The Irony of Law and Literature

The Irony of Law and Literature

Indeed, practically all metaphors for style amount to placing matter on the inside, style on the outside. It would be more to the point to reverse the metaphor. The matter, the subject, is on the outside; the style is on the inside … To treat works of art [as statements] is not wholly irrelevant. But it is, obviously, putting art to use – for such purposes as inquiring into the history of ideas, diagnosing contemporary culture, or creating social solidarity … A work of art encountered as a work of art is an experience, not a statement or an answer to a question. Art is not only about something; it is something. 1

– Susan Sontag, ‘On Style’

Before I launch into the textual and historical analysis that will take me several chapters, let me stand back a bit. My argument here has particular ramifications for the law and literature movement. I want to demonstrate in this chapter how, despite its enormous successes in the past generation, this movement continues to be plagued by two enduring weaknesses: first, a concentration on substance and message and, secondly, a salvific belief in the capacity of literature to cure law or perfect its justice. The first fails to question the aesthetic ideal, which goes back to Plato, that the purpose of art is mimetic, that is, to accurately reflect the world. This concern with ‘what’ a particular piece of literature talks about rather than with its voice or style or form, I call the ‘mimetic fallacy’. The second fails to question the aesthetic ideal, central to the notion of romanticism which I refer to throughout this book, that the purpose of art is to heal the world’s wounds.2 The idea that art can save the day or complete the law, I call the ‘romantic fantasy’. In this chapter I will try to show how even some of the best recent work in the field falls into one or both of these traps. Too often in opening a dialogue with law we fail to capture the real experience or worth of literature – a worth irreducible to either the morality it ‘stands for’, or to the coherence or harmony it promises. Indeed, the aesthetic ideals of modernism, which I begin to draw on in this chapter and then explore in more detail in the next, stand exactly against these two claims. Instead, modernism asks us to understand art or literature as an exercise in style, form and language, and in the diversity of voices and perspectives it opens to us. In both ways we might say that modernism rejected the upright aesthetic ideologies of previous eras and opened up the claims of truth and perfection to the destabilising force of irony.

While this might seem to weaken the value of the relationship between law and literature – to undermine its claims to find in literature the truth and the salvation of law – I think the opposite is the case. Instead, modernism changes our focus. Now we are asked to pay attention to questions of form, style and genre and to the tapestry of distinct and incommensurable voices the art of the twentieth-century weaves. Now we begin to appreciate literature as a site of questions not of answers, of the creation of textual doubt and ambiguity not certainty. This is not where its relevance to law ends but where it begins: for justice too might be re-configured not as an object or a closure but instead as a process, an experience and an opening. Ultimately I think that the rule of law needs this idea of literature. But we must first see more clearly what modernism did to our understanding of both. The more you look at it the more the field of law and literature, like a lot of legal theory for that matter, seems to have remained unswayed by the winds of modernism.

The mimetic fallacy

Over the past 20 years the law and literature movement has been transformed from an amateur hobby into an intellectual discipline. James Boyd White’s outstanding contributions to its development are well known, and his work did much to draw the attention of scholars and students to the literary nature of legal texts, and to the necessary influence of literature upon them and us. Since then each of the two dimensions of his argument – literature as a way of understanding legal subjects3 and the literary as a way of understanding legal language4 – have been multiply enriched, sometimes from surprising quarters. Many writers have explored the law’s roots in, and enduring if sometimes antagonistic fascination with, rhetoric, myth and literature,5 while a range of continental theorists have been called on to further nourish these discussions.6 Others have been approaching the subject in the opposite direction, as it were, using selected literary texts to enrich our thinking about law and justice.7 In recent years this approach has begun to draw not only on literature but on the protean forms of contemporary cultural production including films, television and the visual arts.8

What is it about a particular work, a film or a story, though, that not only illustrates a particular idea but in some sense proves it to readers? We must be wary of cherry-picking a single poem or story simply because it offers a poetic formulation of this or that point. A different story or film might illustrate quite the contrary, after all. In that regard, the very word ‘literature’, larded as it is with an implicit cultural hegemony, only begs the question. Many writers on law and literature still treat their chosen texts as vessels through which to convey a particular fact or facts about the world. The novel is treated as a dose of social or political medicine sugar-coated in a narrative that sheds light on what it is really like to inhabit the legal problem that the writer is discussing. Perhaps this is a function of the law’s hegemony over literature. Particularly in the hands of scholars within and hence answerable to the discipline of law, literature finds itself continually being translated into terms with which the law is familiar: the language of facts, of proof, and of generalisation and reduction. That which cannot be accounted for in this way – in other words, precisely the elements that make literature ‘literary’ and distinct from other modes of speech – is set aside. The ‘and’ in ‘law and literature’ implies an application and a certain submission.9

Plot and truth

I am far from dismissing this strategy. Literature can persuade us of the truth of the world-view it presents not only because the beauty of the writing moves us, but because a novel, for example, affords us unusual depth of understanding into the perspectives and the lives it explores. A novel can transform the way we look at something or someone, providing us with a ‘rich and concrete vision that does justice to human lives’.10 Since it is beyond doubt that legal structures constantly ask of us that we pay attention to the implications of our acts in the lives of others – think, for example, of the doctrine of the duty of care – this justice is of great importance to law.11

Yet over time the result has been that literature has been reduced to various ratio decidendi: Charles Dickens defends imagination against utilitarianism and compassion against legal formalism; Richard Wright and E.M. Forster teach us what it is like to be an oppressed minority in a repressive society; Franz Kafka warns us against the horrors of modern bureaucracy or economy; and so on.12 Over and over again, writers who are very different from each other in terms of their theoretical and philosophical orientation use literature to provide evidence in support of some specific truth-claim. No doubt this is to some extent unavoidable. But one is left anxious about the dangers of treating literature in such an instrumental fashion.

Indeed, behind the substantive problem of law and literature – why this novel? – lurks a normative problem – why this novel? If we are interested in a series of propositions or truth-claims about the world, why should we privilege literature at all? Is this really what Dickens or Kafka is ‘about’? Might there not be other stories that offer a different, even an opposite, truth? And if so, who chooses the ‘correct’ work of literature to illustrate a particular argument, and on what basis? Why is Kafka a better authority on modern institutional life than, say, Max Weber or Mary Douglas?

At times the effort to shoehorn literature so that it resembles a headnote verges on the farcical. In a famous interchange in the pages of the Harvard Law Review, Robin West claims that Kafka’s stories, such as ‘The Hunger Artist,’ portray the tragic and alienated results of a world in which orthodox legal principles of autonomy and consent are fully realised.13 Richard Posner flatly responds that one can draw no such lesson from Kafka.14 West insists that Kafka is ‘about’ law and Posner responds that law is ‘about’ rules and there are no rules in Kafka.15 In the course of this debate, West and Posner, despite their diametrically opposed positions as to what Kafka really means, share certain assumptions ‘about’ literature. Both are convinced that Kafka does really mean some definite thing in particular. Both focus exclusively on the plots of these stories in order to draw out their conclusions. In the case of Posner, in particular, this leads to some truly awful potted summaries which only a Hollywood producer – or a judge accustomed to reading digests and case notes – could mistake for literary analysis. But West is no less reductive in her own way.

At the same time, the debate between West and Posner undermines these assumptions. Despite themselves they show that the real strength of literature lies not in its message but in its openness to multiple interpretations, and to the dialogue with different readers that it inaugurates. Moreover, they unfortunately demonstrate through their discussion just how much of what matters about ‘literature’ escapes a purely substantive and instrumental analysis. In neither case is there any discussion of form, language, style or character – the very things which distinguish literature from a textbook or a law review article. This is not to say that a work of literature never means anything at all but that the effort to reduce it to a lesson – ‘tendentiously looking for support for one ethical or political position or another’ as Posner sharply says16 – seems somehow to miss the point. The literature of literature is all the while slipping through our fingers.

West concludes with a plaintive cry for law and literature.

Posner insists, and I agree, that he and I live in different worlds … There must be a way to cure our mutual ignorance – there must be a way to talk across the descriptive and normative divide. I thought literature might provide that bridge.17

If literature is the ‘bridge between worlds’ that West wishes it to be, and I think it is, it is surely not because of ‘what’ a particular piece of literature says – the ‘mutual ignorance’ it cures, as she puts it – but how. Yet that is precisely what so much writing on law and literature fails to examine.

Martha Nussbaum’s Poetic Justice exhibits some of the same failings. This work has been an enormously influential defence of law and literature, and I am a great admirer of both its poetry and its justice. Nussbaum argues for the political and legal relevance of the realist novel as the carrier of that ‘rich and concrete vision’ of the lives of others. According to Nussbaum, by positioning readers as ‘judicious spectators’ who come to care about these individual lives as if they were our own, the novel heightens our sensitivity to the fundamental equality of all human beings, and therefore to the ‘special degree of attention’ owing to those who have ‘suffered unequal disadvantages’ in life.18 Nussbaum’s project is thus to defend the role of the novel in public life. It develops in readers ‘the ability to imagine what it is like to live the life of another person who might, given changes in circumstance, be oneself or one of one’s loved ones’.19

But I am not sure that Nussbaum does justice to the distinct character and power of literature. In the first place, one might question whether this acclaimed empathy really helps us exercise judgment at all. In John Galsworthy’s multi-volume The Forsyte Saga, for example, our empathy is directed towards some of the most desiccated and heartless exemplars of late Victorian capitalism. As none other than D.H. Lawrence remarked, empathy here seems fatally to undermine our capacity for judgment. In the first volume there is a pitiless irony which might be read as a critique of capitalist alienation. But by the end of the great ‘saga’ the irony has all but disappeared. In extending his pity even to those wretches like Soames who besmirch all they touch, Galsworthy ends up embracing what he set out to scourge.20 Certainly he extends and encourages our empathy – but to what end?

Nussbaum’s argument that literature affords us access to the truth of other lives is, I think, more deeply flawed. I would have thought that the essence and value of the novel lies not in its complete identification with the inner lives of others but with the incompleteness of that identification. Mikhail Bakhtin distinguishes between the author, whose voice we hear, and the ‘hero’, about whom the voice speaks. The ‘hero’ is given meaning by being observed from beyond the horizon of his own consciousness, as it were. This distance, this objectivity, far from being an ethical flaw, is an ethical necessity.

One must come to understand that it is the other, as an other capable of being justifiably consummated, who constitutes the hero of all the positively valuable determinations of the world as a given … It is about the other that all the stories have been composed, all the books have been written, all the tears have been shed; it is to him that all the monuments have been erected; it is only with others that all the cemeteries are filled; it is only others who are known, remembered, and recreated by productive memory.21

In the sense that we are all authors, it is our responsibility to help give meaning and form to the lives of others. This exercise is by no means accomplished by the mere fusing of our consciousness or perspective with theirs. The self, in its life and of course after its death, does not ask the questions that a narrative form imposes. We guide our conduct instrumentally, pragmatically, perhaps morally, but we direct ourselves towards the future and not the past, to the part and not the whole. Such a comprehensive view – a consummation and a justification as Bakhtin says – cannot be given except by the author, never the hero, and from beyond the horizon of our own limited self-consciousness. For Bakhtin the soul is not merely revealed by the novel (or the narrative function which we continually exhibit in relation to others in our daily lives) but created by it. ‘What the other rightfully negates in himself, I rightfully affirm and preserve in him, and in so doing, I give birth to his soul.’22 So narrative is ethical not because we see what the hero sees but because we see what the hero, within the spatial and temporal limits of his own consciousness, cannot.

From Bakhtin’s perspective, Nussbaum’s expressive theory of the novel as a kind of transparent window onto the interior lives of others sells its ethical responsibility gravely short.

Above all, there can be no doubt that Nussbaum is extraordinarily selective in the works she chooses to discuss. Her literary choices are strongly oriented towards the very groups and persons that she already thinks we ought to single out for special protection. Charles Dickens’ Hard Times speaks to us of the injustice of poverty, E.M. Forster’s Maurice of the injustice meted out on the basis of sexual orientation, and Richard Wright’s Native Son of the injustice of racial discrimination.24 Each time the characters are brought forth as representatives of those whose disadvantages and discrimination ought to arouse our compassionate imagination; and each time I think it is fair to say that this was part of the author’s purposes. Certainly that is true of Dickens, whose novels were avowedly political and reformist. It is equally true, I think, of Forster who consciously ‘makes a case for equal sexual liberty’ through the story he tells; and also, although perhaps more complexly, with respect to Wright.

Surely novels which aim to ‘deal with … the most pressing equality issues of our time’25 are a very small and select sub-set of the realm of literature, and hardly makes the case for literature in general. It is hard to see how the vast majority of the canon of English literature fits so neatly into an overtly political reading of the novel as a pedagogical tool for the inculcation of principles of equal concern and respect. Even leaving aside authors such as D.H. Lawrence who avowedly reject Nussbaum’s ideology, what are we to make of William Thackeray’s Vanity Fair, or Emily Bronte’s Wuthering Heights, or James Joyce’s Ulysses, or Virginia Woolf’s To the Lighthouse?26 Does it not at the very least impoverish these books to conscript them into such a single-minded and political reading? If political and social reform is not the reason that most people write novels and it is not the reason that most people read them, then Nussbaum leaves herself open to the charge that she has chosen those books which serve her ideological agenda (worthy as it is) and left the rest. And if she has ultimately chosen her books on the basis of her pre-existing intellectual and philosophical commitments, one wonders why those who do not share her commitments should take their guidance from a sentimental old fool like Dickens, rather than from John Galsworthy or Adam Smith or Milton Friedman.27

In addition to this selectivity, it seems to me that for all the use that Nussbaum makes of them, the characters in these novels might as well be real people speaking about their lives in a documentary. They are introduced and treated as bearers of facts about their condition. Nussbaum is quite explicit about this, describing the novel as a means of eliciting ‘value laden human facts’. Story-telling encourages us to make judgments, she argues, ‘about the industrial revolution, about utilitarianism, about divorce law, about the education of children’.28 A more substantive and evidential approach to literature could hardly be imagined. Although Nussbaum writes of this as ‘literary judging’, every element of the literary seems absent from it.

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