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Transatlantic Law and Literature II: The Three Faces of Law and Literature

by Brian Wall

Before delving into how, as I suggested in my first post, law and literature can enhance our understanding of key nineteenth-century transatlantic texts, I think it is worthwhile to briefly review what is actually meant by the catch-all phrase “law and literature.” This field, which has grown greatly since the publication of James Boyd White’s The Legal Imagination in 1973, really consists of three sub-areas: law as literature, law about literature, and law in literature. While my work focuses primarily upon the third sub-field, which looks at how authors incorporate legislative and judicial law into their works, the other two fields may be of relevance to other scholarship relating to romanticism.

The sub-field of law as literature focuses on using the techniques of literary criticism to evaluate both the production and analysis of written law. Examinations in this area look at legislative statutes, judicial rulings, and legal commentary as literary texts. These can range from a study of the rhetorical structure of Elizabethan sumptuary laws to Supreme Court Justice Antonin Scalia’s employment of “originalism” in contemporary jurisprudence.

Scholars interested in law about literature explore the impact of laws governing the production of literature. This may include areas such as the impact of censorship laws on literary production or battles over copyright protection. The latter of these areas has recently been particularly newsworthy, as one of the leading academics in law and literature, Richard Posner of the University of Chicago Law School, authored the majority opinion in the appeal of Klinger v. Conan Doyle Estate in his capacity as judge for the United States Court of Appeals for the Seventh Circuit. Posner’s opinion upheld the district court’s ruling by placing Conan Doyle’s Sherlock Holmes stories written before 1923 in the public domain.

Finally, the area that pertains most directly to my research is law in literature. White’s The Legal Imagination is generally credited with popularizing interest in this area; as he explained it, the goal of this field was initially to help law students “become literary and cultural critics and to learn to apply their talents of analysis to the discourse of the law, both as that discourse is employed by others and as they themselves put it to work in their own writing” (xi). Two opposing critical camps have formed around the study of law in literature, both differing in their appraisal of the efficacy of this area of critical study (although, I should note, there is a significant variation of thought within these two camps). The first, consisting of scholars such as White, Richard Weisberg, and Robin West, suggest generally that the study of literary texts by lawyers and law students can, “through the rhetorical analysis of literary, legal, historical and philosophic texts … demonstrate that the writing and reading inherent in the law in a democracy constitutes a ‘culture of argument,’ a community open to the voice of the ‘other’ as well as its powerful” (Dolin 8). Gary Minda describes the aims of this camp as “distinctively humanistic” (158). The other camp, featuring thinkers such as Posner and Robert Weisberg, suggests that the first camp takes the study of text far too seriously for the purposes of jurisprudential investigation. Authors like Dostoyevsky, Posner argues, wrote novels that could properly be considered “‘philosophical’ or even ‘theological’ novels that “are thus inappropriate for jurisprudential discourse” (Ward 13). Here, Posner makes a crucial distinction between jurisprudence and jurisprudential operation: while he suggests that “we cannot learn a great deal about the day-to-day operations of a legal system from works of imaginative literature even when they depict trial or other activities of the formal legal system,” he agrees that “we can learn a great deal of jurisprudence from some works of literature” (5). These lessons of jurisprudence, Posner argues, have rhetorical value even if they are not particularly instructive in the technical niceties of a particular jurisdiction’s legal doctrine.

Most of the scholars I have cited in this last section focus on the utility of law in literature to the training of future attorneys and the practice of law. However, an increasing number of scholars in recent years have focused on the reciprocal relationship by using legal concepts to explore literary texts. In my next post, I will talk briefly about some exciting developments using law in literature concepts to explore Renaissance texts before transitioning into how that model can be particularly useful in transatlantic romantic literary studies.

Works Cited

Dolin, Kieran. Fiction and the Law: Legal Discourse in Victorian and Modernist Literature. Cambridge: Cambridge University Press, 1999.

Minda, Gary. Postmodern Legal Movements: Jurisprudence at Century’s End. New York: New York University Press, 1996.

Posner, Richard. Law and Literature. Cambridge: Harvard University Press, 2009.

Ward, Ian. Law and Literature: Possibilities and Perspectives. Cambridge: Cambridge University Press, 1995.

White, James Boyd. The Legal Imagination. Chicago: University of Chicago Press, 1973.

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