Academic journal article Mosaic (Winnipeg)

Recherche Sublime: An Introduction to Law and Literature

Academic journal article Mosaic (Winnipeg)

Recherche Sublime: An Introduction to Law and Literature

Article excerpt

A Modern Fable: Somewhere in the Reign of Victoria, Law decided to attune Herself to the Scientific times. She renounced her Goddesshood to become a tightly-bounded Technocrat, logical, methodical, objective, predictive, neutral. She cast from her Bosom the Knowledges with whom she had been intimate, among them History, Philosophy, Political Geography and Political Economy, shunned her Literary Associates, changed her Ways and emerged a Modern Science, secular, disciplinized, self-defined and self-absorbed. (That Law succeeded was never fully accepted by legal academics. But little is.) Law's transformation did not go unchallenged. Modern Law was attacked by none other than the outcast Knowledge--Sociology. Now also a Modern Science, trumping Law's Logic with Realism, Mathematics and Empiricism, Sociology censured Law for failing to recognize the true nature of legal rules (arbitrary), processes (subjective) and effects (hurtful). But Law, being At The Top, incorporated Legal Realism and its progeny, Critical Legal Studies and Law and Society and, by embracing her own contradictions, became internally and externally coherent: Truly Modern at last.

The End.(*)

Linkages between law and literature are not new. David was judge and psalmist, the Ciceronians were masters of legal and literary rhetoric, Chaucer's is the earliest extant portrait of a lawyer, Shakespeare has been accused of the study of law, Shelley named poets the "unacknowledged legislators of the world" and the literary canon was replete with works by and about lawyers. By the late 19th century, however, the new wind of specialization was blowing. In 1889 John Skirving Ewart, defense counsel to Louis Riel and himself a noted rhetorician, wrote to a friend that "the average man is unable thoroughly to equip himself both in rhetoric & logic including premises & so to be really effective must as a general rule adopt & cultivate either one method of address or the other" in order to practice law; by 1896, junior Manitoba lawyers were claiming with their counterparts elsewhere that the "age is too practical" for a lawyer to be known as a poet (qtd. in Willie 278). That Clarence Darrow could quote without apology from A. E. Housman and the Rubaiyyat in his 1924 defense of child murderers Leopold and Loeb was more a tribute to his own legal repute (and desperation) than that of literary rhetoric in the courtroom. The poetic utterings of John Mortimer's Rumpole merely magnify his eccentricity, his lack of fit with a modern justice system.

The literary now had little place in the jurisprudence, courts and training programs of modern law. In the age of scientific and secular disciplinarity, the literary was relegated to law's after hours and to one or two much-criticized "literary" judges. Evidence expert John Henry Wigmore exhorted lawyers in 1908 to read novels about law in their spare time in order to familiarize themselves with "those features of his profession which have been taken up into general thought and literature"--the "features" being highly negative (576). The success of Wigmore's humanizing project is uncertain. (A 1993 poll of Canadian attitudes to lawyers, for example, found that 78% of respondents held "minimal" respect for the profession.) Poet/insurance executive Wallace Stevens rigorously divided his life into law (masculine, daytime) and poetry (feminine, nighttime); while a certain terseness and accuracy of language connected these endeavors, the poems are bare of legal theme. Theorists seeking extralegal interrogation of law found it in the new social sciences and not in the arts and humanities which had for centuries illuminated its processes and transgressions.

Wigmore's list was updated once or twice, but only in the past two decades was its humanizing aim taken seriously by the legal academy. James Boyd White, Richard Weisberg, Robin West and others use literary works to examine the ethics of law, and bring that examination centrally into the teaching, analysis and theory of law. …

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