When a writer calls his work a Romance, it need hardly be observed that he wishes to claim a certain latitude, both as to its fashion and material, which he would not have felt himself entitled to assume had he professed to be writing a Novel. The latter form of composition is presumed to aim at a very minute fidelity, not merely to the possible, but to the probable and ordinary course of man’s experience. The former – while, as a work of art, it must rigidly subject itself to laws, and while it sins unpardonably so far as it may swerve aside from the truth of the human heart – has fairly a right to present that truth under circumstances, to a great extent, of the writer’s own choosing or creation.1
– Nathaniel Hawthorne, The House of the Seven Gables
On the road
Here is my final road map. For positivists, the rule of law is completed by the simple application of the words of the law. That is its limited presence in law. For romantics, this limit or curtailment is exactly what has gone wrong in our thinking about law. Justice has been lost but can be restored if we abandon the rule of law in favour of singular judgments based on natural insight. That is its unlimited absence in law.2 Tamanaha and Berkowitz, and behind them Kelsen and Schmitt, stand most recently for these two positions and, oddly enough, each blame the other for the corruption and instrumentalisation of law. Indeed, in some of the work in the field of law and literature, the positions start oddly to blend, a positivist and literal approach to literature serving as the supplement by which the romantic project for law can finally be realised.
Yet for Lawrence and the relationship between law and literature he forges, justice is neither happilly present nor tragically lost. Instead, it is a kind of lack, a shout of coo-ee in the bush. Against positivists’ assertion of law’s perfection and the romantics’ of its perfectability – the former a claim of purity centred on the past3 and the second a dream of it focused on the future – the approach to law and literature I have been advocating is deeply bound up in our present imperfection, our fragmentation and the imperfection and fragmentation of justice with us. My invitation has been for us to learn to accept and build on these qualities of the human condition, with which modernism was so absorbed, rather than to fear or deny them. Indeed, an awareness that lack lies at the heart of the human condition implies an abiding humility about our human capacities with specific relevance to the claims that institutions might make about their truth and certainty and authority. The novel in particular seems in the course of the twentieth century to have striven to achieve more understanding not by maintaining its closure, determinacy or authority – but by undermining it. That is a wisdom that the rule of law might do well to emulate.
Modernism’s vision of opposites and opposition, polarity, fragmentation, and ambivalence, subjectivity and exile is a blessing in disguise. As against modernity’s effort to separate the rule of law and justice (or to subsume the latter within the former), and the counter-effort to fuse both of them in the name of politics or community, the individual psychology which is at the heart of the literary method preserves the relationship between the former pair and distinguishes it from the latter. This, as I have previously noted, points to the failure of Lawrence’s political project but the success of a jurisprudential one.4 The novel embodies a commitment, says Lawrence, to narrative, in form and style, built on the powerful accumulation of the psychological detail, experience and change of its characters. The novel’s attention to the narrative movement not just of world forces but of inner lives distinguishes it from history, philosophy, politics and myth. By these means, it teases out the inadequacy of our abstractions and the relativity of our principles, leading us to a new awareness and responsiveness to circumstances.
These features undermine the hegemonic reason of positivism and the hegemonic unreason of romanticism alike. Instead, they instil a respect for reasons in the plural and for a rule of law that is kept alive by polarity and narrative in a backwards-and-forwards movement of constant correction, dialogue and metamorphosis. This movement, as I have discussed, cannot ever resolve the opposition between general rules and specific circumstances or between narrative’s attention to uniqueness and difference and the public demand for an articulated and defensible interpretation of existing principles. Instead, both sides remain always in play. The imperfectability of justice turns the rule of law into an endless process of reassessment and learning. The field of law and literature alone really tries to hang on to both sides – the universal and the singular, the ideal and the real.5 It has been the argument of this book that we should pursue this admirable goal not by attempting to reconcile or accommodate, prioritise, harmonise, synthesise or balance the two but by cherishing the charge of opposition that runs between them.
This brings out a further feature which binds justice to literature – the social and on-going character of them both. The irreducible tension of polarity or contradiction which this ‘difference engine’6 sets up in literature – and in our lives – generates a public process of call and answer, in which our opinions are constantly amended and tested against the challenge of other voices. It transforms both justice and literature into imperfect, discursive practices at any moment and over time.
The rule of law, thus re-imagined, has at least three salient features. First, the rule of law is not the outcome of a foundation, but a process of continually putting them in question. Secondly, the rule of law is governed by reasons rather than a singular or categorical reason. Thirdly, the rule of law does not present commandments that are handed down to us, but a discourse by which the law learns from us, paying attention to new circumstances and individual lives. Such a literary approach to justice does not reach for a unity, real or imagined, but a polarity – the polyphonic discourse of restless calls and answers. Like all discourses, as we have seen, it does not advance certainty, but enshrines uncertainty: and a good thing too. Justice is like the rest of us; its frailty is its strength.
My emphasis in this book on Lawrence’s historical context, and the novel as a particular affective structure with certain distinctive features, was intended to respond to what I identified as the dual problems of law and literature: the problem of legitimacy and the problem of substance. In order to flesh out this argument, I have related Lawrence not only to his own time and his work, but to the interplay with other central – and, within the field of law and literature, still under-appreciated – theorists of literature and philosophy. My discussions of Bakhtin have helped to enrich, clarify and more fully theorise Lawrence’s ideas. For Bakhtin, ‘the dialogic imagination’ – the doubleness of interpretation and the polyphony of discourse – lies at the heart of the ethics of literature, and of ethics full stop. Taking these features seriously does not mean treating other perspectives or contexts as carriers of the truth of their experiences or as ways to ‘top up’ our knowledge. Instead, Bakhtin points to the partiality of understanding and the ways in which all meaning is inter-subjective.7 Derrida’s writings on law and literature, on the contrary, while they are not under-appreciated are sometimes misread. The idea of polarity that I have drawn from Lawrence’s work has helped me illuminate what is meant by the ‘deconstruction’ of justice and to clarify how it differs not only from mainstream legal theory, but also from the transcendentalist or romantic trends of contemporary work with which it is sometimes lumped. Taken together, we begin to see the outlines of a theory in which literature has something vital to contribute to law not because of what it says, in one novel or another (though of course this is not without interest), but because its structural, formal, stylistic and ethical commitments constitute not opinions or facts about the world but a desire in relation to it.8 These commitments embody not merely a noun, but a verb of justice – a practice, indeed an affective orientation, that is unstable, narrative, collective, polyphonic, recursive and accountable.