Can Literature Cure Law? Should It?

The two disciplines, law and literature, may converge creatively, part amicably, and go their ways dispensing their respective forms of redress.

“Poetry makes nothing happen,” writes W. H. Auden; and yet, in the same poem, he urges poets to make something happen: “With the farming of a verse / Make a vineyard of the curse.”1

And, for his part, Seamus Heaney seems both to agree and to disagree with Auden. To the latter point, Heaney declares that the “power” of poetic language may act as “agent for proclaiming and correcting injustices.” This “redress”—Auden’s cure for the “curse”—shows how poetry can act in the legal sense of satisfaction or compensation for injury or damages sustained. But that same “redress,” Heaney notes, also points to a second “imperative”: “to redress poetry as poetry, to set it up as its own category, an eminence established and a pressure exercised by distinctly linguistic means.”2 So, Heaney would split the difference of his apparent disagreement with Auden: poetry can make things happen beyond itself; it can apply a corrective pressure to injustices by vividly imagining a world made whole after harm. But poetry must also attend to its own needs, dressing and redressing its wounds, protecting and perfecting its aesthetic jurisdiction. Poetry, then, can make something happen; at the same time, perhaps, poetry should make nothing happen.

What does it mean to credit the written word with such capacious potencies, to charge it with such real-world responsibilities? And how is literature, poetry, language to operate as a force for good and still maintain its duties to itself, to its self-delighting, essentially purposeless imperative to live as lively language?

Some scholars have believed that literature can make things happen within the theory and practice of law. Scholars of this movement prescribed literature and literary sensibility for curing the occupational solipsism purportedly induced by legal education and practice. If students read Sophocles’s Antigone, this school maintained, they could acquire a sensitivity to norms and values that are not captured by statutes and executive orders. If they studied Kafka, they would come to see faceless bureaucracy and capitalism as enemies of social justice. If they attended to the literary qualities of judicial opinions by Cardozo and Learned Hand, they could glimpse the humanistic textures present even when an official was decreeing a redisposition of life, liberty, or property.

Had he lived in our age of discursive anxiety, would Auden have said that law (like love) makes nothing happen? The two books reviewed here, Elizabeth Anker’s On Paradox: The Claims of Theory, and Stephanie DeGooyer’s Before Borders: A Legal and Literary History of Naturalization, suggest that law can make things happen and that literature can help law along its curative path. But both authors worry that certain theories of literature and language, taken to extremes of interpretive rigor, might undermine law’s effectiveness. They hold that the forms of redress that literature and law make possible must be kept sufficiently separate to allow their respective competencies to operate in the world. The better part of interdisciplinarity, on this view, is to preserve disciplinary differences. If literature can cure law, it should do so by enhancing, not undermining, law’s distinctive forms of redress. And we should take care, these authors suggest, to avoid treating literature as a mere instrument for reforming law.

Literature, like law, has its autonomous virtues. In fact, if literary works did not wield unique power, how could we expect them to change our minds about anything?


Gaming the Lyric: Poetry in 8-Bit

By Maria Dikcis

In the early 20th century, legal realism sought to push beyond the paper rules of formalism and recognize law as a force wielded by persuadable decision-makers. Then, in the 1970s, the law-and-literature movement argued that law should be recognized as more than predicted force: that it is also a language, a culture, and a community that can function ethically, if it treats itself and those with whom it comes into contact as more than mere instruments for obtaining practical results. Since law students and lawyers live by language, this view holds, they can imbibe the humanizing virtues that dwell within language—a bit like the “maker’s knowledge” principle (endorsed by Vico, Hobbes, and others) that humans can understand their own institutions precisely because they have created them, a notion of immersed enlightenment. We can comprehend, intimately, the worlds that we have constructed through language, because language is itself our creation. The writings of James Boyd White, Robin West, Richard Weisberg, and other legal scholars were crucial for establishing this idea that law in and as literature could ameliorate and, ultimately, redress the social distortions that law teaches and perpetuates.

On this view, the teaching of literature as an embodied legal ethics has the virtue of philosophical consistency, for a skeptic of law might regard a curriculum dispensing morality through the rules of professional responsibility as tainted by law’s supposed antihumanism. Literature can tell all the truth about law but tell it slant, through a circuitry of parables and fictive indirections. This crooked telling has been viewed by scholars as part of literature’s medicinal power, its capacity for getting inside the legal novice and spreading its salutary lessons at conscious and subliminal levels.

At the same time, employing literature to expose law’s failures and to redress its harms instrumentalizes literature for the external purpose of legal reform; it introduces a kind of utilitarianism that the law-and-literature movement condemns in the law itself. There is a deep kinship between this movement and the claim of certain earlier formalists and New Critics, such as I. A. Richards, that literature can serve to harmonize readers’ conflicting psychological impulses and thus contribute to individual and social health. But that modest utilitarianism, muted in the work of other New Critics, never purported to redress anything as daunting as the field of pain and death that Robert Cover identified as the site where the methods of legal interpretation commit their violence.

If early law-and-literature advocates located a curative power in literature, it was partly because they viewed literature and law as distinct discourses united by a common heritage in language. Law was a discourse that had gone awry, taken a wrong turn into technocratic efficiency and rule-obsessed outcomes. Literature, on the other hand, had retained the fresh morning candor of its linguistic origins, the quality of mercy and mystery that could slow the freight train of legal violence and unveil the complexity that attends all of law’s verbal acts. Complexity was the true nature of language, and literature had kept this birthright, had nurtured the language of paradox which the New Critic Cleanth Brooks found to be the special property of poetry: connotation, incongruity, ambiguity, texture, as opposed to the overweening denotative systems of the sciences. When Dickens likened the slowness and opacity of the court of chancery to the thick, enveloping fogs of London in November, he was employing a language of paradox to redress a public wrong, what he called the “pretence of equity.”3 Though Brooks might have resisted law and literature’s harnessing of literary complexity—that unique independence he likened to a well-wrought urn—he would have agreed that law could at least be figured as pernicious and guilty in the estranging textures of poetic paradox.

if literary works did not wield unique power, how could we expect them to change our minds about anything?

Where New Critics viewed paradox as a positive epistemology, poststructuralist critics of more recent years have characterized language, in literature and law, as riven by paradox: a site of treacherous slippage, false consciousness, self-deceived sovereignty. It is this resolutely skeptical turn that Elizabeth S. Anker so thoroughly anatomizes in On Paradox: The Claims of Theory, in which she uses the capacious term “paradox” to embrace a wide range of suspicious ways of knowing, from Marxist contradiction, to Derridean aporia, to Agambian biopolitics. Anker’s contention is that “faith in paradox” has been purchased at “an increasingly exorbitant price” in the work of literary and cultural theorists, and she proposes “to recover intellectual-political resources and horizons that such a mindset surrenders and forbids.” She does not advocate the abandonment of conceptual paradox; indeed, she admits its virtues as an approach to understanding both literature and law. Rather, she urges its “containment” and its integrative supplementation by “an expanded, diversified toolkit of criticism and theory.”

As a scholar of human rights, Anker is worried that the “truth claims of paradox” have become an orthodoxy that is engulfing all of law’s potential for redress: that the theoretical postures that have become “a methodological a priori within many humanistic fields” have encouraged an “anti-legalism,” which detects within the domain of human rights the same self-subverting forms of bad faith that skeptical hermeneuts long ago identified in other areas of art and language. Most worrisome, Anker feels, is the tendency of “rights skepticism,” across the ideological spectrum, to encourage a “bleak view of human rights.” In other words, the shared linguistic inheritance—which earlier law-and-literature scholars viewed as the source of literature’s healing influence on law—has become, for later theorists and critics, the very reason why law can never find its way out of the mise en abyme that destabilizes and renders suspect all discursive formations.

For Anker, this is a dangerous overextension of theory: a kind of “scapegoating” of law that obscures the “multivariable dynamics surrounding many real-world injustices.” Once “the distinction between art and politics is fully collapsed”—once paradox works its doubting magic on law no less than on literature—the status of human rights as an aspiration and (for many) a deprivation may be lost.

Can the play of the signifier be taken too far? Should the linguistic turn turn back before it erodes the positive goals of “political coexistence”?

Anker’s book begins with Oscar Wilde and ends with Virginia Woolf. She launches her meditation on paradox with a passage from The Picture of Dorian Gray, in which a character named Mr. Erskine refers to paradox as “the way of truth.” “To test reality,” he continues, “we must see it on the tightrope. When the verities become acrobats, we can judge them.” Here, Wilde sets “truth” against “the verities,” bohemian paradox against the fixed pieties of Victorian culture that paradox tests by forcing them to balance on the high wire of witty scrutiny. (I read the passage here a bit differently from Anker, but no matter.) This idea that mocking incongruity can expose the fraud of conventional truth claims is central to forms of critical theory that remain dominant today. Wilde is a forebear of today’s law-skeptics.

Anker concludes her book with the voice of Woolf, who wrote in A Room of One’s Own that a novel’s “truth” may be tested if “one holds every phrase, every scene to the light as one reads … to judge of the novelist’s integrity or disintegrity.” Like Wilde, Woolf was a truth tester, holding a novelist’s picture of reality up to the lamp of common reading, just as Wilde prodded society’s verities to step out onto the trembling tightrope of critical thought. For Anker, Woolf’s way has the virtue of calling for “integration or even an integrative criticism,” a spirit of construction to set against the skillful disintegrations of deconstruction. This would be “theory with something more than paradoxes to offer,” a “metric for distinguishing truth claims that are worth supporting—from those that are not.”

An integrative criticism would try to hold the idea of human rights together rather than shattering it on the bright steel surface of aporia. By “breaking the spell of paradox,” Anker concludes, we can “enter the fray of public debate … and fight for something.”

Anker’s call for an integrative approach to rights and values is related to a countermovement known as postcritique, which seeks to move constructively beyond the relentless demystifying and defamiliarizing characteristic of much critical and cultural theory. Stephanie DeGooyer’s monograph Before Borders: A Legal and Literary History of Naturalization adds another voice to postcritique, but not by directly confronting theory’s romance with paradox. Instead, her book offers sustained readings of certain English novels of the long 18th century, against the backdrop of early modern changes in the laws and politics of naturalization.

DeGooyer works nimbly back and forth between law and literature to trace a history of contiguous legal fictions. She shows how the law’s conception of the naturalized subject radically shifted, from the old blood-and-soil notion of royal allegiance to a generative—if self-interested—welcoming of new subjects across borders. And she shows how this shift coincided, in the 1700s, with prose-fiction accounts of characters achieving forms of community, and doing so through creative, self-fashioning acts of migration. DeGooyer thus locates a transitional moment: when the borders of nations were porous and the borders of the novel’s forms and functions were still a fluid becoming.

DeGooyer traces a shift in the legal meaning of “naturalize” that overlapped with changing conceptions of nature, nation, and nationality, and that opened spaces for a new kind of literary naturalization: “the introduction of new subjects and a new literary mode into narrative space.”  Samuel Richardson’s Pamela exhibits the “radical power of a lower-class servant girl using a voice [in her letter-writing] that is not hers by ‘nature.’” Defoe’s Robinson Crusoe reflects “a new voluntarist conception of nationality” that adapts itself to changing economic self-interest; the title character migrates among territories and identities: slave, foreign merchant, Catholic planter, Protestant, and “natural-born subject.” Laurence Sterne’s A Sentimental Journey through France and Italy depicts an English traveler without a passport who chafes against French laws that would dispossess him of property, identity, and nationality; in place of checkpoints and visas, the narrative offers sentimentality “as a universalist discourse that can override the brutal nationalist laws of absolutist France.” And Frances Burney’s The Wanderer tells of a female French refugee of ambiguous nationality, class, and race, and “examines the complications and hypocrisies of naturalization within the context of racialized migration in England.”

In her boldest reading, DeGooyer recasts Mary Shelley’s Frankenstein as a narrative that crosses literary borders to explore “narrative naturalization as the remedy for the Creature’s exclusive, singularizing foreignness.” Legal and aesthetic frames converge in the narrative of the Creature, who, incapable of being naturalized by law, makes an appeal as a language speaker to be included within human history and community. This stateless creation—a product of stitched bodies and assembled letters—shows the power of narrative to integrate “new and more diverse subjects into fiction” and to sketch an “ethics of literature” that welcomes difference and otherness in an ongoing project of expanded belonging.

At the time, emerging laws of naturalization enabled migrating selves to declare new homes and allegiances. Likewise, the novel invited new voluntarist modes of belonging, both before and after borders, laws, and passports starkly defined the nation-state.


Law’s Force, Law’s Farce

By Julie Stone Peters

Both DeGooyer and Anker appeal to integration, inclusion, and affirmation as alternatives to dispersive, subversive, or symptomatic modes of critical reading. Both are seeking ways out of relentless paradox: Anker through a rigorous inspection of disciplines and theorists, DeGooyer through careful readings of important legal and literary fictions. Both scholars share Heaney’s faith that creatively charged language can proclaim and correct injustices. Both want to shake up our ideas of naturalization, our assumptions that modes of interpretation, subjectivity, and nationality are given, inalterable, stamped into the nature of things. Both hope that literature, in its engagement with law, can recognize more fully the scope and attainability of human rights, whether these are rights of persons to move from one community to another without discriminatory hindrance or to be accepted within their chosen communities without stigma and inequity. Communities are forms of holding together.

Law and literature has come a long way from its early days of recommending stories and poems as therapies for law’s ailments. We don’t need literature to rescue law or to infuse it with paradoxes of textuality that will render it just one more text to demystify. Anker and DeGooyer each endorse this healthy independence of disciplines without denying that these two word-built worlds have much to say to each other. Law brings its own theory to any interdisciplinary encounter; it has its own native paradoxes that spring as much from its diverse histories of formation and enforcement as from its tenancy within chains of signification or the shackles of ideology.

The most penetrating scholarship today recognizes law’s historical heft within literature’s texts and contexts; it views law and literature as historically contiguous and analytically adjacent. It doesn’t seek to lose law in order to gain literature or to anaesthetize literature’s unruly forms in order to extract law’s lessons. Auden’s vineyard and Heaney’s redress can help guide law rather than subjecting it to compulsory dismantling. The two disciplines, law and literature, may converge creatively, part amicably, and go their ways dispensing their respective forms of redress. The best work will hold them together, keep them apart when necessary, and have the wisdom to know the difference. icon

This article was commissioned by Bécquer Seguín.

  1. W. H. Auden, “In Memory of W.B. Yeats,” in Collected Shorter Poems, 1927–1957 (Vintage Books, 1975), p. 142.
  2. Seamus Heaney, “The Redress of Poetry,” in The Redress of Poetry (Farrar, Straus and Giroux, 1995), pp. 5–6.
  3. Charles Dickens, Bleak House (Bradbury and Evans, 1853), p. 2.
Featured image: Albert V Bryan Federal District Courthouse - Alexandria, VA (2012). Photograph by Tim Evanson / Flickr (CC BY-SA 2.0)