The debate over the canon has gripped the University in recent years. Defenders of the canon argue that canonical texts embody timeless and universal themes, but critics argue that the process of canonization subordinates certain people and viewpoints within society in order to assert the existence of a univocal tradition. Originating primarily in the field of literary criticism, the canon debate recently has emerged in legal theory.
Professor Francis J. Mootz argues that the issues raised by the canon debate are relevant to legal scholarship, teaching and practice. After reviewing the extensive commentary on the literary canon, Professor Mootz criticizes the polemical structure of the debate and asserts that an appreciation of classical, as opposed to canonical, texts opens the way for a productive inquiry. He defines a classical text as one that both shapes contemporary concerns and also serves as a point of reference for revising these concerns. Classical texts enable critical perspectives rather than submitting to them, he continues, because they provide the arena for debates about issues of public concern. Using Hadley v. Baxendale as an example of a legal classic, Professor Mootz contends that the power of such a classical text is its ability to shape hotly contested legal debates.
Our time . . . seems unpropitious for thinking about the question of the classic, for . . . it seems to be a simple either/or that requires merely a choosing of sides: for or against? back to the classics or away from them? Our time calls not for thinking but a vote. And it may well be too late for thinking about the classic in any case, for the vote is already in, and the nays have it.
72 N. C. L. Rev. 977 (1994)
Mootz, Francis J. III, "Legal Classics: After Deconstructing the Legal Canon" (1994). Scholarly Works. 103.