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g a z e t t e
a p r i l 1991
LAW AND LITERATURE: A
MISUNDERSTOOD RELATION
By Richard A. Posner. [Harvard
University Press. xi + 371pp
paperback].
In the United State, in recent years,
there has developed a field of
enquiry known as law and
literature. The practitioners of this
field of enquiry seek to apply the
methods of legal analysis to literary
texts and the methods of literary
analysis to legal texts. Such
persons seek to explore the inter-
relations between these t wo
ancient fields of learning.
The author, Richard A. Posner, is
Judge of the United States Court
of Appeals for the Seventh Circuit,
Senior Lecturer at the University of
Chicago Law School and the author
of many books and articles. In his
introduction, he states that legal
writing is full of "legal fictions" -
a form of metaphor. Some are dead
metaphors (which no one notices)
like "breaking" a contract. Others
are live metaphors: a drug dealer
whose underlings hold and
dispense drugs is guilty of "con-
structive possession" - as if he
possessed the drugs. The author
states that the legal f i c t i on
reflects the desire of judges and
lawyers to create an appearance of
continuity when innovating.
The author argues that the poet
uses similes, like metaphors, to
create arresting images. But the
lawyer's purpose is the opposite: to
make things that are unlike in what
might appear to be important
respects seem as alike as possible
so that an appearance of continuity
of legal doctrine is maintained.
The author rightly draws attent-
ion to the fact that both legal and
literary scholarship are centrally
concerned with the meaning of
texts. In the case of law, these texts
are constitutions, statutes, judicial
and administrative rules, and judg-
ments. Interpretation is therefore a
central issue in both fields. Legal
scholarship, like literary scholarship,
consists to a significant extent of
commentary on text temporally and
culturally remote from the com-
mentator. The author argues that
judges and other lawyers resemble
literary artists in the close attention
they pay to the choice of words in
which they express themselves, as
well as in their fondness for meta-
phors and similes.
The legal process, especially the
adversary process of civil and crim-
inal trials, has a significant theatri-
cal dimension. This is one reason
why trials are a staple of literature
and why writers of fiction have
turned their talents to the descript-
ion of actual trials.
The author argues that pract-
itioners in both fields of law and
literature have become restive with
the limitations of their subject
matter. He argues that neither law
nor literature seems quite so glori-
ous a subject today as a quarter of
a century ago. Law has become
more politicised, more com-
mercialised, more specialised, and
more bureaucratised and is increas-
ingly interpreted in economic
terms, which distresses many law
professors. The author argues that
the humanities have lost prestige
and cultural centrality to the com-
bined forces of natural and social
science, television and movie enter-
tainment, and technology generally
and, like academic law, have ex-
perienced debilitating political,
ideological and methodological
fissures. The author argues that, to
law professors, literature offers a
hope of redemption from a techno-
cratic future. To literature pro-
fessors, he argues that law offers
a hope of redemption from social
marginality.
The most interesting chapter in
the book is that entitled "Judicial
Opinions as Literature." Investigat-
ing the literary properties of judicial
opinions is not a new undertaking;
Justice Cardozo, for example, did it
in his essay "Law and Literature."
The author Yeviews developments
in this field. The style of US Chief
Justice Marshall is considered.
Marshall's style is described as
magisterial but never pompous.
Patient, systematic, unadorned, un-
emotional, unpretentious, his style
is described as the calming and
confident voice of reason. A related
characteristic of
Marshall's
opinions, remarkable in our legal
culture, is the absence of citations
to previous decisions and also his
avoidance of legal jargon. The
author correctly argues that al-
though he required (and possessed)
great political wisdom, he did not
face as severe an interpretive prob-
lem as his successors did; nor did
he have the modern judge's burden
of negotiating a minefield of
authoritative precedents. The
author states that Justice Brandeis
wrote well by judicial standards but
says of him, with more justice than
T.S. Elliot said of Milton, that his
style was a bad influence on that
of his successors. It was the style
of the sledgehammer. It is des-
cribed as a hectoring style, a style
that grabs you by the lapel and
shouts in your face demanding your
assent rather than engaging you in
a discussion.
The author agrees with Teachout
(and with Orwell, Swift and many
others before them) that language
shapes thought, that choice of
words can therefore have political
and social consequences, that an
impoverished vocabulary can
impoverish thought. The author
argues that the interdisciplinary
study of law and literature deserves
a place in legal teaching and
research. The author complains
that most law students, even at the
best law schools, have little
acquaintance with the classics of
western literature. The author fears
a stunted race of legal specialists.
The insights as well as the
rhetorical devices of literature can
be professional assets for
lawyers.
Judge Posner has produced an
outstanding work. The author dis-
plays an impressive command of
his material - literature, law and the
commentaries associated with
these branches of learning. This is
an original and instructive study of
what literature has to teach about
the law.
Eamonn G. Hall
129