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26 Harv. J. L. & Pub. Pol'y 5 (2003)
The Proliferation of Legal Truth

handle is hein.journals/hjlpp26 and id is 19 raw text is: THE PROLIFERATION OF LEGAL TRUTH
JACK M. BALKIN
I am delighted that the Federalist Society asked me to participate in
its Symposium on Law and Truth. I suspect, however, given my
previous jurisprudential writings, that I was invited in order to play
the role of Pontius Pilate. But I refuse that responsibility. I wash my
hands of it. For I am a great believer in legal truth. Indeed, the theme
of this essay is that we are awash in legal truth; indeed, we are
drowning in it. In the world in which we live, legal truth is
proliferating at an astounding pace, and this truth has important
effects on our lives for good and for ill. The proliferation of legal
truth and the effects of power produced by that proliferation are the
subjects of this essay.
In his remarks for this symposium, Michael Moore suggested that I
am a conventionalist when it comes to legal truth.1 With respect to
law, at least, he is right, although not necessarily with respect to other
2
matters. Law is an interpenetrating set of social conventions, and
therefore statements of law can be true by virtue of those conventions.
To be sure, these conventions may not be fully specified or fully
determinate, and their content can change over time. In this essay,
however, I focus on the converse point: that when legal conventions
are sufficiently specified and sufficiently determinate, they can and do
decide what is true or false from the standpoint of law.
There are lots of true legal propositions; indeed, so many that I
can't even begin to list them. They are true by legal convention, in
virtue of the social practices that constitute law. As Susan Haack puts
it, they are true as legal claims. Or as common law lawyers would
* Knight Professor of Constitutional Law and the First Amendment, Yale Law School.
My thanks to Bruce Ackerman, Sanford Levinson and Reva Siegel for their comments and
suggestions.
1. See Michael Moore, The Plain Truth About Legal Trugh, 26 HARV. J.L. & PUB.
POL'Y 23 (2002).
2. See J. M. BALKIN, CULTURAL SOFrWARE: A THEORY OF IDEOLOGY 142-50 (1998).
3. See Susan Haack, Truth, Truths, Truth, and Truths in the Law, 26 HARV. J.L. &
PUB. POL'Y 17 (2002).

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