Reading slowly: the law of literature and the literature of law

Chapter 12

Reading Slowly

The Law Of Literature and The Literature of Law

Peter Fitzpatrick

To fill a Gap

Insert the Thing that caused it –

Block it up

With Other – and ’twill yawn the more –

(Emily Dickinson 1999: 290 [647])


As for law and literature, there are doubtless differences to be observed – the bailiff does not usually come to the door armed with a poem – but here my impelling concern will be with similarity. Not, or not just, the similarity usually found in the combining of law and literature, where each at times can instance the other. And not even, or not just, the similarity that comes from an epochal sameness that the contents of law and literature may come to share (Reichman 2009). Rather, the focus will be on a constituent correspondence between law and literature. That prospectus goes against several grains where law is starkly set against the dangerously unbound creativity, fictive quality, and evanescence of literature – a contrast often instanced in Plato’s uneasy aversion to poetry (1993: ch. 13 [Book X]). Instead, it is this very creativity or fictive quality, so my argument runs, that law and literature share. There could, then, in this chapter be a sustaining affinity with ‘the more radical teachings of the law and literature school, towards an understanding that one can read law as literature and literature as law’ (Tuitt 2004: 78; see, for example, Heinzelman 2010: 104–14).

The strain on originality is lessened further in companionable claims made by archons of my argument. Taking only a few of these claims for now, Derrida would see law as ‘fictional’, as ‘artifice’ (2002a: 240). Likewise, he finds that ‘narrativity and fiction’ are at ‘the very core of legal thought’ (1992: 190). And for Nancy the law comes to be ‘modeled or sculpted (fictum) in terms of right’, and thence ‘[j]urisdiction is or makes juris-fiction’ (2003: 157). As the conveniently stark notion of the legal fiction would suggest, law can hardly be outdone in making similar claims for itself. To take an instance from a period of Roman law, for some claims it was the case that one had to be a Roman citizen, but eventually for this purpose foreigners were simply deemed citizens while ‘the letter of the law’ remained unchanged (Maine 1931: 21–2). The law in its very stability, in its posited, its ‘positive’ quality, is fictional.

A precarious originality may emerge when considering, by way of literature, what this fictive quality of law may be. As the legal fiction would intimate, law fuses its seeming stability, its determinate ‘order’, with a receptive creativity. The very rule of law fitfully characterizing modernity, while elevated in its endowment of stability and predictability, must also respond as ‘newness enters the world’ (Rushdie 1991: 394, for the phrase). Otherwise, the law would cease to rule a situation changing inexorably around it. And with modern law, a resolution or determination of this divide cannot be sought by reference to transcendent determination.

This allusive introduction – ‘some familiar strokes and faint designations’, to anticipate Tristram Shandy (Sterne 1967: 94) – can at best evoke the challenge of saying what the fictive quality of law is. The difficulty is compounded when that quality has in some way to be experienced or worked. Yet some grasp of it may be derived from showing it to be integral to modern politico-legal formation and in discerning what disasters would ensue if it were absent.

Literature I

Spender told Auden he wondered whether he, Spender, ought to write prose. But Auden put his foot down. ‘You must write nothing but poetry, we do not want to lose you for poetry.’ ‘But do you really think I am any good?’ gulped Spender. ‘Of course,’ Auden frigidly replied. ‘But why?’ ‘Because you are so infinitely capable of being humiliated. Art is born out of humiliation.’

(Fenton 2001: 209)

And as the Eliot of ‘Burnt Norton’ would confirm: ‘Humility is endless’ (1974: 199). Or, in Nancy’s terms, poetry involves ‘an effacement’, a withdrawal (1993: 308–9). All of which can be put more affirmatively. The poet, says Rilke, is ‘he or she who is ready for everything’ (see Fenton 2001: 248). And even submerged within a grim modernity, Pessoa/Caeiro would still want to be ‘everyone and everywhere’ (1998: 90). Or there is Muriel Spark’s exuberant ‘everything happens to an artist’ (2007: 87). In a somewhat more muted vein, Conrad extends the imperative to fiction specifically – fiction that

demands from the writer a spirit of scrupulous abnegation. The only legitimate basis of creative work lies in the courageous recognition of all the irreconcilable antagonisms that make our life so enigmatic, so burdensome, so fascinating, so dangerous – so full of hope.

(see Miller 2009: 48)

This resonates readily with Keats’s ‘negative capability’, a ‘quality’ found ‘when a man is capable of being in uncertainties, mysteries, doubts, without any irritable reaching after fact and reason’; and despite naming the capability as ‘negative’, for Keats this was a positive ‘quality’ that ‘went to form a Man of Achievement, especially in literature’ (1947: 72). And if that is all starting to smack too much of the evanescent, there is the palpable corrective of that undoubted ‘man of achievement’ Tristram Shandy (Sterne 1967). If one were to rely on his title, Sterne is going to reveal the life and opinions of Tristram Shandy, Gentleman, but the novel tells us little of either explicitly. Yet devotees of the novel do feel they know Tristram Shandy, know him as a totally engaging character and narrator. The genius of Sterne gives us Tristram Shandy in person, as it were, through the narrator’s receptive regard for other characters. Even with its notorious playing with possibility, its shifts in subject, in tone, time, and place, Tristram Shandy is a work which either as a whole or through its particulars has a felt and formed quality.

Yet for all the force of literary formation, there remains still an insistence of the negative. A much-noted concentration of the case is Auden’s ‘poetry makes nothing happen’ (1979: 82). His meaning is rather more pointed than the one usually extracted from this line. It is not that nothing ever happens as a result of poetry. Quite the contrary. If one looks at where Auden says this, the tender yet monumental ‘In memory of W. B. Yeats’, we find him calling on poetry to make much happen. What Auden means with ‘poetry makes nothing happen’ is that it brings nothingness into happening. In the same poem he describes poetry as ‘[a] way of happening, a mouth’ (ibid.: 82). Or as Blanchot puts it even more expansively, ‘Nothingness is the creator of the world in man’ (1999: 398–9). Or we have nothing as our ‘flowering’ in Celan’s ‘Psalm’ (2002: 153). (The evocation of nothing can make the academic feel the need of copious reference.)

Literature II

This is yet a ‘positive emptiness’ (Raine 2005: 34). For Blanchot, it is an ‘opening’ to what is beyond, to alterity and possibility, to ‘what is when there is no more world’, or ‘to what would be if there were no world’, to the ‘void’ (1999: 388). But this void is of the kind encountered by Blanchot’s protagonist in The Madness of the Day for whom it was ‘disappointing’, a void which inexorably becomes a presence and protean: ‘one realizes the void, one creates a work’ (1981: 8; 1999: 395). Between the realized and the unrealizable, between the appropriated and that which is still ‘ours for being nobody’s’, there is a ‘shifting’, a ‘passing’, a ‘movement’ impelled by ‘a marvellous force’ which is the impossibility of the movement being otherwise (Blanchot 1988: 43; 1999: 363–5, 369, 387–9). This is an activity always situated, an emplaced ‘affirmation’, ‘an operation’ that cannot be separated ‘from its results’ (Blanchot 1999: 365, 397). Literature for Blanchot, then, is a work like any other – he instances building a stove – even if it is such ‘to an outstanding degree’ (1999: 371).

Admittedly, a work of literature can assume a stove-like solidity: witness the tenacity of literary forms and genres – a tenacity that spectacular deviations serve to confirm rather than confound. Yet, Kermode would add, ‘we should expect only the most trivial work to conform to pre-existent types’ (1967: 24; cf. Plato 1970: 91–2 [656–7]). And could any work thoroughly subordinated to some imperative be called literature? Such a question could be provoked by, say, ‘literature’ written with the overriding instrumental aim of promoting some cause. Pushing the point to an extreme, the insistently literary has found itself set against totalitarian regimes, regimes that characteristically seek to appropriate the aesthetic.

This resistance to containment emanates intrinsically from the literary work, and not just from ‘its measurelessness . . . hidden within the work’ (Blanchot 1982: 171), but also in the very modes that would delimit it. ‘We cannot, of course, be denied an end; it is one of the great charms of books’, pronounces Kermode, ‘that they have to end’, only then to go on and charm forth this conclusion: literary ‘[e]nds are ends only when they . . . frankly transfigure the events in which they are immanent’ (1967: 23, 175). The delimiting yet generative force of ending, of completion, is poignantly evoked in Auerbach’s epilogue to Mimesis (1968), where he apologizes at length for the deficiencies of the book brought about by his writing it in Istanbul, where he was an exile from Nazi Germany and where his access to apt scholarly sources was limited:

[I]t is quite possible that the book owes its existence to just this lack of a rich and specialized library. If it had been possible for me to acquaint myself with all the work that has been done on so many subjects, I might never have reached the point of writing.

(1968: 557)

The epigraph to this great work is Marvell’s opening line ‘Had we but world enough and time . . .’

To take for now just one further generative limit of the work, one that perhaps focuses most canonical constriction, in asking, ‘What is an author?’ Foucault distances himself from those who would pronounce the author dead, and he does so by advancing the author as a ‘necessary and constraining figure’ (1988: 209). This comes from the same Foucault who charged, in The Archaeology of Knowledge: ‘Do not ask who I am and do not ask me to remain the same: leave it to our bureaucrats and our police to see that our papers are in order. At least spare me their morality when we write’ (1974: 17). Yet in this work we find also a similar and quite explicit alternation in Foucault’s regard for the author’s oeuvre, an alternation between its multiple diffusions and its being a set construction (ibid.: 23–5). And both dimensions are somewhat accommodated in Foucault’s once proposing a law that would break up the oeuvre and counter the ‘grotesque’ uniformity that consolidates in reading several of an author’s books (1989: 315). This law would ‘prohibit the use of the author’s name more than once, with the additional right to anonymity and the use of pseudonyms, in order that each book might be read for itself ’ (ibid.: 315). That would, supposedly, enable the work to be read in the way of the ‘first book that one writes’, a book that is read ‘because one is not known, because people don’t know who we are, and it is read in disorder and confusion’ (ibid.: 315). Yet familiarity does not necessarily breed uniformity, grotesque or otherwise. A spectacular instance of ambivalent effect is offered with the ‘books’ of the Abrahamic religions managing to generate both mass uniformity and conflicted diversity, and both at the same time. The formative force of the reader starts to come into contention.


. . . you read me, and I write you. Somewhere, this takes place.

(Nancy 2008: 51, emphasis in original)

The fragile author has been conspicuously beleaguered by varieties of reader response theory, a theory that would consign the work to effective existence only as read – as a ‘performance’ by the reader (Blanchot 1999: 364; and see Kivy 2006). The work comes to existence only as it goes forth ‘to find the reader’ (Auerbach 1968: 557). Yet there is still something that has to be brought to an end and assume some determinate existence, something which is then impelled searchingly into the world. The work, it may readily be granted, cannot exist apart from the practical infinity of its readership, yet the work does not simply dissipate in relation to its readers but remains a focus for the diversity of responses to it. Your reading and my reading will be different, but in some sense we read the same thing. Still, the work now in the world cannot exist apart from the relation to its readers. That relation, in turn, will generate an endless variety of determinate existences of the work, concentrations of professional regard for example. Yet the work is not, or not just, enclosed in any particular reading, but remains a continually formative opening onto what lies beyond its realizations (Blanchot 1981: 16; 1999: 365–6). In always extending receptively beyond any determinate realization in its reading, the work does not become simply evanescent but continues also to assert an existence that stills the importunate world and makes for some contained determinacy, transient as that will be in turn.

Reading, then, comes to have the same constituent dimensions as the ‘original’ author. ‘What does it matter that there was one to write and another to read?’, asks Le Clézio: ‘In the last resort, in the very last resort, they are one and the same’ (2008: 3). In reading, with Alberto Manguel, ‘we are transformed: reader into writer into reader’ (2010: 181). And for Blanchot, the work ‘reveals itself within’ some such ‘shared existence’ (1999: 365). Or in terms of Shandean ‘just boundaries of decorum and good breeding’:

The truest respect which you can pay to the reader’s understanding, is to halve this matter amicably, and leave him something to imagine, in his terms, as well as yourself.

For my own part, I am eternally paying him compliments of this kind, and do all that lies in my power to keep his imagination as busy as my own.

(Sterne 1967: 127)

Indeed, the work may go into the world carrying a large expectation of the reader’s creativity. So, it could be spare, ‘minimal’, in its content. Or the work could leave it to the reader to make connections between its different parts or perspectives.1 And the imperative of interpretation can be heightened by incompleteness. Apparently the earliest written version of both the Koran and the Hebrew scriptures ‘lacked vowels; the words aided recitation but weren’t definitive. No doubt later clerics, in choosing which vowel to put in the blank, occasionally found themselves with real semantic leeway’ (Wright 2009: 373). All of which slants matters towards the reader’s rendering the work determinate. Such decisiveness is gently confronted by Nietzsche’s injunction to read slowly, and indeed to write slowly – an injunction to counter ‘an age of “work”, that is to say, of hurry, of indecent and perspiring haste, which wants to “get everything done” at once’, an injunction ‘to read slowly, deeply, looking cautiously before and aft, with reservations, with doors left open, with delicate eyes and fingers’ (Nietzsche 1982: 5; see Goodrich 2005: 189–97). The slower the reading, the greater the receptiveness to the work. Not that this receptiveness can encompass the work. By itself it would generate nothing but dissipation, and necessary as such ‘indecisiveness’ is (see Nietzsche 1968: 169–70

[52]), the receptive alone cannot encompass anything. ‘In any case’, the reader’s absorptive ability is limited, even as the possible readings of the work are limitless.2 A reading, as Nietzsche would also have it, can only ever be ‘approximate’, and we must thence ‘invent’ it – ‘people are much more artistic than they think’ (2002: 81–2 [192]). Like the author, and recalling Auerbach’s exilic genius, in the limiting the reader creates. A summary statement of the case: in his panegyric On Reading, Proust demotes his hero Ruskin to the extent of rejecting his advocacy of subservience to the author, along with Ruskin’s assuming the ‘continually open’ in reading (1984: 23, 25). While embracing a profound responsiveness in reading, Proust would affirm that we ‘remain . . . on our own’, that we make the reading – ‘create it for ourselves’ (ibid.: 26, 30). The panegyric thence becomes one to reading as self-forming. No less than the author (see Clarkson 2009: ch. 5), the reader’s going to the work is to a finding of self. The reader does not bring to the work only an already shaped layering of self, some template of truth.

In sum, and in writing/reading, we are left with ‘this strange institution called literature’ (Derrida 1992: 36), an institution whose work must be delimited and illimitable, determinate and indeterminate, and both at the same time. Perhaps, then, an affinity with the resolving law may help us engage with these seeming contraries.

The Law of Literature

. . . sense the solving emptiness That lies just under all we do, And for a second get it whole . . .

(Larkin 1964: 33)