Narrativity and performativity

In conjunction with his remarkable work on literature and on the unconscious, Lawrence’s Kangaroo is at once characteristic of the modernist response to the crisis of modernity and unusual in its interdisciplinary vision. Its polyphony and fragmentation, its realism, and its focus on individual psychology form a kind of anti-politics. This turn from politics provides not just the narrow content or story-line of the novel. Taking seriously the attitude to verisimilitude and to meaning which modernism foregrounded challenges many of the assumptions surrounding the novel – whether as a straightforward representation of reality or as a redemptive supplement to it – which remain the norm in parts of the legal academy. A novel is not an ‘extra-artistic rhetorical genre’⁷ or a moral treatise in disguise, pace Nussbaum. Instead, the modernist approach to law and literature builds an ironic resistance to all authority, including its own. It develops our sensitivity to the tension between different voices and perspectives long, long after we have forgotten what the particular story was ‘about’. Kangaroo’s heteroglossia, doubleness, humour and contingency, its layering of voices, stylistic tropes, metaphorical development and structural fragmentation echo on a formal level the same themes. In all these ways we begin to see – not just to see but truly to experience – how the elements that Bakhtin sees as the hallmark of the novel forge a particular voice of justice in law.

The force of literature can be understood not as a series of propositions that ‘talk about’ justice, but as engendering a feeling for certain practices ‘of’ justice. As we have seen, Kangaroo is essentially performative – ‘a gramophone of a novel’ in which we witness the power of literature as it operates on the author himself. Such an approach does not rely on some mental library of canonical subjects. It addresses, rather, how the narrative method in and of itself transforms our interpretative approach and leads to the rejection of rule-fetishism. Lawrence’s novel does not tell us what he thought about politics and justice: it shows us what he learnt about them and records how he changed through the very discipline of writing about them. It thus provides evidence for the meaning and force of literature by recording the transformations it wrought on the thinking and beliefs of the author himself. In Fantasia of the Unconscious, which you will recall was published the same year as Kangaroo, Lawrence says as much.

This causal relationship is very important for our understanding of how the narrative form modifies our attitude to rules. In keeping with his determination to rescue the tale from the clutches of the moral, Lawrence thinks of literature not as a didactic lesson intended to display a priori principles, but as an experience that forces us by its very particularity to challenge those principles. That it comes ‘unwatched’ is precisely the beauty of literature, both for the writer, and for the reader – it comes at one all unwary, from a side that is not subject to conscious editorial censorship.

Recent scholarly interest in Richard Wagner has drawn our attention to a similar creative process in which art transforms the artist as much as the other way around.⁹ Wagner is in some ways analogous to Lawrence, for both were attracted to a species of highly romantic philosophising about their art and their world. Yet Wagner’s intellectual romanticism is steadily pulled at and unpicked by the intimate and emotional details of his characters’ lives. The famous rupture with Nietzsche seems to hinge on this point. When Nietzsche, with astute and telling sarcasm, termed Wagner, of all people, ‘our greatest miniaturist’, he hit upon the aesthetic commitment to the detailed and intimate study of relationships which Wagner’s art demanded of him. This study forced his grand ideas against themselves and against one another, in just the same way as we have seen in relation to Lawrence. Finally, even so monumental a canvas as the Ring cycle can be understood as a work surprisingly opposed to mythology in the intimate depths of its compassion for its characters; committed not to the consolidation but to the ‘deconstruction of power’.¹⁰

Through its subversive performativity, the novel shatters abstraction in favour of a richer understanding born of the diversity and singularity of all experience and of the multiple discourses that contribute to it. In Kangaroo, Richard Somers’ conclusion might almost be taken as an anti-catechism, as his manifesto against the rote application of rules and a declaration of the unique judgments which the ‘call and answer’ of individual lives demand.

On the other hand (or leg) Melville’s Captain Ahab was, for Lawrence, an exemplary Western mythological figure – a ‘monomaniac of the idea’, while poor Moby Dick, our creaturely spirit, was ‘hunted, hunted, hunted by the maniacal fanaticism of our white mental consciousness’.12 These and other monomaniacal ideas of mastery literature takes as its subject and resists with every fibre of its being.

No doubt Lawrence overstates the case and his target was a fairly narrow one, the English tradition of analytic philosophy which was advancing around him at the time. But I do think that the history of philosophy is full of authors whose goal, as Lawrence says, is to ‘nail things down’. What made deconstruction, for example, the subject of such ugly and ill-tempered abuse,¹⁴ and by no means amongst English philosophers alone, was precisely its attack on the enduring materials out of which the discipline had been crafted – abstraction, wholeness, solution, resolution, absolution. The novel, on the other hand, if it is successful, must have change at its core – both narrative change and, as Lawrence says, the fluidities of interrelatedness that drive it. Growth and second thoughts are at the heart of the experience of the novel, including not just the readers’ experience or the characters’, but the author’s too.

Literature thus gives to law more than simply a laboratory in which to test the truth and impact of abstract ideas.¹⁵ It manifests, through narrative, the singularity of beings and circumstances, and it is these constantly challenging differences which undermine interpretative closure. To pay attention to narrative in law is to acknowledge that the rule, by itself, cannot tell you how it is to be applied in a distinct time and a distinct circumstance. This uniqueness might not, but nonetheless may at any moment, prove to be entirely unsettling to all our previous interpretations of the rule.

Many legal examples might be provided. One will do. In Harrison v Carswell the Supreme Court of Canada was asked to decide whether a union picketer in a shopping mall was entitled to be excluded by the proprietor as a trespasser on private property.¹⁶ For the majority of the court, the case was an easy one. Private property equals the power to exclude. A shopping mall is private property. Therefore, the rule against trespass applies. QED. To decide otherwise would be to make an ‘arbitrary’ decision ‘deliberately to abandon the [long accepted legal] principle in the name of justice or of social necessity’.¹⁷ Thus, as ever within positivism, justice and the rule of law are pitted against each other. But for the minority, the story was not so simple. Times were changing. Shopping malls were increasingly (and particularly in icy Canada) replacing streets and squares as necessary spaces of public discourse – a transformation even more evident now than in 1975. In this new world, was it right simply to apply the prior rule without thinking about whether that was what the rule, ancient as it was, ought to achieve? Was a shopping mall really ‘private property’ in the same way that a family house or an office block was? Is that how members of the community saw it? What assumptions did our a priori definitions import about the world? How might those assumptions be called into question by the particular narrative in the case before us and the changing times and experiences it brought to our attention?

In short, what kind of a ‘game’ is trespass and is a trespass on this new phenomenon, a shopping mall, the kind of game ‘I had in mind’? We cannot answer that question without thinking in a new and unpredictable way about all the assumptions (about property, ownership, space and the public realm) which our previous interpretations of the rule had left unexamined. This is the power of narrative in law. It throws new light on just these aspects of interpreting a ‘long standing legal principle’, and thereby allows the ‘economic and social facts under the circumstances of the present case’¹⁹ to transform their meaning for us. It forces us, as Lawrence said, to revisit and revise our definite conclusions. The majority in this case refused to pay attention to the light new stories throw on old ideas, instead relying heavily on a precedent case itself a ‘strictly legal’ argument made before the Supreme Court ‘without any context of fact’.²⁰

We can see here how the contextual specificity demanded by the exposition of a narrative and a context differs in perspective, ideology and outcome from the blanket a priori application of a rule. Narrative, in law, discourse or fiction, is about novelty – the novel – and so about the challenge of passing judgment under always-new and ever-changing circumstances. At the same time, Lawrence, though critical of the liberal-humanist social-realist tradition, nonetheless recognises in the novel, through its attention to relativity, context and poly-vocality, crucial values of self-questioning, transformation, humour, irony, compassion, specificity ambiguity and doubt. Literature brings philosophy to life but, just as importantly, is an antidote to it.²¹

Polarity, publicity, and the rule of law

Now such an argument threatens to steer the field of ‘law and literature’ towards the romantic rejection of any rote application of abstract rules and logical reason. We seem to be thrown back upon a universe of instances in which justice is singular, uncodifiable, unrepeatable and spontaneous. There is a second and countervailing element, however, to the connection between literature and justice. The force of literature – the Lawrentian polarities that pull it (and us) in opposite directions, its (and our) Bakhtinian warp and woof of multiple discourses – requires a constant listening and correction of received ideas and a constant adjustment to changing circumstances. This is a public process and not a private insight.