The State of the Art
It is difficult to summarize the current state of these studies, which have become quite complex and which have been confronted by many law historians, comparative literature scholars, and theorists on this interdisciplinary debate. I will mention just a few, to give an idea of how the field of comparative research has evolved in recent years.
Richard Weisberg of the Cardozo School of Law is the main contemporary representative of the approach of law in literature, of which his book The Failure of the Word is one of the reference texts. Weisberg analyses eight great narrative works whose protagonists prefer the security of verbalism to the risks of spontaneous human interaction. A deeply formalized language mediates between them and the critical situations of life, protecting them but also gradually alienating them from creative action. He re-reads all these modern texts through the paradigm of Nietzsche’s ressentiment. With the development of the modern novel, the authors explicitly set the values of the eloquent character inside law courts and men of law. By acknowledging heroism and religious faith as decaying absolute values, the writers showed consciousness of the emergence of law as the controlling principle of modern society. Anyway law, being no more than a relativistic method to order reality through language, presented the same philosophical and religious attitude to life as previous non-legal texts. The protagonist emerged as a man of law, in the act of speaking, writing and re-organising otherwise threatening realities.
In The Brothers Karamazov and Billy Budd, which were written in the 1880s, the eloquent character makes use of the language of law to control a less eloquent and less educated accused person. Private revenge against the imaginary offence perpetrated by such positive individuals transformed itself into a public and collective revenge against the threat of non conformist individuals. The complexity of juridical perspective, nowadays institutionalised in law courts, distorts reality and ends up depriving justice of its validity.
The price was paid by innocent victims. This theme reached its climax in two juridical works written by Camus: L’etranger (1942) and La chute (1956). In the former one, men of law interfere in the reality of a character whose moral system is radically different from their own (in particular in his preference for history and materiality against verbalism and metaphysics). In La chute a Parisian lawyer, whose ambiguity of expression prevents him from clearly seeing inside himself, represents French culture. Twelve years after Vichy, Camus’ lawyer, regretful only up to a certain point, recognises the heavy consequences of the vain elegance of an entire society. The word had failed not because of some intrinsic unworthiness but rather because of its incapacity to sustain the values of a certain culture.
Weisberg’s book roots the prophecies and posthumous analysis of the genocide of the Jews in the vain verbalism of the juridical protagonists described by modern literature. These figures, wanting in spiritual substance, embody all the characteristics of the deepest malaise of modern Western society, the inexhausted resentment or ressentiment. Camus’ works show an appalling dichotomy between ethics and language: they echo the eighteenth century European theme of legalized ressentiment.
In The Legal Imagination (1973), James Boyd White openly states that legal education should be liberal, that it should be an education in which students do not merely assimilate data, but in which they learn introspection; they must learn to write in a compositional rather than interpretative manner. Attorneys must learn to use their voices both professionally and individually; they must learn the ambiguity and uncertainty of knowledge, become aware of their own culture and how to contribute to it. As such, law is a method of integration, a way to put different languages together. These concepts are examined in Justice as Translation. An Essay in Cultural and Legal Criticism (1990), in which White states his desire to consider law a culture of argumentation, not a group of rules, but direct participation in culture by learning the language and performative value of that culture. Law is a branch of rhetoric meant as the art of persuasion, as a deliberative as well as a constitutive art because, precisely through its linguistic forms, law allows a world of meanings and actions to take shape.
In Cross Examination of Law and Literature (1987), Brook Thomas starts with a concept expressed by Rufus Choate in 1833, according to which law addresses man’s rational faculties, while literature goes straight to the heart, emotions, and imagination of an entire population. Thomas then observes that comprehension of literature is essential to practicing law. To demonstrate as much, he selects a number of texts from the American Renaissance (Pioneers by J. Fenimore Cooper, House of the Seven Gables by Hawthorne, etc.) in order to better define the ideology of that period. He furthermore notes that, on one hand, the law’s capacity to solve conflicts is one of its most positive traits. At the same time, however, the “critical-legal studies” movement reminds us that the art of rhetoric aids the law at the price of erasing precisely those conflicts produced by the constituted order, thus legitimizing that order. Literature offers narratives representative of how a culture reacts to the social contradictions of its time: for example, each individual’s need for freedom contrasts with the need for stability typical of the social order, which the law itself satisfies.
Peter Brooks and Paul Gewirz’s text Law’s Stories. Narrative and Rhetoric in the Law (1996) deals specifically with this issue. It looks at the law not as a group of laws and regulations, but as a collection of narratives, like performances or linguistic and rhetorical training ground. Hence, the critical slant lies in considering the law both within literature and as literature. Literary scholars handling the law within a literary text certainly have no intention of performing legal exegesis. Theirs is an attempt to show how literature, a fruit of its time and of a whole set of ideas (which thus includes legal elements as well) circulating in society in a given moment, relives juridical problems in its own, non-specialist way, which nonetheless spurs reflection on how the law is experienced, understood, and reworked by the common man (meaning by non jurists). Indeed, Douzinas distinguishes between “justice” meant as a substantive, universal concept, and “justice” meant as a procedural, formal concept; between “law” as “dikaion” or “jus” (which regulates the relations between citizens) and “law” as regulations and rights.
In The End of Human Rights (2000), Costas Douzinas analyzes the evolutional process which starts with the concept of “law of nature” from the Classical period, and reaches the concept of “human rights” that characterizes modern times. According to Douzinas, the concept of human rights has become emblematic of the struggle for freedom from a situation of political or ideological oppression; or rather, human rights represent the ideology following the defeat of ideologies. What historical circumstances led to the emergence first of natural rights and then of human rights? Douzinas notes how human rights can be analyzed from two perspectives: in the first place, the concept aids in the formation of individuals who are both free and subject to the law; in the second place, can such a concept underscore the end of history? Indeed, there has been a development from a sense of history as an evolutionary process, to the interpretation of history as unfathomable and uncertain, in a complete loss of universal consistency.
The myth of history as progress has become a destructive and regressive anti-myth, and the concept of human rights has suffered an analogous implosion: from a sense of rebellion it has turned into a state of legitimacy. We are forever caught in a power struggle disguised in legal garbs. The concept of human rights underscores the law’s passing from a sense of universality to one of transience and contingency.
In any case, the current postmodern phase is also a post-humanistic phase in which the individual tends to return to the center of political and social interests: with the concept of “politically correct” there has truly been a return to the subject in both liberal jurisprudence and in politics. Nonetheless, the ambiguity of current times is such that subjectivity, a central theme in human rights, clashes with the deconstruction of the self.
In their 1999 work Law and the Image, Costas Douzinas and Lynda Nead deal with another fundamental, interdisciplinary relationship: that between law and the artistic image. They start from Plato’s refusal to admit artists into his Republic: art and law are considered irreconcilable because art is intrinsically anarchical and law fundamentally ordered and consistent. Then, they begin to consider a convergence, because law has always attempted to regulate images: images must be controlled in order to respect the social contract. Indeed, like religion which has often looked suspiciously upon the reproduction of divinity, so law has attempted to control iconic images, fluctuating continuously between iconoclasm and iconophilia.
In Oedipus Lex: Psychoanalysis, History, Law (1995) Peter Goodrich, too, takes into consideration the relationship between law and image, seeing the birth of “Common Law” as linked to an original trauma. Regulation of the visible has meant, since its very beginnings, regulation of that which is permitted, and an attempt to relate the visible to the invisible, the earthly to the eternal, external images to internal, mental images.
Among the most well-known scholars in this branch of interdisciplinary research, Richard Weisberg mainly deserves mentioning. In his 1984 work The Failure of the Word. The Protagonist as Lawyer in Modern Fiction, Weisberg asserts that at the base of the catastrophic predictions of modern literature lies the vain logorrhea of lawyer protagonists in texts by Dostoyevsky, Flaubert, and Camus, as well as Melville’s Billy Budd. Entirely devoid of spiritual depth, these lawyer figures bring forth the profound malaise of Western culture, giving voice to feelings of ressentiment. Relishing in repressed bitterness and aversions that feed on legal elements, such attorneys bring to the surface the gap between words and ethics. It is not the law which is under accusation, but how the law is used by lawyers, who become spokesmen for seeds of sedition and bitterness hidden in the folds of social life. They shroud their resentment in great verbal skill, however divested of visionary inspiration. Denouncement goes to the split between verbal skill and elegance on one hand, and moral corruption on the other. The fall Camus describes in L’étranger is one of culturally superior individuals who make ill use of the law in order to submit others to their will. As such, the analysis of the lawyer figure undertaken through these novels anticipates the collapse of moral values and exploitation of the other, that would find its apotheosis in the Holocaust.
In Italy the volume edited by Daniela Carpi Shakespeare and the Law sets some methodological criteria for this interdisciplinary comparison and establishes some epoch-making transformations in the law during the Elizabethan-Jacobean era. This volume shows how literary texts function as a sounding board for the juridical issues of their time. In the chapter “The Literature of Law” Costas Douzinas retraces this critical-intertextual pathway, starting from a definition of the relationship between “establishing justice” and “telling stories”. The comparison could seem inapplicable because, on one hand, law requires monotonous repetition of procedures, while literature, on the other hand, requires creative originality and openness towards multiple interpretations. Nonetheless, starting with Plato and Aristophanes and finishing with Kant, what is retraced is the diachronic history of the law/literature comparison. Yet, another element exists which adds to the generic distinction between law and literature: on one hand, the desire to control the world and society through the social contract and corpus of laws, and on the other hand, an opposing drive which affirms that the world cannot be controlled. The positivistic version of the law, which affirms that a systematic network of laws regulating the world is possible, opposes legal hermeneutics and literary jurisprudence.
Literature has paid enormous attention to legal issues, thus it has in turn become an object of interest for attorneys. Both branches attempt to understand the world and to lay the foundation for peaceful coexistence; they furthermore attempt to understand the human soul and set the boundaries between good and evil, justice and injustice. In psychoanalytical terms, literature has become the subconscious of the law, its dream and, as it represents the language of the subconscious, it helps the law understand the problems of institutions.