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. …