Citation and Precedent

Conjunctions and Disjunctions of German Law and Literature

Thomas Oliver Beebee

• Publisher: Continuum
• Year: 2011
• ISBN:
  9781441169372
• Edition: 1
• Topic: Literature
• Subtopic: German Literary Criticism
• Index: Literature

Among Western literatures, only the German-speaking countries can boast a list of world-class writers such as Goethe, Hoffmann, Kleist, Kafka, Schmitt, and Schlink who were trained as legal scholars. Yet this list only hints at the complex interactions between German law and literature. It can be supplemented, for example, with the unique interventions of the legal system into literature, ranging from attempts to save literature from the tidal wave of Schund (pulp fiction) in the early twentieth century to audiences suing theaters over the improper production of classics in the twenty-first. The long list of instances where German literature cites law, or where German law serves literature as a precedent, signal the dream of German culture of a unity of interests and objectives between spheres of activity. Yet the very vitality of this dream stems from real historical and social processes that increasingly autonomize and separate these domains from each other.
Beebee examines the history of this dialectical tension through close readings of numerous cases in the modern era, ranging from Grimm to Schmitt.

1.1

Introduction: Citation and Precedent, Conjunction and Disjunction

A sort of stain marks someone who leaves one field of study for the other, as with a religious conversion.

[Eine Art von Makel liegt auf dem, der von einer Wissenschaft ab, zu einer andern übertritt, wie bei einer Religionsveränderung.]

Jacob Grimm, Letter to Friedrich Carl von Savigny, 9 March 1807

But since history affords an idea of the fundamental citability of its object, this object must present itself, in its ultimate form, as a moment of humanity.

[Indem die Geschichte aber von der grundsätzlichen Zitierbarkeit ihres Gegenstandes einen Begriff gibt, muss derselbe in seiner höchsten Fassung sich als ein Augenblick der Menschheit darbieten.]

Walter Benjamin, Paralipomena to ‘On the Concept of History’ (emphasis added)

The conjunctions and disjunctions between German law and German literature occur on at least two levels. One is seen in the personal and apologetic farewell Jacob Grimm bids to his law teacher, Friedrich Carl von Savigny, as Grimm goes off to seek a paying position, one that will allow him enough latitude to continue his studies in literature and philology that will result in the famous Hausmärchen (fairy tale) collection and in the great dictionary and grammar of the German language. The other disjunction occurs on the impersonal level of system – literature and law have trouble ‘talking’ to each other, analogous to the way German and English languages do. I invoke the ‘disjunction’ between German and English in particular because of the common roots of the two languages. Just as one has imagined a single, originary language trunk from which the branches of German and English emerge, so too one might invoke – as Giambattista Vico, Friedrich Schiller, Karl Marx, Ferdinand Tönnies and Max Weber all were intent on doing – a primal community (‘Gemeinschaft’) where to be a poet was also to be a lawyer and a legislator. (Indeed, Jacob Grimm will conjoin his literary studies with the law once more when he publishes in 1828 the Deutsche Rechtsaltertümer, a collection of citations from medieval legal texts that invoke a world where law was poetry, before the disciplinary divisions invoked in the epigraph.)

Perhaps such non-specialized cultures actually exist or formerly existed, or perhaps they are merely, as Benjamin suggests in the second epigraph, citations of a perceived moment of humanity. The long list of instances where German literature cites law, or vice versa, or where German law serves literature as a precedent, signal the dream of German culture for a unity of interests and objectives between spheres of activity and for a mutual influence on each other of autonomous subsystems of society. Yet in dialectical fashion, the very vitality of this dream stems from real historical and social processes that increasingly and respectively autonomize the two social subsystems and separate them from each other.

Few Western cultures have had more of their leading literary figures trained in the law than have the German-speaking countries: the list includes Johann Wolfgang von Goethe, Jacob and Wilhelm Grimm, E. T. A. Hoffmann, Heinrich von Kleist, Franz Kafka and Bernhard Schlink. Several of these ‘Dichterjuristen’ (poet-lawyers) are treated in the pages that follow. It is important to understand as well, however, the activities of people of another kind: of writers not trained as lawyers who cite legal texts, as Peter Weiss did in his drama Die Ermittlung (The Investigation); of the German politicians who attempt to save belles lettres from the tidal wave of Schund (pulp fiction) in the early twentieth century; or of the audience members who sue theatres over the improper production of classics in the early twenty-first. In such efforts we see the opposite of Grimm’s farewell to law, a vigorous effort at conjunction and a utopian belief that it can be brought about.

One technical name for the conjunction of law and literature is a ‘structural coupling’. According to system theory (hereinafter ‘ST’), which will provide much of the theoretical framework for the literary analyses to follow, structural coupling occurs when a system considers something normally belonging to its environment (i.e. ‘outside’ of itself) as subject to its operations, or conversely as an ‘irritant’ that provokes a response. Law normally does not take literature into account in its operations, but may do so in cases of censorship or copyright protection, in which case the law necessarily makes use of literary or aesthetic concepts for its decisions. A familiar example is the invocation of a work’s aesthetic qualities in deciding whether it is obscene. Literature, on the other hand, has the capacity for structural coupling with almost anything in its environment, for example through the mimetic process. Literature’s structural couplings with law are quite varied, ranging from the incorporation of the agonistic structure of trials as dramaturgy to the exact citation of legal discourse. Structural couplings envision the topic of law and literature in a way that differs from the two approaches most often seen in previous ‘law and literature’ scholarship: the first of these locates legal cases and themes in literary works, while the second, the critical approach, uses the weighing of values and ethics that occurs in literature and in literary theory to examine the rhetorical strategies, narrative emplotments and other aspects that appear in legal discourse. Differently from either of these, I accept as foundational the viewpoint of Max Weber, Niklas Luhmann, Pierre Bourdieu and others that the differentiation of complex societies definitively separates the spheres of law and literature in ways that must be accounted for in discussions that explore apparently common themes and even common authorship between them. A recognition of the fundamental disjunction between law and literature should guide our search for moments of structural coupling. These two subsystems, for example, may cite each other, incorporating such citations into their respectively autonomous discursive systems.1 Unpacking such moments may reveal more about the relationship of law and literature than would analyses of reflection or theories of shared intepretability.

This book adduces a number of study-examples of such structural couplings between law and literature, drawn from the literature and philosophy of the German-speaking countries. My readings fall into three distinct historical periods: (1) the turn of the nineteenth century and the crisis of German law and culture due to French invasion and the possibility of enforced codification; (2) the Weimar Republic and the crisis of German culture due to political and economic instability; and (3) the post-war period and the crisis of German culture due to post-national concepts of state and of law. In the rest of this introductory chapter I will insert my approach within the more general context of law-and-literature scholarship, and explain more fully my deployment of the title keywords ‘citation’ and ‘precedent,’ particularly in light of ST.

Law and Literature

Since the 1980s, the movement known as ‘law and humanities’ has gained much currency in the United States. Attention to what literature, philosophy and literary theory had to say about society and culture by legal scholars became an important part of the so-called ‘critical legal studies’ movement. Associated above all with the writings of Allan Hutchinson, critical legal studies sought to replace the incremental development of the legal tradition with a more self-conscious, theoretical approach. Literary treatments of law could provide the critical perspective and ethical dimension that is difficult to achieve from within the profession. Overall, the attempt at conjoining law with literature – including literary theory – has counted with such noted figures as Richard Posner, whose Law and Literature is now in its third edition, and, at the other end of the political spectrum, Catharine MacKinnon, perhaps the best-known feminist legal scholar. Special issues of law journals have been devoted to the philosophy of Jacques Derrida, and the literary critic Stanley Fish was given an appointment in the Duke Law School, not to mention that his book on law and interpretation, Doing What Comes Naturally, is cited as often in law reviews as in literary criticism.

Literary critics entering the law-and-literature field, on the other hand, found a literary theme, an interesting field for the play of literary theory, and an apt outlet for literature as cultural critique. The field now possesses its own journals, such as the Cardozo Studies in Law and Literature, Law and Literature, and Law, Culture, and the Humanities. In the United States, it has focused mainly on Anglo-American literature and jurisprudence, with some comparative explorations. Posner treats Homer and Kafka, for example, while Peter Brooks brings Rousseau, Dostoevsky and Freud into conjunction with American legal cases in his Troubling Confessions.2

Inasmuch as it is a form of cultural critique, literary criticism can hardly avoid acquiring a nomological dimension, since, as Robert Weisberg and Guyora Binder claim, ‘legal forms and legal processes play a compositional role in modern culture – that cultural criticism must attend to the legal dimension of culture or remain superficial’ (Weisberg and Binder, Literary Criticisms of Law, 464). German culture provides one of the most prominent and analyzable examples of this composition, and one whose authors have long practised criticism and literary analysis as a form of critique. Perhaps because of the potential relevance of this field of literary analysis to current jurisprudence as pointed out by Weisberg and Binder, few, if any, monographs written in English venture into German literature at any length. The studies by William Pencak, Vickie Ziegler and Theodore Ziolkowski are exceptions, but only the last-named deals with modern literature and law.

There are similar interdisciplinary interests among German scholars, although, due either to the historical relationship between law and literature or the institutional configurations of German academia, there has been less of a tendency towards considering law and literature as an interdisciplinary undertaking. Criticism tends to be biographical or case-oriented, and the theoretical justification for bringing law and literature into conjunction is rarely given prominence. Peter Schneider has outlined three reasons why lawyers should read literature: for intellectual history; for insight into lay perceptions of law; and for pedagogical insights into how to make law teachable (Schneider, ‘Ein einzig Volk von Brüdern’, 20). One of the earliest publications in the area, Hans Fehr’s Das Recht in der Dichtung, moves from the Middle Ages to the Weimar Republic, and summarizes the themes and ideas (e.g. revenge) as these develop throughout the ages in a systematic treatment at the end of the book (Fehr, 519–62). Some scholars emphasize the influence of law on literature, through prosecution and censorship (Kogel, Schriftsteller vor Gericht), or through personal contact between lawyers and writers, including the fact that, as in the celebrated case of E. T. A. Hoffmann, they are sometimes a single, amphibious creature called a ‘poet-lawyer’ (Dichterjurist) (cf. Wohlhäupter, Dichterjuristen).3 Others study the treatment of legal themes in literature (Friedländer, Rechtsanwälte und Anwaltsprobleme in der schönen Literatur; Kästner, Literatur und Wandel im Rechtsdenken, 609–15; Mölk, Literatur und Recht). Despite its title, Heinz Müller-Dietz’s Border Crossings (Grenzüberschreitungen) belongs in the latter category, as does the similarly sounding title Border Infringements (Grenzfrevel, by Koch et al.), as does also the Figures of Law collection edited by Gert Hofmann that examines the ‘Interference of Law and Literature’. For the purposes of explaining the work done by law-and-literature scholars, and on the basis of relatively strong ties between the Germanistik practised in the US and that practised in Germany, I will move freely between English-language and German-language studies of both law and literature. Beyond scholarship, the two legal systems themselves are certainly comparable, though naturally the more closely one examines them the more differences one perceives, and the more important these differences become.

Writing in 1989, for the first issue of the Yale Journal of Law and the Humanities, Robert Weisberg noted that the various approaches adumbrated above can be assimilated into one of two camps:

Very crudely divided, the [law-literature] enterprise has two parts. […] The first part is law-in-literature. This, of course, involves the appearance of legal themes or the depiction of legal actors or processes in fiction or drama. The other, somewhat more amorphous, part is law-as-literature. This involves the parsing of such legal texts as statutes, constitutions, judicial opinions, and certain classic scholarly treatises as if they were literary works. (Weisberg, ‘The Law-Literature Enterprise’, 1)

The title of Weisberg and Binder’s own book-length study makes it clear which camp he belongs to. Literary Criticisms of Law encouraged ‘a legal scholarship that explores and enhances the expressive and compositional power of legal thought and practice in the specific political and economic worlds in which they operate. Such a scholarship recognizes the literary as a constitutive dimension of law rather than as a redemptive supplement’ (Weisberg and Binder, Literary Criticisms of Law, 19).

In a later, elegiac (i.e. ‘what-was-law-and-literature’) summation, Julie Peters delineates three stages in the evolution of approaches to the topic, which she labels the humanist, the hermeneutic and the narratological. The humanist stage held out hope that literature could supply the central core of humane values supposedly lacking in scientific, technical and formalist approaches to law. The hermeneutic stage, influenced by literary post-structuralism, was based on the fact that law and literature were both grounded in textual interpretation. Of course, such ‘grounding’ meant for some a destabilization of concepts of truth and normativity without which modern law cannot function. Similarly, the narrative stage, represented by titles such as Peter Brooks’s and Paul Gewirtz’s Law’s Stories, focused on the shared capacity of literature and law to tell stories – stories that matter. (Hence, we note a shift in emphasis, from legislation and legal texts to actual investigative and trial procedures.) Oppressed groups, for example, from Holocaust survivors to women, made use of narrative in both legal and literary fora to redress the ‘master narratives’ formulated by the victors. In all three stages, Peters notes, the marriage of law and literature derived from what each discipline felt was lacking in itself, and hence hoped to find in the other:

[L]aw and literature might be seen as having symptomatized each discipline’s secret interior wound: literature’s wounded sense of its insignificance, its inability to achieve some ever-imagined but ever-receding praxis; law’s wounded sense of estrangement from a kind of critical humanism that might stand up to the bureaucratic state apparatus, its fear that to do law is always already to be complicit, its alienation from alienation itself. Each in some way fantasized its union with the other: law would give literature praxis; literature would give law humanity and critical edge. (Peters, ‘Law, Literature, and the Vanishing Real’, 448)

This analysis implicitly upholds an intensional notion of discipline. Disciplines do not so much explain facts and phenomena as create them, through the mechanisms of citation and precedent.

Citation and Precedent

If there were no art, then there would exist no possibility for the creation of artworks. There is a relationship of citation, artists have a positive or negative attitude towards precedent art, art discusses art with itself, and autonomy is exactly this concept, that one recognizes something as art only in reference to other artworks.4

[Wenn es keine Kunst gäbe, gäbe es auch keine Möglichkeit, Kunstwerke zu schaffen. Es gibt eine Zitierbeziehung, es gibt eine positive oder negative Einstellung zur Vorgängerkunst, es gibt ein Selbstgespräch innerhalb der Kunst, und Autonomie ist eben genau dies, dass man sie ohne Referenz auf andere Kunstwerke gar nicht als Kunst sehen würde]

Luhmann, ‘Ausdifferenzierung der Kunst’, 143

The passage tells us that a single artwork does not exist. The system called ‘art’ exists, and a corpus of tones, colors, lines or verbiage can be referred by those wh...