Document Type

Article

Publication Date

1-1990

Abstract

For some time I have been working on the problem of judicial criticism, focusing especially on the question: What is it in the work of a judge that leads us to admire a judicial opinion with the result of which we disagree, or to condemn an opinion that "comes out" the way we would do if we were charged with the responsibility of decision? The response I have been making is that this kind of judicial excellence (and its opposite too) lies in the sort of social and intellectual action in which the opinion engages: in the character the court defines for itself and for its various audiences; in the relations it creates with those to whom, and those about whom, it speaks (including those who have created the texts that it takes as authoritative); and in the kind of conversational community it thus establishes, for it is in the conversation by which it works that the law has its life. The opinion enacts a way of imagining and participating in the world, and it is in this act of imagination made real that its deepest meaning lies. One way to put this point is to borrow from John Dewey's remark that "democracy begins in conversation," and ask how far the conversation that a particular opinion seems to initiate or invite can be said to be one in which democracy begins and has its life, and how far it makes active political and social principles of a different kind.

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