Of innocence, exclusion, and the burning of flags: The romantic realism of the law

Abstract

This essay continues the challenge to the image of law as neutral adjudication by arguing that, while authoritative judicial discourse in the modern liberal state has presented itself as realistic discourse that argues to singular conclusions, it is better to see it as a profoundly rhetorical enterprise that writes legal decisions as romances in which Law is the heroic central character. Focusing on the first flag burning case Texas v. Johnson, the essay examines the decision as argument and as romance. It concludes by suggesting that the case (and legal decisions in general) would benefit from a sense of law at once more rhetorically sensitive, communal, and tragic.