Law and Literature

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by Jeanne Gaakeer



INTRODUCTION

As a reaction to the rule-bound concept of law dominant in analytical jurisprudence and to the pretense of neutrality of law championed, for example, by the legal process school in the 1960s, a renaissance of the interest in the bond of law and literature took place in legal theory in the 1970s. Secondly, the rise of disciplines such as economics and literary theory that offered methods and arguments to help solve questions before considered as belonging to the exclusive domain of law, also opened the door for the development of various interdisciplinary movements, Law and Literature amongthem. Thirdly, a gap was perceived in the communication between lawyers and laymen, caused by the hermeticism of legal language, which resulted in a negative image of the legal profession as a group intent on keeping law closed to outsiders. Thus a return to the humanities was advocated, both for the legal profession and legal education, so that the study of literature could form both an inspiration for change in the lawyers' use of language, and a source of values. Emphazising a concept of law as a human activity of creating meaning, Law and Literature has redirected the attention to the classical view of law as an art. On this view, Law and Literature can also be seen as a counter- reaction to the differentiation of academic disciplines. Literature and literary theory, the very formation of which into autonomous fields took place in the nineteenth century, are now brought on to counterbalance the traditional idea of law's autonomy with new forms of interdisciplinary legal scholarship.


THE STRANDS OF LAW AND LITERATURE

Various strands of Law and Literature have developed these past few decades, each focusing on a specific aspect of literature, or language in general, making the question what the term literature means prominent. This shows in the different answers to another question behind the whole enterprise, ‘What can a lawyer learn from literature?’, which inspired James Boyd White as early as 1973 in The Legal Imagination to look upon law as a language that proposes a certain form for the world, and as a cultural competence in the sense of the activities that lawyers perform. Literature is as much taken to comprise the traditional Western canon of literary works, as well as the literary works explictly challenging that canon, as it is taken to be the study of language and the study of culture in a broad sense. This diversity may give rise to criticism from a methodological point of view – although a single methodology is precisely what Law and Literature opposes -, but obviously the very meaning the term literature is given as an object of research, either explicitly or implicitly, indicates the direction that this form of interdisciplinary legal scholarship will or can take.


A. LAW IN LITERATURE

The basic claim is that reading literature forces us to step back from the technicalities of law. On this view, law as a cultural phenomenon is the subject of research. Works of fiction can illustrate a legal point of view from a different perspective and thus enhance our understanding of law and the legal system and of our own performances as lawyers. Traditionally, the origin of this line of thought is traced back to John Wigmore's 1908 publication of a list of `legal novels'. The list contained four categories of novels that in various ways paid attention to law, from novels in which a trial-scene is portrayed, to novels depicting professional legal life, the methods of law, or a theoretical point of law. Wigmore claimed that there were a number of literary works that every lawyer should read, for cultural and professional reasons. Two aspects are striking in his approach. Firstly, he looked upon literature as an historical source.Secondly, he emphasized the importance in the humanist tradition of the educational function of literature. His lists form the basis of what is currently called `Law in Literature'. Today this term is used to indicate those forms of research which are primarily concerned with the analysis of literary works with a law-related topic in a broad sense. `Law in Literature' tries to lay bare the specific meaning of the way in which literary artists portray the legal system or individual legal practitioners. This is done in order to open up a discussion on the normative aspects of law as, for example, Richard Weisberg's work makes clear. Weisberg should be credited for reviving the interest in Wigmore's original approach. In The Failure of the Word he offers analyses of literary works in which the protagonist grounds his actions on a legalistic use of language, so-called wordiness. Nietzschean ressentiment drives those suffering from wordiness. Weisberg diagnoses the same disease in the way in which French lawyers under Nazi occupation created a language to serve the dominant legal power structure when they dealt with questions of interpretation of the Vichy racial laws concerning Jews. In Poethics he develops a literary jurisprudence. The `poetic method for law' consists of, firstly, the notion that a unity of form and substance can be found in both law and literature, and, secondly, the notion that literature can form a source of knowledge concerning ethical questions important in law. Canon-commitment, shared by authors such as Weisbrg and White, is deemed problematic in our contemporary multicultural societies, in that it calls for the development of an empathetic attitude for `the other' by means of an instrument that has traditionally failed to give voice to those other than white European males. This has already lead to a feminist critique of canonicity within Feminist Legal Theory on the claim that privileging one discourse above the other deliberately promotes law’s closure; this view is shared by many adherents of Critical Race Theory and those championing gaylegal rights.


B. LAW AS LITERATURE

Reading literary works and trying to make sense of them is also seen as a possibility to redirect the lawyer's attention to the fact that both legal and literary interpretation demands our active participation which subsequently should promote awareness of our own role in the act of creation of meaning. The outcome of any process of interpretation is never given beforehand, neither in literature, nor in law. We make rather than find law. With language as a form of human behavior, the central task of both law and literature is seen as a coming to terms with an author’s or speaker’s claim for meaning. This leads us to the core of hermeneutics and semiotics, and to what is generally called the `Law as Literature' branch of Law and Literature. Following Benjamin Cardozo's seminal article `Law and Literature' with its claim that developing a feeling for language and literary style would benefit any lawyer in his professional writing, emphasis was originally put on the ideosyncracies of legal language. Nowadays, we witness a tremendous proliferation of subjects and approaches ranging from the analysis of rhetorical aspects of judicial opinions, to theoretical studies of law and legal texts, varying from Peircean semiotics to the development of a legal epistemology based on a concept of narrative as a general ordering principle of meaningful action. Statutory and constitutional interpretation are prominent subjects within this strand in which traditional views of legal hermeneutics, such as the `plain meaning' approach and intentionalism, are challenged, often from a deconstructionist point of view, following Derrida and Foucault. Adherents of Critical Legal Studies often use deconstruction as a tool for unmasking the rule of law, that is for `trashing' law so that it will reveal its true ideological core. Opponents of deconstruction, and there are many within Law and Literature, claim that this is a nihilistic form of interpretation that leads to an infinite regress of interpretive claims. Of special interest is the debate between Ronald Dworkin and Stanley Fish on Dworkin's claim regarding the validity of the `chain novel' concept for a theory of adjudication. Dworkin proposes a normative concept of law as an interpretive practice with its own internal coherence in the tradition of Gadamerian hermeneutics. Fish opposes Dworkin's thesis that there is a difference between the originator of the chain and later interpreters. For him, the one who starts the chain encounters problems comparable to the ones later authors have to face. Thus, the assumption that there is an Archimedean point from which to ground the enterprise and every interpretation in it, is false. The value of the debate on interpretation in general is that we are forced to confront the question whether or not it is possible, or even desirable, to develop a theory of legal hermeneutics that can tell us, prior to the act of interpretation, how to discern a valid interpretation in law from an arbitrary one.


C. NARRATIVITY

Another strand focuses on the way in which jurisprudence can benefit from a liaison with literary theories in order to give the idea that law can be seen as a form of story-telling a more theoretical perspective. In this narrative approach, predominant attention is paid to the way in which narrative conveys values. Thus, it unites `law in literature', and `law as literature'. This also shows that from a methodological point of view the distinction between the two is mainly instrumental. Robin West connects the main schools in legal theory with a typology derived from Northrop Frye's Anatomy of Criticism. She claims that the bond between law and literature consists of the narrative component itself that every theory of law has, and that can be fruitfully analysed in a way analogous to the methods used in literary theory. For her, any theory is a form of narrative. Thus West opens up the political perspective in Law and Literature which she also contributed to in her polemics on Law and Economics with Richard Posner. This debate touches one of Law and Literature's central topics, the function of language. West challenges the goal of wealth-maximization when that is taken to be the maximization of individual preferences, by means of an analysis of Kafka's fiction, because it provides us with a clear picture of the horrors of a world in which consent legitimates everything. The fates of Joseph K. in The Trial and of Georg in `The Judgement' are cases in point. Posner's defense is that of the liberal, night-watchman state that refrains from interfering in the Pareto-optimal transactions of its citizens. To him law is a system of rules facilitating this. His hermeneutics favour a literal reading of fiction, because he sees language as a neutral vehicle for the communication of information in which facts are entities in the world, the meaning of which can be conveyed by words. Law and Literature strongly opposes this view, because it wants us to be receptive to the view that what we think of as reality and facts is influenced by both our conceptual framework and the actual context. In Law and Literature: a misunderstood relation, however, Posner restricts the possible value of Law and Literature to an instrumentalist kind, to be found only on the plane of the study of the rhetoric of judicial opinions.


D. NARRATIVE AND COMMUNITY

On the question whether law is a mere system of rules or a culture of argument addressing questions of value, the late Robert Cover’s work is seminal. Its central theme is an ethical theme; it is the conflict between law and other normative worlds, and the judge’s role in it. According to Cover, the normative world of law not only consists of rules but also of a language, or a narrative as the backdrop of the rule. Therefore, legal interpretation cannot forgo the constitutive narratives of the nomos that law is, whether they be about law's violence or about the mediating forces of law. The narrative paradigm, i.e. the idea that we are all born into a world of stories that constitute to a large part our own lives, implies an image of man as the author who interprets and subsequently helps form the stories - texts or emplotted social institutions - that he encounters. As a methodology for jurisprudence, the narrative paradigm can be especially fruitful when the moral dimension of law is the topic of discussion. The revaluation of narrative in jurisprudence also opens up new possibilities of balancing the one-sidedness of the technicalities of legal formalism and positivism by reintroducing literary and cultural activity in legal studies and education.


E. EMPATHY AND IMAGINATION

Yet another flourishing trend proposes any discussion on aspects of law and legal theory to incorporate the idea that literature appeals to the emotion as well as to the intellect, and that this quality represents a valuable trait that lawyers can benefit from. Literary- legal works can give insight into the struggles and tensions created by law as the regulation by society of the lives of individuals. To Martha Nusbaum, literature is an indispensable medium to learn about law in that it can make valuable ethical and social contributions to the professional lives of lawyers. The experience of viewing the world of the text and its inhabitants empathetically can be transformed into a norm for judging human relations in general. Social intercourse forces us to recognize the needs of others, and literature promotes our sensitivity by helping us develop our capacity for empathy. The latter, according to Robin West, is both product and precondition for reading well. The ability to identify oneself with the other and his situation not only implies affective understanding of the other, but also the capacity to act accordingly, in law and elsewhere. Nevertheless, West points to the danger connected to the idea that our moral judgments and normative conceptions are developed by our intercourse with the textual heritage of our own communities. Such moral textualism runs the risk of excluding those outside these predeominantly canon-oriented communities. This critique calls for the development of alternative discourses to give voice to the disempowered. What Nussbaum' s and West's works make predominantly clear is that literature and literary theory can provide fresh insights that can be applied to questions of legal methodology and incorporated into a theory of jurisprudence, and form a counterpart to the influence on law of the scientific ideal of social sciences such as economics.


CONCLUDING REMARKS

Today Law and Literature has got a firm institutional foothold. Most American law schools offer introductory courses in the field, and many include advanced seminars in their academic curriculum. Numerous American Bar Associations approve Law and Literature seminars for CLE credit for legal professionals. In Europe, the humanist tradition in law has a long history, so it should come as no surprise that Law and Literature as a movement in legal theory enjoys a growing interest as well as institutional support, both in legal education and research. It is obvious that Law and Lit, as it is often affectionately called, is here to stay in legal theory.


RELATED ENTRIES

critical legal studiesdeconstructivist philosophy of lawdworkin, ronaldfeminist jurisprudencehermeneutical legal theoryinterdisciplinarityInterpretation of lawlegal education and legal theorylegal ethicsnarration, narrativism in the lawvalues in the law


ANNOTATED BIBLIOGRAPHY

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