Law, Literature, and the Problems of Interdisciplinarity

Baron, Jane B., The Yale Law Journal

There is probably someone somewhere who would be willing to say that law is just rules and the techniques of rule manipulation, but in the academy, if not outside of it, this view has long been out of fashion.(1) Today, a description of law as "a dazzlingly complex array of social, cultural, linguistic, and normative practices"(2) presents itself not as a revolutionary insight but as a form of common sense. Part of what has educated us to understand law as a phenomenon richer than the sum of its rules is the teachings of the various "law ands" that have grown up over the years--law and economics, law and history, law and society, and the like. In methodologically diverse ways, "law and" scholarship has consistently encouraged consideration of law's dependence on and connection to other disciplines. "In spite of sharp differences among ['law and'] schools," two commentators recently observed, "all concur that the legal world is not to be understood on its own terms, but requires the application of some method or substance provided by other disciplines."(3)

One of the other disciplines that has been offered to provide law with the necessary understanding is literature. "Law and literature" may not be the oldest "law and"(4) or the most influential,(5) but neither has it played the shy wallflower at the "law and" dance. Law review symposia,(6) books,(7) and conferences(8) have all explored the ways in which law can be connected to, and improved by, literature. Literature, it is said, sheds light on law's gaps, rhetoric, and moral stance. It elucidates law's limits and highlight law's exclusions. Interpretive methods conventionally applied to fictional texts can be applied productively to legal texts, and narrative techniques that draw readers into novels and plays can be employed in the service of legal arguments.

These are provocative and occasionally startling claims, but it is not clear whether those outside the law-and-literature community are truly persuaded. My principal argument in this Essay is that the law-and-literature movement has failed to generate the excitement that it is capable of generating within the American legal academy because it has not been sufficiently interdisciplinary, or--to be more precise--it has not been very thoughtful about interdisciplinarity.(9) At the same time, it has had less influence than it might have had with actual lawyers because it has seemed too interdisciplinary, in the sense of not having a lot to say about the aspect of law with which most lawyers are most concerned: doctrine. There is less of a paradox here than might appear. Law-and-literature scholarship has not questioned what the category "law" consists of and has thus tended inadvertently to reinforce the notion of law as autonomous.

This failing--if it is a failing--is not unusual in "law and" scholarship. Assessments of how legal academics could or should employ learning from other fields typically employ a strategy of compare-and-contrast in which the nature and aims of law are juxtaposed against those of the non-law field to evaluate whether the latter can be used appropriately in the service of the former.(10) Because the comparisons tend to treat both "law" and the "and" discipline as bounded entities, they do not explicitly consider how the boundaries are drawn. As in the case of law and literature, law tends to be depicted as a more or less empty domain composed mainly of rules. For all of the collective success of the "law ands" in challenging the old-fashioned vision of law as rules, the individual "law ands" have not escaped the spell of Langdellian orthodoxy. More specifically, they have failed to fulfill the potential of interdisciplinary scholarship to examine how we categorize knowledge and why.

Before developing this critique in more detail, I state a separate critique that may be a helpful backdrop. This background critique is that the law-and-literature movement has tended to undermine itself from within. If there is a single movement here,(11) it is certainly a very fractured one. The concerns of its separate strands are quite disparate. Any theme broad enough to tie all the strands together can be found and stated only at a level of abstraction so high as to threaten banality; such abstraction also undercuts what some within the movement regard as a fundamental commitment to particularity as opposed to grand theory.(12) This is a movement of many methodologies and conclusions. The multiplicity of approaches and concerns that leads some to see literature as a source of nearly endless possibilities may lead skeptics to dismiss law and literature as an empty vessel, a phrase devoid of content.

The interdisciplinarity critique and the background critique are not necessarily connected. The background critique basically describes a problem of internal fragmentation, of mixed and conflicting messages. The law-and-literature movement could be a great deal more unified and coherent than I argue it actually is and yet still fail to engage meaningfully the question of how and why disciplinary boundaries are being drawn in the way the movement currently draws them.

Still, the critiques may not be wholly unrelated. Each strand of the law-and-literature movement seeks to demonstrate that literature has something to offer law. The less attention that is paid to what law is, for purposes of this comparison, the easier it is to make the case for literature; that is, the less law already includes, the more obvious it is that it requires the supplementation of literature. Explicit recognition that the category "law" might be contingent or created would substantially complicate the argument. It seems no accident that a movement so invested in a vision of law as requiring enhancement from something "outside" should be somewhat careless in its consideration of the boundaries of "law" as a discipline. Both critiques, then, point to a single problem: By treating law's boundaries as both necessary and natural, the law-and-literature movement seems to beg questions it is ostensibly committed to answering, such as whether it makes sense to use the "outside" discipline of literature as a tool to examine what is or could be "inside" law--and, more importantly, how we define what is "internal" and "external" to law as a discipline.

I. THE ELUSIVE CONNECTION BETWEEN LITERATURE AND LAW

Unlike college courses, in which professors tend to assign multiple books and have a supplemental list of "suggested" readings to boot, in many law school courses, especially in the first year, only one book is assigned. When I entered law school, I was shocked to learn that the sole book consisted mainly of cases. One learned law, it seemed, by reading law. Only law. One did not read about law. One read the law itself. No more, apparently, was needed.

From the perspective of at least some within the law-and-literature movement, this "only law" approach is misguided. The movement's proponents (whom I shall call hereinafter "law-and-lits") argue that law students, legal academics, and even practicing lawyers should also read literature. But for what purpose should they read literature? What is it that literature can add? Unfortunately, there is no consensus on the answer to this question. Rather, the movement divides into three separate strands.(13)

A. Divisions Within Law and Literature: Three Strands

Some law-and-lits, whom I shall call "humanist" law-and-lits, argue that lawyers should read literature. Here are some typical claims:

   [L]iterary works typically invite their readers to put themselves in the
   place of people of many different kinds and to take on their
   experiences.... [T]hey promote identification and sympathy....

      ... One may be told many things about people in one's own society and
   yet keep that knowledge at a distance. Literary works that promote
   identification and emotional reaction cut through those self-protective
   stratagems, requiring us to see and to respond to many things that may be
   difficult to confront....(14)

   [L]iterature projects the abstract into the concrete.(15)

   Literature trains people in the reflection, consciousness, choice, and
   responsibility that make up the ability to engage in moral decisionmaking.
   It does so by presenting artificial, but concrete, universes in which
   premises may be worked out in conditions conducive to empathy but ambiguous
   enough to allow for the formation of moral judgment.(16)

Notice that while the claims have slightly different emphases, the basic argument is the same: Literature is needed to humanize lawyers. Borrowing from earlier work,(17) I will call this the "moral uplift" theme of the law-and-literature movement. It has several components: First, lawyers need to know more about human nature--especially about people different from themselves--than they can learn on their own, and literature can be a source of this knowledge,(18) Second, lawyers tend to rely excessively on abstract reason over forms of understanding that are emotional, intuitive, and concrete, and literature can help correct this imbalance.(19) Third, lawyers require training in making moral judgments, and literature can be a part of the necessary moral education.(20)

While humanist law-and-lits argue that lawyers should read literature, others, whom I shall call "hermeneutic" law-and-lits, argue that lawyers should read literary theory. The latter group seeks to apply to law interpretive methodologies borrowed from literary studies. The reason is simple. To the extent that law is embodied in texts--such as cases, statutes, contracts, orders--those texts must be read and interpreted.(21) Literary scholars have concerned themselves with problems of interpretation for a very long time, and it seems that theories and methods developed in the context of literary texts could be applied to legal texts as well.(22) Why, after all, reinvent the interpretation wheel?

Notice that the project of applying to law interpretive theories developed in departments of English or comparative literature does not require that one actually read any poems, novels, or plays--in short, any literature. While a particular interpretive methodology might have been developed in the context, say, of reading Hamlet, what makes it a methodology (as opposed to an interesting way to read Hamlet') is that it can be applied to other texts as well. So one need not read the play, but only the methodology. Hermeneutic law-and-lits thus do not argue that lawyers need to read literature. Indeed, besides looking beyond legal materials to sources from the humanities, the interpretive project of hermeneutic law-and-lit has very little connection to the moral uplift project of humanist law-and-lit. The two strands of law-and-lit are neither reading the same works nor asking the same questions.(23)

Further splintering this already very fractured movement is yet another set of writings that has come to be associated with law and literature: writings taking up the role of narrative or storytelling in law.(24) These scholars, whom I shall call "narrative" law-and-lits, are far less interested in either literary works or interpretive theory than in attending to the stories told within law by clients, by lawyers, by judges, and by doctrine itself. Narrative law-and-lits are interested in those stories not for moral uplift or interpretive insight but rather for evaluating the stories' persuasive impact,(25) their evidentiary value,(26) and their epistemological implications.(27) Again, there is little connection between the interests of narrative law-and-lits and those of either humanist or hermeneutic law-and-lits.

B. Divisions Within Each Strand

Within each strand of law and literature, there are deep problems and divisions. Let us begin with the moral uplift theme of humanist law-and-lit. First, nothing guarantees that reading literature will actually help attain the goals of the moral uplift project. Surely many an insensitive brute has read great books without becoming one whit less insensitive or brutish. And even if it were true that lawyers could learn something from literature about human nature, nonrational understanding, and moral judgment, it is not clear that literature is the only--let alone the best--source of education on these matters. Why not study psychology, cognitive theory, or ethics? Moreover, what do these goals have to do specifically with law, anyway? Surely doctors also need to know every bit as much as lawyers about human nature, the role of the emotions in human thinking, and moral decisionmaking. Indeed, a medicine and literature movement has grown up around just these claims.(28)

Even assuming both that moral uplift is worthwhile and that literature can provide it, there is a question about which books, exactly, should be read. The most salient version of this question concerns the construction of the "canon."(29) The arguments that the traditional canon is limited are (I hope) too well developed to require recapitulation here.(30) Suffice it to say that the more the canon excludes the voices of outsiders and women, the less enriching and emancipatory the cross of literature with law is likely to be.(31)

Yet there is another problem of selection, even within the existing canon. Why read one book rather than another? The original humanist law-and-lits at least could narrow the field somewhat, as they argued that lawyers should read books that were about law in some sense--containing a trial scene, portraying "typical traits of a lawyer or judge," delineating the prosecution and punishment of a crime, or having a plot into which some point of law entered.(32) But with limited exceptions,(33) contemporary humanist law-and-lits do not limit their reading to works touching law. Beatrix Potter's The Tale of Peter Rabbit,(34) James Fenimore Cooper's The Deerslayer,(35) Toni …

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Publication information: Article title: Law, Literature, and the Problems of Interdisciplinarity. Contributors: Baron, Jane B. - Author. Journal title: The Yale Law Journal. Volume: 108. Issue: 5 Publication date: March 1999. Page number: 1059+. © 2009 Yale University, School of Law. COPYRIGHT 1999 Gale Group.

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