This paper unearths the cultural basis of judicial authority in the project of producing and reproducing cultural norms, that is, the unconscious "common sense" of "things" from which we draw all rules of social conduct. It does so from two perspectives. The first considers authority from the perspective of the sorts of pronouncements of "law" that judges purport to make. The second looks to ingrained and submerged cultural patterns of "hearing" for the model by which individuals and societies in the West submit to and obey the judicial voice. Identification and memorialization provide the key to understanding the weightiness with which judicial speaking is heard. Courts act judicially, and therefore say something worth hearing, only when they engage in acts of identifying and articulating points of social consensus. The very act of pronouncement serves to reinforce and memorialize the consensus articulated. But the weight given to judicial pronouncements also engages the hearer in the more subtle act of repeating and reinforcing basic cultural patterns of speaking and hearing. Courts pronounce in three different cultural voices: the Homeric, the Delphic, and the voices of Job's companions. The two Greek voices speak with measured tones and single-minded linear confidence; they are transmissions from the divine which must be obeyed. The voices of Job's companions adds a layer of messiness and conflict to the authority of judicial pronouncement. Biblical patterns of cultural speaking also create within the court the possibility of change. The courts provide a site for the articulation of prophetic voices. These are the voices, within and without the law, that are the harbingers of change.
Larry C. Backer,
Chroniclers in the Field of Cultural Production: Courts, Law and the Interpretive Process,
B.C. Third World L.J.