Robert Cover's metaphor of law as a bridge to an imagined future emphasizes the forward-facing character of law. But this is often obscured by law's backward-looking practice. The pathologies of contemporary judicial methodologies such as textualism distort the meaning and operation of law. Law has a distinctive temporal structure—an ontology—that defines it as a social institution. It knits together past, present, purpose, and projected future into a demand for action. Neglect one element of the complex dynamic and the bridge to an imagined future becomes what Václav Havel describes as “a bridge of excuses.” Law lives in the traffic between these two bridges. When legal actors choose candor about their commitments, they take up the burden of law’s ontology in a way that honors law as a social institution. When they do not, the result is a law that is inauthentic, scholastic, reified, ineffectual, or ideological. Law’s ontology can be gamed, but it cannot be avoided.
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37 TOURO L. REV. __ (forthcoming 2022)