Publication Date



Virginia Law Review


Although recent debates would suggest that narrative scholarship is brand new,4 lawyers, judges, and law professors, like all humankind, have always offered stories for illustration or support or to make a point in an indirect, and often more effective, way. Learned Hand's story about telling Justice Holmes to "do justice" is one widely-used example, offered by many writers in addition to Judge Bork and Professor Chayes. Its popularity is easy to understand. The story has a substantive message, pithily expressed, on a basic jurisprudential issue; it involves two members of the pantheon; and it crams a lot of human interest and historical flavor into a few lines.

The exchange between the two judges is part of an age-old struggle to define the relation of law and justice and to deter mine to which the judge owes loyalty. Some distinction between law and justice, certainly as a descriptive matter and often as a normative one, is generally accepted. Law schools are famous for insisting on such a separation, and lawyers and nonlawyers alike easily accept the concept of an "unjust law" or a judicial decision that is "unfair" (or unjust) but "correct as a matter of law." The distinction is perhaps more often celebrated within the legal profession and more often lamented outside it.



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