Law and Literature: Works, Criticism, and Theory

Abstract

At a time when many departments of literature are discounting literary criticism and scholarship in favor of cultural studies, the rise of the law-and-literature movement is a welcome affirmation of literature's relevance to the larger society. The search for relevance, however, may lead one down blind alleys. This Essay reviews the work of several prominent legal thinkers, arguing that they generally have been misled in their search for legal insights in literary texts, criticism, and theory. The first section discusses the ideas of Richard Weisberg and Martha Nussbaum, who argue that great literary works support their respective theories about the law. Their arguments fail to persuade, both because they consider such a narrow range of works and because their readings display more special pleading than disinterested analysis. I then turn to the work of two theorists who evaluate literary criticism for insight into the interpretation of legal texts: Richard Dworkin and Stanley Fish. Dworkin advocates the application of the methods of literary interpretation to legal texts, while Fish proposes that both legal and literary texts should be seen ultimately as rhetorical exercises. Dworkin misunderstands the literary criticism on which his argument relies, while Fish leaves interpretive questions in both law and literature as he found them. Finally, I review the contribution of Richard Posner-a long-standing critic of the notion that literary analysis can add anything at all to the understanding of the law. While Posner's criticisms of the excesses of the law-and-literature movement are persuasive, his wholesale dismissal of literature as a source of insight for the legal profession goes too far. Literature has the potential to broaden and deepen the individual's understanding of ethics, politics, and human relations in general. Thus, while I take issue with the attempts made by Weisberg and Nussbaum to confine the insights available from literature within narrow ideological boundaries and also with Dworkin's proposal to found a new literary hermeneutics on his ideas about literary criticism, I maintain that literature remains an important source of insight for all those interested in questions of morality and justice, a class that surely includes most lawyers, judges, and law professors.