Orientalism in American Legal Thought

Edward Said’s work on orientalism embraced Michel Foucault’s arguments regarding “discourses of power.” However, unlike Foucault, Said stressed the role of particular individuals in the creation and dissemination of ideas. Said contended that individuals’ writings could produce identifiable and measurable cultural and political effects. This paper is concerned with using Said’s theory of orientalism (and his refinement of Foucault’s theory of discourse) to identify some key individual judicial sources of influence in popular discourse regarding rights-talk and the conceptualization of not only constitutional norms but also societal and moral norms in the broader American polity.  The sources that will be consulted for this paper are notable constitutional rulings since the New Deal and the popular writings, public opinion and jury survey data, jury instructions, and discourses that have been shaped by the concepts and insights of these rulings. One case that will be reviewed in detail is In re Winship (1970), a Supreme Court case that established the legal and popular principle that criminal liability must be proven “beyond a reasonable doubt.” Not only did Winship establish a new, bright-line legal rule, it also established a popular standard and a way of describing the extent of the burden the state must carry when prosecuting individuals accused of crimes. The “beyond a reasonable doubt” standard is firmly embedded in American folkways regarding the legal system. It is my contention that judicial opinions, such as Winship, have been “orientalizing” instruments of power in shaping popular views of the moral and political dilemmas affected by court cases.  Court opinions have not merely laid down rules for future cases, they have helped form the rhetorical landscape of public policy debates.  This paper is interdisciplinary in that it the concerns and perspectives of the field of law and the discipline of history.