

This historical view of language, Berman writes, is important for the American legal tradition, a vital part of the distinctive American understanding of the “rule of law”: “America inherited the idea of the historicity of law from England, and ultimately from the Western concept of historical development. But America embodied that idea both in its vital doctrine of precedent, as well as in a written document, thereby fixing permanently the language of American Constitutional law.”Footnote ⁸⁰ The Constitution itself is an example of the developmental power and stabilizing force of tradition.

LAW AND LANGUAGE, LAW AND REVOLUTION

These themes and concepts are also the basis for Berman's magnum opus, Law and Revolution: The Formation of the Western Legal Tradition, published in 1983 but already in early stages of development when he was writing Law and Language. Though masterful as a pathbreaking history of medieval law, Law and Revolution is deeply informed by the historical-linguistic jurisprudence first developed in Law and Language. Berman found, in the centralization of political and legal authority in the medieval Catholic Church, an expansive historical laboratory for exploring law, language, and community.

While the book may be remembered for its broad revision of Western legal history, Berman devotes the many pages of his introduction to developing a more concrete picture of the communicative-historical view of law that he formed in Law and Language. There is a sense in which Law and Language sets the theoretical stage for Berman's history of legal unification.

Berman begins Law and Revolution with a discussion of the role of tradition and history in legal change. The object of Berman's study, “the West,” is both a “historical structure” and a “structured history.”Footnote ⁸¹ He is quick to point out, as he did in Law and Language, that legal change inevitably involves the legal and cultural past of the society experiencing the change. The historical structure of revolution always involves an engagement with the past. “The concept of law as a particular kind of enterprise . . . becomes meaningful in the context of the actual historical development of the living law of a given culture.”Footnote ⁸²

Even before the legal cultures of the pre-West were melded into the first modern legal system through the Papal Revolution, Berman writes, the folk law of premodern Europe revealed the role of communication and language in law. Law was a matter of poetics and persuasion, deeply intertwined with the religious beliefs of early societies. What began as a legal system characterized by fatalism and warFootnote ⁸³ was transformed by the influence of Christianity in Germanic folk communities.Footnote ⁸⁴ The transference and tension between separate communal languages is on full display in the conflict between the fatalistic, pagan law of the early Germanic tribes and the distinct concepts and stories of early Christianity. This theological influence became predominant in the period after the Papal Revolution.Footnote ⁸⁵

The ability of a common language to shape law, and more importantly, the ability of a common law to shape community, is shown in Berman's extensive treatment of the cultural sources, institutional supports, and rhetorical methods of medieval canon law, the one universal law of Western Christendom. Berman writes that the unification and, indeed, the creation of the West began in the crucible of the Papal Revolution, the revolutionary change introduced by Pope Gregory VII and his successors in the later eleventh and twelfth centuries. Berman's abstract picture of communification is filled out in this moving historical picture. Community and law are shaped, in particular, through social institutions, rhetorical-analytical strategies, and political maneuvering.Footnote ⁸⁶ According to Berman, the dialectical analytical methods of distinction and synthesis allowed legal scholars at the West's first universities to reconcile the differences among the diverse legal and political systems represented in early Europe.Footnote ⁸⁷ From an institutional perspective, legal scholars were permitted to exercise a great deal of freedom in questioning and debate, which contributed to the creative jurisdictional, procedural, and substantive legal advances of a newly unifying Europe.Footnote ⁸⁸ Greek philosophy, Roman law, and Christian theology formed the common language of the new universities. Berman recognizes that, despite the humanizing possibilities of dialogue, the unification of medieval Christendom also came by political stratagem and the sword.Footnote ⁸⁹ But, he says, the common conceptual languages of philosophy and theology, the common spoken language of Latin, and the common system of canon law all helped to consolidate and expand the medieval papal regime.

BERMAN'S SOURCES AND FOILS IN LAW AND LANGUAGE

Berman's argument in Law and Language is grounded in the best philosophical and social science literature of its day. While the text is rife with references, Bronislaw Malinowski, Edward Sapir and Benjamin Lee Whorf, and Kenneth Burke deserve special mention. Each of these theorists prized cultural particularity, the boundedness of language to thought, the subjectivity of the individual, and the dramatic, dialogical character of human existence. Each of them also challenged the naïve objectivism and false universalism of some earlier social scientists—criticisms that Berman takes to heart in Law and Language.

Prior to Bronislaw Malinowski's work, it was commonly thought that “savage” societies were developmentally inferior, having few social or cultural conventions. According to anthropologists Jane Hill and Bruce Mannheim, the intellectual life of the late nineteenth and early twentieth centuries was marked by “a naïve . . . universalism in grammar, and an equally vulgar evolutionism in anthropology and history.”Footnote ⁹⁰ Malinowski's fieldwork with the Trobriand islanders showed that “primitive” culture was as complex and refined in its cultural objects and systems of meaning as that of modern European nations. Through his fine-grained studies of Trobriand life, Malinowski became the “father” of ethnography in anthropology.Footnote ⁹¹ His fieldwork manifested the anthropological necessity of firsthand, fact-based, empirical analysis, and of researchers living together with the communities being studied. At the same time, Malinowski challenged anthropologists and ethnographers to understand the exigencies of the ethnographer, who is both “chronicler and historian.” There is an interpretive distance between the ethnographer, his anthropological facts, and his final presentation, Malinowski insisted, which requires critical exercises of subjective judgment and interpretive discretion.Footnote ⁹²

The problem of subjectivity in scientific work was addressed in detail by anthropologist Edward Sapir and his student Benjamin Lee Whorf. On several occasions in Law and Language, Berman acknowledges his debt to both men. While they allowed that there are some objective and universal “facts” at the heart of understanding, Whorf and Sapir argued that these facts are construed through the idiomatic and habitual patterns of language that shape the thought and method of anthropology. Even this binary fact-language picture is problematic, since language is more than just a cultural “label” for objective facts—it is constitutive of the entire process and object of research. The “real world,” the world of “facts,” is as mediated by cultural and linguistic habits and particularities as the most idiomatic English expression.Footnote ⁹³ Sapir and Whorf's emphasis on the fundamental, constitutive importance of language is a critical reference point for Berman's argument in Law and Language. It shapes his response to Jeremy Bentham's attempt to reduce language to its “neutral, objective” meaning, and it leads him to endorse Friedrich Carl von Savigny's emphasis on history and cultural particularity in law reform.Footnote ⁹⁴

The final important social science touchstone for Berman is rhetorician and philosopher Kenneth Burke. His major work, A Rhetoric of Motives, translated this view of language into a holistic account of human interaction with other humans and with the world. For Burke, the material world is already cast through the “filter” of language when humans come to understand it. These syntheses of material reality and linguistic symbol are called motives. Rhetorical devices, scientific viewpoints, and moral systems are all interpretive lenses for material reality, which can lead to different ideas of what is important about material reality or even what material reality is. The sharing and identification of these motives among groups of people leads to “consubstantiality,” that is, a shared identity though shared interpretations of a common symbol. Burke used the United States Constitution as an example, which may have inspired Berman's appropriation of Burke in the legal context. Since we are speaking beings, our common nature is produced through the dramatic and rhetorical sharing of common symbols and motives; law is especially relevant as an example of shared identity through communication.Footnote ⁹⁵

These debates in linguistics and anthropology were accompanied by analogous disputes and developments in mid-twentieth century philosophy. These Berman also followed, albeit at a greater distance; technical philosophy was never his thing. By the early 1950s, Ludwig Wittgenstein's Philosophical Investigations had decisively put to rest the efforts of Anglo-American philosophers to render a pure and perfectly rational language. Wittgenstein's Investigations explored the roots of linguistic meaning in social forms of life. Words are not primarily or only arrows that point to things; words are used in different ways as parts of social practices.Footnote ⁹⁶ Similarly, Hans-Georg Gadamer, a student of Martin Heidegger, had just finished his magisterial Truth and Method, in which he declared that hermeneutics was ontology—that is, that language and interpretation preceded and undergirded our most basic philosophical understanding of the being of anything at all. Things, in a certain sense, have “existence” through language.Footnote ⁹⁷ Almost every discipline in the university experienced a “turn to language” in the middle of the twentieth century. This was the intellectual climate of Berman's foray into the most linguistic of disciplines: law.

Two other critical figures for Berman in Law and Language are the later eighteenth-century English political philosopher Edmund Burke, and the nineteenth-century German jurist Friedrich Carl von Savigny. Both of these scholarly giants anticipated many of the developments in linguistics and anthropology that Berman found attractive.Footnote ⁹⁸ Savigny and Burke were alike in viewing law as the unique achievement of a culture. As the law responds to a culture's particular problems, they argued, it develops common solutions that have wide consensus and moral weight. These insights led both men to oppose needless or hasty law reform or legal codification by whoever happened to be in power. Law, they said, is a fragile, interdependent historical heritage of the entire people, rather than a series of neutral and transient commands of a sovereign. Each nation has its own character and its own legal needs, and its law has moral force because it builds on the customs of a people responding to common needs. Berman took to heart this historical, communitarian view of law and adapted it to address the international tensions that so shaped the 1960s. If law is a product of communities, citizens of all communities need to form an international community, and each of their legal systems needs to be discussed, understood, and sifted for their convergences, common elements, and creative tensions.

Law and Language is not without its sympathetic villains. Jeremy Bentham, the English utilitarian philosopher and law reformer, stands in for an entire perspective on law, scholarship, and language that Berman rejects. This perspective includes not only the legal positivism for which Bentham was famous, but also the reference theory of word-meaning, a legal reformism insensitive to the historical framework and cultural context of law. Berman does not begrudge Bentham his accomplishments as a reformer and theorist of legal language. Nor does he begrudge Bentham's modern disciple, the preeminent Oxford jurist H. L. A. Hart, his keen insights. While admiring Bentham for his energetic attack on self-deception in the law, Berman also criticizes Bentham for his single-minded attempt to neuter legal language.Footnote ⁹⁹ As Berman explains in Law and Language, Bentham attempted to root out the emotional and rhetorical characteristics of legal language. However, if legal language is neutered, Berman argues, the critical “communifying” function of law is impaired. By the same token, if legal scholars choose to separate the moral (and emotional and rhetorical) characteristics of law from its positive “legal” content, they lose their perception of the critical role law plays in shaping a group's moral life and uniting individuals in enduring bonds of community. Here we see, in the ripples of Kenneth Burke's A Rhetoric of Motives, a tacit interdisciplinary response to the new legal positivism.

Bentham's linguistic reformism was taken up by practicing lawyer and UCLA law professor David Mellinkoff, in his classic text The Language of Law, published just as Berman was finishing the first draft of Law and Language. Legal scholars at the time viewed Mellinkoff's book as a novel and important achievement. “Here is a book unlike any other,” said reviewer Saul Cohen in 1964.Footnote ¹⁰⁰ Early reviewers seemed to agree that the book was an important cri de coeur against the problems of antiquated linguistic habits that prized ambiguity and esotericism, and they praised Mellinkoff's efforts to bring about a critical program of legal and linguistic reform.Footnote ¹⁰¹ The book was popular enough to end up in the hands of distinguished poet and “ex-lawyer” Archibald Macleish, who carved out a space in public letters for its author: “Mr. Mellinkoff is wittier than Mencken as well as being considerably more civilized.”Footnote ¹⁰² Berman's copy of the Mellinkoff text is well marked, and his comments on the history and poetics of legal language are at least a partial, albeit tacit, response to Mellinkoff's pathbreaking text.

In a late-life reflection, Mellinkoff recalled the early days of his corporate law practice. As a young associate, he wrote, “I did as I was told. I followed the office pattern: Sentences long enough to choke a horse. I looked at the opinions: Words repeated endlessly in different forms: by and with, each and every, null and void, made and provided, keep and maintain. On and on. English grammar became a matter of twists and turns.”Footnote ¹⁰³The Language of the Law, his magnum opus, recounts the history of Anglo-American linguistic habits, from the argot of Law French, twinned in the synthesis of English and French legal traditions, to the constant criticism of legalese from the colonial period to today.Footnote ¹⁰⁴ It argues that legal language and the legal profession have become “wordy,” “unclear,” “pompous,” and “dull.”Footnote ¹⁰⁵ Though Berman was most interested in Mellinkoff's presentation of the history, Mellinkoff himself hoped to provoke the development of a durable, intelligible, precise, and concise language for practitioners that would redound to the benefit of clients, judges, and juries who live by and interpret this work product.Footnote ¹⁰⁶ Deferring to Mellinkoff, Berman himself recognized the problems in legal language: “[I]f the roots of law in the whole body of living language of the community are neglected, the power of law to hold it together is weakened.”Footnote ¹⁰⁷

Altogether, Berman is to be admired for his open-minded and fair appropriation of the leading social scientists and historical jurists in his interdisciplinary approach to the study of law and language. While many of the scholars he used may now be remembered only in dusty books and on fading tombstones, their work set the stage for our postmodern academy. The problems of language-relativity, subjectivity, and objectivity in observation and method continue to haunt social science, postcolonial scholarship, and every shade of critical and cultural studies. The role of history and tradition in shaping morality and legality is now a hot topic of American constitutional theory and in modern American cases dealing with fundamental rights and the appropriate constitutional relationships between citizens, states, and the federal government. And these matters are taken up in earnest by the law and language movements in the legal academy today.

THE MODERN LAW AND LANGUAGE MOVEMENT

The modern study of law and language can be divided, roughly, into two groups: a “rhetorical-humanistic” group and a “linguistic” group. While there are many treatments of language and law that fall outside or between these groups, these are the mainstays in modern scholarship. Berman's Law and Language anticipated a number of important themes at work in both these schools.Footnote ¹⁰⁸

The rhetorical-humanistic school of the law and language movement had an important early start in the 1984 conference on hermeneutics and law at the University of Southern California. The hefty symposium issue of the Southern California Law Review that resulted was marked by an exuberant diversity of methods and styles without a common approach, methodology, or theme.Footnote ¹⁰⁹ A more systematic approach came the next year with the publication of University of Michigan law professor James Boyd White's The Legal Imagination. This was an elegant and judiciously assembled collection of literary excerpts, legal texts, and exercises in the style of a casebook, designed to help students understand the rhetorical aspects of legal practice and the moral and humane motives that should inform a humanistic practice of the law.Footnote ¹¹⁰

James Boyd White's work in this and subsequent books has two principal themes that are congruent with the insights that Berman had proffered a generation earlier. First, White's theory of law and language emphasizes the role of language and dialogue in making community. Second, White brilliantly analyzes the rhetorical and moral content of American law and American community—the relationships between speaker and listener and the moral and communal values implicit in judicial and legal language. Unlike Berman, whose focus was legal history and comparative law, White focuses on American law today. In his Living Speech, for example, White observes that the inhumanity and dehumanization of persons in war, in advertising, and in electioneering are based on speech and its capacity to frame the world. Learning how to speak in a humanizing way is the first step to understanding the empire of force and learning how not to respect it. Sentimentalities, trivialities, slogans, falsities, and denials, White argues, are all forms of dead speech that dehumanize persons and corrode the community.Footnote ¹¹¹

Also like Berman, White claims that the law translates ordinary life into legal argument, and vice versa. The incidental character of Supreme Court opinions calls the public and the Court into a continual practice of making meaning, making sense, and making justice in life. The language of justice is critical for White, as it was for Berman, and so is naming injustice rather than reducing our discourse to “gratification,” “power,” or “instrumentalism.” Practicing meaningful language, free from sentiment and cliché, is a necessary foundation for the difficult process of just judicial decision making, which is a sine qua non of the rule of law.Footnote ¹¹²

Advertising and sloganeering, White continues, reduce our world to commodities rather than communities, and they reduce individuals to consumers rather than citizens or communal actors. A common theme of White's work is that living speech respects each individual as a source and site of narrative and meaning. Meaning-making is the essence of speech, and speech is the cornerstone of community. With this in mind, courts must take account of the value of speech—not only in interpreting the First Amendment Free Speech Clause, but also in crafting the language of their opinions in all cases. Speech as mere information for consumption is not valuable in the same way. “[The Court] would see the world as a world of people talking, not making deals or transactions.”Footnote ¹¹³

Like Berman, White notes that the danger of legal translation is abstraction, the loss of context and cultural nuance. In his Justice as Translation, White argues that language makes a culture, one that has its own assumptions, values, and pictures of the world. “Conceptual” language is anti-linguistic, because it assumes that language is just pointing rather than constitutive of thought and knowledge. This view of the world is imperialistic, says White, because one language is assumed to express a concept completely or sufficiently; the differences between languages and cultures are elided as mere differences in clarity. This view of language is also antagonistic, ruling out contradictions and conflicts in experience and other languages. This view reduces writing and speech to rationalistic outline.Footnote ¹¹⁴

White's alternative view is this: language does not express concepts, but makes meaning; indeed, language is the very act of meaning and of being. Words get their meaning through their cultural, textual, and practical contexts. How words are used—in sentences, in books, in poems, in literature, or in judicial opinions—gives these words meaning, form, practicality, and identity-marking functions. This means that language is individualized by context and by the speaker, who gains meaning, identity, understanding, and direction through the experience of language. The meaning we express is not in an idea, a concept, or sense datum, but in language as it is expressed in its entire context.

White would agree with Berman that good translation—across space, time, culture, discipline, and social place—is a preeminent example of the “communifying” characteristics of language. The effort of translating words, speeches, and texts reflects an ethic of respect for the other person, the other language, the other culture. If done well, translation reflects an ethic of fidelity to the other, rather than dominance or replacement of a critical marker of identity and meaning. The practice of law, White argues, reflects this view of translation, too. Lawyers must speak lay language as well as legal language, respecting and taking up the client's story in the language of law, and using legal language to draw out meanings from the client's story that may not be as significant in the client's language. This, for White, is a fundamental ingredient of legal professionalism.Footnote ¹¹⁵

In fact, White continues, all of life involves this kind of translation, because each person is a unique source of meaning; the object, in life as in law, is for people to be individuals who respect others without losing their sense of self. Out of this reciprocal engagement with others, we create ourselves, and together, we create community. The question for lawyers and the law is: Will the law be a place for this reciprocal exchange and engagement, a place for “multivocality,” or will it be the blunt object of “bureaucratic and theoretical power”? Human community and language lives through this process of reciprocal interaction, response, and translation.Footnote ¹¹⁶

The problem of translation into legal argument, especially within the courtroom, is taken up in earnest by Milner S. Ball in The Promise of American Law. Ball, a longstanding friend and admirer of Berman, moves from the translation of legal languages to the translation of law into dramatic enactment. Ball conceives the entire legal process along the lines of theater where justice must be done, but just as importantly, justice must be seen to be done. The trial itself, for Ball, is an event of community ratification and belonging. Just as Malinowski would describe the rites of initiation, marriage, or reconciliation in primitive societies as absolutely necessary to community solidarity and social order, Ball describes the modern American courtroom as a place that reaffirms the commitment of every participant to the covenant of law in American society—whether litigant or advocate, judge or court official, witness or audience member.Footnote ¹¹⁷ Ball provides a helpful analogue to and extension of Berman's insights in Law and Language; he fills out the challenges and possibilities of translation, drama, and community.

Berman's basic picture of law is consonant with the “medium of social relationships” metaphor for law, recommended in Milner Ball's signature title, Lying Down Together. According to Ball, the “bulwark of freedom” is the prevailing metaphor for law today. Though this metaphor has inspired protection of minority rights, it also underwrites laws that are firm, hard, unmoving, brutal—guaranteeing justice and equality only when law has been established with total authority. Seeing law as the medium of social relationships is better, Ball argues; law is a time-bound management of and coping with ineradicable features of human life.Footnote ¹¹⁸

While Berman anticipated many of the themes in what we have called the “rhetorical-humanistic” school of law and language, represented by White and Ball, many scholars in the field today rely on literary analysis and critical theory, which goes far beyond anything Berman found interesting.Footnote ¹¹⁹ What the school is now lacking is the foundation in linguistics that Berman was careful to lay. This has led many critics, including federal judges Richard Posner and Harry Edwards, to question the merit of this school of the law and language movement.Footnote ¹²⁰ The ability of Berman to integrate the meaningful goals of the rhetorical-humanist movement with the scientific basis of contemporary linguistics suggests that there may still be common ground to be found among economists, linguists, and literary theorists. As Posner himself has suggested, the legal academy cannot do without “the methods of scientific and humanistic inquiry” which “enlarge our knowledge of the legal system” as a whole.Footnote ¹²¹

The second contemporary school of law and language that has emerged since Berman's seminal tract of 1964 can be termed the “linguistic” school. Lawyer-linguists Peter Tiersma and Lawrence Solan are exemplary; they have done much to show the contemporary relevance of linguistics to legal scholarship, especially in a time when textualism is a dominant method of statutory interpretation. Their coedited Oxford Handbook of Law and Language is notable for its breadth of coverage in terms of theory and contemporary, concrete issues.Footnote ¹²² Solan's two monographs, The Language of Judges and The Language of Statutes, offer expert linguistic analyses of the grammatical canons applied in judicial and statutory reasoning.Footnote ¹²³ Solan ultimately concludes that, while linguistic analysis is helpful in some circumstances of legal ambiguity, judges inevitably have to make political judgments. Candor about the ambiguities at the heart of language would be better for the legal system than strained linguistic analysis. Vagueness, indeterminacy, and ambiguity are critical issues for many philosophers of law as well.

Much contemporary work on law and language within the linguistic school is done to improve the conduct of trials before juries. The “plain language” movement has been an American echo of Bentham's original cry, later reiterated by Mellinkoff, for clarity in legal vocabulary. The basic goal of the movement is to develop a legal language that quickly and easily allows readers to understand and act based on the text; the text should be as simple as the complexity of the ideas permits.Footnote ¹²⁴ According to Mark Adler, plain language is (1) more precise; (2) less erroneous; (3) less expensive and more efficient, because lawyers do not have to translate legalese for their clients; (4) more persuasive by virtue of being easily understood; (5) more democratic and accessible; and (6) less tedious, more elegant, and more pleasant to use.Footnote ¹²⁵

The plain language movement goes beyond what Berman called for in Law and Language. Yes, Berman did argue that, especially in contexts where laypeople must understand the laws that apply to them, legal language should be clear, and lawyers and judges must work to translate the law into terms that laymen, even children, understand.Footnote ¹²⁶ But Berman, like Milner Ball later on, focused further on the critical role of courtroom liturgy, pageantry, and ornate formal language in underscoring the majesty and justice-making power of the law.Footnote ¹²⁷ Modern legal linguists may disagree with the latter accent. As Gail Stygall notes, courtroom discourse, though highly predictable if understood, is distant from ordinary language. This makes the trial itself, as well as the law writ large, incomprehensible to most laypeople. Given the importance of language in legal proceedings, Stygall argues, the trial should be positioned closer to ordinary language, or better explanations of the process should be given to citizens, even at the risk of delegitimizing the court.Footnote ¹²⁸ These problems in the courtroom can present problems for Berman's communicative account of law and legal language, particularly when legal language actually ends up alienating most of the community, rather than gathering it together and representing its basic norms and mores.

Translation was long a critical issue for Berman, though he does not include detailed analyses of concrete problems of translation in Law and Language. Nevertheless, Berman's view of law and language, as a communifying practice oriented towards shared experience, has a concrete example in European Union legislators and courts. As these institutional bodies struggle to adopt common legal standards amidst a plurality of languages, modern linguists have wondered whether a common legal language is possible. Shared experience may indeed be a basis for a unified law of the European Union.Footnote ¹²⁹ “Strong” language theorists reject this possibility, but “weak” language theorists, who emphasize the flexibility of language, suggest that language meaning can be shared across tongues and stabilized through common experience and dialogue.Footnote ¹³⁰ The practice of EU legislators—writing without a source language, in a collaborative process of translation across each of the primary languages—is seeking the balance between a hegemony of a single legal language and an incoherent mess of every European tongue having equal currency.Footnote ¹³¹

The EU faces another problem in the development of a new “Court French” among the clerks of the European Court of Justice (ECJ). As Karen McAuliffe warns, the use of French by the court, coupled with the presence of judicial clerks and law clerks who are not native French speakers, has led to a highly formalized version of “Court French,” which obstructs simplicity and creativity but allows for easy translation of opinions into the twenty-three official languages of the EU. The lawyer-linguists responsible for translating ECJ law must master two disciplines, since their work is comparative law as much as translation.Footnote ¹³²

Nevertheless, facing this situation, Lawrence Solan is optimistic. Using a theological analogy that may have pleased Berman, Solan suggests that the proliferation of languages in the European Union may end up helping the European Court of Justice discover the meaning of a common legal text by helping the justices “triangulate” the meaning when there is no “original” text. This is an Augustinian approach to legal interpretation, as Saint Augustine compared translations of the Bible to ascertain its “true” meaning. If there is a common “original” meaning among the various versions, multiple legal texts will help the ECJ to ascertain the shades of legal meaning in a text. Solan is hopeful that as citizens in the EU have more common experiences, the divergence in shades of meaning can be overcome.Footnote ¹³³