Law and Literature

Text and Theory

Lenora Ledwon

• Publisher: Routledge
• Year: 2015
• Print ISBN: 9780815314721
• eBook ISBN: 9781317954170
• Topic: Literature
• Subtopic: Literary Criticism
• Index: Literature

First published in 1996. The first anthology of its kind in this dynamic new field of study, this volume offers students the best of both worlds-theory and literature. Organized around specific themes to facilitate use of the text in a variety of courses, the material is highly accessible to undergraduates and is suitable as well for graduate students and law students. The anthology includes important articles by key figures in the law and literature debate, and presents seven thematically arranged sections that:

Survey the various theoretical perspectives that inform the relationship of law and literature
Examine the interplay of ethics, law, and justice * Highlight the great scope and variety of the law's contributions to the creation of a world view * Illustrate various legal approaches to punishment * Detail and analyze the law's inherent capacity for the oppression of individuals and groups * Demonstrate that law is grounded in language and storytelling * Show that despite its solemnity, the law has a comic side
Each section includes excerpts from poetry, drama, fiction, and nonfiction. The excerpts include writings addressing the law's impact on the "outsider" (women, Native Americans, Hispanics, African Americans, and homosexuals), as well as writings by lawyers, judges, and law professors, giving the reader an "insider's" view of the legal system. The selections range from Plato to John Barth and Wallace Stevens. At this time of increased interest in the quality of legal writing, this course material illustrates the importance of language, word choice, metaphor, and narrative. It demonstrates the practical application of literary effects, techniques, and devices, and provides valuable insights into law as a vital component of the social fabric.

SPECIALFEATURES All law schools that do not already have one in place are required to institute a course in Law and Literature. This new anthology is the first of its kind, and has been specifically designed to meet the requirements of a Law and Literature course * Selections from judges, lawyers, and professors of law give students an insider's view of the legal system * Chronological coverage-from Plato to such 20th-century writers as John Barth and Wallace Stevens-offers students a broad range of selections that examine the relationship between law, justice, ethics, and literature * Multicultural writings address the law's capacity for the oppression of individuals and groups, including women, Native Americans, African Americans, Hispanics, and homosexuals * Law and punishment-several selections examine this area from various points of view. Suitable for courses in: Law and literature courses in law schools and undergraduate divisions as well as interdisciplinary courses in English literature.

I Relations Between Law and Literature

Critical Contexts

Introductory Notes

This section anthologizes articles by key writers on Law and Literature, surveying the scope and variety of critical perspectives in the field. Lawyers, judges, law professors, English professors, all have entered the Law and Literature debates with great enthusiasm.

James Boyd White gives us an essay in the "poetics of the law," stressing that both law and literature are compositional activities and that the ethics of composition are at the heart of justice. Ronald Dworkin, in the first of what would come to be a series of lively exchanges with Stanley Fish, suggests a "chain novel" as a paradigm for interpretation. Stanley Fish (well-known for his own postulation of "interpretive communities" in Is There A Text In This Class?) takes issue with Dworkin.¹ Judge Richard Posner's "Law and Literature: A Relation Reargued" not only includes a fine overview of the field of Law and Literature, but also suggests ways in which literature can contribute to improvements in the interpretation and composition of judicial opinions. Carolyn Heilbrun and Judith Resnik present their experiences of co-teaching a course in "Feminist Theory: Law and Literature" and critique a Law and Literature canon that largely ignores or objectifies women. Finally, Robin West contrasts the Law and Literature movement with Law and Economics, and finds one key justification for Law and Literature studies in the possibility of empathy, a form of knowledge "essential to any meaningful quest for justice."²

Notes

1. Dworkin and Fish have had a lively debate in a series of articles. An early version of Dworkin's "Law as Interpretation" appeared in 9 Critical Inquiry 179 (1982). This was later published in W. Mitchell, ed., The Politics of Interpretation (Chicago: University of Chicago Press, 1983) with a reply by Fish ("Working on the Chain Gang") and a counter-reply by Dworkin ("My Reply to Stanley Fish (and Walter Benn Michaels): Please Don't Talk About Objectivity any More"). Fish's counter-counter reply, "Wrong Again," appeared in 62 Texas Law Review 299-316 (1983).

2. West and Richard Posner have had a lively dialogue beginning with West's essay, "Authority, Autonomy, and Choice, the Role of Consent in the Moral and Political Visions of Franz Kafka and Richard Posner," 99 Harvard Law Review 384-428 (1985), to which Posner replied in "The Ethical Significance of Free Choice: A Reply to Professor West," 99 Harvard Law Review 1431-1448 (1986), and to which West counter-replied in "Submission, Choice, and Ethics: A Rejoinder to Judge Posner," 99 Harvard Law Review 1449-1456 (1986).

The Judicial Opinion and the Poem

Ways of Reading, Ways of Life*

James Boyd White

This is an essay in what I call the poetics of the law. I begin with a (largely autobiographical) account of legal and literary education, describing what seems to me a striking similarity in the ways in which poetry and law were once taught—and to some degree still are taught, though less comfortably so. I then suggest and elaborate some connections: between these two kinds of thought and expression; between the ways in which we are habituated to read texts of each sort; and between the dilemmas that confront readers and critics in each field. In doing this I am both trying to establish relations between two branches of our culture that are often thought to have little to do with each other and claiming that these relations teach us something about the way each branch can and should proceed.

This is of course one expression of my view that law can be best understood as a set of literary practices that at once create new possibilities for meaning and action in life and constitute human communities in distinctive ways. But my ultimate hope reaches beyond law, even beyond poetry: it is to work out some ways in which we who are engaged in the processes of cultural and communal life, lawyers and poets and critics among the rest, might better come to understand and to judge both our cultural situations and our own activities.

In fact I think that a proper ground for judgment is implicit in an understanding of law and literature alike as compositional activities. To attend wholeheartedly to the central rhetorical and ethical questions—who we make ourselves in our speech and writing, what relations we establish with our language and with other people—is, I believe, to attend to the first questions of justice. If we address these questions well, good answers will emerge to the secondary questions too, for implicit in any tolerable response to them are standards of justice—attitudes towards ourselves and others—that will inform what we say and do far better than any a priori theory or empirical science could do. If we can get our voice and sense of audience and language right, everything else we care about, or should care about, will follow. Or such at least is my hope.

In this essay I shall speak for the most part of my own education, on the assumption that it is to some degree typical of the experience of others whose training also took place in the immediate postwar decades. I should also say that for obvious reasons of space and emphasis my accounts of literary and of legal education will be somewhat schematized and idealized.

In my own experience at least, the same central method was at work in both legal and literary education, for both to a remarkable degree proceeded by drawing the student's attention to a series of discrete texts, one after another, and holding it there. In law the text was typically the judicial opinion; in literary studies usually, though not always, the poem. In both fields the emphasis was on the text as a self-justifying, self-explaining, self-authenticating object. The primary method of analysis was to focus on the text's language and form, rather than, for example, on its social or economic or other context. There is a sense in which my own literary education could almost be reduced to "how to read a poem," and my legal education to "how to read a judicial opinion." This emphasis, at one time widely predominant, is of course still a part of what we do; but in both fields it is also under increasing attack from many directions.

In English studies we did read things other than poems, of course, from novels and plays to histories and letters. But we were trained to read these things almost as if they were poems, or as if they aspired to become poems. Hence, for example, the paper assignments on the imagery of a Shakespearean play or of a Conrad novel, or the books we read on the imagery of Shakespeare's work more generally, or Sophocles', as if all of a writer's work could be read as one grand poem. Hence also the talk about the "movement" and "turning point" of a novel as though it had to have a moment of confusion and clarification, like that of the typical metaphysical poem; hence the analysis of Burke's prose style, or Samuel Johnson's, in terms of its metaphors and images. Even a history could be read as an imaginative design, with an eye to its shape and its metaphorical structure. Reading poems is what we knew how to do, or thought we did, and we assimilated our other literary experience to that model. It was all that we could do; but it was enough.

In law school our reading was not wholly confined to the judicial opinion, but the judicial opinion provided the context in which other things were read, if they were read at all, and it was the model by which we measured everything else. If we could understand the judicial opinion, we would also learn how to perform our own roles as lawyers, for we thought our central task, which controlled all the others, was to learn to argue to a judge. There was of course some study of statutes, of constitutional provisions, of procedural rules, and of regulations, but for the most part only as these came up in the course of reading judicial opinions. Sometimes these were studied independently as well, but—and in this we were perhaps unlike our continental contemporaries—we did not then, and if I may say so, do not now, know very well how to read a statute, a constitution, a scheme of regulations, or a contract as a whole, let alone how to teach our students to do so. Every once in a while we would look at legislative history, social science studies, or lawyers' briefs, but almost always from the perspective of the judicial process. In law school, what we knew how to do, or thought we did, was to read judicial opinions, and we assimilated our other experience to that model. It was all that we could do; but it was enough.

In both fields our education thus proceeded by reading a series of central texts. These texts were privileged both in the sense that they were made the centerpieces of an education and in the sense that one could always retreat to them as the testing grounds for ideas raised in other sorts of conversation. ("But how could that be recast as an argument for one side or another in an actual case?" Or: "I see what you mean: the terms 'nature' and 'civilization' are given by Gibbon a complexity of a kind we see in poetry.")

I suppose one reason why the poems and opinions were studied as they were is that they were small enough to be grasped all at once, to be held in the mind as wholes; they could thus serve both as manageable examples of a kind of thought and as material for a certain kind of criticism.¹ But, whatever the reason, we felt that mastery of these forms implied mastery of all, and we gave our attention for the most part to the particular texts, the particular expressions, and did not wonder much—did it matter?—how the particular texts were chosen or in what sense the "series" they made corresponded to anything outside itself.

1

How did such an education in reading actually work, in each of the contexts?

I will start with Jaw school. The original idea of the case method (which is another term for what I have been describing) was simplemindedly scientific: cases were studied as if they were plants or butterflies in order to discover the laws of regularity by which they could be classified; those regularities in turn constituted "the law." By the time I was in law school the emphasis had shifted. Now cases were seen as problems, as pieces of law-life, to be taken apart and put together, to be imaginatively participated in. As I said in "The Study of Law as an Intellectual Activity" (Chapter 3), the idea of this kind of education is like that of the apprenticeship system it supplanted: one learns law by doing law. Law school is thus a kind of language school, working by total immersion, that uses the "case" as its archetypal occasion for speech, and the judicial opinion deciding the case as its archetypal form. In reading a series of judicial opinions one imagines oneself arguing the cases on each side, or deciding them, and does so in combination with others similarly engaged. In this way one learns the practices that define the community of which one is to become a part.

This remarkable emphasis on the judicial opinion actually makes more sense than it may at first seem to do, for the reason that almost all legal disputes can end in judicial cases, even if they are in fact earlier settled by negotiation. Our sense of how the case might be argued and decided therefore does much to inform our other activities of negotiation, advising, and so on. And a set of judicial opinions naturally picks up or reflects much of the rest of legal life. Whatever is problematic in a contract, a statute, a regulation, or an administrative decision—indeed whatever is problematic in our collective life—is likely to end up in a judicial opinion. If it is not in principle or practice reflected in a judicial opinion, some would say, it is not the law. It is for such reasons as these that the judicial opinion has been thought to be a proper model of legal thought and expression.

Law school asked of course an additional question: how do the judicial opinions we read fit together? For in law school (and in our world more generally) it was assumed or claimed that they did fit together to form a more or less coherent whole, a whole with a shape and a history. The shape was that of a field of law; the history, we were told, a movement from "conceptual jurisprudence" to "interest analysis" or "policy science." In my own law school days, at least, this movement was characterized as progress. Today there is much less shared confidence about the meaning of the changes that we see. But even now it is an assumption of legal education that to read one judicial opinion well will lead you to others, which, when read well, will define the cluster of opinions that count, and will mark out among them some that count with special force. Each item implies the series of which it is a part. In this sense at least the individual judicial opinion is thought to define a field, by reference, by example, and by implicit connection. Indeed, it may even be thought to define the whole of law.

In our literary education, poems were read for deeply analogous purposes: in part as apprenticeship pieces, upon which to train the eye, the sensibility, to see what the educated reader should see; in part to train the tongue, to say what an educated reader might say; and in part as a constituent item of what we now call the canon, the collectivity of texts that count. Taken together the poems of the canon were said to form a whole, a central segment of our high culture, perhaps its highest segment. This had its history too, reflected in the sequence of authors and of periods in which it was talked and thought about, and it was sometimes thought to be a history of progress. Once again each item was seen to be intimately connected to the rest of the series: T.S. Eliot could say, for example, that the poet should feel "that the whole of the literature of Europe ...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Preface
• Acknowledgments
• Section I. Relations Between Law and Literature: Critical Contexts
• Section II. Law, Justice, and Ethics
• Section III. Law and Worldview
• Section IV. Law and Punishment
• Section V. Law and Oppression: Race, Class, Gender, and Sexuality
• Section VI. Law, Language, and Narrative Structure
• Section VII. Law and Comedy