Constitutional Law as Fiction: Narrative in the Rhetoric of Authority

Paperback | March 14, 1995

byLewis H. Larue

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The fundamental thesis of Constitutional Law as Fiction is that in writing the opinion that explains a judgment, a judge not only analyzes and organizes precedent and makes and defends policy or value judgments, but he or she also tells a story, much as a historian does.

Like a history, this story has the appearance of simple truth, but, in fact, of necessity, it is a "fiction" as well—not in the sense of a lie or fairy tale, but in the sense of a constructed meaning. Strangely enough, these fictions persuade those who read them and those who write them, and without this persuasion, the law would lose much of its authority. L. H. LaRue examines several critical Supreme Court cases, including Everson v. Board of Education and Marbury v. Madison, and specifically examines the rhetorical techniques of Chief Justice John Marshall.

In analyzing the construction of meaning in the rhetoric of the law, LaRue ultimately contends that judges must not abandon the "fictions" in their judgments; they must strive to improve them.

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From Our Editors

The fundamental thesis of 'Constitutional Law as Fiction' is that in writing the opinion that explains a judgment, a judge not only analyzes and organizes precedent and makes and defends policy or value judgments, but he or she also tells a story, much as a historian does. Like a history, this story has the appearance of simple truth, ...

From the Publisher

The fundamental thesis of Constitutional Law as Fiction is that in writing the opinion that explains a judgment, a judge not only analyzes and organizes precedent and makes and defends policy or value judgments, but he or she also tells a story, much as a historian does. Like a history, this story has the appearance of simple truth, bu...

L. H. LaRue is Class of 1958 Alumni Professor of Law, Washington and Lee University. He is the author of A Student's Guide to the Study of Law: An Introduction (1987) and Political Discourse: A Case Study of the Watergate Affair (1988) and co-editor (with Wythe Holt) of Rewriting the History of the Judiciary Act of 1787 by Wilfred J. R...

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Format:PaperbackDimensions:168 pages, 8.96 × 6 × 0.49 inPublished:March 14, 1995Publisher:Penn State University Press

The following ISBNs are associated with this title:

ISBN - 10:0271014075

ISBN - 13:9780271014074

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From Our Editors

The fundamental thesis of 'Constitutional Law as Fiction' is that in writing the opinion that explains a judgment, a judge not only analyzes and organizes precedent and makes and defends policy or value judgments, but he or she also tells a story, much as a historian does. Like a history, this story has the appearance of simple truth, but, in fact, of necessity, it is a 'fiction' as well--not in the sense of a lie or fairy tale, but in the sense of a constructed meaning.

Editorial Reviews

“Perhaps the strongest praise I can give this manuscript is that, having read it once, I actually look forward to reading it again, not because it is ‘difficult’ in any ordinary sense, but because it is an unusually rich book.”

—Sanford Levinson, Author of Constitutional Faith