Literature as Law's Other

Abstract

The context provided by an AALS panel on Law and Humanities, organized by Jessica Silbey under the title "Reasoning from Literature," led me to reflect on my own notions of how literature, or more specifically the interpretive humanities, may stand in relation to law. To begin, I thought it might be useful to dwell briefly on the "law and literature" enterprise, which, especially in the United States, became something of a movement: not quite what you would call a "school," but nonetheless a set of perspectives, an agenda for research, an aspiration to cross-disciplinary understanding. The movement arose, it seems, in reaction to a growing predominance of "law and economics" as the commanding paradigm in American legal education. It responded to a rumor, increasingly audible from the late 1970s, that there was something of interest going on in the interpretive humanities that might be germane to legal studies. The transfer of a number of graduate students from the humanities (where job prospects looked bleak) to the law schools no doubt acted as a vector for the transmission of ideas. Law and literature increasingly in the 1980s and 1990s spawned conferences, essays, anthologies, and then histories of the enterprise, and societies to promote it. Others have already written the obituary of a movement that seems to have lost its original radical force, to become one more academic field. In my own view, the movement has more often than not strayed from its most productive paths of inquiry. Yet it remains of crucial importance, perhaps now more than ever. I would contend that the eight years of the Bush administration saw perhaps the greatest divorce between law and humanism in our nation's history. Scholars in law and humanities might have something to say about that. It's not that I think "the humanities" necessarily teach people to behave humanely- to think so is to misunderstand the meaning and the history of the term humanism. But the humanities can perhaps teach people to read with a fine and necessary suspicion.