The Death of Law and Literature: An Optimistic Eulogy
Heald, Paul J., The Comparatist
I spent last Saturday morning leading a group of federal judges in a vigorous and largely successful roundtable discussion of Ariel Dorfman's play, Death and the Maiden. The deep underlying cause of this event was surely Michael Palencia-Roth--and not just because he wrote me a nice letter of recommendation to law school years ago. His responsibility runs deeper, to the very substance of my understanding of the relationship between law and literature, an interdisciplinary field of study that had barely started in the late seventies when Michael first became my teacher and mentor. He is why we read a play rather than an academic essay, and it's his influence that lets me proclaim the death of the Law and Literature movement with an optimistic bent.
Although the Brothers Grimm had done work identifying the common etymology of various poetic and legal terms as early as 1816, the modern Law and Literature movement begins with the 1976 publication of James Boyd White's The Legal Imagination. White, an English professor (now a jointly-appointed law professor) at Michigan, took seriously the possibility that legal rhetoric had something to learn from the language of fiction. Literature is replete with examples of rhetoric that is community-building rather than divisive, and White has written frequently about humane rhetorical strategies taught by great works of literature. His work fits within a tradition that finds the commonality of law and literature in their various languages.
This "law as literature as language" approach pioneered by White has developed several sub-divisions over the years. Scholars like Stanley Fish agree with White that law is a sort of language, but Fish does not conclude, as White seems to, that comparative study is necessarily humanizing (see Fish). After all, studying Spanish and Italian together might be mutually illuminating, but neither language will be made better through the comparison. Other scholars, moved by a complementary but more critical spirit, might be identified as "legal semioticians," dedicated to deconstructing legal texts in the same way as literary texts, determined to find evidence of class structure embedded in both. Yet another group, whom we might label "narrative scholars" also focus on similarities in form between stories told in fiction and those told in the course of legal proceedings. This group endorses narrative fiction as sometimes more valid, and often more persuasive, than obfuscating styles of traditional legal analysis.
What all the foregoing strands have in common is a dedication to the study of form: the form of legal argument and the form of literary rhetoric. The comparative study of law and literature for "law as literature as language" scholars becomes a branch of post-modern aesthetics: What works with an audience and what does not? What moves the viewer or the reader and why? The critic attempts to analyze the communication while deemphasizing attempts to discern its meaning. Comparative literary scholars will recognize this approach in some of their own academic writing, and I do not mean to disparage it. I do want to explore why it is, however, that law in action, in courts, legislatures, and law schools seems so resistant to incorporating its insights. Although White and Fish are cited over 2500 times in academic legal articles, they have been cited in federal court opinions only four times. This disparity does not necessarily prove they have no influence--perhaps they affect the legal subconscious via student exposure to their work in law school--but nevertheless the form of legal language seems little changed in the last thirty years.
Fish himself provides the answer in his perceptive essay, "The Law Wants a Formal Existence." Law only works if it appears to be objective. Litigants will only agree that a dispute has been fairly settled if the law appears to emerge from an objective black box uncontaminated by the personal preference of the judge. The law, therefore, develops its own language, stubbornly resistant to external influence, repelling all attempts at colonization by outside forces. It must protect its own form. The law may be amenable to a "law as literature as language" analysis by outsiders, but it will withstand the influence of that analysis and will resist acknowledging its susceptibility to the analysis. This is a critical point and the beginning of the explanation why Law and Literature as a comparative movement has gained so little traction in law.
Other strands of Law and Literature are susceptible to the same analysis. Long before the 1970s, an earlier mode of interpretation now included in the "canon" of Law and Literature scholarship had already appeared. One could call this corner of the movement, "Law in Literature," and it's easy to see why it remains little more than an academic sideshow. Literature is filled with trials and legal proceedings from the Bible to Shakespeare to Kafka, and literary commentators have frequently mined the law to better their understanding of authorial intent. Sometimes, as with Richard Weisberg's wonderful symposium issue of Cardozo Studies in Law and Literature on Billy Budd, the injection of legal analysis can fruitfully multiply and vary the number of plausible interpretations of a text. More often, as with various attempts to use law as an aid to understanding Kafka's The Trial, knowledge of the law is unhelpful (see, for example, Kirchberger). Studying Austro-Hungarian legal procedure is not the key to unlocking Kafka's text. Few important authors produce works that require a law degree to fully appreciate them.
Not surprisingly, even when Law in Literature scholarship is done well, the legal profession seems to yawn. First, the scholarship is usually not normative. It almost never charts a course for what judges or lawyers should do. Second, it is usually done by non-lawyers who, no matter how sophisticated and correct their legal analysis, find it hard to get the attention of those with law degrees. Weisberg, a prominent scholar armed with a Ph.D. in Comparative Literature and a J.D., is an exception to this rule, but even he has yet to be cited in a federal court opinion. Noting this lack of influence is not a criticism of the "law in literature" sub-division of the Law and Literature movement, but simply another example of the law's natural resistance to outside influence.
This resistance is seen again if we examine a third strand of scholarship that might be labeled "Law as Cultural Movement." This approach resembles that taken in undergraduate period-survey comparative literature courses that group works in movements like the renaissance, romanticism, expressionism, post-modernism, etc. Good survey courses often situate works of literature in the broader context of the art, architecture, religion, and music of any particular era. Surely, it is fruitful to talk about Leibniz and Bach together. Or Rimbaud and Van Gogh. Why not put law in a cultural context? Why should the form of law not be subject to the same cultural currents as literature, art, and philosophy? My deepest comparative instinct shouts to me that contextualizing law would be a worthy and exciting enterprise.
Unfortunately, it is also a profoundly difficult enterprise. Imagine adding a comprehensive analysis of law to the sort of cultural movements discussed by John H. Randall in the The Making of the Modern Mind. Some good work has been produced (see, for example, Ferguson), but the handful of people who might tackle the job often get seduced by the law as lone mistress with its double attraction of adequate remuneration (even at the academic level) and the possibility of having a more palpable effect in the "real" world. Finally, even a successful historical contextualization of law as a cultural product would run into the law's resistance to self-awareness. Treating law as a mere cultural artifact, risks diminishing its authority as an independent and objective arbiter of disputes. I agree with Fish. Perceived as a cultural product, law would no longer continue to work; it would cease to be law at all. Perhaps we are better off with this Manhattan Project never getting off the ground.
A fourth and final strand of the Law and Literature movement has the University of Chicago Law School philosophy/law professor, Martha Nussbaum, as its most prominent proponent. Following Nussbaum, my own book, Literature and Legal Problem Solving: Law and Literature as Ethical Discourse, argues that the lessons taught in fiction have direct applicability to how substantive legal decisions should be made (Heald, Literature). Put most bluntly, judges should read and discuss fiction because they will make wiser decisions. The Medea story is relevant to how real mothers who kill their children should be sentenced (see "Medea"). The Don Juan motif has direct applicability to determining liability for tortious seduction (see Heald, "Don Juan"). The crime fiction of Elizabeth George explains why the Supreme Court was right in Daubert v. Dow Chemical (see Carter). This ethical approach takes literature very seriously indeed.
Given my experience as Michael's student, Nussbaum's approach has the strongest appeal. Michael never told his students how, for example, reading Kierkegaard should affect us, but the seriousness with which we approached his, and every other, work implied that a purely formal approach to reading was inadequate, and perhaps even disrespectful. The work I did at Illinois was intensely personal, probably inappropriately so in terms of the professional norms of literary academics. It was also naive; I took Malraux so seriously that I quit graduate school after getting my master's. But I kept all my books and retained the lessons I learned. And it was not too long into my law school career before I asked the inevitable question: If reading a book like Man's Fate can alter one's choices, then why could it not influence a judge's decision? After speaking with judges, I am convinced fiction can influence the act of judging. That is not the same, however, as concluding that Nussbaum's or my scholarship impacts the law as well.
Having entertained this hypothesis before my seminar with the federal judges, I decided to give them Ariel Dorfman's play Death and the Maiden to read instead of an academic essay. The storyline presents a set of problems familiar to judges. The main character, Paulina, has been living a fearful and damaged life since her release fifteen years earlier from Pinochet's torture chambers in Chile. In the third scene of the play, the doctor who tortured and raped her, or at least someone unerringly like him, comes by chance to her home where she is able to subdue him and put him on trial before her husband, a prominent attorney just named to a national commission to investigate crimes against humanity. She informs her husband, Gerardo, that he must represent Dr. Miranda and convince him to confess to his crimes. As a lawyer, her husband is outraged by her conduct, but cooperates and helps extract the confession after receiving Paulina's promise that she will not kill Miranda if he speaks the truth. Dorfman leaves it deliberately ambiguous whether she kills her former tormentor, but makes it clear at the end that some sort of healing has been worked through the confrontation.
The play presents broad issues that confront lawyers, judges and policymakers, and also narrower questions of victim psychology and evidentiary issues. Perhaps, the most compelling theme involves the process of transitional justice. How can there be peace in a community where the torturers must live with their victims, where murderers must co-exist with the families of those they murdered, and where those whose basic human rights have been denied must live with those who perpetrated the offense? The problem of transitional justice presents the fundamental legal problem of the second half of the last century and the beginning of the present era. We have witnessed a wide variety of approaches. At Nuremberg, key Nazi figures were tried and executed. Much the same process is being employed in Rwanda today. In South Africa, a radically different mechanism offered complete amnesty for those who came forward and publicly confessed to political crimes, including murder and torture. In Chile, a commission took testimony on and investigated human rights violations that ended in death or the presumption of death, but by prior agreement with the government, the commission report was not published. In the United States, the fall of Jim Crow was heralded more by movies and documentaries than by the prosecution of segregationists. In Spain, by tacit agreement, the Franco regime is not a proper subject for discussion.
Which legal mechanisms work or do not work seems to depend largely on context. The "Law and Literature as Ethical Discourse" approach asserts that the proper path to choose might be illuminated just as well through the study of fiction as the study of legal treatises. Works like Death and the Maiden (or, perhaps, Darkness at Noon) should be required reading for those trying to figure out how to establish communities in places like Iraq. The play directly addresses the question of how healing can occur, and it puts lawyers and judges (Gerardo must play both roles) in the center of the healing process.
Dorfman also raises less institutional issues. How does one deal with victims who are so damaged their testimony may not be credible? Short of DNA testing, what constitutes sufficient evidence of guilt in the case of sex crimes? How can a respected citizen, like Dr. Miranda, be transformed into a sadistic torturer? As an historical matter, the law has evolved in the context of disputes between individuals. The play does not ignore the critical problem of how to craft procedures that uncover the truth necessary for mediating such disputes. Dorfman suggests that any larger theory of community building starts with the practical work done by lawyers and judges.
The "law and literature as ethical discourse" approach asks the question whether the lessons of a play like Death and the Maiden must inherently require a fictional telling, or whether its truths can be discovered equally well by other means. After all, the questions raised by Dorfman have long been known to the law. Nussbaum suggests that the narrative stance we adopt when we read a novel or see a play gives us a unique perspective. If one wants to learn about erotic love (perhaps of a sort one has not experienced), one can read a psychologist's study on the subject or one can read a novel where the characters live through the experience in vivid detail. When we read fiction, we empathize and live an experience vicariously in a way unlike reading a dry academic paper or listening to expert testimony. This is not to say psychologists have nothing relevant to say to lawyers; they surely do. So do economists. But, as Nussbaum makes clear, so do novelists and playwrights. The good judge, she argues, is like the good reader of a novel, a novel that can transform the reader (see Nussbaum).
Does Nussbaum offer a good descriptive theory? Judicial opinions seldom overtly rely on lessons their authors have learned from fiction. On the other hand, if we are what we eat, then perhaps we are also what we read. Narrative form is basic to human nature. Perhaps, decision makers cannot help but incorporate the substantive lessons learned from literature. Given the resistant nature of formal law that Fish describes, we should not expect judges to quote from the Merchant of Venice when deciding lending cases, but neither should we expect judges and lawyers to be immune to their cultural and literary upbringing. In any event, the ethical approach to law and literature flows most naturally from the assumption that literature can transform human beings and that any book you read might change your life. There are many other approaches to studying literature, all of which must be mastered on the way to advanced degrees, but it is ethical discourse that best describes the relevance of literature to law.
This observation seems consistent with comments made by the judges in my discussion group, although they seemed more interested in issues raised by Dorfman's characters than by the macro-level institution-building issues raised by the play. They found Gerardo to be a fascinating character, clearly a symbol of democracy and the better angel of our judgment as he tries to mediate the relationship between his damaged wife and her accused torturer. Yet, he is also weak and naive, incapable of truly controlling either party. Is he really a good role model for attorneys? Paulina represents the ancient impulse of Lex Talionis, an eye for an eye, yet she clearly needs more than revenge in order to be healed. And is she healed completely? What is it about the process of her mock trial that effects healing? Some judges wondered whether her healing was enough of a resolution to her story. In the most plausible interpretation of the play, Dr. Miranda spends no time in jail. Does justice entail more than healing the victim? Might it not require punishing the victimizer?
Deciding the role retribution should play in criminal trials is not merely an academic matter for federal judges. For example, a prosecutor might want victims to testify at sentencing about the effect that the defendant's actions has had on their lives or the lives of the victims' families. Under Payne v. Tennessee, (1) allowing victim impact statements is constitutional and, at the federal level, within the discretion of the judge. But is it wise? Is it just? The question of what to do with Dr. Miranda raises this issue. Pinochet's regime has fallen; as with many former Nazis, Miranda will likely never misbehave again. If Paulina is healed without killing him (or perhaps precisely because she restrained herself from killing him), then the only rationale for formally punishing him is retributive, as is the main rationale for allowing victim impact statements to influence sentencing. (2)
I did not ask the judges about victim impact statements, so we can only speculate what sort of lessons literature has for those working through the relationship between justice and retribution, but I did hear them talk about sentencing in the context of protestors at American military bases. The judges all worked in a district where protestors of U.S. human rights policy have trespassed on government property as part of their yearly demonstrations. The first amendment provides no defense to trespassing on military property, so the protestors face up to six months in jail for each offense. A mix of Clinton and Bush appointees said they gave each protestor up to an hour to explain themselves at sentencing. This is a highly unusual and completely discretionary use of limited judicial resources. The defendants are given time to argue against U.S. human rights policy before they are sentenced, even though having a good reason to disobey the law does not excuse the violation. As time ran out in our seminar, I asked a final question: Do their stories affect their sentences or is a one-size-fits-all sentence routinely applied? The judges concurred that the stories mattered.
But does literature matter? Is it worthwhile for judges to read and discuss a play by a Chilean dramatist? Does it make sense to teach literature in law schools? The answer was a resounding yes. Not because literary theory had opened their eyes to the true nature of law, but rather because literature had the potential to transform human beings. Literature was a fundamental part of a liberal education and traditional Aristotelian notions about what constituted a good life. I had no difficulty at all imagining the relevance of what they had read to discrete legal questions that come up in contexts like sentencing.
Of all the forms that comparative scholarship takes, Law and Literature as Ethical Discourse seems to best describe the relationship between the two fields of human endeavor. However, along with all other strands of the Law and Literature movement, the sub-grouping is marginalized by law. The law welcomes academic advances in the sciences and economics with open arms, putting their objective discourse to immediate use. Garret Hardin's essay "The Tragedy of the Commons," for example, has had an enormous influence on intellectual property law, whereas the finest and most perceptive essays produced by the Law and Literature movement gain no traction. Perhaps, the problem is that the movement sought to confront law head on, describe it, and reveal its innermost life. But the King will never want a psychoanalyst by his side revealing his innermost motivations and desires to the people. Science and economics instead give the King powers that he can use to convince the people of his own wisdom and objectivity. Meanwhile, the King never stops going to the playhouse. He keeps a novel on his nightstand.
The transformative power of literature is what I was allowed to study at Illinois as a student, and the ethical connections I saw made sense to me. The most compelling discussions about literature are ethical discussions, and law is inescapably normative, inescapably obsessed with questions of "should." Through this portal, literature does more than leak into the law; it pours in. But does that mean that Law and Literature as a field of academic study matters to the law? Probably not much. Academic intrusions will continue to be rebuffed by the formal structures of law, but fiction itself will always seep in. In one sense, there is little future for Law and Literature scholarship, but a bright future (and past) for literature itself and its influence on law.
Carter, Lief. "Elizabeth George, Cantor's Theorem, and the Admissibility of Scientific Evidence." Literature and Legal Problem Solving: Law and Literature as Ethical Discourse. Ed. Paul J. Heald. Durham: Carolina Academic Press, 1998. 125-50.
Dorfman, Ariel. Death and the Maiden. New York: Penguin, 1994.
Ferguson, Robert. Law and Letters in American Culture. Cambridge: Harvard University Press, 1984.
Fish, Stanley. "The Law Wants a Formal Existence." In The Fate of Law. Eds. Sarat and Kearns. Ann Arbor: University of Michigan Press, 1990.
Grimm, Jacob. "Von der Poesie im Recht." Zeitschrift fur Geschichtliche Rechtswissenschaft. 1816.
Hardin, Garrett. "The Tragedy of the Commons." Science 162.3859 (1968): 1243-48.
Heald, Paul J. "Don Juan and the Tort of Seduction." Literature and Legal Problem Solving: Law and Literature as Ethical Discourse. Ed. Paul J. Heald. Durham: Carolina Academic Press, 1998. 173-91.
--, ed. Literature and Legal Problem Solving: Law and Literature as Ethical Discourse. Durham: Carolina Academic Press, 1998.
Kirchberger, Lida. Franz Kafka's Use of Law in Fiction. New York: P. Lang, 1986.
"Medea and the Un-Man: Literary Guidance in the Determination of Heinousness Under Maynard v. Cartwright." 73 Texas Law Review 571 (1995).
Nussbaum, Martha C. Love's Knowledge. New York: Oxford University Press, 1992.
Randall, John H. The Making of the Modern Mind. New York: Columbia University Press, 1976.
Weisberg, Richard, ed. Symposium on "Billy Budd." Cardozo Studies in Law and Literature 1 (1989).
White, James B. The Legal Imagination. Chicago: University of Chicago Press, 1976.
(1) 501 U.S. 808 (1991)
(2) There is surely a cathartic value to forcing the defendant to understand the effect of his actions. In this sense, victim impact testimony may be healing, but it need not be done before sentencing or in the presence of the sentencing authority.
PAUL J. HEALD
University of Georgia…
Questia, a part of Gale, Cengage Learning. www.questia.com
Publication information: Article title: The Death of Law and Literature: An Optimistic Eulogy. Contributors: Heald, Paul J. - Author. Journal title: The Comparatist. Volume: 33. Publication date: May 2009. Page number: 20+. © 2009 University of North Carolina Press. COPYRIGHT 2009 Gale Group.