Law as Lore

Issue January/February 2023 January 2023 By Elijah Rockhold
Young Lawyers Division Section Review
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Elijah Rockhold

I came to law school with the understanding that I would be entering a language school. A speaker (and therefore, a student) of English and French, this framework made the prospect of professional school slightly less daunting. I had experience studying language; I spent my time in college studying English, interrogating the attention we pay to texts. Through the canons and classic reading lists, I learned about the study of lore — the vestigial remnants of culture, tradition and practice in various cultures and communities. Broadly, the study of lore may examine why we sing a song on the anniversary of someone’s birth, the American obsession with the idea of a “melting pot” nation, or how various tea-drinking practices root firmly in most of the world’s cultures. Lore may begin as an informal practice in a community and evolve into a systematic being. Literary studies of lore — my first exposure to this discipline — examine, among other things, oral histories or generational knowledge in various communities. 

Through the dregs of my first semester of law school, I saw the same patterns of lore unfold in the practice of law. The inheritance of an English common law system in property, torts or contract was not more than a continued application of tradition. Common law is the remnant of these collaborative and ancient practices. I learned early as a student of this profession and language the comfort we take in these traditions; the structure of “law” is lore, and the quotidian practice relies on various constructions, or “legal fictions.” The “reasonable person standard” and “objective or subjective” tests are apocryphal in daily practice — doubtfully true but accepted and presumed as such. Property law exists because of a deeply shared concern for property rights and the connection between property and liberty. Noting these connections in class, Pierson v. Post was more than a case everyone read, but part of a greeting into the community and language of the legal world. These shared experiences, vocabulary and assumptions allow us budding lawyers to enter the profession inheriting the knowledge and histories of the practitioners before us. The inheritance gives us tools to ask novel questions about how law affects our world.

After the first semester, more confident with my new vocabulary, I entered constitutional law — a discipline and practice premised on telling a story of ourselves and our country. In essence, a doctrine of lore. The Massachusetts state constitution tells a different story than the national one, and lawyers in Massachusetts — as I learned in my internship with the Superior Court — are proud of the legal lore that dictates their practice. An understanding of law as lore unveils similar anxieties within modes of legal interpretations. Originalists are concerned with sterilizing the intent and genius of the writers of our country’s founding documents. In response, other interpretative schools challenge the allowance of static ideas to control fundamentally new questions. Lore studies grapple with the same issues: “In a world full of change, persistence to tradition requires some explanation.” Looking beyond our practice may give us some interpretative methods to help unpack our thinking.

Many genres of classic lore studies focus on language: stories, speaking tones, systems of writing and more. It is only natural that the practice of law, understood as a type of lore, starts with a text. Sometimes a statute, a constitution, a bylaw or a provision in a contract; “text” comes from the Latin textum, “that which is woven.” Thus, the starting point of all legal practice begins with a discipline woven and imbued with history, with an understanding of process and precedent built into the documents. From there, our interpretation, argument or construction of those texts falls into categories the legal community recognizes. 

What is unique about law as lore is that it has the state’s power behind it. Even the most established practices in a community may not have formalized power. Prosecutors and defense attorneys use their identical knowledge to balance power against justice; corporate types speak a language of reducing barriers to economic flow; family lawyers help draft the instruments to ensure that others’ stories and legacies make it to the next generation. That my peers and I enter a profession where not only do we become part of the community of law but of the enforcement of the law is weighty. When we inherit the massive community of law, we also inherit a responsibility to ensure its legacy carries a just practice — furthering the tradition for which we want to be known. 

Elijah Rockhold is a second-year law student at Boston College Law School. Originally from Minneapolis, Minn., he graduated from Drake University with a degree in English.