1. 1
LEGAL THEORY
ON LEGAL HUMANITIES
Jack M. Balkin and Sanford Levinson (2006). ‘Law and the Humanities: An Uneasy
Relationship,’ Yale Journal of Law and Humanities, Vol. 18, pp. 155-187.
What should be the relationship between the law and humanities? Why do Jack
Balkin of Yale Law School and Sanford Levinson of the University of Texas Law
School describe it as ‘an uneasy relationship?’
It is important to note at the outset that in any interdisciplinary transaction, the
relationship between disciplines will not always be that of equals.
So, for instance, in interdisciplinary approaches to the law, there is always a
discipline or discourse that is used to explain the law from outside.
The basic assumption in such forms of scholarship is that the law is not self-
explanatory. It is only a text that requires a context before it makes sense.
Though the law may be ‘dominant’ in terms of its institutional placement, it becomes
an object of explanation rather than function mainly as the subject of explanation within
interdisciplinary approaches in law schools.
This, needless to say, is the case in the ‘uneasy’ relationship between law and the
humanities.
But that is the case in any interdisciplinary approach to the law since it proceeds on
the assumption that there is ‘something missing’ in the law itself; it is not reducible to
the humanities as such.
It takes the help of another discipline to identify what is ‘missing’ in the law and
‘supplement’ it with the insights that another discipline will make available; the term

2. 2
‘law and humanities’ can be understood then either as law and humanities or as
humanities applied to the law.
Another meaning of the term ‘law and humanities’ is humanities as taught in and
understood by law faculty in law schools rather than humanities as taught in and
understood by humanities faculty teaching in humanities programs.
When humanities is taught in law schools, it is bound to take the form of electives
rather than core courses; that is another source of discontent for those who might
want to treat these areas equally.
What Balkin and Levinson do in this essay is to mainly differentiate between law
and humanities and law and the social sciences.
They identify the unease in the fact that the law has had a more successful
relationship with the social sciences – especially economics – than it has had with the
humanities.
Their goal in this essay is to analyse this phenomenon.
Their argument is not that the law and the humanities should not engage with each
other. It is rather that these engagements have not been as successful as originally
envisaged.
The reason for this, according to Balkin and Levinson, is that it is easier to
incorporate economics into the core curriculum of a law school than is the case with
the humanities.
While their argument is broadly speaking a fair description of the situation in law
schools, it is not necessarily the case that the humanities cannot be incorporated into
the core curriculum, or make itself useful (like economics does), in the context of
mainstream legal thought.
It is really, I think, a question of what exactly we mean by the humanities and how useful
we want it to be in a law school.
If we ‘define the humanities’ in a way that makes it difficult to deploy it in a law
school then there is no point in bemoaning the difficulties that it is subject to
compared to economics.
We would then have ruled out its ability to participate meaningfully by either
defining it out of existence or by not identifying its scope correctly.
The model that is invoked by Balkin and Levinson is related to their main
assumption that humanities is necessarily related to the ‘Great Books’ program.

3. 3
Their disillusionment with the situation as it prevails in American law schools stems
from the fact that the core curriculum does not make adequate room for reading the
great books in a law school.
What this argument overlooks is the fact that a large number of law school
applicants (at least compared to those applying to business or engineering
programs) already have a background in the humanities.
So it is by no means the case that they will encounter the great books for the first
time in law school or never read them after graduation if they are not urged to do so
by their law and humanities instructors.
There will therefore necessarily be an important difference between what we mean
by humanities in a humanities program and what they mean by humanities in a law
school.
The latter will be more instrumental compared to what is taught in a humanities
department which does not have to prepare its graduates for anything other than
becoming scholars in the humanities.
That is however not the case for law professors who are mostly churning out
lawyers rather than law professors or legal scholars in law schools.
So, it is important to remember that ‘excerpts’ from the great books can be taught as
case studies in a law school. There is no reason why this should not be done or cannot
be done. The fact that it has not been done routinely so far does not mean that it will
not be done in the future.
If Balkin and Levinson concentrate on ‘legal humanities’ – as opposed to ‘law and
humanities’ – they will feel much better about the situation prevailing in law schools.
In order to bring the humanities into the legal mainstream, what is required is not a
frontal assault on the law school curriculum with the demand that it should make
room for the great books.
Law school deans are wary of the direct approach to curricular reform.
I think a more indirect approach is needed here.
So, for instance, legal humanities comprising courses in law and ethics, legal history,
law and literature, law and psychoanalysis, and law and rhetoric can be taught
either directly using text-books and case-books or indirectly as a collection of
readings from the great books.

4. 4
Besides, as Balkin and Levinson themselves recognize, there is a difference between
the law ‘in’ literature and reading law ‘as though’ it were literature.
This analytic distinction that was first formulated by James Boyd White
accommodates both instructors who want to impart knowledge of literary texts and
instructors who want to impart mainly the skills of literary interpretation.
The reason that the law has an uneasy relationship with the humanities then is not
because of how it relates to economics as such.
It is more a case of literary scholars not being adequately interested in engaging with
the law school curriculum in large numbers in the way that economists are
interested in doing so.
The literary scholars who are willing to do this like Peter Brooks, Peter Goodrich,
Shoshana Felman, and Stanley Fish are rather few in number.
When most literary scholars engage with the law school curriculum, they do so as
visiting faculty in law schools without attempting to become lawyers themselves or
being willing to engage with the hard-stuff in the core curriculum.
Another reason for the success of economists in law schools is that they share with
lawyers an instrumental or utilitarian cast of mind.
Any attempt to use humanities in a law school must ultimately find ways of making
the great texts ‘useful’ or a ‘means to an end’ for students of law. They have to be
activated in a way that will make law students into better lawyers in the first instance
and not literary scholars as such.
But faculty teaching humanities by definition are ‘humanists’ – they are not broadly
speaking sympathetic to either the instrumental or the utilitarian approach in any
form of education including what they encounter in a professional school.
How then will humanists make themselves useful in a law school?
Surely, the purpose of a law school is not to turn out aesthetes in large numbers even
if they are able to appreciate the aesthetic dimensions of the law or the classical texts
of jurisprudence in the original as an end in itself. That is the purpose of programs in
the law and humanities.
There is an important difference then between the propositional content of
economics and humanities and how faculty approach these areas in a law school.
If an important difference in teaching methodology is recognized between how
humanities is taught in humanities programs and how it should be taught in a law

5. 5
school (i.e. by allowing more instrumentalism and utilitarianism in its approach);
then, both the well-known ‘literary canon’ and the not so well-known ‘legal canon’
are bound to make themselves useful in the legal mainstream.
What is really lacking then is not specific to the discourse of humanities per se but
the fact that faculty who want to teach humanities for students in humanities
programs find themselves teaching in law schools instead because there are
advantages to being affiliated to a professional school rather than a conventional
humanities program.
When that is the case, as Balkin and Levinson themselves point out, nothing can
really console them and they are bound to compare themselves unfavourably with
those teaching economics.
But this could be an affliction for economists as well.
Those economists who are ‘really into economics’ rather than teaching in law schools
for the advantages of being affiliated to a professional school will also experience a
feeling of unease in the relationship between law and economics.
So, I think Balkin and Levinson over-estimate the levels of professional satisfaction that
economists experience in a law school (as opposed to being in a department of
economics in which they will train their students to become economists).
An important aspect of their argument is the fact that Justice Oliver Wendell Holmes
Jr. is taken more seriously in law schools than Judge Learned Hand because of the
success of the law and economics movement. They identify the former with
economics and the social sciences and the latter with the humanities.
Given that economics occupies a more prominent place in the curriculum, they
bemoan the fact that Judge Learned Hand is being given short-shrift. They would
rather live in a world where Hand is taken more seriously than Holmes; so would I.
But, what they overlook is the fact that there is a difference between Justice Holmes’s
approach to judging (which any number of judges partake of in terms of sharing his
judicial philosophy) and why Justice Holmes made an impact in the law.
Justice Holmes’s impact is not reducible to what he says but in how he says it.
So, for instance, if Holmes had not pointed out the difference between logic and
experience in his lectures on the common law (or in the context of any of the other
legal anecdotes and maxims attributed to him) somebody else would have said it
sooner or later.

6. 6
The reason that Holmes is remembered for his praise of economics is not because he
himself was knowledgeable of economics (compared to say Judge Richard Posner),
but because of his ability to formulate his beliefs in a way that were ‘literary.’
So, ironically, if Balkin and Levinson want to take Hand v Holmes forward in essays
like this, they have to consider Holmes’s strengths as a writer and as a performer.
I happen to think that Holmes’s impact even when he was writing a dissenting
opinion (and he wrote a number of such opinions) can be subject to a literary
analysis; in other words, it is possible to show through a stylistic analysis of his
judicial opinions why Holmes made the kind of impact that he did.
It is therefore incorrect to think that Holmes was soaking in economics and Hand
was saturated with the humanities. The truth is a lot more complex in this rivalry
and friendship between these two Justices.
In order to account for the impact that Holmes made on the law, we will not only
have to subject his opinions to a literary analysis (as though it constituted a canonical
text); we will also have to explain his ‘judicial persona’ using performance theory.
That is, Justice Holmes had not only cultivated a judicial persona, but had a habit of
performing in a way that is reminiscent of a highly talented actor.
Justice Holmes wore his clothes like a costume; sported a moustache and a top hat as
though they were props; and went for walks back and forth from the Supreme Court
knowing fully well what the impact of doing so would be on those who might have
been tracking him.
On the other hand, despite being literary by temperament, Judge Learned Hand did
not cultivate a dramatic persona that was comparable to Justice Holmes; so there is a
difference between their ‘espoused’ theories and the ‘enacted’ reality (as Chris
Agyris might put it) of their own beliefs, careers, and judicial personas.
If Balkin and Levinson would like to bring humanities to the mainstream of law
schools, they could start by appropriating Justice Holmes’s persona, the literary
construction of his legal maxims, and his compulsive need to perform within the

7. 7
space of the law for making a more compelling case about the importance of law and
humanities in the law school curriculum.
This will involve reading law as literature; reading Holmes’s opinions as a literary
text; and explaining to law students what it means to read law as literature since
most of them will have at least some prior acquaintance of reading ‘about the law’ in
literary texts in their undergraduate programs.
Great judges know - like the great historians - that posterity will read them for their
style and not for their facts or knowledge of their era which is bound to be rendered
obsolete by the next generation of scholars.
That is as true for Judge Learned Hand as for Justice Oliver Wendell Holmes.
Will Judge Hand’s texts become obsolete if scholars in law and economics come up
with better ‘theories of negligence’ than he could?
Or, will he continue to be read as a literary text?
When the legal controversies have ceased to matter, and the political battles have
been fought and forgotten, it is always possible for these judges to find mind-space if
they have learnt to write in ways that will strike a chord with future generations of
lawyers and judges.
Isn’t that why Chief Justice John Roberts speaks highly of Justice Robert Jackson’s prose
style?
So I find that there is no justification for the gloom-and-doom that surrounds
discourses like law and literature, legal history, law and ethics, law and psychology,
and law and psychoanalysis.
It is incorrect to proceed on the assumption that a justice is either into humanities or
into economics.

8. 8
The most impactful economists and technocrats in the world happen to be good
actors, communicators, and writers; they have a compulsion to perform in high-
impact roles.
This is a point that I have made consistently in my LinkedIn posts about leading
central bankers like Ben Bernanke of the U. S. Federal Reserve and Mark Carney of
the Bank of England who understood the need to develop and deploy a
communications policy for their respective institutions.
Take a look at this photo of Mark Carney for instance.
If this is not a dramatic gesture to connect with his audience; a rhetorical
performance, what else could it be? Surely, the era of staid central bank governors is
behind us.
Reading the texts (i.e. judicial opinions and legal treatises) of judges in a way that
makes that obvious is a part of what it means to cultivate a literary sensibility in a
literary program.
That is why we should try to analyse why only some judges make an impact while others
don’t in order to underscore the point about the rhetorical construction of a judge or
a policymaker’s persona.
In other words, as Balkin and Levinson recognize, what is ultimately at stake in the
relationship between law and humanities is the rhetorical construction of the law.
It is not possible for any interdisciplinary program in law and humanities or
economics to succeed without it also simultaneously constituting itself as a rhetorical
performance. That is as true for law and literature as it is true for law and economics.
That is however not the same as saying it is reducible to being only rhetoric and
nothing else but rhetoric. So, even if there is some amount of ‘science’ in law and
economics, that alone will not explain its success in a rhetorical profession like the
law.

9. 9
It is interesting to note that when professors of economics and finance are accusing
each other in business schools of being unscientific (in the wake of the financial crisis
of 2008), it is only in law schools that we hear claims about economics being a
science.
If macroeconomics is not a science, can microeconomics and theories of the firm be a science?
Surely, there is a difference between saying that law and economics is scientific in its
approach and saying that it is already a science.
That is why any claim to being a science necessarily has a rhetorical dimension
irrespective of whether we believe that it is ‘turtles all the way down’ or ‘turtles
some of the way down.’
This approach to teaching law – through rhetoric - has practical implications not
only for what happens in trial courts, but also for how judges and their clerical
assistants write, and how law professors make sense of what they write.
It is only when we take Supreme Court and Appellate Court opinions seriously as
literary texts will it become possible to incorporate humanities within the curriculum
of law schools.
Most of the great treatises on the law and jurisprudence like William Blackstone still
command our attention and reverence because they are structured as literary texts.
That is why appellate court judges should not delegate the bulk of their opinions to
law clerks, but try to put their own persona as writers across in their opinions.
Becoming a member in the ‘republic of law and letters’ then is not about imposing
the literary or any other canon from the outside into the law school curriculum, but
in learning to recognize that there is no dearth of great books within the history of
the law itself.
I think Balkin and Levinson would agree.

10. 10
When literary critics, theorists, and humanists engage with the law school
curriculum, they should begin by recognizing what is already there - in addition to
the black-letter law - that is of ‘literary value’ before they bemoan the fact that the
law school curriculum is more instrumental or utilitarian than the literary
curriculum.
That is exactly why literary critics and literary theorists should engage with the law
school curriculum.
They should first become more pragmatic in order to find a place for themselves in
the curriculum and then, if required, they can moderate the rhetorical construction
of the law to suit the purposes of literary humanism and not the other way around.
SHIVA KUMAR SRINIVASAN