SOURCE: Ward, Ian. “Law and Literature: A Continuing Debate.” In Law and Literature: Possibilities and Perspectives, pp. 3-27. Cambridge: Cambridge University Press, 1995.

[In the following essay, Ward summarizes the history and evolution of the scholarly debate regarding law and literature, noting key ideas and critics.]

Students seek out good teaching to learn not the rules but the culture, for the rules are everywhere the same.¹

The purpose of this introductory chapter is essentially synoptic. Indeed there is a very tangible sense in which, after more than a decade of the renewed law and literature ‘debate’, it seems appropriate to a number of the debaters to look back and take stock.² This is not to suggest any running out of ideas or cooling in the heat of debate, but rather, as both Brook Thomas and Richard Posner have recently suggested, because law and literature is becoming increasingly ‘serious’.³ It is now sixteen years since Allen Smith predicted the ‘coming renaissance in law and literature’, and an ancillary purpose of this first chapter is, then, not only to examine the various positions taken in the ‘debate’, but also to impress its enduring strength.⁴ The familiar distinction taken in law and literature studies is between ‘law in literature’, and ‘law as literature’. Essentially, ‘law in literature’ examines the possible relevance of literary texts, particularly those which present themselves as telling a legal story, as texts appropriate for study by legal scholars. In other words, can Kafka's The Trial, or Camus's The Fall, tell us anything about law? ‘Law as literature’, on the other hand, seeks to apply the techniques of literary criticism to legal texts. Although both convenient and essentially effective, it is not always possible to sharply delineate the two approaches, or indeed desirable to do so. It is very much a complementary relation; a fact which is commonly appreciated by the more prominent scholars who have produced such a wealth of material in the debate. Whenever a justification of law and literature is asserted, or indeed a limitation, considering both approaches is very much the norm—for if one is valid then it tends to suggest that the other is too. The same writers have much to say on both positions—the rules of the game might change, but the players remain the same.

LAW IN LITERATURE

A commonly applied distinction, in literary form, lies between the use of metaphor and the use of narrative. Richard Posner, for example, virulently denies the significance of legal narrative, but appears to be prepared to accept the validity of metaphor as a means of enhancing judicial style.⁵ Just how far such a distinction can extend is, however, dubious. Although he uses it as a tool of convenience, Paul Ricoeur, for example, has stressed that substantively metaphor and narrative are simply variants of the same thing—‘storytelling’. Ricoeur posits writing as ‘storytelling’ in opposition to writing as ‘science’. The characteristic of ‘storytelling’ is history; if a text seeks to present sequence and context then it is a ‘story’, and metaphors and narratives are defined by this attempt.⁶ If legal scholarship attempts to present such context, then, in Ricoeur's analysis, legal text is, in literary terms, indistinguishable from metaphor and narrative.⁷ It is, of course, the historicity of legal texts that is so hotly disputed, and as will be seen repeatedly throughout this book the whole area of historicity and hermeneutics, which lies at the very core of critical theory, is an extremely contentious one in contemporary legal writings. Another leading contemporary philosopher who clearly shares Ricoeur's position on the creation and uses of language, and who enjoys considerable influence in certain areas of legal scholarship, is Richard Rorty. According to Rorty, if we are to understand the essential problems of the twentieth century we must read the philosophy of Heidegger, Dewey and Davidson, together with the novels of Nabokov, Kafka and Orwell. The characteristic of critical scholarship, legal or otherwise, is, according to Rorty, its appreciation of the creative possibilities of metaphor as a constituent of any text, together with its willingness to supplement established theoretical texts with narrative fiction. Rorty's own metaphor, which he uses to describe the role of language in defining communities, is that of a ‘conversation’, and the ambition of any community can only be to ‘continue the conversation’, and in doing so, to strive towards an ideal of ‘human solidarity’.⁸ Literary forms and theories of analysis are not, of course, new, either to legal philosophy, or to philosophy in a more general sense. Ricoeur uses Aristotle and the idea of the ‘fable’ as the starting-point for his analysis of metaphor.⁹

More pertinent to legal theory, perhaps, is Aristotle's metaphor of the Golden Mean as the keystone of chapter 5 of the Ethics, whilst the column metaphor remains one of the most effective ways of describing form and substance, still used in contemporary legal formalism.¹⁰ Aristotle consciously integrated both the analytical and the metaphorical in his writing—both were recognised as having an interpretive and descriptive value, or phronesis; analysis for assertion, or telos, and metaphor for persuasion, or mimesis. In Aristotle's opinion, legal scholarship, like everything else, employed this integration.¹¹ The extent to which widespread awareness and use of metaphor, and more especially perhaps, narrative fiction, remains somewhat alien in contemporary legal theory, is very much a consequence of the dominance of what Ricoeur describes as ‘scientific’ discourse, itself the legacy of the Enlightenment project.¹² Other legal traditions have continued to concentrate on metaphors, parables and fictional narratives as the primary form of legal text. Amongst the native peoples of North America parables remain the essential source of jurisprudence.¹³ The same is true in Islamic and Jewish law, where both the Sharia and Talmud are constructed around a series of metaphors and parables.¹⁴ The reason for this, of course, being that Islamic and Jewish jurisprudence, like indeed, that of the native peoples, is very much generated by a theology. To the extent that the western tradition has remained tied to the Socratic-Thomist synthesis, it has inherited not only this theological approach, but also its application of metaphor and parable. Aquinas' theory of law was very much influenced by that which he perceived in the Judaic tradition, more particularly in the writings of Maimonides.¹⁵ Maimonides' Guide to the Perplexed, the essential jurisprudential text in medieval Jewish philosophy, is a patchwork of various metaphors and parables, one of which dominates, as it does in Aquinas' Summa—the Creation.¹⁶ As will be seen in chapter 2, Maimonides' account of the Creation bequeathed a paradox which has haunted western jurisprudence since the thirteenth century, and which reveals an early concern with the nature of language and discourse. Only decades before Hobbes and Locke were to proclaim the ascendency of analytical jurisprudence, Bacon was using the Creation ‘story’, and its determination of truth and virtue, in law and government as in everything else, as the centrepiece of his philosophy.¹⁷

To use metaphors or parables or narrative ‘fiction’ as a means of describing legal issues is not, then, new; and perhaps unsurprisingly the law and literature debate has spawned strong defences of both the need to study the nature of metaphor and the virtue of using parables as a teaching medium in law schools. According to John Bonsignore, citing Kierkegaard, ‘insensitivity to the grand questions of law cannot be approached directly, no matter how well intentioned the teacher might be’.¹⁸ However, previous usage of literary form, or indeed present usage amongst certain legal scholars, does not, of course, make it correct. And it is this question of appropriateness that has generated some of the most fierce debate in recent law and literature scholarship. At one extreme, for example, Stanley Fish suggests that:

Legal texts might be written in verse or take the form of narratives or parables … so long as the underlying rationales of the enterprise were in place, so long as it was understood (at a level too deep to require articulation) that judges give remedies and avoid crises, those texts would be explicated so as to yield the determinate or settled result the law requires.¹⁹

Fish's initial position is similar to that taken by James Boyd White, one of the most committed advocates of the importance of law and literature. As we shall see in chapter 3, White's central concern is with the method of reading and understanding, and it is this concern with method which not only places White in the mainstream of critical theory, but at the same time unavoidably relates the twin projects of the law and literature movement—law in and law as literature. When we read narrative fiction, according to White, we do so with a more immediate sense of style and rhetoric, and it is rhetoric which, in many ways, is the keystone of White's thesis.²⁰ The texts that White has used to exemplify the power of rhetoric—such as Homer's Iliad, Thucydides' History of the Peleponnesian War and Plato's Gorgias—have tended to be pre-modern and not as immediately ‘legal’ as those used by others, such as Richard Weisberg. As narrative fiction presents itself as rhetoric, it also impresses upon us its unavoidable contingency, because it builds upon various contexts: social, historical, political, ethical and so on. In turn, narrative texts, much more obviously than legal or political texts, present to us a greater sense of community. It is the peculiar nature of language which defines our relationship with others - and indeed, our relationship with the text.²¹ In emphasising this contingency and the historical nature of fiction, White presents the same kind of arguments as Rorty and Ricoeur. He is stressing the ‘storytelling’ function of narrative, and giving it a central role in the creation of ‘community’. So, again, it is method which lies at the heart of White's thesis and which makes it so similar to those of other writers who share his concern. At the same time, this dominant interest creates a hierarchy in White's writings, so that it is ‘law as literature’ which clearly emerges as the primary interest.²² In his recent Justice as Translation particular discussion of narrative texts is reduced to a minimum. Law in literature is then, for White, in a sense subsidiary; most useful insofar as it can illustrate the nature and style of discourse used by the author. Jane Austen's Pride and Prejudice, according to White,

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.²³

The ability of a narrative text to reveal the tensions between alternative discourses, most immediately between the legal and the non-legal, and thus to create something of a bridge between the two, has certainly drawn support. Dunlop agrees with White that ‘fiction stimulates the reader's capacity to imagine other people in other universes’, adding the suggestion that ‘[a]fter a lawyer or law student reads Charles Dickens's Bleak House, he can never again be completely indifferent or “objective” towards the client across the desk’.²⁴

White's wider position with regard to the relevance of literary texts has attracted support from a number of writers. Richard Weisberg, in particular, is keen to stress the complementary nature of ‘law as literature’ and ‘law in literature’. However, he takes a much stronger position than White with regard to the immanent virtues of using literary texts for legal discourse. In contrast to White, Weisberg's texts tend to be drawn from the modern novel, particularly from Camus, Kafka, Dostoevsky and Grass.²⁵ Whereas for White the value of such texts lies chiefly in the style and rhetoric which they deploy, Weisberg suggests that such texts are justified in legal study simply for the situation which they seek to describe and for the social and political contexts which they imply. In The Failure of the Word Weisberg examines what he perceives to be the effect of contemporary literature in the writings of lawyer-writers in the modern period. In the much-debated opening to his book, Weisberg commented upon a short article written by a French lawyer during the Nazi occupation, in which the lawyer argued on humanitarian grounds that the state should have the burden of persuasion that a person with only two Jewish grandparents was a Jew. Weisberg ascribes such linguistic masking of a moral crime such as the Holocaust to the enduring influence of Nietzschean ressentiment, and ‘the failure of the word’. Ressentiment is essentially a prolonged sense of injury based on real or imagined insult; in Weisberg's words, ‘a full-blown intellectual malaise’. It was this ressentiment which, Weisberg suggests, coloured the writings of Camus, whose hero from The Fall, the lawyer Clamence, Weisberg suggests is a literary companion to the French lawyer.²⁶ It is a powerful argument which, it will be suggested in chapter 7, rings true in relation to the wider critical movement of the late nineteenth and twentieth centuries, in philosophy and psychoanalysis as well as in literature. In an essay written two years later, Weisberg reaffirmed the place of literature in legal studies by relating it more closely to the wider movements in critical theory, both ‘literary’ and ‘philosophical’, as represented particularly in the writings of Heidegger, Derrida and de Man.²⁷ Again, Weisberg places the Holocaust at the centre of his work, in a sense representative of the angst and despair which accompanies and develops from Nietzschean ressentiment. In doing so, he is not only putting into historical context the philosophical concerns of those like Heidegger and Sartre, he is also making the same nexus as that made by George Steiner, who suggested that the death camps were ‘the deliberate enactment of a long and precise imagining’.²⁸ According to Weisberg, Dostoevsky, Kafka and Camus were presenting a literature which at once both revealed and complemented this ‘imagining’.²⁹

In more recent work, largely in response to the criticisms of Posner and his namesake, Robert Weisberg, Richard Weisberg has strongly reaffirmed his position, suggesting that, ‘[w]e must teach and think about these texts because, here and now, they are the best medium to instruct ourselves and our students about what we do … we need this learning in order to practice and (more importantly, at least for me) in order to understand what our assumptions are and what we do’.³⁰ Indeed, in contrast with White, Weisberg now suggests that, if anything, the literary text is of more value to lawyers than literary theory. From their early status in the law and literature movement as the ‘fun factor’, literary texts have emerged as the vital component: ‘My suggestion, speaking from within, is to emphasize from now on the central place of the literary text—more than literary theory—in the debates. … Novels about law, as I have suggested, and particularly “procedural novels”, are the path to human understanding.’³¹ The end result, the essential accommodation of both branches of law and literature scholarship, is precisely the same as in White's work, but the dynamic is quite the opposite.³² The divergence between Weisberg and White is most clearly drawn in Weisberg's most recent book, Poethics. As we shall see in chapter 3, White's retreat from literature to a theory of ‘pure rhetoric’ signals, according to Weisberg, a retreat from the ethics, or ‘poethics’, of texts. Poethics serves to reemphasise Weisberg's own commitment to a Kantian ethical vision, and he analyses a number of texts, not only from modern literature, such as Barth's The Floating Opera, but also from previous centuries, such as Dickens's Bleak House and Shakespeare's The Merchant of Venice, in order to reassert his essentially existential Heideggerian-Kantian thesis. ‘Poethics’, Weisberg maintains, ‘in its attention to legal communication and to the plight of those who are “other”, seeks to revitalize the ethical component of law.’³³ I shall return to Weisberg's ‘poethics’ in chapter 8, where I will suggest a ‘poethical’ analysis of Ivan Klima's recent novel, Judge on Trial.

Like Richard Weisberg, Robin West has emphasised the value of literary texts as a medium for jurisprudential debate, most famously by using Kafka's The Trial to critique Richard Posner's economic analysis of law. According to West, Kafka's characterisations revealed the practical, and above all, ethical unacceptability of a pure scientific analysis, such as that presented by Posner. In West's opinion, what Kafka was portraying was the contradictory nature of authority and submission in the modern world, and the resultant alienation of the human condition:

Obedience to legal rules to which we would have consented relieves us of the task of evaluating the morality and prudence of our actions. … The impulse to legitimate our submission to imperative authority also has within it, of course, the seeds of tragedy. That impulse is the means by which we most commonly victimize ourselves, and the means by which we allow ourselves to become tools that enable those who use us to destroy us.³⁴

The susceptibility to submission and the alienation of the human condition which West perceives is precisely that which Weisberg has stressed in his ‘ressentiment’ thesis. Posner's world, West suggests, is quite simply too ‘happy’—and too rational.³⁵ Many of the statements made by West betray a sympathy with the political and social expressions commonly associated with the critical legal studies movement (CLS). West's stress on the fundamental contradiction in the human condition between freedom and authority, the alienation of the individual in the modern analytical legal world and most particularly her attack on the possibility of rationalism as a foundation for legal order is very much the rhetoric of CLS.³⁶ This has become increasingly the case in her subsequent work, which concentrates more than ever on the role of language and literature in the political and ethical re-constitution of communities. In doing so, West quite firmly allies herself with James Boyd White against Posner. However, she also goes quite deliberately further than White, suggesting in the process that White concentrates too closely on the texts as texts, and as such presents a ‘social criticism which is constrained and stunted by the texts it criticizes’. Even more damning is West's conclusion that because of this constraint, White is in danger of reproducing the same ‘dehumanisation’ which Posner's thesis presents.³⁷

To avoid doing this West stresses the need to use literature as a means of promoting ‘the interactive community’, a concept remarkably reminiscent of the ‘intersubjective zap’ which Gabel and Kennedy advocated as the holy grail for the CLS movement back in the heady days of 1984.³⁸ In suggesting that ‘[w]hen we create, read, criticize, or participate in texts, we are indeed engaging in a form of communal reconstitution’, West is using precisely the rhetoric with which innumerable CLS writers appealed for a new approach to ‘lived experience’ of law. We must not simply read a text, we must ‘understand how it feels’ to participate in the reading.³⁹ She concludes by urging that ‘[w]e need to pay attention to our literary texts about law, as White says, but we also need to produce, listen to, criticize, and participate in the production of narratives about the impact of legal norms and institutions upon the subjective lives of those whom the legal textual community excludes’.⁴⁰ West's most recent work has served to re-emphasise her commitment to a more radical political position, and, it is suggested, has contributed to her less enthusiastic subsequent critique of law and literature. In Narrative, Authority and Law she explicitly critiques law and literature for being a distraction from real political struggles, and implicitly critiques it by a reluctance to use literature. What is needed, she suggests, is less inter-textual debate, and more of a ‘truly radical critique of power’. ‘By focusing on the distinctively imperative core of adjudication, instead of its interpretive gloss’, she further adds, ‘we free up meaningful criticism of law.’⁴¹ Although she concludes by suggesting that there is a place in critical legal scholarship for a literary supplement, West's recent work is clearly less sympathetic to law and literature.⁴² Her ambitions are more political, less textual. However, despite West's reservations other critical legal scholars have attempted to employ metaphors and parables in their writing; in other words, to adopt the role of ‘storytellers’. Amongst the most notable attempts is Patricia Williams's ‘Alchemical Notes’.⁴³ Allan Hutchinson also has attempted to employ metaphor and narrative as a means of describing legal problems. Yet in general, despite much debate by CLS adherents on the possibilities of alternative discourse, relatively little has been done.⁴⁴ Any political or social ambitions which might be harboured in literary texts have been extracted and employed by law and literature scholars rather than by critical legal scholars.

The alternative position to that taken by those who advocate the use of literary discourse in jurisprudential debate is articulated most forcefully by Richard Posner, whose Law and Literature: A Misunderstood Relation represents the most substantive attack to date against the positions taken by White, Richard Weisberg and West, and represents a summation of the position which has evolved in Posner's writings since West's initial pre-emptive strike in 1985. In his reply to West's ‘particularly eccentric’ use of Kafka, Posner suggested that West fundamentally mistook ‘the incidents and metaphors’ so that the ‘fiction became its meaning’. It was, he suggested, ‘like reading Animal Farm as a tract on farm management’.⁴⁵ If West found Posner's world a little too ‘happy’, Posner found West's rather too serious. Kafka's texts, when ‘read literally … provide as much insight into American life in the 1980s as would Dracula or The Cask of Amontillado.’.⁴⁶ Having made this assertion, however, Posner then promptly embraced the opportunity to use Kafka's fiction to deny West's vision of an ethics of free choice, thereby, as West noted in her response, rather defeating his initial suggestions that it was quite inappropriate to do so. Therefore, Kafka's literature had indeed created a ‘bridge’ by which West and Posner could create a constitutive dialogue or ‘community’. Kafka had lured Posner into debating the nature of authority and submission, as it were despite himself.⁴⁷ The basic argument in his ‘Reply to Professor West’ has remained at the heart of Posner's subsequent writings on law and literature. The two, he vigorously maintains, are quite separate disciplines, enjoying their own two particular contexts. The aims of literary and legal writers, he suggests, are quite different. In an influential 1986 essay, Posner repeated his central assertion that ‘[a]lthough 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’.⁴⁸ Posner again concentrated his attack on the appropriateness of Kafka's The Trial as a jurisprudential text; he suggested that it lent very little to our understanding of ‘Austro-Hungarian criminal procedure’.⁴⁹ To which the obvious counter might be that Kafka never intended it to. But it is with his attack against Richard Weisberg's ‘ressentiment’ thesis that Posner defines the essential difference in his position. Whereas Weisberg, like White, is occupied in presenting alternative methods of discourse, for Posner ‘[l]aw is subject matter rather than technique’. Of course method is important, but it is legal method that matters, not literary method—an argument which betrays a certain sympathy with the tradition of American realist writings.⁵⁰ Whilst Posner would subscribe to what Weisberg termed the ‘fun’ factor in literary texts, he refuses to accept the central role in legal discourse which Weisberg ascribes to them.

Posner's primary reason for this is that we cannot access or engage the context of the text, let alone the author's mind. It is this argument that he advances in his complementary criticism of ‘law as literature’.⁵¹ Posner's recent Law and Literature is very much built on the foundations of the 1986 essay, and his particular criticisms of ‘law in literature’ are the familiar ones of inappropriateness and inability to access authorial intent. A piece of literature is, he suggests, defined by its context as fiction, and therefore whatever law is to be found in a novel is purely ancillary. Novels are never chiefly about law, and so ‘the concrete legal problem’ must be distinguished from the inevitably wider concerns of ‘the human condition’ which a novel seeks to address. The various novels which have been put forward, not only by White and Weisberg, but by a number of law and literature writers, are then, at best, only incidently about law.⁵² Camus's The Outsider is, Posner suggests, not really about criminal procedure in the civil law tradition, but more about Mersault's growth of self-awareness.⁵³ Of course, this not only assumes that the growth of self-awareness is not a central concern to lawyers, but also denies at least the possibility that Camus consciously chose a legal situation as a parable or ‘story’ because it represented a particular conception, not only of the human condition, but also of modern society. The ‘lack of realism’ which Posner perceives in The Outsider also serves to dismiss Kafka, Dickens, Shakespeare and a host of other writers whose works have been used by law and literature scholars.⁵⁴ With regard to ‘law in literature’, perhaps unsurprisingly, Posner concentrates his attack most particularly against Richard Weisberg and his idea of Nietzschean ressentiment. Weisberg's use of novels like The Outsider, together with, for example, Flaubert and Dostoevsky, is once again condemned for confusing law with psychology, or philosophy, or history, or literature and so on. The role of the examining magistrate, upon which Weisberg concentrates in a number of novels, is not primarily a description about a ‘real’ legal character, but instead about the human condition. Novels like The Brothers Karamazov, one of Weisberg's most common sources, are then ‘philosophical’ or even ‘theological’ novels, not ‘realistic’ novels, and are thus inappropriate for jurisprudential discourse.⁵⁵ Having dismissed Weisberg, Posner moves on to dismiss West for essentially the same reasons. He accuses them both of taking literature ‘too seriously’ which, given that both Weisberg and West also suspect that Posner takes a too literal approach to texts, can only lead to the conclusion that everyone thinks everyone else is far too serious.⁵⁶

There has been tentative support for Posner's position from Robert Weisberg, who has repeated the same sort of criticisms of White and most particularly of Richard Weisberg. However, Robert Weisberg is keen to stress that he does not favour what he perceives to be the extreme position taken by Posner. Law in literature presents ‘fertile possibilities’, and Weisberg is quick to criticise Posner's suggestion that because The Trial cannot instruct us with regard to the nature of Austro-Hungarian civil procedure it is of limited value to lawyers. According to Robert Weisberg, this is fundamentally to ‘misunderstand … legal realism’. At the same time, Weisberg is equally keen to reject those traces of ‘foundationalism’ which he perceives most strongly in White's writings, and the rigid distinctions between ‘reason’ and ‘passion’ which White and West, in particular, seem to draw from the texts.⁵⁷ He sees the same problems as Posner, most particularly the fundamental differences between the ambition of literary and legal texts, but, unlike Posner, who then simply advocates their inappropriateness and abandonment as possible jurisprudential texts, Weisberg suggests that even though these texts can tell us little or nothing about the legal situation, they can still educate lawyers about the human condition. Thus, whilst Richard Weisberg suggests that sources of ressentiment may be found in the writings of Camus and Dostoevsky, Robert Weisberg suggests that ressentiment exists outside the text, and is thus best sought outside. Most recently, Posner's position has been supported by Delgado and Stefancic in their essay directed primarily against White and his analysis of certain famous legal cases in American history, the judicial opinions in which, White has suggested, were at least in part the enunciation of the cultural philosophy to be found in contemporary narrative texts.⁵⁸ In similar vein to Posner, Delgado and Stefancic suggest that the actual impact of contemporary literature on the substance of judicial opinion-making is limited because, quite simply, judges distinguish ‘legal’ texts from other texts, and privilege the former. What Delgado and Stefancic say most strongly is that judges' moral positions are determined by normative social and political forces, rather than by literature, and moreover that an appreciation of ‘counternarratives’ on the part of judges would not necessarily help in their decision-making process. The very fact that they are ‘counternarratives’, counter to the pervasive social context, will tend to their dismissal by judges.⁵⁹ What they are not necessarily saying is that literary texts cannot thus be used as a means by which lawyers can understand the historicity of these normative contexts. Delgado and Stefancic are certainly not unsympathetic to the cause of developing such ‘counternarratives’, but the use of established narrative texts is not for them the most immediate means for development.⁶⁰

LAW AS LITERATURE

Law as literature seeks to do two things which, at first glance, seem paradoxical. In one sense it wishes to impress the necessity of our existence in language as a living force. The keynote here is perhaps Heidegger's much-used trope: ‘Language is the house of being.’ Language need not be reified, although it can be. Language is something which we all use, and as such it is language which we can all design. Language is the construction of the community, and not some sort of transcendental force. It is this which makes language the essential medium for social change, and, as I shall suggest in the final part of this chapter, gives law and literature its political, as well as educative, bite. Among contemporary philosophers, perhaps the most revered exponent of this position is Richard Rorty. In Rorty's opinion the heroes of democracy are ‘poets’, not politicians. They will communicate with the future, because they articulate with and for the community.⁶¹ At the same time, while it may wish to stress the ‘ordinariness’ of language, law as literature also wants to intellectualise legal study. It wishes to both widen and to deepen. In other words, law as literature suggests that both teachers and students must be made aware of all the various ‘isms’ of literary theory, structuralism, post-structuralism, deconstructionism and so on, which can then be used so that as lawyers we can better understand what a text means, both functionally and interpretively. As a complement to law and literature scholarship, law journals have increasingly presented articles about revered figures in the philosophy of language such as Derrida, Foucault, Heidegger and Wittgenstein. Law and literature scholars, on the other hand, have tended to concentrate instead on resurrecting the art of rhetoric. In doing so, they are of course reaching back more than 2,000 years to Plato and Aristotle, who both championed rhetoric as a form of logic. Perhaps the accommodation of this essential paradox in law and literature lies in this resurrection of rhetoric as a primary concern in law teaching. For the confirmed critics of the law and literature movement, most obviously Richard Posner, the recognition of rhetoric and linguistic style is the only ambition of law and literature.⁶²

The essence of ‘law as literature’, then, is the suggestion that the techniques and methods of literary theory and analysis are appropriate to legal scholarship. The ‘isms’ already enjoy a certain familiarity in contemporary legal scholarship, quite outside the writings of recognised law and literature scholars. Scholars such as Douglas Couzens Hoy, for example, who parades no particular affinity to either CLS or law and literature, has written persuasively on the validity of applying hermeneutic techniques to constitutional interpretation. In doing so he made a scarcely veiled observation, against what he perceived to be rather primitive applications by various legal scholars, that it is time hermeneutics was used properly. Hermeneutics, he suggested, is not just a ‘method’ which can be applied ‘a priori’ to legal texts. It is a ‘theory of meaning’ which demands not only the external perspective of the historicist nature of understanding, but also the internal awareness of its own limitations.⁶³ Just as Hoy has re-investigated the philosophical substance of hermeneutics, so Jack Balkin has addressed the substantive nature of deconstructionism and semiotics.⁶⁴ In his more recent essay on semiotics, Balkin has expressed a similar enthusiasm for its application to legal studies, whilst at the same time stressing its affinity with and accommodation to theories of literary deconstruction. It is, he suggests, the historicist quality of deconstruction which reveals the essentially apolitical nature of semiotics. In making this suggestion, Balkin does not want to deny the association of semiotics, or indeed of deconstruction, with a particular brand of progressive critique, but he does want to retrieve the essentially literary origins of both.⁶⁵ In asserting that part of the semiotician's ambition is to establish ‘foundations’ for the interpretation of texts—foundations that are essentially defined by the dialogue—Balkin proposes an approach shared by many advocates of ‘law as literature’.⁶⁶

Stanley Fish, who has arrived from a particularly literary background, and brought with him the associated literary techniques, shares, as we shall see in chapter 3, a similarly sceptical approach to interpretation. For Fish, interpretation is always creation. In Is There a Text in This Class? he uncompromisingly suggested that ‘[i]nterpretation is not the art of construing but the art of constructing … Different notions of what it is to read … are finally different notions of what it is to be human.’⁶⁷ Again, as we shall see in chapter 3, such scepticism has provoked a response from liberal interpretivists, such as Owen Fiss and Ronald Dworkin, suggesting that such ‘deconstructionism’ is nothing short of literary ‘nihilism’. Fish, however, appears to be more than happy to revel in this linguistic nihilism. The problem of indeterminacy of texts, of course, emerged as one of the prime dynamics of the CLS critique, and although it is quite beyond the scope of this chapter to catalogue the multifarious opinions on the nature and possible solutions to the problem, I will return to this in chapter 3.⁶⁸ Some prominent CLS scholars, such as Mark Tushnet, concentrate their essentially political critique on the linguistic problems of interpretive indeterminacy. In 1982, Tushnet denied the possibility of ‘neutral application’ of legal rules, both ethically and linguistically. If judges are in any way constrained in making their interpretations and judgements, the constraints are purely contingent. The critique of neutral principles, he suggested, had ‘established that there are no determinate continuities derivable from history or legal principle’. Betraying the legal realist impulses behind so much of CLS thinking Tushnet concluded that it was for the judges to ‘choose which conceptions to rely on’. Tushnet finally concluded that there was a need to establish a ‘community of understanding’ because ‘we cannot assume that people who talk to each other are part of such a community merely because they seem to be speaking the same language’.⁶⁹ In 1984, the year in which he published his influential ‘An Essay on Rights’, Tushnet was also presenting what he termed was ‘An Essay on Deconstruction’. In both these essays, with varying degrees of emphasis, Tushnet was inviting radical legal scholars to concentrate on the indeterminacy of key words such as ‘rights’ and, in doing so, essentially to investigate the possibilities offered by literary semiotics. At the same time, Tushnet was also embracing another interpretive theory or, as he put it, ‘[t]rendy label’, previously more familiar in literary than in legal scholarship: deconstructionism. It was not just a matter of ‘rights’, it was a matter of ‘rights-talk’, and it is this ‘language of rights [which] captures the contradictory predicament of people as at once alone and together, independent and yet necessarily in solidarity with others, individuals whose lives have meaning only in society’.⁷⁰

The arrival of these various literary techniques confirms the increasing tendency in critical legal scholarship to concentrate its critique on the indeterminacy thesis, and to do so by an increasing engagement with literary theory. The emergence of a specific ‘law as literature’ scholarship, in a sense announced by Fish, as well as by White and Richard Weisberg, has concentrated still further on literary techniques and their application to the problems of texts and interpretation. It is ‘law as literature’ scholarship which, as the more political agenda of the CLS movement appears to have lost some of its impetus, has advanced a more precise concern with the various uses and methods of language and interpretation. Amongst the law and literature scholars, the one most heavily commited to law as literature is James Boyd White. As noted earlier, for White the two ‘branches’ of law and literature are valuable more for their convenience of distinction than for their substantive quality. The fact that literary method might be applied to legal texts means that literary texts enjoy a comparable validity to that of legal texts as relevant texts for study by lawyers. The indissoluble nexus between the two has been a consistent theme throughout White's writings. In his 1982 essay ‘Law as Language’ White interwove the various literary techniques of deconstruction, semiotics and hermeneutics to present perhaps the strongest case to date for ‘law as language’.⁷¹ Law, he suggested, like literature, is ‘inherently communal’, and reading legal texts is thus a ‘shared process’. Once again White's rhetoric is very similar to that presented in some of the more progressive writings of the CLS movement, and, indeed, the most recent progressive writings have tended to follow the path of argument and rhetoric in legal reasoning as a means for reconstituting the legal society. Thus, Jerry Frug has suggested that ‘we should abandon the traditional search for the basis of legal argument because no such basis can be found, and we should replace such a search with a focus on legal arguments, in particular, on its attempt to persuade. I suggest, in other words, that we look at legal argument as an example of rhetoric.’⁷²

According to White, the familiar jurisprudential ‘problem of indeterminacy’ is an irrelevancy. In its stead, legal writers should focus on how they write and how they read texts, not how to access some sort of hidden answer.⁷³ The accessing of a writer's intent is impossible, White contends, because the action of writing is creative. ‘To try to follow the intention of the writer’, White suggests, ‘seems an inherently unstable procedure, leading to a radical conceptual collapse.’⁷⁴ Thus reading becomes an ‘interactive experience’, interactive with the text, with the community and with the ‘life experience’. Language use, he adds, necessitates continual retextualisation.⁷⁵ The text is in a state of continual interaction with its culture, which makes the meaning of a text wholly contingent. Despite the scepticism that such a position might seem to suggest, White is keen to impress that this does not deny the possibility of meaning, it simply reorientates the legal scholar's method of accessing meaning. Writers produce texts, readers produce meaning. Thus, as with literary texts, the real ‘meaning’ of a legal text ‘is not in its message but in the experience it offers its reader’.⁷⁶ As we shall see in chapter 3, this type of reader-response theory lies at the heart of White's reconstitutive thesis.⁷⁷ The reading community thus constructs its own rationality by which it can establish meaning. Thus, although the judges' role is thoroughly ‘creative’, the creation is constrained by the ‘shared experience’ of reading, and the legal reader is able to construct ‘solid judgments’ about meaning.⁷⁸ It is in order to understand this process of legal reasoning that White suggests that law schools already emphasise, and should continue to emphasise, the teaching of culture rather than rules, and it is for this reason that they should embrace the possibilities that narrative texts can present.⁷⁹

The arguments that White presented in 1982 have been forcefully repeated in his subsequent work. In both When Words Lose Their Meaning and more recently in Justice as Translation White has again placed the idea of a ‘culture of argument’ at the centre of his thesis.⁸⁰ The elaboration of this idea leads White to emphasise, perhaps more than before, the need to approach law, at all times, as an interdisciplinary study.⁸¹ Judicial opinions, he stresses, are at once aesthetic, ethical and political.⁸² He firmly aligns himself with Foucault's determination to isolate and as far as possible to break down ‘specialised knowledges’. In stressing the ‘post-structural’ language of law, White's more immediate aim is to challenge Posner's economic analysis of law by attacking the very foundation upon which it stands, the ‘conceptual’ language and culture of economics. It is conceptualisation which structures language and prevents its creative and ‘reconstitutive’ potential. As far as any language can, the language of economics thus lies essentially outside the community, and outside the community's creative use.⁸³ What White is again trying to do is to bring to consciousness the ‘internal’, or already existing, ‘cross-disciplinary’ nature of legal studies.⁸⁴ As authority for this thesis White makes much of the metaphor for language creation used first by John Dewey and then by Dewey's great admirer, Richard Rorty—language creation as ‘conversation’.⁸⁵ So a legal text is always a ‘constitutive … stage’ in a conversation, and it is this conversation which defines the ‘culture of argument’. Jurisprudence becomes more than ever an exercise in ‘constitutive rhetoric’ and the need to persuade the reader and, like Rorty, White stresses that this culture determines and is determined by a contingency of language, of self and of the community:

In this sense the law can teach all of us how to live in a world in which each culture is its own ground, made out of itself, as a language or a human life is made out of its beginnings. … The critical study of the judicial opinion in this way leads to the acknowledgment of the contingency of language and the self, and of the community too—for we are made by the very language that we use—and beyond that to a sense of the art by which life on such terms is possible.⁸⁶

As ever, it is the ‘integration’ of disciplines, not just their identification, that White encourages. Thus it is not simply a case of advocating law and literature, but rather of impressing that law is already literature, and thus any reading of either a literary or a legal text is at once an act of ‘creation’ and of ‘translation’ between discourses.⁸⁷

To a certain degree, Richard Weisberg has lent support to White's thesis. In one sense Weisberg, perhaps more than White, is keen to stress the intellectual origins of ‘law as literature’. In his 1986 essay ‘Text Into Theory’, Weisberg painstakingly traced these origins back through the reader-response theories of Culler and Fish, the deconstructionism of Derrida and de Man, and the hermeneutics of Gadamer, through to Heidegger and ultimately to Nietzsche—the position where he determined the locus of ‘ressentiment’ and the context for the narratives of the ‘alienated’ human condition of the twentieth century, and, moreover, where he suggests that the origins of the CLS movement really lie.⁸⁸ Thus Weisberg's position, at least in a textual sense, is considerably less foundational than White's, and correspondingly more sceptical. The Heideggerian antinomy leads inevitably to the conclusion that interpretation is an exercise that we conduct against ourselves.⁸⁹ The responsibility for interpreting legal texts lies, for Weisberg, firmly with the reader, and Weisberg's final position is very much in line with that taken by his mentor de Man, and with Culler and Fish.⁹⁰ Yet, at the same time, in Poethics Weisberg is equally keen to stress that too great a concentration on the intellectual intricacies of literary theory can distract law and literature from its primary engagement with literary texts.⁹¹ The real hardened opposition to law as literature comes, once again, from Richard Posner. According to Posner, just as literary texts are unusable as legal texts, so the methods of literary theory are inappropriate for the interpretation of legal texts. Once again, Posner's primary argument is that this inappropriateness is rendered by the very different roles and ambitions of fictional and legal writing. In 1986 he concluded that ‘the functions of legislation and literature are so different, and the objectives of the readers of these two different sorts of mental product so divergent, that the principles and approaches developed for the one have no useful application to the other’.⁹² It was an assertion that he was to repeat two years later in his more developed Law and Literature, where he was particularly keen to stress the privileging of certain ‘interpretations’, most especially that of the speaker over the reader. Despite the relative virtues of pragmatic or utilitarian concerns, ‘in legal interpretation the subordination of the interpreter to the “speaker” is a condition of legitimacy’.⁹³ In other words, if in any doubt, original intent enjoys an ‘authority’ over creative interpretation. The concession that Posner is prepared to make to the ‘law as literature’ position, and it is an important one, is that although lawyers have little to learn from the various techniques of literary theory they have much to gain from the study of rhetoric. In both his 1986 essay, and much more strongly two years later, Posner made much of the importance of improving the style of judicial opinion-making. ‘Judicial opinions’, he suggested, were ‘unavoidably rhetorical’. The key concession is the statement that ‘[r]hetoric is important in law because many legal questions cannot be resolved by logical or empirical demonstration’.⁹⁴ Unsurprisingly, it is an essentially pragmatic concession, but it does invest literature with a role for lawyers, even in Posner's relatively structured vision of legal studies. He uses, in particular, Holmes's dissent in Lochner as an example of the power of rhetoric, and its ability to blind the reader to the relative virtues of the argument.⁹⁵ Thus, although he is keen to maintain the distinction between literature and politics, Posner is prepared to admit that ‘there is still the possibility that immersion in literature might make a person a better judge by enlarging his knowledge of the human condition’.⁹⁶ Even the most sceptical of detractors is prepared to concede some virtue in the accommodation of literature in legal theory.

THE AMBITION OF LAW AND LITERATURE

As law and literature has indeed become more ‘serious’, so too has the debate with regard to its purposes. For some, such as Robin West, literature is only of value insofar as it can help to reveal the politics of law, and the purpose of studying literature is thus subservient to the overriding purpose of developing alternative political visions. There is, obviously, some validity in this thesis. It is certainly difficult to deny that law is to some degree both literature and politics. For others, such as Richard Weisberg, in similar vein literature is merely the means for representing a particular moral philosophy, which, in his case, is a Kantian one. There is a danger here which probably cannot be avoided, at least to some degree. It applies most immediately to West's political thesis, but in a sense applies equally to Weisberg's. Messing about with the politics of law is an inherently dangerous business, and if we are going to play with literature, then we must be very careful indeed. Legal thought has been down this path before, and recently. Law and literature is haunted by a very familiar ghost. The early socio-political CLS movement began with the very best of motives. Its primary ambition was to educate law students about the politics of law.⁹⁷ It has ended, not by reaching any particular goal, or indeed identifying one, but by going round in ever-decreasing circles, using up its dissipating energies in a multitude of various internecine disputes, and in the invention of increasingly pretentious and ultimately useless language which, rather than educating, serves only to mystify and then to alienate all but the most fervent of believers. The fate of the CLS can serve as a salutory warning to proponents of law and literature of what can all too easily happen. Using literature to illustrate politics is one thing, using it as an excuse to replace one political dogma with another is something else. In flirting with these same temptations, some of the leading current law and literature scholars, perhaps most obviously Robin West, but also to a certain degree Richard Weisberg, are dancing around the edge of the volcano. There is a clear temptation, and to a certain extent the law and literature enterprise, to have any point at all, must be prepared to flirt. It should not, however, permit itself to be seduced.

It is for this reason that I want instead to emphasise an alternative ambition for law and literature. We will, of course, continue also to flirt with politics but, primarily, we will concentrate, not on any political ambitions, but instead upon the educative ambition of law and literature. Of the many intriguing characteristics of the law and literature movement one of the most exciting and most valuable is that, unlike many other theoretical approaches to the problems of law, law and literature wants to better educate. Any political ambitions are necessarily secondary. Moreover, they are secondary in two ways; first, because the political manifesto is supposed to emerge from the educational force of literature, and secondly because politics was certainly not such a ranking ambition in the earliest days of the law and literature movement. James Boyd White's The Legal Imagination was written primarily as an educative tool. He suggested that the purpose of literature could be to better educate law students. More recently, Dunlop has suggested that the use of literature can educate both students and teachers, providing both with ‘the opportunity to get beyond the technical and circumscribed study of legal rules, and to look at law as part of the broader civilization’. With regard to teaching law, Dunlop's suggestion that North American law schools have concentrated too much on law as a ‘professional training’, and too little on law as an ‘exercise … in liberal education’, is at least as true in the UK as in the US.⁹⁸ In other words, ‘what is important about literature is not only “what” it teaches but also “how” it teaches’. Concentrating particularly on the research potential of law and literature, Dunlop has also suggested that research ‘about’ law will inevitably address much bigger questions than research ‘in’ law. Literature is very much a shared interest for teacher and student and, he suggests, is the immediate direction in which both must go. Yet at the same time he also warns that the sudden interest in literary studies must not lead to an over-intellectualising of law and literature; the sort of over-intellectualising decried by Edward Said in literary criticism as a whole. The great virtue of law and literature is its potential to be user-friendly. That quality, above all, must not be lost. Too many long words are dangerous. As Dunlop suggests, law is already beset by far too many words that do not really mean anything, either to lawyers or to anyone else.⁹⁹

In a recent essay Nancy Cook has re-emphasised the underlying anxiety which has been brought to the fore, but perhaps also to some extent allayed, by the advance of law and literature; the feeling that there are better ways of teaching and equipping law students for the real world.¹⁰⁰ According to Cook there is certainly no need to justify law and literature, which she suggests has sometimes seemed almost too shy of its own potential. The art of teaching, she suggests, has always lain in the use of analogy and metaphor. Rather like Richard Weisberg, who suggests that law and literature's most important claim, and one that was rare in law school, was that of being ‘fun’, Cook has stressed the virtue of literature as a teaching medium. Students, she suggests, like literature. The use of literature can break down the teacher-student barrier. Students can have an opinion about literature. It is not a right-answer/wrong-answer discipline, and so opinions are all that a teacher need ask. It is the ‘[n]on-threatening novelty, especially combined with humour’ which can be so ‘appealing’ in a classroom situation. John Bonsignore has recently made precisely the same claim, suggesting that every legal theory course should open with a discussion of Kafka's parables.¹⁰¹ Like Dunlop, Cook agrees that legal study has become too ‘scientific’, too bound by the casebook method advocated by Langdell, and then by realists such as Karl Llewellyn. But whereas Dunlop suggests that literature can somehow direct the law school away from an excess of professional training, Cook suggests that that training itself is in need of precisely the skills which literature can provide. Literature can present the student with a real-life situation, and concentrate the mind on the realities of case-resolution.¹⁰²

The educative ambition of law and literature, and the perceived limitations of the traditional casebook method, was strongly reemphasised in the recent colloquy entitled ‘Human Voice in Legal Discourse’, published in the Texas Law Review. In his keynote essay, Jules Getman identified a schism between the ‘professional’ and the ‘human’ voice.¹⁰³ It was this schism which, he suggested, was determined in the law school. Students become lawyers instead of, not as well as, people. This position is of course one that is familiar from the days of the CLS movement. In 1984, perhaps at the peak of their powers, CLS proponents like Peter Gabel were making precisely this point, suggesting that both conceptually and linguistically students in the law school experience a ‘weird dissociation’.¹⁰⁴ The naked politicisation inherent in the CLS approach to legal education may now be more subdued but the basic problem remains, or so Getman suggests. Language, according to Getman, is ‘dangerous to the lawyer's psyche’ in that it removes him or her from ‘the concerns of ordinary life’. This ‘myopic focus on the professional voice does a major pedagogical disservice by preparing students for only a part of what lawyers do … [s]uccessful lawyering frequently requires human understanding far more than it does intellectual rigour’.¹⁰⁵ In similar vein to Dunlop, Getman warns against the excessive intellectualism which captured the CLS earlier in the decade, and which became a virtually impenetrable discourse of meaningless words ‘far removed from the emotions, language, and understanding of the great majority of human beings’.¹⁰⁶ Literature, Getman suggests, can do something that law never can, at least not in the classroom. It can present ethical dilemmas which demand resolution not by ‘lawyers’, but by people. By training lawyers to be lawyers, and not people, law schools singularly fail to equip their students for resolving the decisions which really matter.¹⁰⁷ In his closing comments, Getman concentrates particularly on the synthesis of both law's and literature's ambitions:

The need to address reality in words understandable to most of humanity is particularly great for those of us who seek to influence social policy in a more liberal direction … I do not deny that the conveyance of complex ideas sometimes requires a special vocabulary, but such special circumstances occur far less frequently than many would like to pretend. In most cases, when we present our ideas in a form designed to separate us from the great mass of humanity, we are almost certain to obscure their meaning, limit their reach, and reduce their significance.¹⁰⁸

His suspicions were shared by Elizabeth Perry Hodges, who noted that, when compared with non-law students, law students display ‘a conscious effort on their part to erase any sign of non-professional discourse’, although, at the same time, their ‘language fails to reflect the unavoidable fact of their membership in a larger community from which they derive their fundamental linguistic abilities and to which, as mediators from the world of law, they must communicate’.¹⁰⁹ Hodges urges lawyers to recognise the dynamic force of language, and to release the peculiar constraints of legal language. Students, and law students in particular, must learn about the nature of language. At present the problem is that ‘instead of understanding legal discourse as a dynamic product of complex historical, social, and personal forces’, students ‘treat it as an independent rational structure, built up of stable denotations that correspond to an objective reality’. Thus, crucially, ‘they fail to recognize that discourse is itself a polyphonic construct, coloring and colored by human experience’.¹¹⁰ Because language is dynamic there is a responsibility incumbent upon all members of the discursive community. More particularly lawyers have a responsibility with regard to the language of law. Language is the one thing which can activate the law, and change it. To fail to teach the language of law is to ‘resign a vital part’ of our ‘authority’ as both teachers and writers.¹¹¹ Most recently James Boyd White, who first signalled the educative potential of law and literature, has returned to re-emphasise the essential need to educate lawyers and law students in the use of language, and comments that it is the ‘integration’ of literature in legal study, and not its study as some sort of foreign field, which remains at the heart of the law and literature enterprise.¹¹² Throughout life, White suggests, we are ‘learning languages' and continually moving between languages. What disturbs him is the unwillingness of lawyers and law teachers to acknowledge this movement.

Law and literature, then, and its ambitions, has received both approbation and condemnation. However, despite the warnings of those like Posner that both teachers and students should remain aware of the particular nature of legal as opposed to literary study, I would suggest that there is much to be said in favour of the ‘renaissance’ of law and literature and, moreover, regardless of its political potential, the greatest and least disputed virtue lies in its educative potential. It must be stressed, once more, that the two ‘kinds’ of law and literature—law in and law as—are in no way exclusive. Indeed, both facets are indistinguishable in text use. As Nancy Cook concludes, ultimately law and literature, in its use of texts that are not immediately ‘legal’, ‘helps identify and clarify important issues in the legal realm that might otherwise remain clouded’. In this way, ‘[n]ew ideas sink into consciousness without the learner even necessarily realizing that the process is occurring or knowing to what to attribute changes in thinking patterns and attitudes’. The process is one of ‘learning by osmosis’.¹¹³ Even if the structural distinction between law and literature remains, as Posner suggests that it should, the functional distinction need not. The educative ambition of law and literature, it is suggested, is both a credible and a creditable one. Moreover, it is one which teachers of law should not seek to dispute, if they do indeed cherish the ambition of educating lawyers to be more than simply lawyers.

Notes

1. J. White, ‘Law as Language: Reading Law and Reading Literature’, Texas Law Review, 60 (1982), 437.

2. See the recent essentially synoptic essays of Brook Thomas, ‘Reflections on the Law and Literature Revival’, Critical Inquiry, 17 (1991), 510-37, and C. Dunlop, ‘Literature Studies in Law Schools’, Cardozo Studies in Law and Literature, 3 (1991), 63-110. A slightly older synopsis is presented by Robert Weisberg, ‘The Law-Literature Enterprise’, Yale Journal of Law and the Humanities, 1 (1988) 1-67.

3. See Thomas, ‘Reflections’, 510-11, noting the emergence of an increasing number of interdisciplinary journals concerned not only with literature but with the humanities as a whole. He specifically cites the Yale Journal of Law and the Humanities and Cardozo Studies in Law and Literature. See also R. Posner, Law and Literature: A Misunderstood Relation (Cambridge, Mass.: Harvard University Press, 1988).

4. J. Allen Smith, ‘The Coming Renaissance in Law and Literature’, Journal of Legal Education, 30 (1979), 13-26. With hindsight it is now popular to suggest that the first impetus towards the renaissance was provided by James Boyd White's The Legal Imagination (Boston, Mass.: Little, Brown and Co., 1973). Currently, more North American law schools offer courses in law and literature than do not, a fact which has led Dunlop to observe that ‘[l]iterature study in law faculties is a growth industry’. See ‘Literature Studies’, 63.

5. See Posner, Law and Literature, chapter 6, particularly 271-81.

6. See Ricoeur, The Rule of Metaphor (London: Routledge and Kegan Paul, 1978), particularly studies 3, 4, 5 and 8. For the development of the historicity of the text, see P. Ricoeur, Hermeneutics and the Human Sciences (Cambridge University Press, 1981), particularly chapters 5 to 11. A good introduction to Ricoeur's later work, wherein he develops the idea of the ‘story’ to the full, is his essay ‘On Interpretation’ in Philosophy in France Today, ed. A. Montefiore (Cambridge University Press, 1983), 175-96.

7. Ricoeur, ‘On Interpretation’, 180-1.

8. See R. Rorty, Contingency, Irony, and Solidarity (Cambridge University Press, 1989), particularly chapter 1 for the discussion of language, and chapter 9 for solidarity.

9. See The Rule of Metaphor, study 1 and ‘On Interpretation’, 177-81.

10. For Aristotle's use of metaphor in discussing justice, see Ethics (Harmondsworth: Penguin, 1976), 171-202. For contemporary use of Aristotelian metaphor in ‘formalist’ scholarship, see for example E. Weinrib, ‘Legal Formalism: on the Immanent Rationality of Law’, Yale Law Journal, 97 (1988), 949-1016.

11. For his treatment of metaphor, see Rhetoric (Cambridge University Press, 1909), book 3, chapter 2. For Ricoeur's commentary on this position, see The Rule of Metaphor, study 1.

12. See Brook Thomas, ‘Reflections’, 525. For a commentary on the influence of the Enlightenment project on the nature of legal discourse, see P. Goodrich, Languages of Law: from Logics of Memory to Nomadic Masks (London: Weidenfeld, 1990), particularly chapters 2 and 7.

13. See generally K. Llewellyn and F. Hoebel, The Cheyenne Way (Norman: University of Oklahoma Press, 1941). For a particularly useful example of metaphor and symbolism in native peoples' jurisprudence, see Goodrich, Languages of Law, 179-86. See also F. Hoxie, ‘Towards a “New” North American Indian Legal History’, American Journal of Legal History, 30 (1986), 351-7.

14. See O. Leaman, An Introduction to Medieval Islamic Philosophy (Cambridge University Press, 1985), and H. Englard, ‘Research in Jewish Law: Its Nature and Function’, Mishpatim, 7 (1975-6), 34-65.

15. See I. Ward, ‘Natural Law and Reason in the Philosophies of Maimonides and St Thomas Aquinas’, Durham University Journal, 86 (1994), 21-32.

16. See Maimonides, The Guide to the Perplexed, trans. M. Friedlaender (London: Dover, 1956), book 1, chapter 2, 23-7, and Aquinas, Summa Theologiae, ed. T. McDermott (London: Methuen, 1991), Questions 90-108 and 276-307.

17. See Bacon's essays ‘Of Truth’ and ‘Of Judicature’ in The Essays (Harmondsworth: Penguin, 1985), 61-3 and 222-5, and also The Advancement of Learning (Oxford University Press, 1974), chapter 23, 170-299.

18. See J. Bonsignore, ‘In Parables: Teaching Through Parables’, Legal Studies Forum, 12 (1988), 191-210.

19. S. Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (Oxford University Press, 1990), 138. Unsurprisingly Fish has used metaphors and parables as a means of describing legal problems. Most obvious perhaps is his essay ‘Dennis Martinez and the Uses of Theory’, in ibid., 372-98.

20. See The Legal Imagination, When Words Lose Their Meaning: Constitutions and Reconstitutions of Language, Character and Community (University of Chicago Press, 1984), Heracles' Bow: Essays on the Rhetoric and Poetics of the Law (Madison: University of Wisconsin Press, 1985) and Justice as Translation: An Essay in Cultural and Legal Criticism (University of Chicago Press, 1990).

21. Some of the best examples of this can be found in James Boyd White, When Words Lose Their Meaning, particularly the Introduction, ix-x, 8-9, and 275-89.

22. An observation also made by Dunlop, ‘Literature Studies’, 63 and 70-1, and also by William Page, ‘The Place of Law and Literature’, Vanderbilt Law Review, 39 (1986), 408-15.

23. White, ‘Law as Language’, 430-1.

24. Dunlop, ‘Literature Studies’, 70.

25. See generally Richard Weisberg, The Failure of the Word: The Lawyer as Protagonist in Modern Fiction (New Haven: Yale University Press, 1984).

26. See ibid., particularly 1-9, 19-20 and 181-2.

27. Richard Weisberg, ‘Text Into Theory: A Literary Approach to the Constitution’, Georgia Law Review, 20 (1986), 946-79.

28. G. Steiner, In Bluebeard's Castle (London: Faber, 1971) particularly 47-8 and 61.

29. Weisberg, ‘Text Into Theory’, 979-85.

30. The quotation is taken from ‘Family Feud: A Response to Robert Weisberg on Law and Literature’, Yale Journal of Law and the Humanities, 1 (1988), at 72.

31. Richard Weisberg, ‘Coming of Age Some More: “Law and Literature” Beyond the Cradle’, Nova Law Review 13 (1988), 121.

32. See ibid., 123.

33. Richard Weisberg, Poethics: And Other Strategies of Law and Literature (Columbia University Press, 1992), 46.

34. R. West, ‘Authority, Autonomy and Choice: The Role of Consent in the Moral and Political Visions of Franz Kafka and Richard Posner’, Harvard Law Review, 99 (1985), 384-428.

35. Ibid., 387.

36. West's most explicit attack on ‘foundationalism’ can be found in ‘Authority, Autonomy and Choice’, particularly 388-91.

37. R. West, ‘Communities, Texts, and Law: Reflections on the Law and Literature Movement’, Yale Journal of Law and the Humanities, 1 (1988), 138-40.

38. Ibid., 146-56. ‘Intersubjective zap’ was presented by Gabel and Kennedy in ‘Roll Over Beethoven’, Stanford Law Review, 36 (1984), 1-52.

39. West, ibid., 153-6.

40. Ibid., 156.

41. See ‘Adjudication is Not Interpretation’, in West's Narrative, Authority, and Law (Ann Arbor: University of Michigan Press, 1993), 96 and 174-5.

42. West, ‘Narrative, Responsibility, and Death’, in Narrative, 421-6.

43. See P. Williams, ‘Alchemical Notes: Reconstructing Rights from Deconstructed Ideals’, Harvard Civil Rights-Civil Liberties Review, 22 (1987), 401-34.

44. See A. Hutchinson, Dwelling on the Threshold (Toronto: Carswell, 1988), particularly the essays, ‘In Training’, ‘Indiana Dworkin and the Law's Empire’ and ‘And Law’. In another essay ‘Doing Interpretive Numbers’, he comments, at 126, that CLS, whilst saying much about alternative discourse, has failed to do much about it.

45. R. Posner, ‘The Ethical Significance of Free Choice: A Reply to Professor West’, Harvard Law Review, 99 (1985), 1433.

46. Ibid., 1438.

47. Ibid., 1439-48. For West's observations see ‘Submission, Choice and Ethics: A Rejoinder to Judge Posner’, Harvard Law Review, 99 (1985), 1456.

48. Posner, ‘Law and Literature: A Relation Reargued’, Virginia Law Review, 72 (1986), 1356.

49. Ibid., 1358.

50. Ibid., 1359-60. For the observation that Posner's dispute is essentially about method or ‘technique’, see Brook Thomas, ‘Reflections’, 515.

51. Posner, ‘A Relation Reargued’, 1367.

52. Posner, Law and Literature, chapters 2 and 3, particularly 75-131.

53. Ibid., 87-90.

54. Posner displays varying confidence in his dismissals. He is sure that Kafka and Camus cannot instruct us with regard to civil procedure, but is prepared to admit that Bleak House is a more accurate description of the workings of the nineteenth-century English legal system, and that Billy Budd may be able to tell us something about courts-martial. See ibid., 94-131.

55. Ibid., 132-75.

56. For the critique directed primarily against West, see ibid., 179-205. See 200-1 for the apparent dilemma of seriousness.

57. Robert Weisberg, ‘Law-Literature Enterprise’, 1-67.

58. R. Delgado and J. Stefancic, ‘Norms and Narratives: Can Judges Avoid Serious Moral Error?’, Texas Law Review, 69 (1991), 1929-83.

59. Ibid., 1933.

60. Ibid., 1957-60.

61. Rorty, Contingency, 60-1.

62. Posner, Law and Literature, 269-316.

63. D. Couzens Hoy, ‘Interpreting the Law: Hermeneutical and Poststructuralist Perspectives’, Southern California Law Review, 58 (1985), 135-76.

64. J. Balkin, ‘Deconstructive Practice and Legal Theory’, Yale Law Journal, 96 (1987), at 763 and 786.

65. J. Balkin, ‘The Promise of Legal Semiotics’, Texas Law Review, 69 (1991), 1831-52, stressing at 1837 the common purpose of the two literary techniques. For a more substantive investigation of semiotics and its previous associations with legal writings, see Goodrich, Languages of Law.

66. Balkin, ‘The Promise of Legal Semiotics’, 1839-40.

67. S. Fish, Is There a Text in This Class? The Authority of Interpretive Communities (Cambridge, Mass.: Harvard University Press, 1980), 43.

68. See generally K. Kress, ‘Legal Indeterminacy’, California Law Review, 77 (1989), 283-337.

69. M. Tushnet, ‘Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles’, Harvard Law Review, 96 (1982), particularly 824-7.

70. M. Tushnet, ‘An Essay on Rights’, Texas Law Review, 62 (1984), 1363-403, quotation at 1382. For the essay on deconstruction see M. Tushnet, ‘Critical Legal Studies and Constitutional Law: An Essay on Deconstruction’, Stanford Law Review, 36 (1984), 623-47.

71. White, ‘Law as Language’, 415.

72. J. Frug, ‘Argument as Character’, Stanford Law Review, 40 (1988), 871.

73. White, ‘Law as Language’, 416-17.

74. Ibid., 419.

75. Ibid., 425-6.

76. Ibid., 420, and again making much the same point at 433.

77. Ibid., 419.

78. Ibid., 434-6.

79. Ibid., 437.

80. White, Justice as Translation, xiii.

81. Ibid., chapter 1, particularly 12-21.

82. Ibid., 100.

83. This is the central theme of chapters 2 and, in particular, 3. The position that White reaches with regard to externalised language is reminiscent of that defined by Peter Gabel as ‘reified’ language. See P. Gabel, ‘Reification in Legal Reasoning’, in S. Spitzer, ed., Research in Law and Sociology, 3 (1980) 25-38, and ‘The Phenomenology of Rights-Consciousness’, Texas Law Review, 62 (1984), 1564-98.

84. White, Justice as Translation, 19-20.

85. White uses a quotation of Dewey's as the trigger for his chapter 4: ‘Democracy begins in conversation’. See ibid., 91.

86. See ibid., chapter 10, particularly 215-17 and 223-4. The quotation is at 217-18.

87. Ibid., particularly chapter 11.

88. Richard Weisberg, ‘Text Into Theory’, 946-76.

89. Ibid., 976-8.

90. See Weisberg, ‘Coming of Age Some More’, particularly 123-4, and ‘Family Feud’, 76-7.

91. See Poethics, chapter 3.

92. See Posner, ‘A Relation Reargued’, 1361-75. Quotation at 1374.

93. Posner, Law and Literature, 245. For the repeated unsuitability of literary theory as a technique applicable to the interpretation of legal texts, see 254-63.

94. See Posner, ‘A Relation Reargued’, 383, and Law and Literature, 372.

95. The comparison that Posner makes is between Holmes and Mark Antony in Julius Caesar. Following his analysis of Holmes, Posner then compares his rhetoric with that of a number of leading US judges. See Law and Literature, 281-96.

96. Posner, ibid., 302.

97. The educative ambition of CLS was eloquently suggested by Peter Gabel in ‘Roll Over Beethoven’, 26.

98. See Dunlop, ‘Literature Studies’, 63.

99. Ibid., 63-109. For Said's comments on over-intellectualising see The World, the Text and the Critic (London: Vintage, 1983), 1-53 and 140-57.

100. N. Cook, ‘Shakespeare Comes to the Law School Classroom’, Denver University Law Review, 68 (1988), 387-411.

101. Bonsignore, ‘In Parables’, 191-210.

102. Cook, ‘Shakespeare Comes to the Law School Classroom’, 411.

103. J. Getman, ‘Voices’, Texas Law Review, 66 (1988), 577-88.

104. Gabel and Kennedy, ‘Roll Over Beethoven’, 26.

105. Getman, ‘Voices’, 579-82.

106. Ibid., 580.

107. Getman particularly uses the example of The Adventures of Huckleberry Finn, a popular text and well-used by law and literature scholars. See ‘Voices’, 587-8.

108. Ibid., 588.

109. E. Perry Hodges, ‘Writing in a Different Voice’, Texas Law Review, 66 (1988), 633.

110. Ibid., 638.

111. Ibid., 639.

112. See White, Justice as Translation, 19.

113. Cook, ‘Shakespeare Comes to the Law School Classroom’, 410-11.