'An Enterprise of the Imagination' : Tuning in to James Boyd White's Transformative Constitutionalism

Abstract

This Thesis engages with the work of James Boyd White. White’s principal books, which cannot be placed easily into conventional categories, give particular attention to an activity that we humans do all the time: constituting and reconstituting ourselves and our relations with others when we use, and in using transform, our language. Attending to this activity, which I call ‘transformative constitutionalism’, opens up a line of inquiry into the kinds of selves and relations that we do, and could, and should constitute. This inquiry lends itself to talking about justice as being concerned with constituting appropriate selves and relations. White’s own inquiry, which resists monophonic speech and advocates polyphonic speech, has gone down this particular path. This Thesis seeks to make sense of his travel and to provide a resource for tuning in to it. At one level, this Thesis can be read as a response to an invitation in White’s course book The Legal Imagination. Here White offers this ‘thesis’: ‘that the activities which make up the professional life of the lawyer and judge constitute an enterprise of the imagination, an enterprise whose central performance is the claim of meaning against the odds: the translation of the imagination into reality by the power of language.’ White invites ‘examination and response’ from his reader. This Thesis takes up White’s invitation. Following White’s encouragement, I speak out of an awareness of several sorts of material, including the literature of the law, literary criticism, my intellectual activity outside the law, and my ordinary experience of life. Doing so offers a way of defining what he calls ‘intellectual integration’, the concern of which is wholeness of thought and experience. For White, intellectual integration can serve as a model for social integration. It is pertinent to note that the phrase ‘transformative constitutionalism’ has been drawn from post-apartheid legal commentary. There is a sense in which this Thesis is continuous with my work as an academic economist. Several strands of White’s work seek to resist economic imperialism, strands that I bring together and extend. In doing so, an argument is made for re-imagining ‘the economic’ to facilitate a re-imagining of ‘the legal’.