Legal Knowledge

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2002
Legal Knowledge
James Boyd White
University of Michigan Law School, [email protected]
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White, James Boyd. "Legal Knowledge." Harv. L. Rev. 115, no. 5 (2002): 1396-431.
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LEGAL KNOWLEDGE
James Boyd White"
What do we know when we know the law? I asked a rabbi I know

how he would answer that question with respect to Jewish law. Does
someone know the law when he can repeat the rules that tell him what
to do? Or when he can engage in the activity of reading them, sepa-
rately or in conjunction with each other, and applying them sensibly to
new circumstances? Is even that enough? My friend said it was not:
he must know who he is in relation to the law, both as an individual
and as a member of a people; this means that he must know that this
law is part of a covenant with the God of Israel, and he must under-
stand the story that connects that God with this people. In particular
he must recognize that this law was given to the Hebrew people just
after their escape from slavery, at the moment when they attained the
free and autonomous state that made them capable of receiving the
simultaneous gift and restraint of law.' Sketchy and incomplete as
these remarks are, I want to take them as a model of a certain kind of
legal knowledge.
Particularly in the academic world, knowledge is now often talked

about quite differently, as something objective, stateable, verifiable -
out there in the world, where it can be seen and passed around, as a
kind of information. And it is often imagined not as the work of an
individual mind, or group of minds, but as the product of a system or
process of some kind. It is in this way objectified and reified, even
commodified:
* Hart Wright Professor of Law, Professor of English, and Adjunct Professor of Classical
Studies, The University of Michigan. I want to thank Don Herzog, Jefferson Powell, Terrance
Sandalow, Joseph Vining, and Peter Westen for very helpful comments on earlier drafts.
I In Ever Since Sinai, Jakob Petuchowski makes an additional point: that one must came to
see the law not simply as "legislation," that is as an impersonal and abstract system of obligations,
but as "command," from one Person to another, both building upon and shaping the relationship
between them. JAKOB PETUCHOWSKI, EVER SINCE SINAI 78-8o (196i). One might compare
Zechariah Chafee's interesting observation that a constitutional provision like the First Amend-
ment "is much more than an order to Congress not to cross the boundary which marks the ex-
treme limits of unlawful suppression. It is also an exhortation and a guide for the action of Con-
gress inside that boundary." Zechariah Chafee, Jr., Freedom of Speech in War Time, 32 HARV. L.
REV. 932, 934 (i919). For a work giving striking content to the idea that the law is a gift, see
ABRAHAM JOSHUA HESCHEL, THE SABBATH (195 i).
1396
2002] LEGAL KNOWLEDGE 1397
But such an image will not work for legal knowledge, which is
something of a puzzle. Contrary to the stereotype nonlawyers often
have about it, the law cannot be reduced to a set of rules or other
propositions. Every law student who has turned to a commercial out-
line of one of his courses comes to recognize this, sometimes painfully,
when he takes the exam and sees that the knowledge of the law on
which he is being tested is not simply the capacity to repeat the rules,
but something else, including at the least the ability to think about
them, to interpret them separately and in relation to each other, to
bring them to bear - whatever that metaphor obscures - upon real
and imagined events, and to do so both analytically and argumenta-
tively. As I have often found myself arguing, knowledge of the law is
like knowledge of a language: you never know all of it, you never
know it perfectly, you cannot reduce your knowledge of it to a set of
directions or descriptions or rules; rather, your competence consists of
being able to use it more or less well, in one set of situations or an-
other.2 You learn the law in order to use it - in order to achieve a set
of objectives, to establish and maintain a set of relations, to move
yourself and others in a direction you wish to go, even to discover that
direction. You never achieve perfect mutuality of understanding with
other lawyers, with the court, or with your client, for that is always
beyond us; rather, you use your ability to reduce, to define, to make
more manageable the uncertainties that are present in every human
situation. Legal knowledge is knowledge, but it is not an object, not
restateable. It is a way of claiming meaning for experience.
Another friend of mine, an art historian and psychologist, once

asked me, what is the law's interest in truth? His impression was that
the law is a welter of confusing and competing claims, in which every-
one is opposed to everyone else. It is the opposite of the kind of scien-
tific community in which people act cooperatively towards the com-
mon goal of the discovery of truth. His implication was that the law
was by comparison defective, maybe even contemptible.
I think he is right that the law is not organized towards truth in the
way that science is, or towards a scientific kind of truth. But I do not
at all think that it is for this reason contemptible: the main goal of law
is not truth, but justice, a human value of at least equal dignity and
2 See, e.g., JAMES B. WHITE, THE LEGAL IMAGINATION: STUDIES IN THE NATURE OF
LEGAL THOUGHT AND EXPRESSION ('973) [hereinafter WHITE, THE LEGAL IMAG-
INATION]; JAMES BOYD WHITE, FROM EXPECTATION TO EXPERIENCE 1-7, 73-80 (iggg).
1398 HARVARD LAW REVIEW [Vol. II5:1396
importance. 3 But this fact at once shapes and makes puzzling what
we can mean by legal knowledge. It is not like scientific knowledge:
not propositional, not descriptive, in nature; not primarily conceptual,
or analytic, or empirical; it is not about truth, but justice. Truth has a
place in the law, a crucially important place, but it is hard to see and
explain what this is.
It is especially difficult to understand the place of truth in law in
light of the fact that we structure legal conversations about justice in
part through the form of a contest, or what we call the adversary sys-
tem. It is not the only way to do it, but it is our way, and it has the
implication that what we say is always in principle contestable. Any
claim that the law is this or that, or should be read in this or that way,
must be made with the awareness that someone else, with adverse in-
terests, may challenge it. In a case of sufficient magnitude, anything
that can rationally be contested will be contested. The law is thus a
way of constantly testing the limits of what can be said, what can be
claimed, in our legal language. The effect is to create an odd double
sense: first, that everything is up for grabs, uncertain, unstable in prin-
ciple; and, on the other side, that what is unchallenged - what the
lawyers share - is remarkably firm, for even these bright and asser-
tive people, with every interest in challenging it, find that they cannot
reasonably do so. Disagreement in the law is thus a way of establish-
ing and confirming agreement. This is of course true not only in con-
nection with the formal argument of cases but also in negotiation,
where lawyers regularly come to rough agreement as to what the law
means and requires. To carry on this double-edged conversational
process one must have an important kind of knowledge, knowledge of
what can and cannot be said. It is a kind of cultural knowledge.
But just as disagreement establishes what is agreed upon, one func-
tion of agreement is to define disagreement. I suppose all physicists
agree about perhaps ninety or ninety-five percent of what the field es-
tablishes; one function of that agreement is to define, to make intelligi-
ble and accessible, what they do not know, what they disagree about.
In this way agreement makes disagreement and discovery possible.
The same is true in the law: it is our agreement about almost all the
material available to us as lawyers in a particular case that enables us
to define our disagreement in a useful way, to make it intelligible and
amenable to resolution; and beyond that, it may lead us to the discov-
ery of possibilities we had not contemplated. In both science and law
3 To avoid misunderstanding, perhaps I need to say that I do not mean that the law has no
regard for truth. Obviously it does, not only in the trial of factual issues but in the interpretation
of texts. Rather, my point is that its goal or end, what Aristotle would call its telos, is not to ar-
rive at a true account of the world, as is the case with science, but at a decision or rule that will
be just.
knowledge thus has the function of focusing our attention on what we

do not know - though what we mean by knowledge and ignorance in
the two cases is different.
So I want to begin by saying: law is not a body of knowledge that

can be reduced to propositions or rules; its primary object is not truth,
as if it were a kind of science, but justice. Legal knowledge is an ac-
tivity of mind, a way of doing something with the rules and cases and
other materials of law, an activity that is itself not reducible to a set of
directions or any fixed description. It is a species of cultural compe-
tence, like learning a language; this may in fact be the closest analogy
we have, for what a lawyer knows at the center is how to speak and
write the language of the law, in actual situations in the world - how
to use legal language to create legal meaning. Legal knowledge is in
the end not factual but rhetorical and imaginative.
Of course the lawyer must in some sense know the rules and un-
derstand the conceptual relations they express or establish, complex as
they may be, and she must be able to move with confidence into other
fields, from history to technology, and be ready to learn facts of all
kinds - historical, technical, scientific, and so on. But all of that
knowledge, important as it is, is really the material upon which her
other knowledge works, as she figures out what it is possible for her to
say, and how best to say it. The lawyer's knowledge is a writer's
4
knowledge.
But the lawyer is a special kind of writer, with her own particular
relations both to the language she uses and to the people she addresses.
She is an advocate and an adviser, acting always in the interest of an-
other, and she uses the language of the law, and her ability as a writer,
to advance the welfare of her client. Does this mean that her use of
language is inherently instrumental in nature - as a tool to achieve
4 The image of knowledge as purely objective and wholly shareable that is implicit in much
of our talk about it may of course be wrong not only for the law but for many, perhaps all, other
fields. After all, every attempt to communicate requires language, with all its uncertainties and
pitfalls, and seeks to reach from one mind to another, a gap that can never be entirely bridged.
For me the model of all communication is translation, which is always imperfect and thus always
calls for what I call a writer's art. The particular kind of writing, of translation, that is open to
the lawyer has its own problems, its own possibilities, some of which it is my aim to suggest in
this Essay. For a fuller account of the lawyer as writer, see WHITE, THE LEGAL
IMAGINATION, supra note 2.
1400 HARVARD LAW REVIEW [Vol. I 15:1396
objectives she does not state, for motives she does not reveal? Or has
it an essential quality of sincerity or authenticity?
Sometimes, of course, the lawyer's speech and writing look wholly
instrumental: in arguing a close point about jurisdiction or conflicts of
laws, for example, the lawyer is not expressing what the client really
believes or wants or understands. She is using this language to attain
a result. But even here there is a sense in which she has to mean what
she says, or her argument is false, and will likely be seen to be. She
need not mean that she would decide the case the way she is arguing,
if she were the judge; but she must mean that the argument she makes
is a respectable one, the best that can be made on behalf of her client
in fact, and that the judge could decently and honorably rest upon it.
And "best" not only in the sense that it is the argument most likely to
prevail; she is saying that this is the best formulation of her client's
case that can be made in our legal language - the one that best serves
the most fundamental purposes of law, most fully respects the deci-
sions made by others (legislatures, judges, agencies) that bear upon the
case, and most accurately identifies and interprets the texts that gov-
ern it. She is making the best case for her client that the materials of
law permit, and the "best" as seen not only from her client's point of
view but also from that of the law.'
Of course lots of lawyers do not in this sense mean what they say,
but I think this costs them and their clients a great deal, for the people
they address will often at some level recognize this fact and discount
what they hear. The kind of lawyer who will obviously say anything
she thinks will help her client - and there are plenty of them - will
not be listened to by sensible judges. But there are lawyers who regu-
larly command the respect of their audience - their judges actually
want to hear what they have to say - and my impression is that this
mainly happens when the audience is confident that the lawyer is
speaking to them, in the special sense in which I mean the term, sin-
cerely. While there is one sense, then, in which the lawyer's use of
language is instrumental, her motives ulterior, there is another in
which she can and should mean what she says. A crucial part of legal
knowledge is knowing how to mean what you say in the language of
the law.
Legal knowledge is thus constantly created and recreated, differ-

ently by different minds on different occasions. We say that any good
5 For a fuller statement of this position, see JAMES BOYD WHITE, HERACLES' BOW 215-37
(1985).
lawyer would know that a certain case or statute bore upon the case
before him, and that any would make, in a general way, some of the
same arguments - for want of jurisdiction over the person, for exam-
ple, or for the application of Illinois law. But we also know that these
arguments would be made in very different ways by different lawyers,
even - or especially - by very good lawyers, and that it is in these
differences that many of the most important qualities of professional
and intellectual excellence can be discerned. An essential part of legal
knowledge is invention.
And not only invention: criticism, for in using legal language the
lawyer must be ready to subject it to critical judgment, from the out-
side as well as the inside, and to propose, or perform, transformations
of it. A convention that drives this process, really makes it possible, is
our principle of legal argument that the lawyer must show that the re-
sult for which he argues is compelled both by the law, as he defines
and redefines it, and by justice. 6 To admit either that the result for
which you argue is unjust, though compelled by the law, or that it is
not warranted by the law, though it is just, would in our system be fa-
tal - and fatal in a judicial opinion as well as in an argument. Sup-
pose for example that you are trying to enforce a contractual penalty
for nonperformance, which the other side says is too severe to be en-
forced. You will argue not only that the penalty is permissible under
relevant case and statutory law, but that the rule validating it is a just
one: it respects the free choices of the contracting parties; it tends to
produce efficient results because it encourages bargained allocation of
risk; it makes possible certain high risk investment by placing the loss
on the party whose anticipated benefits are typically highest; and so
forth. The lawyer on the other side will maintain not only that a pen-
alty in excess of actual damages is unjust, but that the relevant case
and statutory law, properly interpreted, prohibit it at least in this egre-
gious form. And a judge too will struggle to show not only that the
penalty is valid or invalid under existing law, but that the law as he
reads it is fair and sensible and proper.
Of course there will be argument about what "justice" means in a
particular case, just as there will be about the "law" that bears upon it.
And I do not mean that there is or should be one single conception of
justice to which all lawyers appeal. My point is about the structure of
legal argument, which is in a serious way imperfect or incomplete if it
does not include the topic of justice as well as that of law. In our ar-
6 Of course the terms "law" and "justice" interact and shape each other, for it is often most
just for a judge to uphold a rule or principle with which she disagrees on the merits, in an expres-
sion of what might be called institutional rather than substantive justice. And it is hardly possi-
ble to think about what justice would require, as an abstract matter, without imagining as well a
set of rules, institutions, and procedures to give it content.
1402 HARVARD LAW REVIEW [Vol. I 15:J396
guments the result must be justified by law and justice. We are in this
sense both positivists and natural lawyers at the same time. The effect
of this principle is to subject law itself to constant pressure and criti-
cism. The lawyer must always be prepared to ask where the law itself
has gone wrong, what voices or claims or understandings it improperly
excludes or admits. Our law is capable of great evil, and the lawyer
must be ready to see how that is so; ready, that is, to reimagine if nec-
essary both the world and the law.7
Such are the themes that I shall pursue in this Essay. They will, I
assume, for the most part be familiar to the practicing lawyer and law
teacher alike. My aim is to give them specificity by examining two or
three particular legal contexts that seem to me to define legal knowl-
edge in especially interesting ways.
I. THE MODEL PENAL CODE

How can we begin to think about the art of expression that on the
view I am urging lies at the heart of legal knowledge? One place to
start is with the moment at which the lawyer's mind meets the lan-
guage she is required to use - the language of the law - and with a
set of questions about that language: What is this language like? What
does it leave out, distort, or exclude? What does it enable her to do,
and what does it inhibit or prevent? When we have some sense of
possible answers to these questions, we can begin to ask the next one:
By what art is this language used well, that is, with both practical and
ethical success? What does it mean to "know" the language of a par-
ticular field of law, to understand and to be able to use its rules, prin-
ciples, cases, and other materials?
A.
As my first instance of legal knowledge I want to look at the crimi-
nal law, which has been the object of especially intelligent and thor-
oughgoing efforts at reform and integration. I shall of necessity be
rather brief, but I think that it may be helpful to take even a superfi-
cial look at the language of a whole field, asking what opportunities
and difficulties it creates for the lawyer or judge - or legislator -
who tries to speak in the ways it makes possible.
The effort of reform I speak of received its fullest and most influen-
tial expression a half century ago in the Model Penal Code, which has
7 This is, I think, the main achievement of feminist legal scholars. See, e.g., Catharine A.
MacKinnon, Not a Moral Issue, 2 YALE L. & POL'Y REV. 321 (1984); ROBIN WEST, CARING
FOR JUSTICE (1997).
20021 LEGAL KNOWLEDGE 1403
since helped shape statutory reform in almost every state, The goal of
the Code was to offer a method of thought, both for the drafters and
for the readers of criminal statutes, that would transform the confused
and contradictory field of criminal law into a coherent system. At its
center is the idea of blameworthiness or culpability, which is used both
to determine criminality itself and to assess its degree. Blameworthi-
ness in turn is conceived of as a function of intentionality or state of
mind, and here the Code made an important advance. Instead of sim-
ply asking the crude question of much of prior law - whether the de-
fendant had a "guilty" or "bad" mind (mens rea) as a kind of raw moral
judgment - the Code engages in a much more refined process. It first
identifies each of the material elements of the offense - in a hypo-
thetical crime of home invasion, say, "breaking and entering" a "home"
in the "nighttime" - then assigns one of four different states of mind
(or degrees of culpability) to each of the elements: purpose, knowledge,
recklessness, or negligence. 9 The legislative assignment of degrees of
culpability to the different elements is to be the product of a reasoned
judgment based upon the fundamental principle that the criminal law
should provide a graduated set of punishments to reflect graduated
levels of blameworthiness. This is the way in which the purposes of
the criminal law can rationally be attained.1 0 Of course, in all of this
8 For interesting background, see Sanford H. Kadish, Codifiers of the Criminal Law:
Wechsler's Predecessors, 78 COLUM. L. REV. xo98 (1978).
9 Thus the Code might in the hypothetical case require "knowledge" that the building is a
dwelling house, but "negligence" with respect to the time, on the ground that the former element
is more important to the assessment of the culpability of the action and actor. If so, a conviction
could only be obtained if the prosecution proved that the defendant actually knew the building
was a dwelling house, but it need show only that the defendant should have known that it was
nighttime. For definitions of the degrees of culpability, see MODEL PENAL CODE § 2.02 (1962).
It would of course be possible to assign "strict liability" as the degree of culpability for one
or more elements - for example, "nighttime" in our hypothetical - but the Code explicitly re-
fuses to do that, insisting on one of the four degrees of culpability denominated above for each
material element of an offense. It does permit strict liability with respect to elements that are not
"material," such as those relating to jurisdiction, venue, and periods of limitation. See id. (estab-
lishing purpose, knowledge, recklessness, and negligence as the degrees of culpability for material
elements of an offense); id. § 1.13(10) (listing nonmaterial elements).
The earlier law drew rather rough distinctions with respect to state of mind because it drew
rather rough distinctions in the definition of crimes, and punishments, as well. At common law,
the main question of grading was whether the defendant committed a felony, for which death and
forfeiture were the usual penalties, or only a misdemeanor. For these purposes a rather basic lan-
guage of "guilty mind" (mens rea), "bad motive," "wickedness," and so forth might be thought to
work well enough. The Code's fine elaboration of degrees of culpability is thus directly related to
its effort to grade crimes carefully according to blameworthiness.
10 Traditionally, criminal law is conceived to have four purposes: general deterrence, restraint,
rehabilitation, and retribution. The Model Penal Code rejected retribution as a proper goal and
added several others, among them: to protect conduct that is without fault from condemnation as
criminal; to give fair warning of criminal prohibitions; to safeguard against excessive, dispropor-
tionate, or arbitrary punishment; to coordinate and harmonize the duties of courts and adminis-
trative agencies dealing with crime and offenders; and to advance the use of scientific methods in
1404 HARVARD LAW REVIEW [Vol. 1153I396
the Code is not writing on a clean slate, as a total innovation, but try-
ing to draw on the best of the preexisting tradition.
As I suggest above, the Code implicitly provides a method not only
for the drafting of statutes but also for their interpretation; one can
take a statute drafted in the old days, in much cruder terms - speak-
ing say of "willfulness" or "unlawfulness" or "wantonness" - and say
that the real question to be asked by lawyers and judges is what de-
gree of culpability (as defined by the Code) the statute should be con-
strued to require with respect to each of its material elements. Its
method is thus in important respects transformational, for it provides a
language of greater refinement and complexity into which conversa-
tions traditionally couched in other terms can usefully be translated.
For example, consider the standard common law doctrine that a "mis-
take of fact" is no defense to a "general intent" crime, but may be a de-
fense to a "special intent" crime, while "mistake of law" is never a de-
fense. In the textbook case of State v. Woods1 - where a woman
charged with sleeping with "another woman's husband" raised as a de-
fense that she (as it turns out erroneously) believed the man to have
had a valid divorce - the Vermont court approached the question by
asking whether the concededly good faith mistake was one of "law" or
"fact."1 2 But in this context these words are virtually empty terms of
conclusion; what should shape the conversation is the question
whether it is a wise reading of this language to punish this woman,
and people similarly situated, under this statute, given the language
and purpose of the statute and the purposes of the criminal law more
generally. This is exactly the consequence of the Code's method,
which asks what degree of culpability this statute should be read to
require with respect to the central element, "another woman's hus-
band." Should she be punished only if she actually knew she was
sleeping with someone validly married to another, or should it be
enough that she was reckless or negligent with respect to this circum-
stance? Or should it be the case, as the Vermont court actually held,
that she should be punished even if she was wholly innocent of the
the sentencing and treatment of offenders. See id. § 1.02. The Code has of course been criticized,
especially for its attempted elimination of retribution, which some consider the foundation of
criminal law, especially since its central concept of culpability seems to suggest a measure of re-
sponsibility based upon desert. For a helpful summary treatment of the purposes of punishment,
see Kent Greenawalt, Punishment, in 4 ENCYCLOPEDIA OF CRIME AND JUSTICE 1336 (San-
ford H. Kadish ed., 1983), as well as the collection of materials in SANFORD H. KADISH &
STEPHEN J. SCHULHOFER, CRIMINAL LAW AND ITS PROCESSES 113-85 (5th ed. 1989).
11 179 A. I (Vt. 1935).
12 See id. at 2-3.
fact that he was still married to another? 13 To frame the question this
way directs attention away from an empty clash of conclusions to the
language and policy of the statute and to the purposes of criminal pun-
14
ishment itself.
Or consider a statute that defines rape as "sexual intercourse by a
man with a woman against her will." The defendant admits sexual in-
tercourse, but claims he believed that the woman was consenting; she
says that she was not, and that his contrary belief was unreasonable.
Under prior law, it was usual to ask whether the statute should be
read to imply an unstated requirement of mens rea, or a "guilty mind,"
with respect to her nonconsent; if so, it would require for conviction
that he actually knew that she was not consenting; if not, he would be
guilty of rape even if his belief in her consent was honest and reason-
able. The Model Penal Code offers two intermediate alternatives,
"negligence" and "recklessness": under the first, the defendant can be
guilty of rape if his good faith belief is unreasonable; under the second,
he can be guilty if he recognizes and consciously disregards the risk
that she is not consenting.
The Code is thus telling legislatures to choose the degree of culpa-
bility explicitly, for each of the elements, and to assign punishments
that are proportional to the blameworthiness so defined. Although it
does not say so outright, in effect it also tells the court (and lawyers)
facing a statute that does not in plain terms assign degrees of culpabil-
ity in the way the Code contemplates that the question of culpability is
still present, for each of the elements, and should be decided on a prin-
cipled basis. In every case the issue is what degree of culpability the
statute in question should be read to require with respect to each of its
material elements. This all adds up to what might be called a dis-
course, a rhetoric, or, as I prefer to say, a language: a set of topics and
materials for thought and argument. The lawyer now has something
to say about the cases that come to him that he would not have to say
if the Code did not exist. It is an effort to make the whole of criminal
law coherent.
A subsidiary purpose (or at least effect) of this effort is to reduce
the role and function of the jury, which is asked to decide questions
that are much more precise and factual under the Code, less open-
ended and value-laden, than was generally true under earlier law.
13 See id. at 3. On the merits of this question, the Code would preclude the last possibility -
that she should be punished even if she were without fault as to this material element of the of-
fense - under the principles of section 2.02(t). See MODEL PENAL CODE § 2.02(j).
14 For the Model Penal Code approach to mistakes, see MODEL PENAL CODE § 2.04. Note
that the Code never distinguishes between questions of law and fact, although section 2.02(9) pro-
vides that mistakes regarding either the existence of an offense or the meaning of legal terms are
not defenses.
14o6 HARVARD LAW REVIEW [Vol. 15:1396
Under the old regime of "willful" and "wanton" and "malicious," the
jury was almost of necessity making its own judgments of blamewor-
thiness, which were in the nature of things not rendered explicit, nor
could they be made consistent with other judgments by other juries, a
situation the Code seems designed to alter.
B.
If this or something like it will do as a sketch of the aims and struc-
ture of the Model Penal Code, we can now ask: what would it be like
to try to use this language as lawyer or judge, to try to put it to work
as the material of thought? Or, to speak in terms of my title: what
kind of legal knowledge does it create, require, and make possible in
those who use it?
The first step in learning this language would not be to try to mas-
ter its particular rules (though at a certain stage that would be neces-
sary) but to try to understand the purposes the Code is trying to serve
and its basic method for doing so, as I have described them above.
What we need most to understand, that is, is the way the Code imag-
ines itself, the world, and what it is trying to do.
The Code's self-conception is reflected not only in its statements of
purpose and method, but also in a story of a certain kind: the world of
the criminal law before the Code is a morass of confusion and contra-
diction, disorganization, and ignorance, all amounting to serious injus-
tice unworthy of an enlightened state. The Code applies careful, sus-
tained, and collective thought to render this body of law coherent,
orderly, and just - and just not only in the sense that the law is pre-
dictable, that results in like cases are similar, and so forth, but just in a
more substantive sense, for all this is achieved in the name of a coher-
ent and sensible set of purposes that are themselves shaped by a ruling
conception of justice. Like all legislation, the Code is in a sense in-
complete, for it is not self-executing; but it gives directions to its own
use, in its purposes and methods, which should enable lawyers and
judges to use it rationally and coherently. Unlike the law of which the
rabbi spoke, the Code is not a gift to the people upon their becoming
free, but it is deeply related to human freedom nonetheless, for it is an
exercise of freedom and reason, an effort to function wisely and well.
Such is the promise of the Code, and it is to a remarkable extent real-
ized.
But it is not surprising for a lawyer to learn that in practice things
do not entirely work out in this orderly and coherent way. To start
with, the lawyer would quickly see that she had to master not just one
discourse, that of the Code, but two others with which it is often in
tension: the prior criminal law, which the Code was intended to reform
(both for the points at which the Code differs from it and for the con-
tinuing assumptions that connect the two bodies of thought); and a
more general language of goal and limit, philosophical in kind, since

nearly every case can be the occasion for asking what the proper goals
of the criminal law should be and what limits should be placed upon
it.1s The Code must be read, that is, as poised between two other sys-
tems of discourse with which it is, potentially at least, always in ten-
sion.
In addition, there are conflicts among the purposes of the criminal
law upon which the Code relies for its claims to coherence, and these
present obvious difficulties for anyone trying to use it. The Code as-
sumes that its purposes are harmonious or, if they do conflict in a par-
ticular case, that they permit a kind of trade-off, of one "good" for an-
other. But none of the purposes is itself entirely coherent, and there
are severe tensions among them. There is, for example, in the idea of
restraint alone no principle of limit - one would restrain forever any-
one who presented any threat of criminality, except for other consid-
erations of fairness and utility not implicit in the term itself. Much the
same can be said about deterrence, for it is hard to see how, simply in
terms of deterrence alone, you can have too much or too frequent pun-
ishment. Responsible thought thus requires the consideration of other
and incompatible values. Rehabilitation does have the inherent limit
that one will stop when the cure has occurred, but this is difficult in
the extreme to assess and may lead to releases that are too early, or too
late, when measured by other values, such as the seriousness of the of-
fense. As for retribution, it is usually supposed to have an implicit
limit, though I think in fact people typically want more than an eye for
an eye. And in any event, by what scale is one to say that such and
such a term in prison is an act of retribution proportionate to an arson
attempt, say, or a physical assault or filing a false tax return? The
Code seems to assume that what we call trade-offs can occur among
these various purposes, but it does not tell us what tradeoffs are to be
made, nor is it clear that they can in fact be made in a rational and
satisfactory manner. How does one decide how much deterrence or
rehabilitation to insist on, or to give up? The goals are not simply
competing desiderata, but are often in true opposition with each other.
15 In our system this conversation has occasionally taken on the character of law, for our Con-
stitution has been read to address such questions - what kind of "notice" a statute must give a
person to whom it is addressed, for example, whether a state may punish a "status" or "disease,"
and what procedures, including procedures of proof, the state must follow if it is not to violate the
Due Process Clause. See, e.g., Powell v. Texas, 392 U.S. 514 (1968) (deciding whether the Eighth
and Fourteenth Amendments prohibit a state from convicting an alcoholic for violating a statute
that forbids being drunk in public); Robinson v. California, 370 U.S. 660 (i962) (holding that a
California statute that criminalizes the status of being "addicted to the use of narcotics" violates
the Eighth and Fourteenth Amendments); Lambert v. California, 355 U.S. 225 (1957) (striking
down a Los Angeles criminal registration ordinance as applied to a person who had no actual
knowledge of the duty to register).
14o8 HARVARD LAW REVIEW [Vol. 115:1396
This is especially true of deterrence and rehabilitation, for these forms

of punishment imply radically different relations between the state and
the individual - one kind of punishment treating him as an end in
himself, the other simply as a means for the effectuation of social pol-
icy - between which no compromise is possible. You cannot say si-
multaneously that you care about another person and that you do
16
not.
There is also an even more basic question: whether the practice of
punishment can ever be rationally shaped to a set of stateable purposes
in the way the Code assumes it can. It may be, that is, that punish-
ment is an activity that human communities have always engaged in
for motives that cannot be wholly articulated or even completely un-
derstood, and that the kind of rationalization the Code attempts cre-
ates an intolerable fiction. One might well doubt, for example,
whether it is possible to eliminate the retributive element from pun-
ishment by simply saying so, as the Code attempts to do. 7 The lawyer
or judge using the Code must accordingly always be ready to ask how
- on what understandings, with what qualifications - it is possible
to use, in a sensible way, a language that purports to shape the crimi-
nal law by reference to what it declares to be its purposes, an effort
that must always be to some degree fictional.'
One might have similar doubts about whether the Code's funda-
mental idea - that one can precisely determine blameworthiness by
making fine judgments of states of mind, or degrees of culpability,
with respect to the various elements of an offense - really works. Is
16 For an elaboration of the incoherence this conflict creates, see WHITE, supra note 3, at 192-
214.
17 See supra note IO.
18 The Code's central conception that punishment should be allocated solely according to the
defendant's moral blameworthiness also runs counter to a basic human instinct, one that will in-
evitably find expression in the working of the law: that the consequences of conduct, and not only
its blameworthiness, are relevant to criminal responsibility. At least on a certain conception of
morality, consequences are really irrelevant: the question is what the defendant himself did and
with what degree of culpability. It is often fortuitous whether his conduct happens to produce a
harmful result or not, and he ought to be punished according to his blameworthiness, not accord-
ing to the outcome. This kind of morality teaches us that the drunk driver who happens to make
it home without incident is just as guilty as the driver, perhaps less inebriated, who causes a fatal
accident. But the facts of human nature, in our culture at least, seem to prevent the law from
working this way, perhaps on the view that we are each entitled to our good luck.
When the degree of culpability is high, as in attempt cases, the Code largely disregards the
upshot and punishes the defendant for what he tried to do, even if he failed, pretty much as
though he had succeeded. When, however, the degree of culpability is lower, as in recklessness or
negligence crimes, the Code, like prior law, treats the defendant whose conduct actually caused
damage, especially death or bodily injury, more severely than one equally negligent or reckless -
or more so - whose behavior had no such consequences. The Code does have a crime of "reck-
less endangerment," but it is punished much less seriously than reckless homicide. MODEL
PENAL CODE § 211.2.
this something juries or judges or lawyers can actually do? Or are we

actually better off with vaguer terms like "willful" and "wrongful,"
which leave to the trier of fact a larger question of net moral evalua-
tion?19
Finally, and most tellingly, there is a deep tension between the ra-
tional and enlightened way the Code tries to make the trial of guilt
proceed and the way the other stages of the criminal process work.
Think for example of the police officer's decision to arrest, the prose-
cutor's judgment whether to indict or to accept a plea bargain, the
judge's sentencing decision (itself often based on a report made by the
probation department), and the parole board's decision to release or
restrain - none of these judgments is or should be reducible to the
clear cut forms of argument described above. And this is not a matter
of intellectual incoherence only: there is a profound and disturbing
conflict between the rationality and idealism of the Code's method for
determining who should be punished and the often hideous realities of
criminal law in practice, especially the brutality of punishment itself as
often inflicted in our country. 20 The shouting chasm between the pre-
19 Consider also the tension inherent in the claim that the criminal trial should focus exclu-
sively on what the defendant did, leaving the larger question, who the defendant is, for determi-
nation at the sentencing hearing. This is an artificial distinction: jury members naturally want to
know as much as they can about the defendant's character and history, and the lawyers, when it
is to their advantage to do so, struggle to tell them. Sometimes - as in deciding whether a killing
is "provoked" and therefore manslaughter, with "malice" and therefore murder, or "premeditated"
and therefore murder in the first degree - it is virtually impossible to separate the two kinds of
question.
Similarly, the basic conception of the human actor at work in the criminal law is not wholly
coherent, and the Code cannot make it so. Most of the time the law assumes that the individual is
a free and autonomous actor, responsible for his conduct and its consequences. Defenses are fash-
ioned to remove from liability those who are thought not to be in control of their lives - the in-
sane, the sleepwalking, and the like. But the truth is much more muddy than this suggests: we
are all the products of circumstance; no one is entirely free; yet almost all of us have a residue of
autonomy and hence responsibility. Neither of the two extreme images of human freedom is en-
tirely valid, but the law has great difficulty reflecting this fact. What this means for the user of
this language, whether lawyer or judge, is that he tends to vacillate uncomfortably between two
incompatible and impossible positions, without any way of saying what he believes to be true
about human freedom and determinism.
20 Rehabilitation is not, as far as I can see, in any real sense the object of our penitentiaries;
restraint is, but it. is usually temporary, and the convicts are often treated in ways that make it
more likely, not less, that they will commit crimes in the future. Retribution is perhaps achieved,
but it is often brutal, uncivilized, and costly; deterrence may or may not be much achieved by this
system - one certainly doubts whether it is achieved to a higher degree than it would be by a
humane or civilized system of penology. We have both an astonishingly high percentage of our
population in prison and an astonishingly high rate of crime and recidivism. On the other hand,
it is important to say that the idealism of the Code can be seen as essential to its achievement,
which is to refine and elevate our discourse by holding out a higher standard of rationality and
decency than we can normally attain and thus to make possible an effective criticism of what we
do.
141O HARVARD LAW REVIEW [VOL. 1,5:1396
tenses of the law and its reality is of course even worse when race and
class are taken into account.
When you try to understand the motives and premises of the Code,
what it is trying to do with prior law, its conception of culpability or
blameworthiness, its effort to render a mass of contradictory and con-
fusing material coherent, all so that you can read with intelligence the
provisions of the Code itself and use them sensibly in thought and
argument - so that you can become, that is, a speaker as well as a
reader of this language - you discover that the Code falls very far
short of the coherence at which it aims. It is riven with unavoidable
and unresolvable tensions and contradictions, which go to the very
center of its way of imagining the defendant, the trier of fact, and the
process of punishment itself - and I am sure there are more than I
have listed. One who wishes to master this language, then, and to use
it effectively, must understand it not simply as a logical system but
must learn how to live with its particular incoherencies, its splits and
breakdowns. One kind of legal knowledge it thus requires is a capac-
ity to face and manage internal contradiction and tension.
Although I cannot prove it, I think that what is true of the Model
Penal Code would be true, in different ways and degrees, of any at-
tempt to produce a comprehensive and coherent code regulating a field
of law. To the extent I am right, the capacity that I say the Code calls
upon in its user - a capacity to use a language despite its incoheren-
cies, to recognize what it omits or distorts - is an essential part of le-
gal knowledge more generally.
What attitude should we take towards these tensions and fissures
within the Code? One possibility is to deplore them as proofs of fail-
ure, even to give up on it all as a sham or faqade. But this I think is to
yield too readily to disappointment and frustration; one can see these
aspects of the Code more benignly, as defining over and over again,
and thus making available to argument and thought, the most pro-
found and disturbing questions about the nature of punishment and
the structure of our society. It is far better that these tensions and con-
tradictions be recognized, made overt, and thus become the object of
concern and distress, than the most obvious alternatives, which are to
bury them in language too opaque to work in this way, or to insist
against the facts upon the fairness and rationality of our system of
criminal law. There are good reasons why the Code is marked by ten-
sion and contradiction, namely that the questions it addresses simply
cannot be rationalized into a perfect system or order. The conflicts ex-
ist in the material and in our minds, not just in the language of the
Code. In a real sense, the failures of the Code are noble ones; like
other efforts at producing knowledge, a central part of the achieve-
ment of the Code lies in its definitions of what we do not "know" -
and "know" not in a purely conceptual or factual or analytic way, but
in the far more important sense in which I have been using "knowl-
edge" throughout this Essay, as a form and ground of action. The

Code helps us see what we do not know how to say, or to do.
To return to my beginning point, knowledge of the criminal law is
not reducible to knowledge of the rules, or even the principles, of the
Model Penal Code or of a statute based upon it. It requires us to
know how to use this language, and the other languages with which it
is connected, including those of common law crimes and of the Consti-
tution; and how to use them not only when they seem to work as de-
signed but when they break down, collapsing into tension and contra-
diction. The Code is itself a masterly achievement of what I am
calling "writing," but in the nature of things it cannot complete its task
unaided. The knowledge it requires in those who use it is not merely
skill at interpretation, as that term is usually meant, but the knowl-
edge of an art, an art of writing: a way of resisting what looks like en-
tropy, as system after system, text after text, reveals incoherencies that
cannot be rationalized away. It obviously cannot be taught or learned
in a mechanical or routine way, but calls upon capacities of invention
and imagination. This is the kind of knowledge - a writer's knowl-
edge - that the Code calls upon us to have.
II. HOLMES'S OPINIONS IN SCHENCK AND ABRAMS

For my next example of legal knowledge, I shall turn from the re-
markable challenges and opportunities presented to the writing mind
by the Model Penal Code to a legal moment quite different in kind: the
movement from Justice Holmes's opinion for the Court in Schenck v. 22
United States2 1 to his dissenting opinion in Abrams v. United States.
These were of course two of the first cases decided by the Supreme
Court under the First Amendment, 23 both deservedly famous, and
Holmes's opinion in Abrams is an achievement of indubitable bril-
liance and significance, the beginning in fact of modern First Amend-
ment jurisprudence. Yet I hope that the Model Penal Code will still be
relevant, in that it may help us see both of these cases, as the Court
21 249 U.S. 47 (1919).

22 250 U.S. 616 (ig99).
23 The most important predecessor to these two cases was Patterson v. Colorado,205 U.S. 454
(1907), in which Justice Holmes plainly suggested that the effect of the First Amendment was only
to outlaw prior restraints and prohibitions on speech. Id. at 462. This was an idea of some cur-
rency, tracing its roots to Blackstone's statement of the principle of freedom of speech in English
law. On this view, speech once uttered could be punished if it fell within certain established
classes of torts or crimes or was otherwise inimical to the public good, just as other conduct could
be. But to say that the Supreme Court had not spoken before Patterson does not mean that there
had been no debate and no law on freedom of speech in other institutional contexts. For the full-
est and most helpful account of the First Amendment before Schenck and Abrams, and of the rea-
soning in these cases, see DAVID RABBAN, FREE SPEECH IN ITS FORGOTTEN YEARS 285-98,
342-71 (1997).
1412 HARVARD LAW REVIEW [Vol. 115:1396
initially saw them, in terms of the criminal law. I also mean to suggest
something more general by the juxtaposition of Code and opinion,
namely that the kind of striking accomplishment achieved by Holmes,
and later by Brandeis, can mark possibilities for the imaginative law-
yer that may exist elsewhere in the law, perhaps even in the most ordi-
nary cases.
A.
The provision of the Espionage Act of 1917 at issue in Schenck
made it criminal "willfully ... to obstruct the recruiting and enlistment
service of the United States," or to conspire to do so. 24 The defendants
in that case sent circulars to men who had been called for the draft,
denouncing the draft itself as a violation of the Thirteenth Amendment
and the war as a design to enrich the capitalist class, but containing
little if any language that could be construed as explicit advice or en-
couragement to refuse the draft.
Today we would see this case as presenting serious First Amend-
ment issues, but in 1918, when there was little or no First Amendment
jurisprudence to rely on, it was natural for the Court to see it simply
as a criminal law matter. If we looked at it that way, and in pre-Code
terms, the two main statutory questions would be whether the aim of
the conspiracy amounted to "obstruction" and whether the defendants
could be found to have the quality of intention (or guilty mind) indi-
cated by the word "willfully."
On the first point, it is true that the defendants did not plan to in-
terfere physically with the draft - for example by blocking the door of
the receiving station with a truck - but if the recruits read and were
persuaded by the defendants' publications, and refused the draft, that
would certainly seem to be an interference that might well fall under
the term "obstruction." Should it matter that such an obstruction
would depend upon an act of will by another person, the recruit who
decided to refuse? The prosecution would say surely not; one who
persuades or encourages another to commit a crime is under ordinary
principles of law responsible as an accessory. There is no notion in the
criminal law that such a voluntary act by one party excuses another
who encourages the crime. It was therefore consistent with common
understandings for the Court to classify what the defendants were try-
ing to achieve as a form of "obstruction" within the meaning of the
statute.
Writing for the Court, Holmes does not explicitly define the quality
of mind or intention required by the word "willfully," but he under-
24 Schenck, 249 U.S. at 49 (citing the Espionage Act of June I5, 1917, ch. 30, § 3, 40 Stat. 217,
219).
standably has rather little difficulty finding the requirement met in this
case: "Of course the document would not have been sent unless it had
been intended to have some effect, and we do not see what effect it
could be expected to have upon persons subject'25 to the draft except to
influence them to obstruct the carrying of it out.
Once the Justices started thinking of the case in such criminal law
terms, it was natural for them simply not to regard the First Amend-
ment as fairly present at all, on the obvious ground that the First
Amendment does not protect criminal speech, which this so plainly
seemed to be. Criminal ends can be obtained by verbal as well as
nonverbal means, and it would be an odd reading indeed of the First
Amendment that saw such conduct as protected against punishment
simply because words were chosen as the instruments of crime. Per-
haps refusing induction should not be a crime; but, so long as it is, it
should be criminal for one person to persuade another to commit that
crime, just as it would be if the crime were murder, say of a foreign
dignitary or a commercial rival. This would all seem obvious.
For Holmes, then, and the rest of the Court, the case was easy
enough. The criminal law seemed to say all that needed to be said,
and the defendants' invocation of the First Amendment was under-
standably unsuccessful. On the other hand, Holmes did respond to the
First Amendment argument raised by counsel and in doing so took the
first steps, almost without knowing it, in the direction of an enor-
mously influential way of thinking about the central puzzle presented
by this and similar cases: Ought the First Amendment protect conduct,
otherwise criminal, simply because it takes the form of speech? Why?
And, whatever the rule is, should it protect some forms of speech more
than others - the kind of political speech involved here, for example,
but not the speech necessary to maintain a numbers racket or an extor-
tion ring?
To begin with the last point, Holmes does not address the question
explicitly, but he does seem to see this kind of speech as somehow dif-
ferent from speech of other kinds - he says that some of the strongest
expressions came from "well-known public men" and that in peacetime
circumstances the defendants might well have been within their "con-
stitutional rights." 26 That he cannot fully articulate the difference is
hardly surprising, since his opinion is something of a first effort to
think about the kind of speech the First Amendment should be read to
protect.
The more fundamental question is whether speech, or some forms
of speech, should enjoy a protection under the First Amendment that
25 Id. at 51
26 Id. at 51-52.
is not available to other forms of conduct. Again, Holmes is not ex-

plicit on the point. It is not entirely clear, to me at least, whether he
means the "clear and present danger" test 2 7 to establish a new constitu-
tional rule for the protection of speech or simply to explain the princi-
ple of criminal law under which this conduct is properly punishable:
"The question in every case is whether the words used are used in such
circumstances and are of such a nature as to create a clear and present
danger that they will bring about the substantive evils that Congress
has a right to prevent. ' 28 Holmes uses this language to explain why
this speech can be reached in this wartime context, when in peacetime
it might be innocuous, but his point would be equally relevant whether
he is thinking in constitutional or criminal law terms.
It was almost inevitable for the Justices to see Schenck the way
they did, and not only because of their conservative and class-based
hostility to the doctrines and persons of the defendants. The criminal
law seemed adequate to deal with the case, particularly the pre-Code
law, which drew fewer fine distinctions and rested far more confidently
on net jury judgments of guilt and innocence. Any thought about the
possible bearing of the First Amendment had in a sense to be conjec-
tural, for its language had been given no effective meaning. Holmes
does mention the First Amendment, though only to dismiss it; yet al-
most despite himself he begins to provide material for thought about it
- in his talk about the wartime context, in his recognition that there
is a constitutional right to carry on some sorts of as yet undesignated
speech, and in his articulation of the standard of proximity and degree
that the First Amendment might require the criminal law to follow.
B.
When Abrams v. United States 29 was presented for decision later
the same year, on generally similar facts but under a more repressive
set of statutes, it is not surprising to find the Court affirming Schenck
in every respect, saying simply that it sufficiently discussed and ne-
gated any First Amendment claim.
The facts are familiar: the defendants, all Russians by birth, were
distressed by the American invasion of Russia in 1918, from the east,
which they saw as directed at the new revolutionary government there.
27 Id. at 52.
28 Id. Although Schenck is formally a conspiracy case, of which the gravamen is agreement,
Holmes seems to be thinking about it as an attempt case, where the question is "how close" the
conduct came to inflicting the harm the defendant intended. Or he may be asking whether the
means chosen to attain the goals of the conspiracy were so ill-adapted to the purpose that they
presented no danger to the public. Standard classroom examples include things like conspiring to
murder a foreign dignitary through magic charms or attempting to shoot down a passenger plane
with a child's bow and arrow.
29 250 U.S. 66 (igig).
They printed and distributed leaflets, in English and Yiddish, that

condemned the President and the government for this action, called
upon the workers of the world to awake and put down capitalism, and
urged American workers to engage in a general strike, with particular
language directed to those working in munitions factories. 30 The new
statute forbade criticism of the government, provocation of resistance
to the United States, and interference with the production of war ma-
terials. In what is for our purposes its most interesting provision, the
statute also made it criminal willfully to "urge, incite, or advocate any
curtailment of production [of war materials] ...with intent by such
curtailment to cripple or hinder the United States in the prosecution of
the war. '3 1 This language enabled the defendants to make an argu-
ment not available in Schenck, namely that their efforts were intended
not to interfere with the war against Germany, as charged, but to stop
the independent American invasion of Russia. The defendants' claim
was an honest one: their real concern was for the new socialist gov-
ernment in Russia, not for the German regime, for which they bore no
affection whatever. But the Court rejected it: "It will not do to say, as
is now argued, that the only intent of these defendants was to prevent
injury to the Russian cause. Men must be held to have intended, and
to be accountable for, the effects which their acts were likely to pro-
duce."32 And even if their primary purpose was to help Russia, the
Court went on, they called for a general strike, especially in the muni-
tions industry, which would obviously hinder the war effort against
33
Germany.
Here I want to call upon our earlier reading of the Model Penal
Code to ask how one trained under it might respond to the Court's
reasoning. Under the Code's analysis the question would be what de-
gree of culpability the statute should be read to require with respect to
each of its material elements. The Court's first formulation, that men
should be held accountable for the effects their acts were likely to pro-
duce, really amounts to a holding that negligence is the proper degree
of culpability with respect to "curtailment." The Court simply erases
the distinction between crimes requiring true purpose, as conspiracy
and attempt normally do, and those based on negligence or reckless-
ness, as in certain forms of manslaughter. This is all the more disturb-
ing in light of the explicit intent requirement in the statute, which
30 For a full statement of the facts and background, see RICHARD POLENBERG, FIGHTING
FAITHS: THE ABRAMS CASE, THE SUPREME COURT, AND FREE SPEECH 43-8I (1987).
31 Act of May i6, i918, ch. 75, 40 Stat. 553, 553. Unlike the "obstruction" statute, this statute
overtly punishes a speech act and could therefore be thought to present its own First Amendment
problems. But neither the Court nor Holmes saw it this way.
32 Abrams, 250 U.S. at 621.
33 Id. at 623.
reads: "with intent by such curtailment to cripple or hinder the United

'34
States in the prosecution of the war.
The Court's second formulation seems, without acknowledging it,
to be saying something quite different, and much more justifiable: that
in this case the defendants could be found to have a true intention to
hinder, since it was their hope and object to achieve a state of affairs
- the interference with the production of munitions - that they knew
would hinder the government. The fact that they were doing this for a
motive not contemplated by the statute, the protection of Russia, is ir-
relevant - just as it is irrelevant if the reason an escaping criminal de-
liberately shoots and kills a policeman is not hostility or a positive de-
sire to kill, but simply a wish to escape, for which the killing seems to
be necessary.
What these two formulations together reveal - and they have the
support of much else in the criminal law of the time - is to the eyes of
one educated by the Code a fundamental weakness of understanding
and analysis. This is crude and undifferentiating thought, the Code
lawyer would say; it not only reaches questionable results, it fails even
to identify or address with clarity the fundamental issues.
C.
Holmes, in dissent, analyzes the case with much greater care. The
first two counts, based on new statutory provisions which today we
would plainly hold unconstitutional, charge conspiracies to publish
abusive language about the form of government of the United States
and to publish language intended to bring that form of government
into contempt. Holmes does not suggest that these provisions are un-
constitutional, but he says that there is nothing in the record to sup-
port conviction under either count.35 With respect to the count charg-
ing advocacy of curtailment of the war effort, he says that the record
will simply not support the finding of an intention to cripple or hinder
the United States in the prosecution of the war. As a general matter
he concurs in the way of thinking the Court's opinion reflects, saying:
I am aware of course that the word intent as vaguely used in ordinary le-
gal discussion means no more than knowledge at the time of the act that
the consequences said to be intended will ensue. Even less than that will
34 Act of May x6, 1918, ch. 75, 40 Stat. at 553. The Court's position on "intention," odd
though it is to one trained in the Model Penal Code, is not eccentric but seems to reflect the
criminal law thinking of the time. Here is Wharton, for example: "When there is a general intent
to do evil ...of which evil the wrong actually done may be looked upon as a probable incident,
then the party having such general intent is to be regarded as having intended the particular
wrong." i FRANCIS WHARTON WITH JAMES M. KERR, A TREATISE ON CRIMINAL LAW 202
(i ith ed. 1912). And even today the felony murder rule rests on something like this analytic basis.
35 Abrams, 250 U.S. at 624 (Holmes, J., dissenting).
satisfy the general principle of civil and criminal liability. A man may
have to pay damages, may be sent to prison, at common law might be
hanged, if at the time of his act he knew facts from which common experi-
ence showed that the consequences
36
would follow, whether he individually
could foresee them or not.
Like the Court, Holmes here elides the distinction between intent
and negligence, as he also did programmatically in The Common
Law.37 What makes this case different for him is that it is not a com-
mon law case but a statutory one. And "this statute must be taken to
use its words in a strict and accurate sense," 38 not only because it is a
statute, but because otherwise it would be absurd. For it would pun-
ish a patriot who argued successfully against what he thought were
wasteful war expenditures, say on airplanes, which later came to be
seen as essential to the prosecution of the war.39 The statute should
therefore require what the Model Penal Code would call a true pur-
pose to cripple or hinder the war effort, and that cannot be established
by this record.
Notice how the way of reading established by the Model Penal
Code would have clarified the issues. It would have repudiated as an
analytic mishmash the view of the Court that "men must be held to
have intended, and to be accountable for, the effects which their acts
were likely to produce," 40 saying that of course people can be punished
for negligently (or recklessly) producing a socially harmful result, but
that they should be so punished only under a statute, or other rule,
that articulates those degrees of culpability, certainly not under a stat-
ute that requires "intent." What is more, they should be punished
much less severely than one who intends the harm, or knows that it
will flow from his conduct. Once true "intent" is required, the ques-
tion, as Holmes says, is whether the record will support such a finding,
which may in turn depend upon the difference, perhaps assumed but
4
not articulated by the Court, between intent and motive. '
36 Id. at 626-27.
37 See OLIVER WENDELL HOLMES, JR., THE COMMON LAW 49-51, 1o8-o9 (Dover
Publ'ns '99x) (188r).
39 Id.
40 Abrams, 250 U.S. at 621.
41 Holmes's response to the argument that the defendants' ultimate "motive" is irrelevant if
they actually intended to curtail production is to say:
It may be obvious, and obvious to the actor, that the consequence will follow, and he
may be liable for it even if he regrets it, but he does not do the act with intent to produce
it unless the aim to produce it is the proximate motive of the specific act, although there
may be some deeper motive behind.
Id. at 627 (Holmes, J., dissenting). This language leaves open the argument that the defendants'
"proximate motive" was in fact to curtail production and that this would constitute "intent" as
Holmes defines it. Holmes may nonetheless be justified in his position here, on the grounds that
1418 HARVARD LAW REVIEW [Vol. 1 15:I3g6
This, then, is what happens here: without fully seeing the challenge
to his own established views about the objective basis for criminal as
well as civil liability, Holmes seizes upon the standard of intention in
the statute to move him, and us, in the direction ultimately taken by
the Code. In doing so he exemplifies the kind of legal knowledge that
consists of an art of language and imagination, the capacity to trans-
form his own inherited materials of thought and to do so in a disci-
plined and persuasive way. And more than that: by what seems like
an accident, his insistence on one criminal law rule over another -
requiring real proximity, and a true intention to bring about the harm
in question - has the effect of protecting a certain kind of speech,
speech that expresses general ideas or values, or advocates or criticizes
policies. Out of this shift in criminal law doctrine emerges the begin-
ning of First Amendment thought on the Court. Holmes here makes
something out of almost nothing, and what he makes is of enormous
interest and importance.
It is significant that Holmes's intention requirement is based upon
the language of the statute, not the Constitution. As a constitutional
matter he explicitly reaffirms the "clear and present danger" language
of Schenck:
I do not doubt for a moment that by the same reasoning that would justify
punishing persuasion to murder, the United States constitutionally may
punish speech that produces or is intended to produce a clear and immi-
nent danger that it will bring about forthwith certain substantive
42 evils
that the United States constitutionally may seek to prevent.
Holmes here makes plain that Congress could, if it wanted to, punish
speech that actually "produces" harm by a standard less protective
than intention or purpose - for example under a statute that prohib-
ited the reckless curtailment of war production. But Congress must
make such a choice explicitly, and here it has made the opposite
choice, to require "intent."
Holmes's proposed constitutional rule would thus require intention
only in uncompleted crimes, such as attempt or conspiracy, not in
completed crimes, which the legislature is free to punish under a lower
standard. If you look at this case with the eyes of the criminal lawyer,
then, Holmes is arguing that the First Amendment requires a small
shift in a rule (requiring purpose not negligence or recklessness) gov-
erning a small piece of the universe of criminal statutes (attempt and
conspiracy), and then only when speech, or speech of a certain kind, is
involved. From the point of view of the First Amendment lawyer,
however, this minor shift in the degree of culpability in this small class
the jury was not properly charged and it is therefore irrelevant that there is evidence from which
they could find for the government on what Holmes calls "proximate motive."
42 Id. (emphasis added).
of cases constitutes practically the entire universe of First Amendment

law at the time. What happens next, though I think it could not easily
have been predicted, is that the insistence by Holmes and Brandeis
upon the "clear and present danger" test in a range of political cases
ultimately makes the central issues of attempt and conspiracy law -
proximity and intention - the central issues of First Amendment
analysis as well.
It need not have happened this way. Holmes might have started
off his dissent in Abrams, for example, by assessing the social value of
the kind of speech the defendants engaged in there. If one were to
think of freedom of speech as an individual right, it would be natural
to begin with the speech itself, first judging its quality and character
and then declaring that it is, or is not, protected. But Holmes begins
the other way around, not with the speech but with the harm, saying
that the defendants should not be subject to punishment because they
do not come close enough to inflicting a harm against which the state
has a right to protect itself. This same reasoning could apply to other
conduct that was also too remote from harm, regardless of its social
value, such as purchasing a weapon with which one intended to com-
mit a crime or ordering plans for a building one intended to bomb.
Would Holmes draw distinctions among different kinds of conduct and
speech that are all equally remote from harm and, if so, how and why?
Does it matter if the conduct consists only of words, or words of a cer-
tain sort? These are questions that this part of Holmes's opinion im-
plicitly raises but does not answer.
D.
At this point, Holmes shifts voice and direction, looking now at the
case as a whole: "In this case sentences of twenty years imprisonment
have been imposed for the publishing of two leaflets that I believe the
defendants had as much right to publish as the Government has to
publish the Constitution of the United States now vainly invoked by
them. '43 No longer a technical analysis of the statutory language or of
the charges of the respective counts, Holmes now displays a grasp of
the whole; and he conceives of the defendants not simply as having a
case against them fail for want of proof, but as having a "right," a
right to publish. The First Amendment here makes its first real ap-
pearance, protecting "the creed that they avow - a creed that I be-
lieve to be the creed of ignorance and immaturity ... but which ... no
one has a right even to consider in dealing with the charges before the
Court."44 Again we have the word "right," here negatived in the
43 Id. at 629.
44 Id. at 629-3o.
Court, affirmed in the defendants, now the right to a "creed" - a

creed that everyone knows, as Holmes almost says, was the true object
of condemnation in this case, and others like it. We are taking our
first steps into a different world.
Then comes his famous paragraph on the purposes of the First
Amendment, beginning with what may seem an odd concession: that if
you are confident in your premises and your power, you will naturally
"express your wishes in law and sweep away all opposition. '45 In this
sense, "[p]ersecution for the expression of opinions" is "perfectly logi-
cal." 46 Holmes articulates here an image of government as a kind of
tyranny, based upon the premise that the winner takes all. Victory, if
total, brings total power. This instinct is his starting point. But he
expresses this vision only to repudiate it on the basis of experience, to
distinguish it from our way of imagining both our government and our
society:
But when men have realized that time has upset many fighting faiths, they
may come to believe even more than they believe the very foundations of
their own conduct that the ultimate good desired is better reached by free
trade in ideas - that the best test of truth is the power of the thought to
get itself accepted in the competition of the market, and that truth is the
only ground upon which their wishes safely can be carried out. That at
any rate is the theory of our Constitution. It is an experiment, as all life is
an experiment. Every year if not every day we have to wager our salva-
tion upon some prophecy based upon imperfect knowledge. While that
experiment is part of our system I think that we should be eternally vigi-
lant against attempts to check the expression of opinions that we loathe
and believe to be fraught with death, unless they so imminently threaten
immediate interference with the lawful and pressing purposes
47
of the law
that an immediate check is required to save the country.
While much can be said in favor of, and against, the view Holmes
here expresses of the First Amendment, his main achievement is to ex-
press any view at all. No other Justice had done so. 48 Whatever the
45 Id. at 630.
46 Id.
47 Id.
48 As is well known, Judge Learned Hand, in Masses Publishing Co. v. Patten, 244 F. 535
(S.D.N.Y. 1917), had struggled with the question, and took the view that speech that fell short of
"counselling] or advis[ing] others to violate the law" should be protected. Id. at 540. In this opin-
ion he defines the key terms thus: "To counsel or advise a man to an act is to urge upon him either
that it is his interest or his duty to do it." Id. at 540.
Instead of asking the jury a question of "proximity," as Holmes did in Schenck, Hand sees
the central issue as the character or quality of the speech, or what we might call the nature of the
speech act. During the interval between Schenck and Abrams, he urged these views on Holmes in
correspondence, but Holmes saw very little difference between the two formulations. See
SHELDON M. NOVICK, HONORABLE JUSTICE: THE LIFE OF OLIVER WENDELL HOLMES
473 n.87 (1989); POLENBERG, supra note 3o, at 218-19. Zechariah Chafee published an article,
Freedom of Speech in War Time, supra note i, in which he argued that Holmes's clear and present
First Amendment was then thought to be, the Court had established
no way of thinking that would make it relevant to a criminal conspir-
acy plainly within the zone of congressional power, as this one was. In
the terms I suggested earlier, Holmes finds a way to give meaning to
the text by imagining the world in which it occurs, including himself
and others within it, in a coherent way; it is this act of imagination
that is the center of this famous paragraph. He no longer sees this
case as like one in which the state punishes persuasion to murder.
What is at stake here, rather, is what he calls a "creed," consisting of
"ideas" and "thoughts." He thus separates out from the world of stan-
dard criminal law cases what he sees to be the material of a First
Amendment case. For without quite realizing it, he found in Schenck
a point of criminal law analysis with which to begin thinking about
the First Amendment. His clear and present danger test is in its ori-
gins simply a statement of an intention and proximity requirement for
attempt and conspiracy liability. But he and others will now and later
give it enormous resonance in speech cases. Having made the begin-
ning he did in Schenck, he moves in this paragraph to a statement that
will begin to explain and justify his instincts.
What he says here can be criticized, of course. The exchange of
ideas, or their competition, is not really a market, in which people are
paying more or less for what they value;4 9 what he has in mind is
closer to what may be his deepest image of human life, the process of
evolution by the survival of the fittest. But survival is a test of power,
not of truth, and we all know that false, despicable, and dangerous
ideologies or ideas can thrive for a long time. Particularly in the field
of ethics and justice, there is no reason to think that we always move
danger test could be construed as meaning something very close to Hand's formulation and that
this would provide the beginning of a rational principle upon which First Amendment jurispru-
dence could be founded. The standard view is that Holmes was influenced by Chafee, with
whom he conversed, as well as by Hand, and that this explains the sea change between the two
cases. Novick is doubtful, not sure that there is such a sea change: Holmes reaffirms Schenck in
explicit terms in Abrams, and rests his opinion in Abrams on a ground not available in Schenck,
namely the statutory provision requiring an intention to curtail production. See NOVICK, supra,
at 473 n.87. My own interest here is less in explaining why the shift in Holmes's position oc-
curred than in trying to understand what he made his language mean.
49 And to say that speech is like a market is not to say that it should be unregulated, for our
tradition is that the government has broad powers to regulate actual markets of a commercial
kind, powers broader by far than it has to interfere with what we think of as individual rights
specifically guaranteed by the Constitution. And there are real questions about the freedom and
efficiency of our own "market in ideas," if one uses such language, for it can be seen to be domi-
nated by some voices and to exclude others. But Holmes was not really arguing for the system-
atic extension of market thought into this field; rather he was trying to find a way to express,
through a metaphor, the importance of freedom of speech to society as a whole, building perhaps
on Chafee's insistence - well chosen, if his idea was indeed to influence Holmes - that there is a
"social interest" in freedom of speech, as well as an "individual" one, a social interest that Chafee,
like Holmes here, characterizes in terms of "truth." See Chafee, supra note i, at 956-59.
1422 HARVARD LAW REVIEW [Voi. 115:1396
progressively towards a better world. And Holmes's view that signifi-

cant speech consists of "ideas" or "thoughts" is highly limiting, for it
tends to find the value of speech in its reified products, when one
might think that its value is in fact processual, subtle, and far too pro-
tean to be reduced to something called "ideas." It is in fact one .of the
great merits of this very paragraph that it cannot be boiled down to a
single idea, or concept, which can be simply carried away by the
reader; it is itself too complex, too tension-filled, too alive, to permit
such treatment.
But these are small points: the great thing is that Holmes found a
way to imagine the world in such a way as to give the First Amend-
ment meaning and scope, which no other Justice had yet done, and a
way of imagining that is not ideological or mechanical in character.
His universe is populated with people who are striving to understand
and speak, disagreeing to the point of war, claiming power, asserting
truth, and he says that this activity, in which he is himself engaged, in
this very paragraph and throughout his work as a Justice, is one that
must be in its nature local and provisional. Just when we are most
sure we are right, we must recognize that we may be wrong; and not
only about matters of truth, as he puts it, but about matters of justice
as well.
There is a paradox deep in Holmes's opinion. As I suggested
above, one could approach this case by thinking about the value of the
speech in question - its importance to the speaker and to the world
- but Holmes treats the issue primarily as one of proximity to a cog-
nizable harm. Although he sets forth a statement of the aims of the
First Amendment and of the value of speech, in operation his opinion
works like an old-fashioned due process analysis, which focuses more
upon injury to a claimed state interest than on a delineation of
"rights." This approach is consistent with the skeptical strain in this
opinion and in Holmes's thought more generally, for it expresses a
sense that one cannot know, cannot judge, the ultimate value of any
particular act of speech. We are always situated in our interests, in
our culture, and the whole point of the First Amendment, to one part
of Holmes's mind, is to establish a process that will lead to changes we
cannot foresee and would not, in the present cast of our minds, ap-
prove, and thus to changes in our own ways of thinking and perceiv-
ing. The paradox is that this skepticism produces a principle that is
far more tolerant of speech in general, and tolerant of far more kinds
of speech, than would an explicit analysis of what one might think of
as specifically First Amendment interests and concerns - focusing for
example on the value of a particular expression or type of expression
- for Holmes's principle does not draw lines of relative value among
speech acts.
One doubts whether Holmes means this skepticism as strongly as
he seems to say, for at other points in the opinion he is, to say the least,
unafraid to make and articulate judgments of value. Indeed, his toler-

ance of the speech in this case depends partly upon his sense that it is
really of no consequence - if the defendants were not "puny anonymi-
ties," 0 as he calls them, but represented a serious threat, his skeptical
tolerance might well disappear, as he implicitly acknowledges. But the
thread of thought he establishes here is still with us. 1 And the habit
of mind Holmes manifests - of thinking in terms of the proximity of
harm to already recognized interests - is also at work today, for good
or ill, in what we call "hate speech" and "pornography" cases, where
we find it very hard to find the social evil the government has a right
to prevent in the speech itself, as opposed to the "interests" that we
claim, or deny, that the speech threatens or52
injures. If we had begun
differently we might think differently now.
I referred at the beginning to the view that knowledge of Jewish
law could not be reduced to the knowledge of rules, or even to under-
standing what conduct the rules required, but consisted as well in
knowledge of who you are, in relation both to the larger community
and to the God of Israel whose gift these laws are. In constitutional
discourse there is no God, of course, but there is something as it were
analogous, for we endow the Framers with a largeness of vision and
depth of wisdom that enable us to think of the Constitution in the ide-
alized way we do, and ought to do. We cannot read the Constitution
except as a text that has an author, and hence as having a kind of
meaning that cannot be reduced to rule, or policy, or system - a
meaning that depends upon a sense of character and identity, in the
community and in oneself; upon what I have called a way of imagin-
ing the world, and oneself and others within it, that will make possible
coherent speech and significant action. This is what Holmes achieves:
a sense of the nation as having a character, a character like the one he
gives himself in his prose - confident of its views, ready to act upon
them, but at that very moment aware that it may be mistaken, that a
voice it is inclined to sweep away may be telling the truth.

51 And is still subject to doubt: would Brandenburg v. Ohio, 395 U.S. 444 (1969), the case that
established the most protective form of the "clear and present danger" test, really apply to speech
that had no political or social substance at all but was rather part of a garden-variety conspiracy
to commit murder or extortion? Even if it were cast in the form of "ideas": "the only good cop is a
dead cop," or "nothing is more important than the honor of the family"?
52 Or think of Abrams itself, in which Holmes's judgment seems to rest in large part on the
"absurdity" of a reading of the statute that would punish the patriot who argued, wrongly it turns
out, against the production of a certain kind of armament. Abrams, 250 U.S. at 627 (Holmes, J.,
dissenting). But this imagined result is not the only possibility: one less skeptical than Holmes
might be willing to draw a line between th ekind of speech imagined there and the kind of speech
engaged in by the defendants in Abrams, both in terms of form - one calling for a strike, the
other arguing the merits of a position - and in terms of intention or motive, one disregarding (at
best) the nation's interest in the war, the other seeking to advance it.
1424 HARVARD LAW REVIEW [VOL. 1I5:1396
Holmes is here teaching us that, at its deepest, legal knowledge is

imaginative in character. And not just imaginative, performative, for
Holmes's own opinion, in dissent, is an enactment of the theory he ar-
ticulates: it is an effort by him to put into competition with others an
"idea" necessarily provisional, in the hope that its truth will ultimately
be accepted by others - as indeed happens, for this paragraph be-
comes perhaps our most important single statement of the nature and
purposes of the First Amendment. As I suggest above, this passage
cannot actually be reduced to a single proposition or image; far too
complex for that, it is what I would call "writing" rather than an
"idea," a way of capturing essential tensions in a momentary order.
Yet it is offered in competition with other writings, as an example to
be read and understood and learned from, one that may affect our own
thinking and writing too. And if we are persuaded by this perform-
ance, we affirm not only his position but the very process he describes
and in which he, and we, participate.
Holmes's performance is not strategic or instrumental, but authen-
tic, expressing not only "ideas" that can in a sense be shared and
passed around and argued about, but the deepest nerve of his own
mind and imagination, in a voice that is distinctively his own. His ar-
ticulation of the deep tensions that mark his mind - between skepti-
cism and faith, brute power and idealization, tolerance and judgment,
dominance and truth - is not in fact a weakness of his opinion, any
more than the tensions at work in the Model Penal Code are weak-
nesses, but a gift to us, and part of the gift is that the tensions cannot
be resolved. He means what he says, and we know it; and his writing
has the force it does in large measure by virtue of that fact. At the end
he tells us: "I regret that I cannot put into more impressive words my
belief that in their conviction upon this indictment the defendants
were deprived of their rights under the Constitution of the United
States.5' 3 He not only talks about the beliefs of others, and their fight-
ing faiths, he has beliefs of his own. He shows us how it is possible to
mean what you say in the language of the law.
III. BRANDEIS'S OPINION IN WHITNEY

I wish now to turn very briefly to another famous passage in the
history of the First Amendment, Justice Brandeis's concurrence in
Whitney v. California.4 In this case Brandeis invokes the clear and
present danger test-" - including the intent requirement for uncom-
53 Id. at 631.
14 274 U.S. 357 (I927).
55 Brandeis says that a necessity that would justify a restriction of speech "does not exist
unless [the] speech would produce, or is intended to produce, a clear and imminent danger of
pleted crimes - to cast doubt on the defendant's conviction under a

statute that punished knowing membership in an organization
56
advo-
cating crime and violence as means of political change.
In affirming the conviction, the majority said that great weight
should be given to the judgment of the legislature that criminal syndi-
calism presented "such danger to the public peace and security of the
State, that these acts should be penalized in the exercise of its police
power,""7 declaring that the statute should be struck down only if it is
"arbitrary or unreasonable."5 8 In other words, the Court saw the First
Amendment as having no force at all in the case, which was in its view
a straight criminal law case, to be tested under the Due Process Clause
for its rationality only.
Justice Brandeis wrote an opinion, for himself and Justice Holmes,
which concurred in the result on the grounds that there was testimony
in the record that tended to establish a more responsible role for Whit-
ney than mere membership in the organization would indicate, but
dissented as to the meaning and relevance of the First Amendment.
While Brandeis agrees that the Court should normally defer to legisla-
tive judgments, he says "the enactment of the statute cannot alone es-
tablish the facts which are essential to its validity." 9 Here those facts
are the elements of the clear and present danger test, the very function
of which is to define a zone where the ordinary processes of majority
rule are not permitted to work. In a famous paragraph he explains
why our Constitution has made this commitment:
Those who won our independence believed that the final end of the
State was to make men free to develop their faculties; and that in its gov-
ernment the deliberative forces should prevail over the arbitrary. They
valued liberty both as an end and as a means. They believed liberty to be
the secret of happiness and courage to be the secret of liberty. They be-
some substantive evil which the State constitutionally may seek to prevent." Id. at 373 (Brandeis,
J., concurring) (citing Schenck v. United States, 249 U.S. 47, 52 (1919)).
56 The California Criminal Syndicalism Act made it criminal "knowingly [to become] a mem-
ber of any organization ... organized or assembled to advocate, teach or aid and abet criminal
syndicalism," which was defined as doctrine advocating that "the commission of crime, sabotage
•.. I or unlawful acts of force and violence" were appropriate "means of accomplishing" changes
in industrial ownership or political "change." Whitney, 274 U.S. at 359-60 (quoting the California
Criminal Syndicalism Act). The theory of the statute seems to have been that membership in an
organization, with knowledge of its aims, is in traditional terms a species of aiding and abetting.
Or perhaps that it is a kind of conspiracy, not on the rationale that conspiracy is a kind of incho-
ate crime, like attempt, to be punished by reason of the "proximity" to harm created by the
agreement itself, but on the traditional alternative rationale, that the existence of an organization
with criminal purposes is an evil independent of crimes it is on the verge of committing, as a fer-
tile ground for as yet undesignated, perhaps unthought of, crimes. See generally Developments in
the Law-Criminal Conspiracy, 72 HARV. L. REV. 920 (1959).
57 Whitney, 274 U.S. at 371.
S8 Id.
59 Id. at 374 (Brandeis, J., concurring).
lieved that freedom to think as you will and to speak as you think are
means indispensable to the discovery and spread of political truth; that
without free speech and assembly discussion would be futile; that with
them, discussion affords ordinarily adequate protection against the dis-
semination of noxious doctrine; that the greatest menace to freedom is an
inert people; that public discussion is a political duty; and that this should
be a fundamental principle of the American government. They recognized
the risks to which all human institutions are subject. But they knew that
order cannot be secured merely through fear of punishment for its infrac-
tion; that it is hazardous to discourage thought, hope and imagination;
that fear breeds repression; that repression breeds hate; that hate menaces
stable government; that the path of safety lies in the opportunity to discuss
freely supposed grievances and proposed remedies; and that the fitting
remedy for evil counsels is good ones. Believing in the power of reason as
applied through public discussion, they eschewed silence coerced by law
- the argument of force in its worst form. Recognizing the occasional
tyrannies of governing majorities, they amended 60
the Constitution so that
free speech and assembly should be guaranteed.
Brandeis here invokes the Framers nearly as demigods, confidently
asserting what they thought and meant by the First Amendment itself.
From one point of view this is a kind of fantasy, for we all know that
the Framers were not superhuman beings, that they were not united
but divided in their attitudes, and that in any event the society out of
which they functioned was unjust, and so on. From another point of
view, however, this act of imagination or something like it really is es-
sential to the task of lawmaking that is the Court's responsibility. For
the words of the text alone do not mean much, nor do they carry much
force even if understood; the kind of knowledge we need includes a
way of imagining the author of the text, and ourselves, in such a way
as to make possible an intelligent reading of the text itself, and this is
an act of creation. To understand the law we must understand the
character of the lawmakers, and of our relation with them, and we
must have a grasp of the story that unites our people over time. This
includes, for the modern American lawyer, as well as for one who con-
sults the rabbi, knowledge of past injustices, places where we have
gone deeply wrong and perhaps paid a price for it, and knowledge of
silences as well; and it is in a sense a silence that Brandeis is address-
ing here, as Holmes did in Abrams - a failure on the part of the Court
to pay serious attention to the crucial language of the First Amend-
ment.
Brandeis's two long sentences are structured as a string of clauses
connected by semicolons, a style that gives a sense of connectedness
and sequence among different thoughts, or different aspects of the
60 Id. at 375-76 (citations omitted).

same thought. Not as in a logical outline, in which one first asserts

premises then deduces conclusions, nor in the usual inductive struc-
ture, in which one first presents factual details then asserts a conclu-
sion that flows from them. Rather, Brandeis is showing what it is like
to think, as a whole mind, all at once, the way we really do think.
What he says is not reducible to a tag - say "the education for de-
mocracy" rationale of the First Amendment - nor is it translatable
into a series of propositions set forth as a theory. The words work here
the way they do in ordinary speech and literature alike, not by the
stipulated definitions necessary for a certain kind of rationality, but in
a process of continual and reciprocal redefinition. Speech, and safety,
and fear, and hatred, and reason, and discussion, and government, all
these terms interact to create a whole language, a way of talking and
thinking.
It is a language we can learn, but not by simply repeating the
phrases, just as we cannot simply point to the passage with a word or
two, or think of it as a theory in the form of a set of propositions. We
must make it our own, and in doing so we shall change it. For this
passage is written in Brandeis's own voice, alive, speaking the truth as
he sees it; not in cliches, or in forms simply lifted from the past, or
from others, but as a writer does these things, transforming the mate-
rials he has inherited; and it invites us to do these things too. Like the
passage from Holmes's opinion, this one enacts or performs its mean-
ing; it represents to us, in the way it captures the movements of the
mind of the writer, what it means to engage in the kind of thought and
speech he describes and in the processes of self-government through
discussion that he celebrates. This passage cannot be translated into
other terms, and its meaning lies in large part in that fact - in what
an attempted translation would leave out or distort. It calls upon us to
make our own version of what he does; in this is its61deepest definition
of what speech is, or can be, and why it is protected.
Brandeis's voice not only has the merit of authenticity, it is instruc-
tive; in a sense it defines a standard of civilization, an ethical and po-
litical standard, that is so secure that it can be unafraid of argument,
dissent, or even passionate and determined hostility. In this way it re-
duces the speech and the threat of the Communist Labor Party, and
Whitney herself, to something manageable - in a way even something
good, for these speakers present a challenge to our first principles that
we should be willing to accept. Like Holmes, Brandeis is able to as-
sert with supreme confidence what he believes and at the same time to
61 For a fine article on the significance of the way Brandeis composes this opinion, see Vincent
Blasi, The First Amendment and the Ideal of Civic Courage: The Brandeis Opinion in Whitney v.
California, 29 WM. & MARY L. REv. 653 (1988).
1428 HARVARD LAW REVIEW [Vol. 11I5:1396
recognize that to another person, even to himself in another context,

this would all look different.
Holmes and Brandeis are often thought of as a pair, especially in
the First Amendment field, where they insisted together upon the clear
and present danger test in the face of the Court's opposition. But the
differences between them are remarkable, perhaps all the more re-
markable since the rule they propound is virtually the same. One way
to put it is this. Holmes articulates a faith - against his skepticism -
in the workings of a process or system he knows he cannot understand:
the process, analogous to the survival of the fittest, by which some
"ideas" come in time to prevail, and thus to acquire the status of truth.
He sees that his own commitments may be undermined and destroyed
by this process, yet he can also imagine this as a good thing. For
Brandeis, the process the First Amendment aims to protect is far more
comprehensible, imaginative, and susceptible to representation in his
prose: it is the activity of sustained, reasoned, careful, whole-minded
argument by people of good will on crucial questions of the day. He
imagines an idealized argumentative process, which he not only de-
scribes but enacts in his prose; in an important sense he is showing
what the First Amendment is meant to protect. Built into his own
performance is a scale of value, with speech like his, and that which he
describes, at or near the top; other forms of speech - crude, vulgar,
violent, stupid, ill-informed, bigoted, nasty - at or near the bottom.
As I mentioned earlier, there is here a paradox: Holmes's lack of inter-
est in the question of the quality of speech, in what can be really good
in speech and writing, leads naturally to a more widely protective rule
than does Brandeis's deep interest in intellectual, rhetorical, and politi-
cal excellence. One can more easily imagine Brandeis, that is, or
someone following his line of thought, condemning speech that has no
evident value than one can imagine Holmes doing so, since for Holmes
the issue really is the proximity to harm, not the quality of the speech.
Yet it would be unfair to Brandeis to suggest that he would protect
only speech like his own. This very case shows otherwise. Another
way to read this opinion is as giving him - and us - a certain kind
of character, one that is secure in its education, its intellectual capaci-
ties, its depth and breadth of mind, and therefore, to use a word that
Vincent Blasi has shown to be central to this opinion, 6 2 has no "fear"
of speech that does not meet its standards. Brandeis is using his mind
to make him and us strong, unafraid, able to face and live with what
we despise - what we are right to despise; and part of the strength of
what he achieves lies in the confidence with which he asserts not
62 See id. at 679.

merely a faith in a process, but deep commitments to a certain mode of

life and thought.
A person writing about the First Amendment needs above all a
way of imagining what it means that human beings have language,
and can think and speak; what it means, or can mean, to be a speak-
ing person, including in the law. This is what Brandeis and Holmes
both seek in different ways to define, and what they ask us in our turn
to define as well. They make an effort to show us the kind of speech
to which we can aspire, the speech made possible by our freedom.
Neither of these opinions written in favor of freedom of speech takes
the position that all speech is equally valuable or good; they are not
nonjudgmental; quite the contrary, they set forth a ground in their own
performance for the criticism of speech, including not only the speech
at issue in the particular case, but the speech of other Justices, of law-
yers, of all of us in fact who engage in the legal and political processes
of reasoned debate. The "legal knowledge" they represent to us is thus
a capacity of mind and language; they seek to teach it to us; in the na-
ture of things this cannot be done in a mechanical or ideological or
propositional way, as a teaching of material; instead, they in their dif-
ferent ways offer a demonstration of human possibility for meaningful
speech - for speech that is meant - in the law.
ENDINGS
I mean by these readings of the Model Penal Code and Supreme
Court opinions to suggest something about the nature of legal knowl-
edge, namely that at its heart it is a kind of writer's knowledge: the
knowledge of legal language and the art of using it, criticizing it, trans-
forming it, all with the aim of working out a way of imagining the
world, and oneself and others within it, that will enable us to speak
coherently about what we call justice. For justice requires us to find
open and respectful ways of imagining ourselves and each other. Our
law is of course not religious law, but like religious law it calls for
more than a learning of rules, or rote obedience, or technical skill - it
calls for thought and speech of a whole-minded kind. And an impor-
tant part of what the rabbi said about Jewish law is true of our secular
law as well: you must know who you are in reading it and in writing
it, and what it calls upon you to do and to be. Holmes and Brandeis
here show that they - like all lawyers and judges - are called upon
by our law to be writers in the law.
It is not only the Constitution that requires this response in us: any
statute does the same, as we saw with the Model Penal Code, as does
any case. All law calls upon us to act, not merely to repeat or invoke,
but to make something new. Of course we work with old materials -
as this very Essay retells old and familiar stories - but it is our task
1430 HARVARD LAW REVIEW [VOL. 115:1396
as lawyers to make something with a quality of freshness and immedi-

acy, directed to the present moment.
The obvious question I leave unanswered - except by the invoca-
tion of examples I hold out for approval - is how this task can be
well performed and how it can be well taught. It is plain that we can-
not expect to proceed by either issuing or following directions - rules
for inventing topics, for composing introductions or conclusions, or for
shaping our style to meet our audience, or any of those things. The art
of writing cannot be reduced to a program that can be taught and ap-
plied, certainly not to a set of tricks or techniques. It must be learned
as other arts are learned: by practice, by critical examination - by
more practice and more reflection; by reading the works of others and
discussing them, then returning to our own work; by attending to the
nature of the languages we are given to use, their strengths and limits,
enablements and constraints; by thinking of the ways in which we de-
fine ourselves and others, as minds, as institutional and social actors,
as members of a community and culture.
Practicing lawyers must constantly school themselves in the art of
legal expression that I see at the center of legal knowledge. But those
of us who are teachers in law school have a role as well, for we can
help our students develop the insights and abilities necessary for this
life. And we can do more than that, for in our writing we may be able
to make conscious and explicit at least some of the questions and prob-
lems that one who practices this art will have to face, not as I say with
the idea of working out a set of rules for excellence in legal thought or
anything like that, but in the belief that in this, as in many fields, in-
creased awareness of what one is doing will lead to increased under-
standing, clearer choice, better judgment. The main issues I have in
mind are, naturally enough, those to which I have given my own at-
tention over the years: the nature of legal language, particularly as de-
fining what might be called a rhetorical culture, a world that works by
argument; the arts of mind and language by which that language, and
especially the claims to authority inherent in legal discourse, can be
controlled; the process of reading the texts of others and recasting
them into other terms - often called "interpretation," though in my
view better thought of as a kind of translation - which is a crucial
part of the work of lawyer and judge alike; the force and power of
narrative in the law, especially as it works in tension with more ab-
stract and logical forms of thought; the ways in which human beings
are, and can be, represented in legal discourse; and so on. Questions of
this sort imagine the lawyer as engaged in activities that are at once
analytic, cultural, linguistic, artistic, and ethical in character: the work
of a whole mind.
My aim in this Essay has accordingly not been to work out a
method either for the performance or for the teaching of the art I point
to, but simply to render more particular, and perhaps more insistent,
an intuition that I think most lawyers also have, that the life of the law
is full of opportunities and occasions, never perfectly realized, for
imagination, for invention, for creation in language, or for what I call
"writing." I will only add that I think this fact should be closer to the
center of our attention as teachers and scholars, in law schools and law
firms alike, than perhaps it has been. What the writers examined here
achieve is not merely a literary excellence, after all, but a legal excel-
lence, and we all need to think about what that is, or can be.
And how hard it is, too. Just imagine that you were called upon to
write those paragraphs in Abrams and Whitney, or the key provisions
of the Model Penal Code: how confident are you that you could do
anything like what is achieved there? Yet each of us in the law is
called upon to exercise just that art, in other cases and situations.
Several times in this Essay I have spoken of the imagination, and
for me that is the root and nerve of my subject. As I have recently
maintained in The Edge of Meaning,63 I think that the deepest specifi-
cally human need is the need to claim meaning for experience, and
that our ability to do this is dependent upon our capacity to imagine
the world, and ourselves and others within it, in a sufficiently coherent
way to make such claims possible. 64 This is not something that can be
done easily, or done once and for always. We necessarily meet im-
pediments, in our nature, our culture, our language, in the limits and
corruptions of our own minds; and the art of making meaning is an art
of coming to terms with these conditions of our lives, in the law and
out of it. Holmes and Brandeis and the Model Penal Code show us
how to do something, but it is up to us to do it afresh, for ourselves
and our contemporaries, in our own language and in our own situa-
tion. Like them, we - as teachers and writers both - should be pre-
pared to make new versions of our inheritance, good for our time and
for our minds, recognizing that what we say too will need to be revised
in turn, as we join those who have come before and will come after,
each of us using as writers the materials of law to try to make sense of
our experience in a continuing and collective effort to imagine justice
into reality.
63 JAMES BOYD WHITE, THE EDGE OF MEANING (2oor).

64 See, e.g., id. at xi-xii.

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James Boyd White"

What do we know when we know the law? I asked a rabbi I know

Particularly in the academic world, knowledge is now often talked

Another friend of mine, an art historian and psychologist, once

knowledge thus has the function of focusing our attention on what we

So I want to begin by saying: law is not a body of knowledge that

Legal knowledge is thus constantly created and recreated, differ-

I. THE MODEL PENAL CODE

more general language of goal and limit, philosophical in kind, since

This is especially true of deterrence and rehabilitation, for these forms

this something juries or judges or lawyers can actually do? Or are we

edge" throughout this Essay, as a form and ground of action. The

II. HOLMES'S OPINIONS IN SCHENCK AND ABRAMS

21 249 U.S. 47 (1919).

is not available to other forms of conduct. Again, Holmes is not ex-

They printed and distributed leaflets, in English and Yiddish, that

reads: "with intent by such curtailment to cripple or hinder the United

of cases constitutes practically the entire universe of First Amendment

Court, affirmed in the defendants, now the right to a "creed" - a

progressively towards a better world. And Holmes's view that signifi-

unafraid to make and articulate judgments of value. Indeed, his toler-

50 Abrams, 250 U.S. at 629 (Holmes, J., dissenting).

Holmes is here teaching us that, at its deepest, legal knowledge is

III. BRANDEIS'S OPINION IN WHITNEY

pleted crimes - to cast doubt on the defendant's conviction under a

60 Id. at 375-76 (citations omitted).

same thought. Not as in a logical outline, in which one first asserts

recognize that to another person, even to himself in another context,

62 See id. at 679.

merely a faith in a process, but deep commitments to a certain mode of

as lawyers to make something with a quality of freshness and immedi-

63 JAMES BOYD WHITE, THE EDGE OF MEANING (2oor).

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