Toward a Legal Archaeology, Essay Example

Judicial Opinion as Compendium to History and Justice

A compendium of statement of facts to the case, precedent case law, statutory code and policy discussion, judicial opinion lends foundation and logic to due process and court decision, and offers much in terms of fact finding in articulation of historical events. In fact, the nuance between employment of judicial opinion and other modes of researching events reveals a substantial benefit in the tradition of using legal documents as primary source of authority and truth – evidencing the possibility of justice or its rebuke, and the final act of interpretation in History writ large (Ginzburg, 2002). Still, review of judicial opinion in Supreme Court cases reveals another layer in the archaeology of legal knowledge that is less fixed than laypersons might expect (Foucault, 1969). Indeed dissent amongst justices is quite common, and in the past several decades a break from concurrence has been perhaps more distinct than even prior years in common law praxis as those judges are more subject to disagreement with majority in written opinion and the institutional norm of bargaining and accommodation transforms in the face of this reality (Blake and Hacker, 2010).

In the United States, the ‘writing centered’ legal process is unique in regard to other common law nations which mostly use a “speech-centered” legal process modeled after that of Britain. In the UK oral argument is the dominant mode of articulation of legal process, and this holds true in both the Judiciary, and in Parliament interpretation of constitutional as ‘the opinion of the day’ (Ehrenberg, 2004). The difference between the U.S. and other sites is one of ideological exercise, and with the majority of common law countries fostering belief in the judicial decision-making process where litigants are able to observe the logic of decision in open court, and the alternative position of American thought whereby the writing-centered legal process holds pride of place, as the history of accountability may be referenced in full, and that deliberation witnessed as a ‘total’ written document entitled ‘judicial opinion,’ informed by incorporation of comprehensive written legal arguments generated by adversarial lawyers in the case (Ehrenberg, 2004). Accordingly, the norm of dissensus the most persistent disagreements between Supreme Court Justices are primarily based on rules and norms rather than policy preferences. It is precisely here that the complication of judicial opinion as ‘fact’ is revealed. Legal analysis shows that on the contrary, traditional assumptions about ideological compatibility with the majority opinion writer do not extend to decisions read from the bench. Those ideologically similar to a majority opinion writer are, in fact, more likely to read in dissent from the bench. And so we have the procedural history, not the fact.

Works Cited

Blake, W.D. and Hacker, H.J. (2010). The Brooding Spirit of the Law: Supreme Court Justices Reading Dissent from the Bench. Justice System Journal, 31 (1), 1-25.

Ginzburg, C.  (2002). The Judge and the Historian: Marginal Notes on a Late-Twentieth-Century Miscarriage of Justice. London, UK: Verso.

Ehrenberg S (2004). Embracing the writing-centered legal process.  Iowa Law Review, 89 (4), 1159-1199.

Foucault, M. (1982). The Archaeology of Knowledge & The Discourse on Language. New York, NY: Vintage.