Literature and Law

Mark Fortier

• Publisher: Routledge
• Year: 2019
• eBook ISBN: 9781351203814
• Topic: Literature
• Subtopic: Sociology
• Index: Literature

The fields of literature and law intersect in frequent, and often surprising ways. This clear and concise book offers an introduction to the area, covering the history, key thinkers and ideas as well as detailed and fascinating studies into areas such as evidence and truth, inheritance, sex, vigilantism and justice.

Each chapter examines a number of familiar authors and texts including Shakespeare, Brecht, Austen, Dickens, Ishiguro, Beecher-Stowe, Atwood, Miller. The book also opens up the broader study of law as it relates to culture in such areas as film, television, and digital media and how they affect such issues as a right to privacy, copyright and creative reworking, and censorship.

Mark Fortier offers a concise, systemic introduction to the law and legal system for the lay person, covering basic notions of justice and law (fundamental justice, natural law, positive law) and the legal system (common law vs civil law, case law, statute, constitutional law, private law [tort, contract, property], criminal law, equity, basic rules of evidence, stare decisis, the adversarial system) as well as a very handy glossary of legal terms.

This is a fascinating guide to a very topical and increasingly relevant area of literary studies.

1 A brief account of law and literature (and thereby of the present volume)

What renowned narrative work begins like this?

In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in County Durham they have their own ground, where they have played these last seventy years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short. It has a good club-house for the players and seats for the onlookers. The village team play there on Saturdays and Sundays. They belong to a league, competing with the neighbouring villages. On other evenings after work they practice while the light lasts.

If you answered, “Not a short story or a novel, but a legal case,” pat yourself on the back. It is the beginning of the decision in Miller v. Jackson. The judgment continues:

Yet now after these 70 years a Judge of the High Court has ordered that they must not play there anymore. He has issued an injunction to stop them. He has done it at the instance of a newcomer who is no lover of cricket. This newcomer has built, or has had built for him, a house on the edge of the cricket ground which four years ago was a field where cattle grazed. The animals did not mind the cricket. But now this adjoining field has been turned into a housing estate. The newcomer bought one of the houses on the edge of the cricket ground. No doubt the open space was a selling point. Now he complains that, when a batsman hits a six, the ball has been known to land in his garden or on or near his house.

Bonus points if you guessed the “newcomer” will not win this case.

Not all legal writing has the same narrative quality as Miller v. Jackson, but this text presents us with a clear case of what law and literature share: rhetoric and storytelling (and the invocation of feeling and emotion) in service of a set of values. Here the values being supported are community and its longstanding traditions, and what is frowned upon is selfish individualism, especially in an outsider (not all legal judgments, it should be said, are so hard on individual self-interest and private property rights). Miller is presented as an enemy of the people. It should also be noted that it is men and boys who enjoy the cricket, while Miller is being pushed into complaining by his vilified wife. So values of gender, ubiquitous in our culture, are at work as well. Certain literary critics might talk about the ideology expressed by the case.

It is not surprising, therefore, that law and literature have been studied together. They certainly have more that is obviously in common than, say, literature and chemistry, or law and particle physics. Richard Weisberg, who will be discussed shortly, calls law and literature “our culture’s two most central narrative endeavours” (xiv). Weisberg is an important figure in a movement, a systematic yet internally contested attempt to understand the fullness of, or delimit, as the case may be, the relations between law and literature. This movement has come to be called law and literature.

This chapter is meant firstly as an introductory account of law and literature, whereby I mean specifically the interdisciplinary field of study developed over the last 50 years or so (rather than relations between law and literature in general or over a larger sweep of time). Many works in this field have such an account, usually at the beginning (see for instance, Sarat, Frank, and Anderson; Anker and Meyler; Dolin 2018), so what I present here is nothing new. It is not really a history. Chronology goes partly by the wayside because key works have been given one or more new editions whereby they leapfrog over works that came after their first appearances. Like all accounts of the movement, mine stresses some aspects over others, which brings me to my second purpose in this chapter: to place my own book inside and partly outside the field. When I was in discussions with the publisher about this book, it was decided that it would fit into a series in which all the volumes have titles of the structure “Literature and X,” so that my book would be Literature and Law. This was very fortuitous because it gave me a title that stresses one of the key differences in inflection that I’m striving for. By reversing the order of the two elements, my title emphasizes a move away from law as the senior partner in this area of study.

Formative works of the law and literature movement

A few key books tend to come up in most accounts of law and literature, and the one that most often is taken as inaugural is James Boyd White’s The Legal Imagination, first published in 1973. White was educated in classics, English literature, and law and was a law professor at the University of Colorado. His book was intended to be a textbook for law students and it is structured like the mammoth law textbooks, crammed with cases, readings, and questions, one often finds in law courses (his book is 986 pages). White sets the terms for much of the work of law and literature when he lays out what those involved in law can gain from studying literature. First is an understanding of language as constitutive of culture, community, and self. Second is a sense of other people as more than caricatures and means, as valuable in themselves. These two aspects, cultural and ethical, can be taken as the humanizing quality of literature. Third is an understanding of the possibilities of different forms of expression, how rhetoric and narrative can, for instance, strengthen one’s arguments (White xii). These aspects come together in law “as an institution that is founded on the principle of recognizing others, in large part by giving them a chance to tell their stories and have them heard” (xiv).

First thing to note is that White is interested in literature from the perspective of law, inasmuch as literature is useful to the student of law. This is a foundational trend that continues to influence law and literature even as it has been widely taken up in humanities programs. The Modern Language Association anthology Teaching Law and Literature, edited by Austin Sarat, Cathrine O. Frank, and Matthew Anderson, has many more contributors from literature and humanities programs than from law schools, but significantly the law professors are concentrated in the opening section, “Theory and History of the Movement.” Law professors have set an agenda for all that follows, even if one is reacting against that agenda. I have been citing not White’s original 1973 work but his 1985 abridged edition. Here he argues that although the original book was explicitly addressed to a law student reader and was intended for that reader, he has kept the trope of the law student reader but it no longer really means what it says: “Of course this book is still formally addressed to a ‘law student,’ but I trust you can take that as the sort of fiction that it is” (xi). I would argue both that White’s original purposes haunt not only his abridgement but much of the work in law and literature that followed and that the trope of the law student reader is much less of a fiction than he thinks.

My book, therefore, sets itself apart as explicitly addressed to the student of literature. I welcome other readers, but I do not hide who my first audience is intended to be. As a book for the student of literature, as a book by someone whose primary expertise is in the study of literature, I am not concerned nor qualified to explore what literature can provide the law student. Does reading literature improve one’s courtroom skills? Does it humanize the lawyer and the judge? I can’t say and, within the confines of this study, don’t care.

A second monumental work in law and literature is Richard A. Posner’s Law and Literature, first published in 1988 and now in its third, expanded edition (570 pages). Posner is not only a law professor but a judge, so he too comes at law and literature from a legal perspective. Moreover, he is most known as coming from a right-of-centre law and economics perspective. Often one is told—I was—that any undergraduate study is good preparation for law school, but in my experience, if you want a leg up, a degree in economics best prepares you for law school thinking. Much of law school teaching is based on an assumption about the ubiquity of rational self-interest. Law and literature, in part, exists as a reaction to such assumptions. In some ways economic training is as far removed from literary training as possible. Posner first appeared as a debunker of law and literature from a law and economics perspective, although he claims in his third edition, “the negative tone was gone by the second edition” (6). Nonetheless, Posner is a bit of an adulte terrible and outlier for much of the law and literature movement, which tends to be leftist to one degree or another. Posner is thus not wrong in characterizing the general leftist bent of law and literature, also in its precursors and fellow travellers: law and society (mainly the work of leftist sociologists) and critical legal studies (leftist law professors coming out of the radical movements of the 1960s [see Unger]). Posner expresses antipathy for non-canonical works (anything outside a “Great Books” curriculum—he provides his own law and literature canon on pages 547–8), especially in non-canonical genres, literary theory, and literary scholars (as opposed to less academic and more plain-speaking critics).

Posner is perhaps best known for his rejection of the idea that the study of literature “can humanize the practice of law and the outlook of judges” (xii). He ends his book on this point: law and literature scholars

need to give up on efforts to humanize the practice of law by immersing judges, lawyers, and law students in literary works, unrelated to law, selected for ideological reasons and viewed through the prism of moralistic literary criticism.

(550)

I’d like to think the study of literature can humanize anyone, but I suspect it is not true, and as to its effect on those within the law I remain detached and agnostic.

Posner is a very cocksure writer and he loves to argue. His work is highly polemical. He engages in arguments against a number of others in the field: White, Richard Weisberg, Robert Weisberg, Robin West, Kieran Dolin, all more left of centre than he is and many of whom join in a counter-polemic. Here I see my own book as somewhat different: there is relatively little polemic (this chapter is a bit of a necessary exception) and I am less interested (I cannot claim complete disinterest) in imposing what I think and stand for than in opening up questions and possibilities.

Posner presents his book as the “only comprehensive book-length treatment of the field” (xv). Comprehensive is a big claim to make, but Posner does not, nor would anyone without way too much time on their hands, claim that his book is introductory (which mine claims to be). I do share with Posner an outlier skepticism about law and literature, although my outlier position is an intended one and my skepticism arises from the historical and continuing domination of the field by those from the law side.

Posner criticizes White for drawing on literature without explicitly legal subject matter. For Posner law and literature is focused largely on literature about lawyers and trials. Here I find myself on White’s side. My own past scholarship has grown out of an understanding of equity as more than just a legal idea or an idea applicable only in legal situations. In this present volume I repeatedly demonstrate how legal notions can help elucidate works without specifically legal content. That may not be of use to law students, but I argue it is for students of literature.

What does Posner see in positive terms as the usefulness of law and literature? He writes, “What literary texts that have law for a theme can do for legal teaching and scholarship is to illuminate issues of jurisprudence or legal process,” and posits, “A jurisprudence course in college or law school could profitably substitute works of great literature for the dusty tomes of legal philosophy” (546–7). As an example—and running counter to Posner’s emphasis on Great Books—he continues a surprisingly robust tradition of finding the film My Cousin Vinny useful for such things as courses in evidence (this film came up when I took such a course) (446–7). Posner mentions college courses other than law school courses (although, as far as I know, few literature departments offer a course in jurisprudence), but he gives away his real emphasis in the book’s concluding paragraph: “Law and literature scholars need to climb down several rungs from their ivory towers and place greater emphasis on service to the legal profession” (550). Here, as in White, we see the fundamental tilt of law and literature as study useful to those in law.

Richard Weisberg produced work in law and literature throughout the 1980s, but his seminal book, Poethics, appeared in 1992 after the first edition of Posner’s Law and Literature, which Weisberg strongly criticizes in his book. Weisberg began as a professor of literature, took a law degree while teaching (!), and then became a law professor. As a literature student he was taught by Paul De Man and Geoffrey Hartman, two scholars associated with deconstruction, which Weisberg lumps with other approaches as “postmodern theory,” but he largely rejects their teaching in support of more traditional values, liberal and Jewish. In a way I find befuddling, Weisberg associates postmodern theory with “‘free market’ microeconomics, a disgracefully self-serving system of ethical reductionism and human evasion” (xiv)—I would tend to think of literary theory and free market economics as almost complete opposites. Weisberg also clings to canonical texts, Great Books, although he does so in part because they are for him iconoclastic rather than supporters of the status quo. One of his prominent ideas is that literary works expose law’s Nietzschean ressentiment, the way the weak act out their resentment toward the strong. Weak and strong have particular meanings for Nietzsche, but I would have thought injustice at law could more easily be seen as the strong oppressing the weak.

Weisberg’s central argument is that law and literature, as he puts it in the book’s final sentence, “for all their disparities, are one” (252). They are one in a twofold manner. They are both completely immersed in matters of expression. The content of legal judgments, he asserts, like literary texts, can in no way be separated from how they are expressed. Secondly, law and literature are both ethical projects, although law has perhaps lost its bearings and the interplay of law and literature—“poethics”—“endeavours nothing less than to fill the ethical void in which legal thought and practice now exist” (4). Thus, for Weisberg, “Lawyer and writer stand together, the former differing only in his coercive power, not in his technique or value system” (x).

I myself am deeply committed to interdisciplinarity and often chafe at disciplinary restrictions. I believe, however, that interdisciplinary dialogue needs a realistic understanding of our differences. I do not have the faith Weisberg expresses in the oneness of law and literature. Moreover, although Weisberg has real expertise in both law and literature and stresses that he speaks to a general reader, he teaches law and literature in a law school context, and when I visited one of his classes he urged his students to “read like a lawyer,” which I take it is meant to be different from reading like a literary scholar. There is a sense that Poethics is first and foremost directed at a legal audience and a legal way of thinking.

Weisberg presents his book as a “guidebook to Law and Literature theory and practice” (x). How is this different from the introduction I am presenting? Firstly, Weisberg is interested in constructing a “unifying manifesto or program” (3). That is not how I think and not what I aim to do. I prefer notions that are fissured and internally riven, and that is how I see literature and law. Secondly, as the phrase literature and law indicates, I am not really providing an introduction to law and literature but to something somewhat different.

Let me refer to one more important parameter-setting text for law and literature studies, Martha Nussbaum’s Poetic Justice: The Literary I...

Table of contents

• Cover Page
• Half Title
• Series Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgements
• Series Editors’ Preface
• Preface
• 1 A Brief Account of Law and Literature (And Thereby of the Present Volume)
• 2 Literature v. Law: Institutions, Procedures, and Justice
• 3 Natural Law and Fundamental Justice
• 4 Property, Inheritance, and Status
• 5 Contract and Tort
• 6 Sexuality
• 7 Evidence and Truth
• 8 On Trial
• 9 Vigilantism and Extrajudicial Action
• 10 Toward Law and Humanities
• Appendix 1: What a Student of Literature Should Know About Law
• Appendix 2: Glossary of Legal Terms
• Index