Law and literature

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The law and literature movement focuses on connections between law and literature. This field has roots in two developments in the intellectual history of law—first, the growing doubt about whether law in isolation is a source of value and meaning, or whether it must be plugged into a large cultural or philosophical or social-science context to give it value and meaning; and, second, the growing focus on the mutability of meaning in all texts, whether literary or legal. Work in the field comprises two complementary perspectives: Law in literature (understanding issues as they are explored in literary texts) and law as literature (understanding legal texts with literary interpretation, analysis, and critique).

History of the movement[edit]

Perhaps first to envision the movement were John Wigmore and Benjamin Cardozo, who acknowledged "novelists and poets" as the principal teachers of law in the first half of the 20th century. Most scholars, however, credit James Boyd White as the founder of the law and literature movement because of the dedicated research and distinguished publications he has contributed to this rapidly growing field. Among his many literary books and articles, White's most renowned publication, The Legal Imagination, is often credited with initiating the law and literature movement. This book, first published in 1973, is a fusion of anthology and critique, superficially resembling a traditional legal casebook but drawing on a much wider and more diverse range of sources, with headnotes and questions emphasizing the relationship of legal texts to literary analysis and literary texts to the legal issues that they explore.

The movement began attracting attention in the 1970s and by the 1980s had gained substantial ground in academia. The proponents of the law-in-literature theory, such as Richard Weisberg and Robert Weisberg, believe that literary works, especially narratives centered on a legal conflict, will offer lawyers and judges insight into the "nature of law" that would otherwise go missing in the traditionally strict study of legal rhetoric.

In its early stages, the law and literature movement focused strictly on the law in literature theory; however, beginning in the late 1970s the law as literature perspective began to gain popularity. This perspective seeks to enhance legal studies by examining and interpreting legal texts using the techniques of literary critics. Scholars such as White and Ronald Dworkin find greater relevance in law as literature because it maintains that the meaning of legal texts, such as written law, like any other genre of literature, can only be discovered through interpretation. Although legal scholars have long considered both literary and legal texts in their study of the legal process, the recent degree to which the two seemingly separate genres interact has sparked great debates among scholars.

Law in literature[edit]

The law in literature view is specifically concerned with the way in which legal situations are presented in literature. Throughout history, writers engaged with legal topics. The deep enmeshing of law and literature was particularly prevalent during the Middle Ages and the early modern period.[1][2] Generally, they place a high value on the "independent" view from which literary writers are able to see the law. They believe that such authors have a lesson to teach legal scholars and lawyers alike about the human condition, and the law's effect on it. Such scholars tend to cite authors like Franz Kafka, Albert Camus, Herman Melville, Fyodor Dostoevsky, and Charles Dickens. The fictional situations presented in literature, these scholars assert, can tell a great deal about political and social situations, and the individual that often find themselves before the court. For example, Robert Weisberg believes that the law in literature offers fertile possibilities. He suggests that even though some literature cannot instruct its readers about legal situations, they can still educate law students about the human condition.

Richard H. Weisberg, professor at Cardozo School of Law is another leading scholar of law and literature. Following the lead of James Boyd White, he sees an intrinsic value in the use of literature as a means of discussing legal topics. Unlike White however, who places value on literature for its ability to stimulate critical thought and theory, Weisberg believes that literature should be valued for its ability to cause one to relate to others, and for the political and social contexts that novels, particularly those dealing with the law, grapple with. For Weisberg, this is reason enough for its justification in the legal arena because such novels cause their students to reach conclusions regarding human understanding. In his study Poethics, Weisberg states that, "Poethics in its attention to legal communication and to the plight of those who are 'other', seeks to revitalize the ethical component of the law."

Richard Weisberg's interest in the law and literature movement might be seen as slightly different than that of White, who places emphasis on the rhetorical techniques and abilities that literature utilizes. Weisberg rather wishes to use literature as a way of critiquing social institutions and legal norms. For him it is the subject matter of novels and not their rhetorical tools that make them important in instructing law students, as well as furthering understanding of legal matters for the independent law scholar.

One example of his attempting to validate his stance of the effect of novels onto legal minds, is one where Weisberg cites a real life French lawyer living in France during the beginning of the deportation of French Jews to concentration camps. The lawyer was attempting to assign the duty of determining Jewry of an individual with only two Jewish grandparents to the state, then controlled by the Nazis and collaborators. In describing the words chosen by the lawyer, Weisberg believes that the "masking of a moral crime" is a direct descendant of Nietzschean ressentiment, which is widely believed to be a philosophical outlook that permeates through the writings of Albert Camus and Kafka-literary authors whose works law and literature proponents cite often, including Weisberg. His belief that ressentiment makes its way into the writings of lawyers, such as this Frenchman, is seen as enough of a reason for him to view legal novels as compelling arguments of the human condition and thus their validity towards legal debate.

Law as literature[edit]

Law as literature scholars see value in the techniques employed by literary scholars. Generally speaking, these scholars may see legal text as a form of literature thus making literary critique and analysis of it possible. Unlike the law in literature scholars, these minds only see possibilities in the tools of literary theory, and not really the subject of the great novel that law students often find themselves reading, although most might agree that literature serves a purpose that allows for ethical development and growth within the student.

Benjamin N. Cardozo was a proponent of law as literature. "The success of Cardozo's books was also due in part to their distinction as literature. Convinced that style could not be separated from substance, Cardozo brought the Judicial process to life in lucid, eloquent prose sprinkled with humor, anecdotes, and practical allusions." (enotes.com, Benjamin Nathan Cardozo 1870–1938)

While James Boyd White acknowledges the relevance of the law-in-literature perspective, he finds law-as-literature more tenable because of the position's ability to combine the two seemingly disparate disciplines and allow for text to fulfill its role of defining culture and creating relationships. According to White, Jane Austen's Pride and Prejudice

is meant to teach the reader how to read his way into becoming a member of an audience it defines-into becoming one who understands each shift of tone, who shares the perceptions and judgments the text invites him to make, and who feels the sentiments proper to the circumstances. Both for its characters and readers, this novel is in a sense about reading and what reading means

Ronald Dworkin also supports the arguments in favor of the use of literature to improve legal understanding. In his article, Law as Interpretation, Dworkin stated, "I propose that we can improve our understanding of law by comparing legal interpretation with interpretation in other fields of knowledge, particularly literature." He believes that our interpretations of literary works may help us to an improved understanding of our cultural environment, which in turn helps us to come to a better understanding and interpretation of the law.

Law and Literature in Europe[edit]

The Law and Literature movement in Europe is wide-ranging and fruitful and a number of networks in Europe are significant to the movement. There is for example a European Network for Law and Literature Scholarship run by Jeanne Gaakeer, Professor at the Erasmus University Rotterdam, and Greta Olson, Professor at the Justus-Liebig Universität Giessen. Gaakeer's influence is also reflected in her publications, for example Hope Springs Eternal: An Introduction to the Work of James Boyd White (University of Michigan, 1998), and she is co-editor of Crossing Borders: law, language and Literature, Wolf Legal Publishers The Netherlands, 2008. Greta Olsen has edited a number of books including 9/11 Ten Years On (2011) and Current Trends in Narratology. Berlin and New York: De Gruyter, 2011 and In the Grip of the Law: Trials, Prisons and the Space Between. Frankfurt: Peter Lang, 2004a. There is also a Nordic Network for Law and Literature and two Italian Networks for Law and Literature, AIDEL and ISLL. In Norway: The Bergen School of Law and Literature, directed by Professor Arild Linneberg, Faculty of Humanities, Department of Linguistic, Literary and Aesthetic Studies, University of Bergen. Law and Literature in Europe is energetic but at times less self-promoting than its American counterpart. Greta Olson's article "De-Americanising Law and Literature Narratives: Opening Up the Story' in the journal Law and Literature 2010 (published by Cardozo in the USA) provides a reminder of scholarly activity in Europe as well as warning against a "tendency to universalise our scholarly narratives" where some debates are particular to the American setting. She calls upon European scholars to "remember that the peculiarities of our own legal systems and legal histories need to be kept in mind as we contest law with the aesthetic and use law to query the literary".

Post-conference productions such as the Oxford University Press collection Law and Literature: Current Legal Issues Volume 2: Law and (1999) edited by Michael Freeman and Andrew Lewis are testament to the number of approaches opened up by this interdisciplinary approach. In the United Kingdom, scholars of note include Maria Aristodemou, with her Law and Literature from her to eternity, which looks at a number of texts from ancient Greek to modern day novels from a feminist and postmodern perspective. Adam Gearey's Law and Aesthetics provides a discussion of aesthetics and ethics relevant to contemporary law and literature scholarship, and to the development of postmodern jurisprudence, using a range of reference points from classical literature, from Sophocles to Shelley to Nietzsche. Professor Ian Ward, Law and Literature: Possibilities and Perspectives, which considers a range of texts from Shakespeare, to children's literature, to Ivan Klima and Umberto Eco and, more recently Ward's Law, Text, Terror, looking at the phenomena of terror and the rhetoric of terrorism tracing back through literature, popular culture and politics. Professor Melanie Williams; book Empty Justice: One Hundred Years of Law, Literature and Philosophy explores in particular feminist and existential questions as well as genre movements relating to caselaw combined with works by, for example, Thomas Hardy, J. G. Ballard, John Fowles, J. M. Coetzee, Virginia Woolf and Iris Murdoch, while her Secrets and Laws provides a range of essays on legal and political issues of note, from ethics, terrorism and identity to notions of obscenity, rape, sex and violence, through the prism of poetry, W. H. Auden and R. S. Thomas as well as 19th and 20th century works of fiction. Kieran Dolin's A Critical Introduction to Law and Literature takes in a wide range of historical periods from Renaissance literature to Victorian literature and modern texts, exploring a number of topical approaches to crime, feminism, race and colonialism, while Paul Raffield's Shakespeare's Imaginary Constitution : late Elizabethan politics and the theatre of law (Hart, 2010) is an addition to the critical work available on Shakespeare and the Law. The Italian law and literature scholar Daniela Carpi has also written a book on Shakespeare and the Law as well as an interesting text discussing Plato's relevance to 20th century English Literature.

These instances of European outputs in the Law and Literature movement are in no way representative of the large literature to be found in articles written by the above named scholars as well as others in the field.

Criticisms of law and literature[edit]

Richard Posner has played an important role in the law and economics movement. As the author of Law and Literature: A Misunderstood Relationship (now in its third edition, titled simply Law and Literature), Posner is highly critical of the law and literature movement and the book helps to voice his more hard-lined interpretation of the law. The book can be seen as a reaction against the writings of Robin West, who has written substantially against Posner's economic take on legal interpretation. A powerful critic of the writings of White, Weisberg, and West, Posner sees literature as having no weight in the legal realm although he does hold the authors in high esteem. He writes, "Although the writers we value have often put law into their writings, it does not follow that those writings are about law in any interesting way that a lawyer might be able to elucidate."

Posner does not believe in the use of literary discourse in jurisprudential debate, and in colloquy has described West's analysis of literature in legal debate as "particularly eccentric."[3] Posner writes that "law is subject matter rather than technique", and that legal method is the method of choice in legal realms, not a literary one. To expand further, Posner believes literary works have no place in judicial debate because one can never truly contemplate the original meaning of the author, and that novels should only be considered in their contexts. He characterizes the discovery of laws in fiction as "ancillary" and asserts the main subject matter of a novel is always the human condition, and not the legal setting. From this perspective, the legal background created by Kafka and Albert Camus are simply that, background, and have no further meaning beyond the environment which they create.

This isn't to say that Posner doesn't think in literary terms-far from it. For instance he characterizes Albert Camus's The Stranger, as the "growth of self-awareness" on the part of the hero, Meursault. Posner gives weight to such situations on personal levels and only on personal levels, yet dismisses any sort of legal implications of such situations as lacking in "realism". Such assertions and arguments have placed him in sharp contrast with Richard Weisberg, who has cited The Stranger numerous times, among other books. Posner sees literature's importance in legal studies only because they may help the lawyer grow as an individual and to develop character, but sees no value in them as social critiques of the era in which they were developed and written, as Law and Literature scholars might ascribe to them. Certainly he sees no value in them as sources of legal philosophy and reform.

Highly critical of the notable Law and Literature scholars, Posner believes that such legal minds have taken literature "too seriously" and assigned them an unsubstantiated amount of weight in the expansion of legal knowledge and jurisprudential debate.

Richard Delgado and Jean Stefancic were against White and his theory of certain famous legal cases in U.S. history and agree with Posner on several issues. Their theory is that the actual impact of contemporary literature on the substance of judicial opinion-making is limited because judges distinguish legal texts. According to Delgado and Stefancic, judges' moral positions are determined by normative social and political forces rather than by literature. They are firm believers of the critical race theory which is a school of sociological thought that emphasizes the socially constructed nature of race.

References[edit]

  1. ^ Barrington, Candace; Sobecki, Sebastian, eds. (2019-06-30). The Cambridge Companion to Medieval English Law and Literature. Cambridge Companions to Literature (1 ed.). Cambridge University Press. doi:10.1017/9781316848296. ISBN 978-1-316-84829-6.
  2. ^ Hutson, Lorna (2017). The Oxford handbook of English law and literature, 1500-1700. Lorna Hutson (1st ed.). Oxford, United Kingdom. ISBN 978-0-19-966088-9. OCLC 966877574.
  3. ^ Richard A Posner. The Ethical Significance of Free Choice: A Reply to Professor West. 99 Harvard Law Review 1433 (1985–1986).

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