SOURCE: Crane, Gregg D. “The Path of Law and Literature.” American Literary History 9, no. 4 (winter 1997): 758-75.

[In the following essay, Crane discusses the extent to which literature and law interact and are capable of influencing each other and evaluates three recent studies of that subject.]

In the Library of Congress's small collection of Chief Justice Roger B. Taney's papers, I recently happened upon the fragmentary beginnings of an essay on slavery and antebellum sectional hostility. Apparently written on the eve of the Civil War, the anonymous author laments the election of Abraham Lincoln and condemns “free state aggression” upon the nation's proslavery Constitution. The essayist attributes the constitutional crisis to the North's dissemination of “political hate” in its schoolrooms, pulpits, and “a novel of a character well calculated to raise the morbid thought of fanatics, which portrayed in pictures of exaggeration the evils of slavery” (“Fragment” 3).

This reference to Harriet Beecher Stowe's Uncle Tom's Cabin is somewhat startling. It is as though the professional curtain of procedure, precedent, and deduction typically veiling judicial reasoning had been momentarily drawn aside to expose a jurist's outrage at an unwelcome literary revision of constitutional jurisprudence. After reading these bitter notes, one sees Taney's obsessive reiteration in Dred Scott v. Sandford that the Framers unequivocally rejected African-American citizenship as a testy, defensive reaction to changes in the unofficial, cultural jurisprudence of race, rights, and citizenship fostered by Stowe and others. Indeed, his suspicion that the general public in 1857, unlike their revolutionary forebears, would read the phrase “all men are created equal” as embracing “the whole human family” implicitly confesses the influence of Stowe's novel and other nonlegal texts on antebellum constitutionalism (Dred Scott 410). Even if not written by Taney, the fragment is significant evidence that at least one of his contemporaries (probably a lawyer given the writer's detailed familiarity with specialized legal concepts and precedents) viewed the Constitution as subject to reinvention by literary artists as well as judges, lawyers, politicians, religious leaders, philosophers, educators, and others. Such evidence beckons us to describe the processes of interdisciplinary influence upon our notions of justice and our legal institutions as well as our conceptions of literature's provenance and authority.¹

Interdisciplinary research is expressly invited by literary figures, such as Stowe, Frederick Douglass, and Charles Chesnutt, who conceived of their literary efforts as part of a larger cultural and political project to reform American law and society.² It is no less clearly invited by such judges as Oliver Wendell Holmes, Jr., Benjamin Cardozo, and Learned Hand, who explicitly recognized the importance of cultural influences upon the formation of law. Rejecting the notion of an autonomous legal discourse, Holmes famously claimed that “[t]he felt necessities of the times, the prevalent moral and political theories, institutions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed” (Common Law 1). In a similar vein, Cardozo described the nature of judicial process as a “perpetual flux” (28) driven by “forces which … [judges] do not recognize and cannot name—… inherited instincts, traditional beliefs, acquired convictions; and the resultant is an outlook on life, a conception of social needs, a sense in [William] James's phrase of ‘the total push and pressure of the cosmos,’ which, when reasons are nicely balanced, must determine where choice shall fall” (12). Acknowledging that “the mental habits” of the culture “determine its institutions,” Hand contended that familiarity with literary and philosophical texts can be “as important to a judge called upon to pass on a question of constitutional law” as familiarity “with books which have been specifically written on the subject” (1, 12). These comments imply, among other things, an Emersonian and pragmatist skepticism of linguistic fixity and an awareness that the certainties of legal language necessarily conceal the fluidities of experience and cultural change.

If the presence of legal aims, themes, and tropes in literature suggests the wisdom of studying the relation of law to certain literary texts (at a minimum in order to fully understand the legal typology of and historical context for those texts), these jurists' recognition of the significance of cultural influences to judicial reasoning suggests the wisdom of studying cultural texts that express an era's “felt necessities” and “mental habits” (at a minimum in order to discern the cultural themes and figures important to certain legal texts). Two related types of investigation would seem to be helpful in our understanding of such interdisciplinary influences: first, a historical inquiry into the nature and consequences of specific legal and literary interconnections, and, second, a theoretical inquiry into the possible legal relevance of literary models of law, community, and human interaction. Much of the scholarship denominated by the phrase law and literature takes the latter approach. Judge Richard Posner's essays exemplify a tendency common in these theoretical discussions to treat the law and literature topic as though it posed a hypothetical question as to whether literature might have anything of substance to offer law—perhaps a hermeneutic model, a humanizing influence, or both. Surprisingly, much law and literature scholarship never gets to an examination of the discourses' historical interaction.

From his first foray into law and literature to his most recent book Overcoming Law, Posner has argued that there is no substantive interaction between the two discourses and that literature only provides lawyers and judges with lessons in careful reading and persuasive writing.³ The frequent appearance of law in literature is “a largely adventitious circumstance” (“Law and Literature” 1352). Very simply, one does not go to law to understand literature: “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.” Conversely, one does not go to literature to learn about the law: “If I want to know about the system of chancery in nineteenth-century England I do not go to Bleak House” (“Law and Literature” 1356). According to Posner, “[v]ery few of Kafka's readers have any interest in Austro-Hungarian criminal procedure or, for that matter in due process of law, … just as few readers of The Merchant of Venice give a fig about the enforcement of penalty clauses in contracts” (“Law and Literature” 1358). Attention to literature may yield information as to “how laymen react to law and lawyers,” but this information would not have any relevance to an understanding of law or literature (“Law and Literature” 1356).

We might assent that, in general, lawyers researching the details of civil procedure do not turn to Franz Kafka's The Trial and that the law clerks of the Seventh Circuit Court of Appeals, where Posner sits as chief judge, do not turn to Shakespeare's The Merchant of Venice to untangle problems of contract doctrine. And we might concede that much of the texture and meaning of most literary texts may be understood without obtaining legal expertise. Yet the central presence of legal themes and tropes in Uncle Tom's Cabin, Richard Wright's Native Son, and Harper Lee's To Kill a Mockingbird, for instance, is hardly “an adventitious circumstance,” and an understanding of the Fourteenth Amendment and segregation law plainly aids and enriches our comprehension of Chesnutt's explicit rebuttal of Plessy v. Ferguson in The Marrow of Tradition's depiction of Jim Crow train travel. In addition, as courts have remarked, an understanding of the work of such literary figures as Douglass illuminates the meaning and background of the Civil War amendments.⁴

Also, as Holmes, Cardozo, and Hand point out, judges, lawyers, legislators, and certainly jurors do not receive their jurisprudential orientation merely from statues, cases, and legal treatises. Their ideas of justice often have been shaped, at least to some extent, by their experience of imaginative literature as well as religious and philosophical material, and these broad cultural ideas of justice undoubtedly influence their decisions, especially in hard or unclear cases.⁵ Courts and lawyers do cite The Merchant of Venice and The Trial as expressions of what Cardozo called “compelling sentiment[s] of justice” (43).⁶ In fact, Posner's own opinions have read Shakespeare's play as authority for the proposition that mercy is an appropriate characteristic of a court's equity discretion (see In re Freligh 886-87) and Kafka's novel as indicative of the impropriety of an unexplained detention and interrogation by the police (see U.S. v. Notorianni 523).⁷ Despite this apparent inconsistency, it is hardly surprising that Posner, a lawyer and judge, would readily and unqualifiedly assert that one does not go to literature to learn about the law. Of course not, the law is primarily the creature of state authority embodied in millions of pages of case law, statute, constitution, treatise, and administrative regulation. Yet Posner's judicial references to specific works of literature indicate the existence of substantive interconnections between law and literature that are worth exploring but are flatly ignored by his theoretical explanation of law and literature. Where doctrine is ambiguous or uncertain, as is the case in many constitutional disputes, disputants, lawyers, and judges will draw upon the cultural vocabulary of fundamental beliefs found in literature and elsewhere in making their arguments.⁸

Posner's failure to recognize the possibility that literature may play a role in shaping American jurisprudence is predetermined by his definition of greatness in literature as ahistorical and acontextual: “A work of literature, to flourish in a different culture from the one in which it was conceived—to be literature, in other words—must not be too local, too topical, in its themes, and therefore we should not expect a work of literature to depict law in a form calculated to engage a lawyer's or a law professor's professional interests” (Overcoming Law 482). The formalist wonder and awe that define great literature for Posner do not depend upon and have no connection with such historical details as the author's interest in a particular legal issue and his or her attempt to address and conceivably affect the course of law. If a work of literature is too centrally concerned with the political or legal issues of the day, it is by Posner's definition not literature at all. Although Posner, like Holmes, Cardozo, and Hand, wants to argue that law is not an autonomous discourse, he also wants to limit the interdisciplinary influences pertinent to legal reasoning to such social sciences as economics, presumably because, while great literature is “unclear” and unconcerned with topical issues, the social sciences consider the welfare of society in a clear, detailed, and analytically rigorous fashion (“Law and Literature” 1369-71; Overcoming Law 15-21, 391).

Rather than quarrel with the poverty of Posner's aesthetics, we need only peruse his references to such figures as Ralph Waldo Emerson, John Stuart Mill, and T. S. Eliot in Overcoming Law to see the limitations of his narrow approach to law and literature. For example, in describing his agreement with Bruce Ackerman's conception that one constitutional amendment can effectively alter the meaning of other amendments, Posner comments,

The point has been made by thinkers as otherwise diverse as T. S. Eliot, who said that “what happens when a new work of art is created is something that happens simultaneously to all the works of art which preceded it,” and Ronald Dworkin, who describes law by the metaphor of a chain novel, in which authors of successive chapters are both constrained by and alter the meaning of the earlier chapters. I agree that judges are properly (as well as inevitably) influenced by deep and broad currents of public opinion.

(Overcoming Law 227-28)

This passage provokes one to reflect on how Posner's and Dworkin's intertextual approach to constitutional interpretation has been influenced by their own reading of literature and literary criticism. Posner's concept of intertextuality opens the legal canon to cross-disciplinary influence, and his admission that public opinion affects judges recommends an exploration of literary expressions of those public opinions swaying judicial reasoning.

Oddly, Posner does not see that his self-portrait in Overcoming Law argues for expanding the ambit of jurisprudential analysis to take into account all of the discourses that influence him, including literature, literary criticism, philosophy, cultural history, and theory as well as law, legal theory, sociology, and economics. Overcoming Law traverses a wide array of topics, such as the formalism of Robert Bork's originalist constitutional theory, Catharine MacKinnon's “obsession” with pornography, the distortions of Patricia Williams's “literary” perspective on the law, and “what pragmatism has to offer law” (357, 369, 387). The occasional essays and reviews that comprise this book are not integral to any overarching polemic or analytic structure. They could be read in any order, I think, without missing the unifying principle of the book that is provided by Posner's “pragmatist” point of view. He defines this pragmatist approach as “antidogmatic,” “experimental,” and open to such shifts in perspective as looking at the law from the vantage point of another discipline (Overcoming Law 5-8). According to Posner, while the pragmatist orientation rejects the contention of legal realism and its progeny, the critical legal studies movement—that the rule of law “is just politics”—it also disputes the legal profession's formalist pretense that the law is autonomous from other disciplines and remote from political, social, and economic pressures (Overcoming Law 1-4, 17-18, 20-21). The underlying thesis of the book is that a fusion of pragmatism, economics (a nonreductive, experimental science), and liberalism (a political philosophy that emphasizes “maximum liberty”) could transform legal theory and legal practice by indicating a middle way between the unhelpful skepticism of critical legal studies and the hollow positivism of the legal formalism (Overcoming Law 29).

Posner's approach to law and literature is all the more curious given his claims to have much “in common with Peirce, James, and Dewey” and his praise for pragmatism's value in “preventing the premature closure of issues” (Overcoming Law 394, 397). Curiously, Posner's pragmatist jurisprudence seeks to combat the stultifying containment of rigid disciplinary boundaries yet also denies that at least some substantive cross-pollination occurs at the margins of law and literature. Though it constitutes but a small portion of his lengthy book, Posner's offhand and unequivocal denial of any conceptual interaction between law and literature calls into question the open, antidogmatic, and experimental attributes of Posner's pragmatism. One begins to wonder to what extent Posner's pragmatism “is just politics.”

Martha Nussbaum's Poetic Justice, which is dedicated to Posner, contests his idea that literature does not have anything to offer law by way of substance or concept. Poetic Justice is a kind of law-and-literature sequel to Nussbaum's Love's Knowledge: Essays on Philosophy and Literature (1990), transporting her conception of the morally beneficial effect of a certain type of readership into the realm of legal reasoning. In effect, Poetic Justice reprises a scene from Stowe's Uncle Tom's Cabin (90-104): Nussbaum plays Mrs. Bird to Posner's Senator Bird, urging a form of moral reasoning and compassion upon the lawmaker.⁹

Nussbaum believes that judges, lawyers, and jurors can be moved by novels, such as Charles Dickens's Hard Times, E. M. Forster's Maurice, and Native Son, to chasten their implementations of legal doctrine with a species of moral reasoning that she calls, after Adam Smith, “judicious spectatorship” (72-78). Reading such novels leads Smith's judicious spectator “in a pleasing natural way into the attitude that befits the good citizen and judge”: empathetic but contemplative, immersed yet distanced, caring but critical (Nussbaum 75). Echoing Richard Rorty's claim that novel reading plays a pivotal role in the development of the citizenry's moral sense, Nussbaum contends that the habit of judicious spectatorship engendered by reading fiction engages our imaginations, sympathies, and critical evaluations of behavior and social context and provides thereby “a kind of guidance” to our legal judgments (76).¹⁰ Through the realistic novel's process of enticing its readers to identify with characters whose lives may be radically different but not utterly alien from their own, the “structure of the literary experience” engenders a “concern for the disadvantaged,” according to Nussbaum (87). The reader as judicious spectator “participates vicariously in numerous different lives, some more advantaged and some less” and “has empathetic emotions appropriate to the living of the [lives she reads] and, more important, spectatorial emotions in which she evaluates the way fortune has made this life conducive or not conducive to flourishing.” As a result, such a reader “will notice especially vividly the disadvantages faced by the least well off” (87).

When Nussbaum turns to specific examples of this kind of literary experience, her readings are far from ground breaking. For example, her notion that Dickens's portrait of Gradgrind in Hard Times demonstrates the inadequacy of quantitative, positivistic, and utilitarian mind is banal. And her contention that, by seeing the world through Bigger's eyes and witnessing “how much of his character was the product of circumstances created by others,” Native Son's readers become more sympathetic and less prone to racial stereotyping is similarly unremarkable. Further, on reflection we may note that her unsurprising account of the curative moral influence of such fiction somewhat naively assumes without argument or evidence a benign reader (94-95). One can imagine, for instance, a racist reader finding support in Native Son for even more oppressive forms of racial containment and repression. Nussbaum's readings proffer no explanation or analysis of what it is beyond or in addition to reading fiction that shapes the better, more humane response. For these and other reasons, the interest of Poetic Justice does not lie in Nussbaum's readings but in her suggestion that such quotidian, uplifting literary experiences can and should shape our approaches to such issues as the economic development of Third World nations and civil rights litigation. The book becomes considerably more interesting when Nussbaum turns to examining how the judicious spectator model works in some examples of case law.

For Nussbaum, the imaginative and sympathetic qualities of Justice John Paul Stevens's dissenting opinion in Hudson v. Palmer (1984) exemplify the approach of the judicious spectator (99-104). In this case, the Supreme Court held that Palmer, a prisoner, had no constitutional grounds upon which to complain of a search that resulted not in the discovery of any contraband (the stated basis for the search) but in the unjustified destruction of Palmer's letters and photographs. Stevens departs from the majority by considering Palmer not as part of an undifferentiated mass of prisoners but as an individual. He imagines, from Palmer's standpoint, what it would be like to lose the few indicia of humanity that he possesses, such as personal letters and snapshots of family members. For Nussbaum, Stevens's opinion is literary in the way that his description's “vivid details” amplify our sense of Palmer's humanity and citizenship (103). Stevens's visualization of the guard's malice and the prisoner's suffering gives powerful rational and emotional support to his doctrinal argument that Palmer has a legitimate possessory interest in such personal items that is protected by the Constitution.

Nussbaum counters Posner's Gradgrind-like economic approach to justice with his own opinion in Mary J. Carr v. Allison Gas Turbine Division, General Motors Corporation (1994), which offers a striking example of the “use of empathy in connection with judicious assessment” (108). Over a period of five years, Mary Carr, the first woman to work in the tinsmith shop of the gas turbine division of a General Motors plant in Indiana, encountered extensive sexual harassment from her male coworkers. Her complaints to her supervisor were futile. She sued and lost, appealed and won. In reversing the lower court's finding of fact (a relatively unusual move for a federal appeals court, which is bound to defer to the trial court's finding of fact unless it is clearly erroneous, a high standard not often met), Posner paints a graphic picture of Carr's harassment. He satirizes the defense explanation that the behavior in question was merely common sexual banter and imagines what it would be like to be the only woman in a hostile sexist environment. Considering the “asymmetry” of her position, one woman among many men, Posner sardonically dismisses the defense argument that some of this sexual harassment was a kind of self-defense against Carr's lewd comments and jokes (108-09).

Nussbaum describes Posner's rejection of the self-defense argument as a deployment of the judicious spectator model of reasoning: he creates a narrative picture of the plant and the lone female employee and then tries to imagine the situation as it is represented in male workers' descriptions, in which Carr was just as threatening to them as they to her, and finds that it is not plausible. Instead, the asymmetry of her situation, her isolation, and the lack of support from her supervisor conjure a very different picture in which she is clearly the victim of a protracted and intense campaign of harassment.

Nussbaum does not present these illustrations of the judicious spectator model in judicial reasoning as necessarily demonstrating, either directly or indirectly, that the reading of literature has in some fashion enlightened judicial practice. She makes no claim that Posner learned his sympathy from Dickens. She leaves open the obvious possibility that Posner derived his version of the judicious spectator model from other legal opinions, philosophical and religious texts, or parental instruction, among other things. Instead, Nussbaum argues that these cases demonstrate the salutary influence on the course and content of law of a model of reasoning that certain literary experiences do foster. Her comments describe not how literature has in fact influenced law but what literature can offer law. In a sense she merely expands the category of literary skills—such as polished writing and attentive reading—that Posner allows can have a beneficial influence on jurists to include the “rational emotion” of the judicious spectator (74-75). But as sympathetic as one may be to Nussbaum's values, one may well wonder what prevents vividly detailed images and literarily sophisticated judicial narratives from being used to foster heinous political and legal goals. Nussbaum also leaves open the question of when, where, and how a judge should invoke her moral sense approach (clearly a judge deciding a straightforward application of a highway weight limit is in a different position from a judge facing a doctrinally ambiguous and important issue of constitutional law, such as the right of homosexuals to equal protection of the laws).

Despite the contention that reading literature can help to make the legal process more egalitarian, fair minded, and tolerant, Nussbaum's ahistorical and abstract approach to law and literature bears a marked similarity to Posner's. Though the novels she chooses tilt her discussion toward the topical and local interaction of law and literature that Posner abjures, Nussbaum does not consider the complex interconnections of any literary work to its legal and historical context (for example, the relation of Native Son to the Scotsboro cases that preceded it and the desegregation cases that followed it). To bring such historical material into the discussion would, I think, complicate and darken Nussbaum's “guidance” model wherein literature civilizes law. Taking works such as D. W. Griffiths's Birth of a Nation and Thomas Dixon's The Clansman into account would reveal that the law and literature interaction is neither always a simple matter of positivistic law being corrected by progressive and humane literature nor always a matter of clear rationalistic legal precedents being complicated by ambiguous and paradoxical literature.

Setting such questions aside, Nussbaum's argument that law and literature are connected through culturally pervasive ethical paradigms that shape and are shaped by both discourses effectively recommends an investigation of the substantive historical connections between law, literature, and philosophy. The considerable appeal of her judicial spectator paradigm and the recognizability of its lineaments in examples of judicial reasoning suggest that we might attempt to ascertain and map the contents of what one might call the cultural idiom of justice that includes such tropes and concepts as poetic justice, symmetry, and fair play, an idiom that often powerfully influences, limits, obstructs, and inspires cases and statutes, as well as novels and philosophical treatises. Idiom, with its emphasis on a cultural process of perpetual flux and revision, would seem to be a good term for this conceptual and figural substrate of certain novels, legal cases, political theories, and pieces of legislation.

In Residues of Justice, Wai Chee Dimock describes and critiques the cultural and legal sovereignty of a jurisprudential idiom of commensurability. Ranging widely in Western intellectual history from Aristotle to Posner, Dimock finds that this idiom is exemplified by the “conceit of the scales,” which emphasizes measurability and proportionality—qualities that underwrite “the self-image of justice as a supreme instance of adequation, a ‘fitness’ at once immanent and without residue, one that perfectly matches burdens and benefits, action and reaction, resolving all conflicting terms into a weighable equivalence” (1-2). Literature, by contrast, tries but fails to deploy jurisprudential calculations of burden and benefit. The density and complexity of literature “plays havoc with any uniform scale of measurement and brings to every act of judicial weighing the shadow of an unweighable residue,” and such residues of justice “stand as a supplement and a corrective” to the “blandly maintained” “clean abstractions” of law and philosophy (10).

Dimock's book is occasioned by what she sees as the continuing authority and ubiquity of this conception of justice as capable of resolving human conflicts through complete knowledge, exact measurement, and perfect proportionality of burden and benefit (1-4). By calling attention to the “residues” that resist and exceed knowledge, measurement, and apportionment, she hopes to “unsettle” (5) the dominant conception of justice as “the axiomatic conception of human reason itself” (4). In an argument that extends communitarian and feminist skepticism of justice as commensurability, she extols literature as embodying that which balks such visions of absolute rationality (7-8). Literature exposes the incompleteness of the rational resolutions reached by courts and legislatures. Novels, like Rebecca Harding Davis's Life in the Iron Mills, show that the governing vision of “total justice” is false and that there is “only incomplete justice” (95). Such literature enjoins us to rethink the “claims of adequation and totality” that characterize Western jurisprudence (95).

One may wonder to whom exactly Dimock's broadly stated “critique of justice” is addressed (7): who dreams the “dream of objective adequation—this dream that the world can be resolved into matching terms, fully recuperative of each other or fully corrective of each other” (6). Dimock's answer appears to be everybody. Literary artists are often as prone to such delusions of commensurability as anyone. Only by failing “to affirm the adequacy of any rational order” and by denying “us the promise extended by law and philosophy both” (10) does literature escape the positivistic vision of perfect commensurability that Dimock finds to be “central to our idea of justice” (1). Literature's eloquent contribution to jurisprudence is its repeated “failure” to forge rationalist visions of total justice (10). For Dimock, such literature constitutes “the very domain of the incommensurate” (10).

But the question persists: Is this idea of justice universal among philosophers or jurists (not to mention average citizens who have had a taste of legal process)? Even lawyers learn the maxim, qui rationem in omnibus quaerunt rationem subvertunt (“they who search for reason in all things subvert reason”). And does literature not resist being subsumed in the category of incommensurability, a classification that mutes the force of highly rational and probative arguments on social and political issues that can be made in literary texts?

The literary and the legal would seem to have a similar relation to the incommensurate if one considers a remark from Holmes's famous essay, “The Path of the Law.” In this essay Holmes describes justice in terms rather different from those that Dimock's model ascribes to jurists and philosophers. Holmes acknowledges that “[t]he language of judicial decision is mainly the language of logic” and “certainty,” but he adds that “certainty generally is an illusion, and repose is not the destiny of man.” Behind “the logical form” of the judicial decision “lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulable and unconscious judgment,” that is “the very root and nerve of the whole proceeding.” Though “[y]ou can give any conclusion a logical form,” what motivates the conclusion is an “attitude of yours upon a matter not capable of exact quantitative measurement, and therefore not capable of founding exact logical conclusions” (“Path” 465-66).¹¹ Dimock's thesis would, I think, be complicated or at least qualified by taking into account a jurisprudence that recognizes that some portion of experience, what William James called the “unclassified residuum,” always successfully eludes legal taxonomy and resolution. Learned Hand cites James as support for a jurisprudential epistemology of the idea of liberty very different from the vision of positivistic certainty that Dimock's comments ascribe to jurists and philosophers: “[Liberty] rests in the hearts of men, in the belief that knowledge is hard to get, that man must break through again and again the thin crust on which he walks, that the certainties of today may become the superstitions of tomorrow, that we have no warrant of assurance save by everlasting readiness to test and test again. William James was its great American apostle in modern times; we shall do well to remember him” (13).

Dimock's neglect of the possibility that law's language of logic, certainty, and quantifiability might be, as Holmes suggests, figurative reveals that her opposition of law and literature depends upon the literalism of her comparison.¹² Her analytic paradigm stops with the observable differences between legal prose, which often pretends to certainty, rationality, and clear quantification of benefits and burdens, and narrative fiction, which often does not pretend to either such clarity or such simplicity but overtly accepts the complexity and incommensurabilities of experience. While the surface contrasts between the two discourses are interesting, especially when considered in relation to their different functions, institutional constraints, and forms of authority, the failure to go behind “the logical form” of law, which Holmes suggests, prevents Dimock from considering the possibility that law and literature may at times and in certain circumstances share a jurisprudence that acknowledges the incommensurate: for example, the pragmatist jurisprudence of Holmes, Cardozo, and Hand, which shares intellectual content and genealogy with a strain of American literature from Emerson to Ralph Ellison. By making the relation of law and literature a binary in which law is all commensurability (that is, bad absolutist rationalism) and literature is constituted by failed attempts at commensurability and examples of the incommensurate, Dimock's book paints a picture of absolutists and thwarted absolutists vehemently denouncing each other in terminally opposed and untranslatable languages. The existence and content of pragmatism in American jurisprudence and literature indicates the falsity and narrowness of the binary (see Grey 7).

In addition, a litigant who feels his or her story has been badly told by both a legal opinion and a work of literature might object to Dimock's characterization of literature as “the very domain of the incommensurate,” protesting that law and literature are both simplifications of an infinitely more complex human reality. Even assuming that the literary narration of such a historical event would be more complex than the legal one, both the novel and the case would reduce the chaotic and manifold rush of events and experiences to a representation. For such a person, literature is not the domain of the incommensurate, experience is.

The conspicuous overstatement of Dimock's justice/literature dichotomy is best appraised as a heuristic device that yields a set of striking readings of nineteenth-century American literature, including works by Herman Melville, Susan Warner, James Fenimore Cooper, and Kate Chopin, among others. For example, she uses Jonathan Edwards's assessment of symmetry's appeal as an aesthetic phenomenon to register the aesthetic impulse behind our fierce desire for a proportionality of punishment and crime (138). The connection between aesthetics and jurisprudence that Dimock locates in the concept and figure of symmetry creates a powerful interpretive vantage point from which one can consider the aesthetic as well as moral aspects of such judicial phrases as Posner's “asymmetry” of positions in the Mary Carr case. Her reading of The Awakening considers the ways in which the quadroon servant's off-centeredness and Mr. Pontellier's marginality are causally connected to the centrality of Edna Pontellier's subjectivity. In the trio's zero-sum competition of subjectivity, one's gain is and must be another's loss, which Dimock interestingly suggests reflects the all-or-nothing battle for citizenship in turn-of-the-century America.

Despite her insistence upon the “discrepancy” between law and literature, Dimock concentrates much of her interpretive energy on demonstrating not the opposition but the similarity of legal and literary approaches to justice (25). Dimock's paradigmatic opposition of law and literature ironically tends to exclude the possibility that law and literature can offer alternative visions of justice. Thus, Howells's The Rise of Silas Lapham is not seen as offering an agrarian, anticapitalist alternative to the “root hog or die” ethos of laissez-faire capitalism and social Darwinism. Instead, Howells's novel attempts to imagine “a morality commensurate with economic reason”: “a compensatory equilibrium” that balances burdens and benefits in a “rationalized universe, in which every misfortune carries its organic benefit and every suffering its organic anodyne” (175). Fortunately, for Dimock, despite the fact that Howells's “search for commensurability” is not different in kind from that of Herbert Spencer or Posner, his novel's “desire for a just measure of things” is “darkened, fleetingly but also quite routinely, by the specter of the incalculable, the noncorresponding, the unrationalizable” (141).

According to Dimock's oppositional paradigm, the only thing that can distinguish Howells's novel from Spencer and Posner is not its rational and humane answer to gilded age capitalism but its failure to realize a vision of justice as perfect commensurability (181). What Howells's novel ultimately offers, for Dimock, is not an alternative, though imperfect, vision of justice but no vision. Thus, Dimock cedes rationality to law, and literature becomes a cipher, challenging the rationalities of law with glimpses of the incommensurate that emerge out of literary failures to stage a conception of justice as absolute commensurability. By reducing literary arguments to exemplifications of the incommensurate, Dimock in effect concedes the field of rational problem solving to the Posners of the world.

In her emphasis on the disjunctions between the discourses, Dimock lends support to Posner's approach to law and literature. They both define literature in similar ways: Posner describes it as “exceedingly enigmatic,” “ambiguous,” “unclear,” so much so that by definition it cannot be successfully “local” or “topical” (“Law and Literature” 1369, 1371; Overcoming Law 482), and Dimock as the domain of that which resists and escapes rationality (10, 139, 181). In Residues of Justice we are back in the presence of great literature that provokes our wonder and awe but offers no cogent solutions to any social or political ills, no revealing models of human behavior and interaction that might interest social scientists or legislators and judges, moving us only through its incomprehensibility. Dimock's curiously aestheticizing approach means to honor literature but instead cripples it. Literature that does mount effective, rational challenges to official jurisprudence, that objects to the injustice of a particular law or custom with a persuasive argument (which may, by the way, include an acknowledgment of the incommensurabilities of experience), is not recognized as literature. By such means are law and literature kept separate, precisely where Posner and, it turns out, Dimock want them.

Instead of theorizing an essential barrier between the discourses, one might situate these discourses in the historical moment (for example, the proximity of each to state power, the various roles each has played in reproducing or challenging dominant notions of the social order, the types of institutional and material support each has received, and the effects on each of commercial or professional development). While inductively acquiring some sense of their relative positions in a particular social, economic, and political order, one could trace the patterns of influence between law and literature, analyzing their points of thematic and figural intersection. For example, one might study the antebellum literary jurisprudence of Stowe, Douglass, and Emerson, which variously traverses the discourses of law, politics, philosophy, and literature, dilating the Framers' aspirational language of equity, citizenship, equality, and rights so as to unlock the synchronic legal classifications relied upon by judges like Taney to foreclose constitutional revision. Or one might compare the figure of musical translation and reversal in James Weldon Johnson's Autobiography of an Ex-Coloured Man (1912) with the NAACP's reversal strategy in Buchanan v. Warley (1917). In Johnson's reversal figure ragtime is made into European classical music, and classical music is turned into ragtime. In Buchanan v. Warley, arguing on behalf of a white property owner whose real estate sale to a black buyer was blocked by a racist zoning ordinance segregating Louisville, Kentucky, the NAACP presented the case for black Americans' civil rights to live where they choose in the guise of a white man's property rights and forced a defense team arguing for separation of the races to represent an African American. The shared reversal strategies of the novel and the case destabilize the cultural and legal boundaries separating the races and evince a general skepticism of static cultural and legal categories shared by such pragmatist jurists as Holmes, Cardozo, and Hand.

While Posner and Dimock treat law and literature as though the discourses were alien to each other and Nussbaum discusses the favorable effect that reading literature might have upon the law, the complex and slippery historical interactions of law and literature that shape and are shaped by an everchanging cultural idiom of justice remain for others to explore.

Notes

1. A provocative example of the complex intertwining of law, literature, and philosophy revolves around an Emerson notebook found in the papers of Moorfield Storey, a leading turn-of-the-century constitutional lawyer, president of the American Bar Association, prominent anti-imperialist, and the first president of the NAACP. The notebook contains quotes from legal treatises, comments on contemporary legal events, and Emerson's conception of a visionary, forward-looking constitutional jurisprudence ever doubtful of the fixity of doctrinal categories (420-21). Storey used it to aid him in his preparation of a commemorative lecture on Emerson and the Civil War (Broderick 177-79) and quoted it in a pamphlet on Negro suffrage as support for a more expansive and tolerant notion of American justice and citizenship (3, 5).

2. For example, in a letter written to Thomas Denman about a year after the publication of Uncle Tom's Cabin, Stowe urged the English to undertake a literary attack on the issue of slavery: “In your reviews, in your literature, you can notice and hold up before the world those awful facts which but for you they would scornfully go on denying as they have done. It seems to me that this tremendous story cannot be told in the civilized world, without forcing attention.”

3. Posner appreciates the use of “literary” devices such as metaphor in judicial opinions and laments the decline of rhetorical expertise among lawyers and judges (“Law and Literature” 1352, 1375-88). In Constitutional Law as Fiction, L. H. LaRue extends Posner's conception of law as literature to include the use of stories that render judicial opinions persuasive. Moving beyond Posner, who conceives of literary influence upon judicial practice as a kind of rhetorical flourish, LaRue considers case law to be literary because it is unavoidably narrative. Thus, LaRue distinguishes his approach from those who focus on the “general project of using fiction to generate insight into law and those who call upon the concreteness and detailed quality of narrative as a way to correct the abstractions of jurisprudence” (2). LaRue believes that narrative constitutes “the deep structure” of cognition and persuasion in legal opinions (16). As a result, an entire area of legal doctrine, such as constitutional law, can be analyzed as a set of competing narratives.

4. For example, in Jones v. Alfred H. Mayer Co., Justice William O. Douglas refers to Douglass's essay “The Color Line” as defining the type of discrimination that the Civil War amendments should proscribe (446-47). In Commonwealth of Pa. v. Local U. No. 542, Int. U. of Op. Eng., the court uses Douglass's “The Meaning of July Fourth for the Negro” to amplify and situate the meaning of the Civil War amendments in relation to Dred Scott v. Sandford (270-71).

5. Edward Levi remarks on how such cultural material comes into law through the analogical reasoning of courts: “Reasoning by example shows the decisive role which the common ideas of the society and the distinctions made by experts can have in shaping the law” (5). As in the example of the lawyer who reads passages of Ralph Ellison's Invisible Man in his closing argument (Griffin v. Burns 1364), such analogies may be literary.

6. For example, in U.S. v. France, the court referred to The Merchant of Venice as illustrative of what are and are not the proper “purposes of punishment” (228).

7. Posner also notes that, though Portia's “quality of mercy” speech “was cast in terms of mercy,” it is “thought by some scholars to have been influenced by, and perhaps even to have influenced, English equity practice” (In re Freligh 886-87). His reference to Kafka is cited in U.S. v. Tavolacci as an apt statement of the law on this aspect of criminal procedure (1426).

8. Posner admits the necessity of broadening the ambit of judicial interpretation in constitutional cases to include political, social, and economic issues, but he does not allow for reference to literature as a significant source of guidance on such issues. Instead, he would apparently limit the expansion of the constitutional interpretation to a consideration of the social sciences (Overcoming Law 207).

9. This resemblance derives in part from the fact that both Stowe's notion of sympathy and Nussbaum's judicious spectator grow out of the moral sense philosophy of Adam Smith and Frances Hutcheson (Crane 184-86).

10. Rorty argues that fiction “like that of Dickens … or Richard Wright” acts as a “vehicle of moral change and progress” by taking us inside other perspectives, other lives and helping us to see other human beings as “one of us” (xvi).

11. Dewey interpreted this passage of Holmes's essay as arguing for a more “experimental and flexible logic” of “search and discovery” that would address the “flux of events” more helpfully than the “logic of rigid demonstration,” which seeks the “specious” certainty in the artificial “fixity of concepts” that Dimock indiscriminately attributes to Holmes and other jurists (Dewey 20, 22).

12. At times, Dimock's literalism and lack of care in moving back and forth between discourses leads to confusion, as, for example, when she relies on an unclear and faulty correlation between what Morton Horwitz calls the “subjective theory of contract” (qtd. in Dimock 205) and Chopin's emphasis in The Awakening on Edna Pontellier's inner feelings and thoughts (Dimock 204-10). Dimock erroneously suggests that the legal phrase “the meeting of the minds” indicates a subjectivism in the law of contracts (204-05). Whereas Chopin's novel is very much concerned with what Edna “feels like,” ever since the 1850s the law of contracts has not primarily been concerned with private feelings but with objective manifestations of mutual assent. The question under this theory of contract formation is not what one has thought or felt but whether one has acted or spoken in a manner so as to induce in a reasonable person the expectation that a deal has been struck.

Works Cited

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———. “The Path of the Law.” Harvard Law Review 10 (1897): 457-78.

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———. Uncle Tom's Cabin. 1852. New York: Signet, 1969.

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U.S. v. Tavolacci. 895 F.2d 1423. D.C. Cir. 1990.