Constructing the Canon

Abstract

In the first volume of this journal, Robert Weisberg provided a useful topology of the "law/literature" world. As he describes it, two kinds of inquiries dominate the field: the first is law in literature—such as Billy Budd, and the second is law as literature—such as judicial opinions as a literary form. As is evident, Robert Ferguson's essay, "The Judicial Opinion as Literary Genre," is an example of the second version—judicial opinions as the objects of literary criticism. I believe a third arena exists in which those intrigued by law/literature can, indeed should, work. The question is that of the canon: what (and who) is given voice; who privileged, repeated, and invoked; who silenced, ignored, submerged, and marginalized. Law and literature have shared traditions—of silencing, of pushing certain stories to the margin and of privileging others. An obvious example in literature is the exclusion of certain books from the canon of the "great books." In law, white men have similarly enjoyed a place of power, speaking as if for us all, while women and minorities have been excluded—precluded from being judges, jurors, lawyers, and at times, even witnesses. We women might have been the subject of the discussion, as defendants or as property, but we were not the authors or the speakers; we have been closed out of the hierarchy of holding the power to write the canon.