212 Conclusion
Generally insensitive to context, legal analysis as it is reflected in judicial opinions
can leave out much that seems relevant to an assessment of whether justice has been
done. I cannot count the number of times that I have come to the end of an opinion
and been perplexed and dismayed because some essential fact or element seemed to
be missing. The opinion could not possibly contain the whole story. There had to be
something else about the particular circumstances or the larger setting, which frames
it, that would have made the parties’ actions explicable or the courts’ rulings more
intelligible.^11Auerbach comments that “relentless doctrinal analysis [has]... severely restricted
the range and depth of inquiry.”^12
Although the legal profession has typically sought to understand this restric-
tion as serving the ends of objectivity, the omission of some aspects of context and
not others has never occurred without subjective and socially shaped input. Elkins
notes:
A lawyer’s world view acts as a perceptual screen for incoming sensory data. Language
concepts [i.e., linguistic categories] screen and structure one’s perception and allow
one to organize information and experiences.... At the most rudimentary level of
perception, then, what the lawyer characterizes as “out there” is not a true picture
of an objective event or scene but a personal and social assessment. This subjectivity
of factual data has significance for both the postulates of the legal system and for prac-
tical lawyering. The legal persona, with its particular world view, excludes a vast body
of information from its awareness.^13This study provides empirical evidence supporting Austin’s and Elkins’s as-
sessments. We have excavated with some precision the ways morality and social
context are pushed to the margins of discourse, not only in the language of law
school classrooms, but also in the legal discourse that is taught to students. In this
reformulation, law students learn to perform surface readings that in a sense gobble
up social context while preventing this kind of context from entering the core of a
legal approach to text.
The Genius and Danger of the Common Law:
A Language of Abstract/Concrete Reasoning
In Chapter 6, we briefly considered the relationship between this core legal approach
to text and aspects of capitalist epistemology. Social theorist Moishe Postone has
pointed out that there is a “double character” peculiar to capital, time, and labor
in capitalist societies: they exist as at once abstract and concrete categories.^14 The
“impersonal, abstract, and objective” mediation of the abstract level conceals the
way people are disadvantaged, their concrete labor alienated or taken from them.
There is an appearance of freedom in that individuals are at “liberty” to sell their
labor power on the impersonal market, but in fact there are strong constraints lim-
iting individual freedom and bargaining power. As Postone notes, the move to an
abstract level in capitalist societies does actually open up some new, potentially