Let's Ask Again: Is Law Like Literature?

Abstract

Many recent debates about interpretation of the law, familiar to students of legal theory, are determined by a rather simple question - the one I take as my title here - which has, surprisingly, received little explicit attention. These debates are vexed and complex, and have been exacerbated by the personalities of some participants and the professional jealousy aroused by real or imagined transgressions of disciplinary boundaries. More seriously, the recent entry - or, as some would have it, the infiltration - of contemporary literary and interpretive theory into the realm of law has vastly complicated the issues. Those issues include: the proper role of intention in legal documents, especially the Constitution; the relevance or redeemability of claims to truth and objectivity in legal interpretation; the law's epistemological and moral status; and, ultimately, the relevance of legal theory itself to the practice of law. These questions were not absent from the minds of lawyers and legal scholars before the current groundswell of theoretical interest. The study of legal hermeneutics, including much abstract and subtle theorizing about textual indeterminacy, has a long and honorable history--one longer, arguably, than that enjoyed by the study of literary interpretation. The "infiltration" problem is that the controversies, innovations, and philosophical questioning of one realm of study - contemporary literary theory - have been translated, and have even proliferated, when similar concerns were raised in the realm of law. The so-called "law and literature" movement and its attendant debates are the legacy of this proliferation. Most of the current debates, however, can be organized around divergences and confusion concerning the analogy between law and literature. Ultimately, we still need to decide how similar are the concerns of legal and literary theory. Do they speak to the same subjects? In what ways is law really like literature?