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The educative ambition of Law and Literature1

Published online by Cambridge University Press:  02 January 2018

Ian Ward
Ian Ward*
Affiliation:
University of Durham
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Extract

In 1979, Allen Smith suggested that there was to be a ‘coming renaissance’ in Law and Literature as a teaching discipline. In fact, Law and Literature had already arrived. In 1973, James Boyd White had publishedhis The Legal Imagination, and had geared it primarily to the teaching and study of law. Of the many intriguing characteristics of the Law and Literature movement, one of the most exciting and most valuable, is the fact that, unlike many other theoretical approaches to the problems of law, the ambition of Law and Literature is firstly educative, and only then, secondly, social and political. Moreover this secondary ambition, has tended, in two senses, to be appended to the educational ambition. In one sense, it is additional in that the political manifesto is supposed to emerge from the educational force of literature. In a second sense, it is additional because politics was certainly not such a ranking ambition in the earliest days of the Law and Literature movement, and it is no concidence that the politicization of Law and Literature has come about as its star has risen, whilst that of Critical Legal Studies has declined

Type
Research Article
Information
Legal Studies , Volume 13 , Issue 3 , November 1993 , pp. 323 - 331
Copyright
Copyright © Society of Legal Scholars 1993

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Footnotes

1

I should like to thank Sandra French for her advice and assistance in the preparation of this article.

References

Footnotes

2 J Allen Smith, ‘The Coming Renaissance in Law and Literature’, 30 Journal of Legal Education 1979, pp 13–26.

3 J Boyd White The Legal Imagination: Studies in the Nature of Legal Thought and Expression (Boston, 1973), republished as The Legal Imagination: Abridged Edition (Univ of Chicago, 1985).

4 For similar observations on the relationship of Law and Literature, with both CLS and Law and Economics, see E. V. Gemmette ‘Law and Literature: An Unnecessarily Suspect Class in the Liberal Arts Component of the Law School Curriculum’, 23 Valparaiso University Law Review 1989, pp 273–284.

5 It is perhaps fair to say that Law and Literature has yet to really take off in the UK. In North America by comparison, both the teaching and the research of Law and Literature is very much one of the dynamic forces in legal study. As Dunlop observes, in North America, ‘Literature study in law faculties is a growth industry.’ See C Dunlop ‘Literature Studies in Law Schools’, 3.1 Cardozo Studies in Law and Literature 1991, at 63. North American journals are now positively awash with Law and Literature pieces. The strength of the movement is perhaps revealed most strikingly in the establishment of new journals directed specifically to an interdisciplinary approach of law and the humanities; the two most recent being the Yale Journal of Low and the Humanities and the Cardozo Studies in Law and Literature.

6 Dunlop ‘Literature Studies’ pp 63–109. For Said's comments on over-intellectualising, see The World, the Text and the Critic, (London, 1983) pp 1–53 and 14G-157.

7 N Cook ‘Shakespeare Comes to the Classroom’, 68.3 Denver University Law Review 1988, pp 387–411.

8 J Bonsignore ‘In Parables: Teaching Through Parables’, 12.2 Legal Studies Forum 1988, pp 191–210.

9 She concludes, at 411: ‘I believe the introduction of non-legal subject areas into class helps to bridge the gap between students’ life experiences and then legal careers. The integration of the non-legal with the legal enables students-and teachers-to see connections between different aspects of their lives, disclose new perspectives and meanings, clarify and simplify the mysteries of law practice through the device of analogy; and provides a measure of entertainment that enhances living as well as learning.'

10 J Getman ‘Voices’, 66 Texas Law Review 1988, at 577–588.

11 P Gabel and D Kennedy ‘Roll Over Beethoven’, 36.1 Stanford Law Review 1984, at 26.

12 Getman ‘Voices’ at 579–582.

13 Getman ‘Voices’ at 580.

14 Getman particularly uses the example of The Adventures of Huckleberry Finn, a popular and well used text by Law and Literature scholars. ‘Voices’ at 587–588.

15 Getman ‘Voices’ at 588.

16 E Perry Hodges ‘Writing in a Different Voice’, 66 Texas Law Review 1988, at 633.

17 Commenting: ‘This kind of work on law and literature is not the transfer of “findings” from field to field, nor the transportation of ‘hethod … but a bringing to consciousness of the nature of our own intellectual and linguistic practices, both literary and legal, with the hope of holding them in mind at once in such a way as to change our sense of both.’ See J Boyd White Justice as Translation: An Essay in Cultural and Legal Criticism (Chicago, 1990) p 19.

18 See Gemmette ‘Law and Literature’, at 271–273 for a brief commentary on the recent history.

19 T Eagleton Literary Theory: An Introduction (Oxford, 1983) pp 17–53.

20 E Said The World, The Text and The Critic (London, 1983).

21 See for example M Tushnet ‘Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles’ 96 Harvard Law Review 1982, at 781.

22 See Ricoeur, ‘On Interpretation’, pp 177–181, and also The Rule of Metaphor (London, 1986) study I.

23 The appropriateness of using metaphor and parable in contemporary legal discourse remains a subject of contention. However, amongst the most strident converts, such as Stanley Fish, are those who are prepared to assert that: ‘Legal texts might be written in verse or take the form of narratives or parables… so long as the underlying rationales of the enterprise were in place, so long as it was understood (at a level too deep to require articulation) that judges give remedies and avoid crises, those texts would be explicated so as to yield the determinate or settled result the law requires.’ See S. Fish, ‘Fiss v Fish’, 36 Stanford Law Review 1984, at 1345.

24 According to Rorty: ‘The liberal society is one whose ideals can be fulfilled by persuasion rather than force, by reform rather than by revolution, by the free and open encounters of present linguistic and other practices with suggestions for new practices.’ See R. Rorty Contingency, Irony and Solidarity (Cambridge, 1989), pp 60–61.

25 Hodges ‘Writing’ at 638.

26 Hodges ‘Writing’ at 639.

27 For Derrida see, J Balkin ‘Deconstructive Practice and Legal Theory’ 96 Yale Low Journal 1987, at 743. For Wittgenstein see, B. Langille ‘Revolution Without Foundation: The Grammar of Skepticism and Law’, 33 McGill Law Journal 1988, at 451. For Heidegger see, S Feldman ‘The New Metaphysics: The Interpretive Turn in Jurisprudence’, 76 Iowa Low Review 1991, at 661. For Foucault see G Turkel ‘Michel Foucault: Law, Power and Knowledge’, 17 Journal of Law and Society 1990, at 170.

28 For his treatment of metaphor see, Rhetoric, (Cambridge, 1909), book 3, ch 2. See also Ricoeur Thr Rule of Metaphor, study 1.

29 J Frug ‘Argument as Character’, 40 Stanford Low Review 1988, at 871.

30 This is very much the central theme of his recent Justice as Translation.

31 See his recent Law and literature: A Misunderstood Relation, (Harvard, 1988), at 269–316.

32 See, for example, Dunlop, observing that: ‘Legal research and education have been accused of emphasizing the voices of some individuals and groups in our society to the exclusion of others. Fiction can serve as a corrective to this myopic tendency. After a lawyer or law student reads Charles Dickens’Bleak House, he can never again be completely indifferent or ‘objective’ towards the client across the desk… Literature can suggest the complexity of the ethical question. It can conjure a variety of possible solutions. The reader can explore the problem through the eyes of various characters living through a concrete situation, and her sensitivity and understanding will be enriched as a result.' ‘Literature Studies’, at 70—71.)

33 According to Richard Weisberg, this type of Law in Literature is the most important educative dynamic in current legal scholarship: ‘We must teach and think about these texts because, here and now, they are the best medium to instruct ourselves and our students about what we do… we need this learning in order to practice and (more importantly, at least for me) in order to understand what our assumptions are and what we do.’ See R Weisberg The Failure of the Word: The Protagonist as Lawyer in Modern Fiction (Yale, 1984).

34 Cook ‘Shakespeare’, pp 410–411