"Supreme" Courts and the Imagination of the Real: An Essay in Honor of Mirjan Damaška

Description

It is with great pleasure that I dedicate this article to Professor Mirjan Damaška, whose path-breaking comparative law scholarship has informed and inspired all scholars who work in the field. From a personal point of view, I was just beginning my writing on comparative procedure when I was fortunate to discover his great book, The Faces of Justice and State Authority. Not only did I learn a great deal about the various procedural models in use throughout the world, but as important, found in it a model that situated procedural scholarship in the broad contexts of governance and national cultures. The article I contribute to this volume reflects the influence that continues today. I must also add my admiration for his powerful prose. In my view, Professor Damaška is the Vladimir Nabokov of comparative law. Like that great writer of fiction, Mirjan was educated in an Eastern European country and learned English as a second (or was it his third or fourth) language and yet developed a style of writing that is in itself masterful and creative, full of imaginative and powerful analogies, similes, and alliterations that clarify and strengthen his argument even as they delight the reader. Mirjan, please give us more of these delights. . . . “Law,” to quote Clifford Geertz' intriguing aphorism, “is but part of a distinctive manner of imagining the real.” I have puzzled over this quote and the indeed much else in Geertz' classic essay, Local Knowledge, Fact and Law in Comparative Perspective for a good number of years, much to my intellectual provocation and profit. Koan-like, Geertz' assertion disturbs us with its pithy oxymoronic phrase: The “real,” is axiomatically not “imagined.” The “imaginary” is only “real” in the spheres of poetry, novels, and video games. And what has “law” got to do with it? But like a Zen master, Geertz uses the koan form “as an aid to meditation and a means of gaining intuitive knowledge.” In this spirit I will focus primarily on those most public of courts, the “supreme” courts, and will explore their role in the collective project of imagining and maintaining a socially adopted reality. I argue that in common with all courts they help to shape and validate our notions of time, space, and human relations and, being “supreme,” have a distinctive capacity to do so. They of course do not do so alone. They are but “part” of the imagination of the real—one of the constructions through which we represent reality to ourselves and others; one strand in the self-spun web of meaning (to again borrow from Geertz) in which we are suspended. Nor is this the only thing they do. In setting my own tack I do not mean to deny the essential instrumental functions these courts provide in their respective jurisdictions. I do hope to shed some light from another angle. I will not bottom my argument on the social and cultural effects of the judicial holdings. I therefore eschew claims like “Roe v. Wade led to promiscuous sexuality,” for however true (or not) that statement might be, my different goal is to describe how the establishment and practices of an institution called the Supreme Court helps to create and maintain the “real” by which we all live. Before turning to the specifics of my inquiry, I discuss in Part I the interpretive background that informs this enterprise and its relation to supreme courts. In Part II I show how the Geertzean approach illuminates the usually unacknowledged role of supreme courts in constructing and maintaining social understandings of time and space. Part III argues that the institution of supreme courts is instrumental to the project of modern community's successful imagination of itself as “just” and “civilized.”

Source Publication

Visions of Justice: Liber Amicorum Mirjan Damaška

Source Editors/Authors

Bruce Ackerman, Kai Ambos, Hrvoje Sikirić

Publication Date

2016

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