Modernism and the Critique of Law and Literature

Article excerpt

Abstract.

'Law and literature' suffers from two besetting weaknesses: first, a concentration on substance and plot and, second, a salvific belief in the capacity of literature to cure law or perfect its justice. The first fails to question the Platonic ideal that the purpose of art is mimetic. The second fails to question the romantic ideal that the purpose of art is to heal the world's wounds. Too often in opening a dialogue with law we fail to capture the real experience or worth of literature-a worth irreducible to either the morality it 'stands for', or to the coherence or harmony it promises. Indeed, the aesthetic ideals of modernism, which so dramatically altered the landscape of literature, philosophy and politics around the turn of the (twentieth) century, reject just these claims. Modernism-to be more sharply distinguished from 'modernity' than it often is-produced instead a heightened attentiveness to questions of style, form, and language, and to questions of diversity and subjectivity in voice and perspective. Modernism cast off the aesthetic ideologies of mimesis and romanticism and opened up claims of truth, progress, and perfection to the destabilizing subtlety of irony. This essay's focus on modernist irony, with particular attention to the work of Mikhail Bakhtin, suggests a very different orientation and defence of 'law and literature'.

Indeed, practically all metaphors for style amount to placing matter on the inside, style on the outside. It would be more to the point to reverse the metaphor. The matter, the subject, is on the outside; the style is on the inside.... To treat works of art [as statements] is not wholly irrelevant. But it is, obviously, putting art to use - for such purposes as inquiring into the history of ideas, diagnosing contemporary culture, or creating social solidarity - A work of art encountered as a work of art is an experience, not a statement or an answer to a question. Art is not only about something; it is something.1

- Susan Sontag, 'On Style'

Despite its enormous successes over the past generation, the field of law and literature continues to suffer from two enduring weaknesses: first, a concentration on substance and plot and, second, a salvific belief in the capacity of literature to cure law or perfect its justice. The first fails to question the aesthetic ideal, which goes back to Plato, that the purpose of art is mimetic, that is, to accurately reflect the world. This concern with 'what' a particular piece of literature talks about rather than with its voice or style or form, I call the mimetic fallacy. The second fails to question the aesthetic ideal, central to all conceptions of romanticism, that the purpose of art is to heal the world's wounds.2 The idea that art can save the day or complete the law, I call the romantic fantasy. In this essay I will try to show how even some of the best recent work in the field falls into one or both of these traps. Too often in opening a dialogue with law we fail to capture the real experience or worth of literature - a worth irreducible to either the morality it 'stands for', or to the coherence or harmony it promises. Indeed, the aesthetic ideals of modernism, which so dramatically altered the landscape of literature, philosophy and politics around the turn of the (twentieth) century, precisely rejected these two claims. Let me first clearly distinguish this from modernity in relation to which modernism stands as a response and a critique. An extensive definition will have to wait for another time, but we could very generally associate modernism with those movements which especially in the early part of the twentieth century and precisely under the impact of modernity, responded with a heightened attentiveness to questions of style, form, and language, and to questions of diversity and subjectivity in voice and perspective. We might say that modernism cast off the aesthetic ideologies of mimesis and romanticism and opened up the claims of truth progress, and perfection to the destabilizing subtlety of irony. …