Legal Language and American Law 213liberating possibilities, freeing workers from the more direct compulsion and force
used to extract labor in feudal societies. At the same time, there is more risk that
the indirect form of compulsion will be concealed, leaving a false illusion of free-
dom to lull those in its sway.
Although the parallel is not exact, the legal epistemology discernable in law
school pedagogy also has an interestingly double quality, sweeping myriad con-
crete details into constantly developing abstract categories. The legal system ap-
pears to provide an “impersonal, abstract, and objective” mediation of social
conflict, leading ordinary citizens to expect fairness and freedom to pursue jus-
tice through the courts.^15 Yet, as we have seen, this abstract level of legal discourse
can also conceal the injustices and power inequalities that continue to be enacted
through the legal system. Indeed, the move to abstract legal categories itself omits
some kinds of context while including others—thus actually perpetuating forms
of cultural dominance and invisibility while appearing neutral.
Thus, there is a danger that lies right beside a certain genius in the common
law system. On the one hand, it contains a potentially liberating movement be-
tween abstract categories and concrete social detail that can erase some forms of
prejudice, insisting that people who are similarly situated with regard to doctrinal
categories be treated in similar ways. This opening has permitted people with less
social power than their adversaries to win some victories in court, appealing to
abstract legal doctrines surrounding concepts such as rights, with their at least
aspirational correlate of equal application. As Patricia Williams explains in her well-
known essay:
Rights are to law what conscious commitments are to the psyche. This country’s worst
historical moments have not been attributable to rights assertion but to a failure of
rights commitment.... To say that blacks never fully believed in rights is true. Yet it
is also true that blacks believed in them so much and so hard that we gave them life
where there was none before; we held onto them, put the hope of them into our
wombs, mothered them and not the notion of them.... “Rights” feel new in the
mouths of most black people. It its still deliciously empowering to say.... The con-
cept of rights, both positive and negative, is the marker of our citizenship.^16Even where rights are spelled out in constitutions or legislation, it is the applica-
tion of this legal language in particular cases, performed in the United States in
part through the mechanism of case law references and readings, that gives it life.
And that process, like the concept itself, relies partially on the ongoing delinea-
tion, through doctrinal development, of abstract categories that guide the analo-
gies by which one particular situation may be rendered similar to another.
At the same time, we have also seen that the very move away from context into
abstract categories that permits this kind of promise for the disempowered in legal
arenas also contains a dangerous erasure. Some aspects of morality and context
that disappear in the common law sleight of hand actually hold keys to decipher-
ing the social meaning of the conflict at hand, as Regina Austin notes. And the
apparent neutrality of this process conceals the overall truth that in the U.S. legal
system, despite some important victories for the disempowered, it is dispropor-
tionately the “haves” who come out ahead—just as, in the analogical process by