The Gazette 1991

a p r i l 1991

g a z e t t e

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.

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

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