LAW AND LITERATURE: A MISUNDERSTOOD RELATION by Richard A. Posner, Cambridge, Mass.: Harvard, University Press, 371 pp. $25. INTERPRETING LAW AND LITERATURE: A HERMENEUTIC READER
Edited by Sanford Levinson, and Steven Mailloux., Evanston, Ill.:
Northwestern University Press., 518 pp. $62.95 cloth. $29.95 paper
WHEN I was an undergraduate, our professors, proudly wearing the colors of their New Critical training, favored the term ``poem,'' whether the literary artifact under scrutiny was a lyric by Yeats, Dante's ``Divine Comedy,'' Chaucer's ``Canterbury Tales,'' a play by Shakespeare, or a novel by Dickens, Joyce, or Lawrence. This was not because they had failed to notice that ``Bleak House'' was written in prose or that Shakespeare's verse dramas were dramas as well as verse.
The objects of our study were referred to as ``poems'' in order to draw our attention to their literary qualities: to style, rhythm (a feature of prose as well as verse), form, imagery, organic unity, and the status of the literary work as an aesthetic object.
Subsequently, the objects of literary study became ``texts,'' a seemingly more neutral term, at once more general and more precise. ``Texts'' could be studied in the New Critical ahistorical manner but also in their various ``contexts'' - historical, anthropological, biographical. ``Texts'' proved to be an inclusive term.
While some rather ingenious thinking had been needed to transform ``Jane Eyre'' into a ``poem,'' the term ``text'' yawned invitingly to include not only any and all literary works, from odes to essays, but almost anything written, from love letters to advertising copy to the United States Constitution.
``Texts'' have been interpreted by various schools: not only in accordance with the ideas of feminism, Marxism, and psychoanalysis, but also according to various methodologies. The ``intentionalist'' interpreter insists that the only legitimate goal of criticism is ascertaining the author's original intention. The ``reader response'' critic counters with the claim that the text's true meaning (or only viable one) resides in what the reader receives from the text. These two extreme positions find rough analogues in the two legal approaches of ``strict'' and ``loose'' construction of the Constitution.
Because both judges and critics are concerned with the interpretation of texts, it is not surprising to find legal scholars and literary scholars drawing on each other's fields.
The publication of a 518-page ``Hermeneutic Reader'' containing two dozen essays by literary and legal academicians is ample testimony to the growth of this interdisciplinary movement. The selections of essays, all previously published, reflects a wide range of viewpoints, beginning with a contrasting pair of statements by Supreme Court Justice William J. Brennan Jr. (urging interpreters to keep their sights on the ideals conveyed by texts like the Bill of Rights) and former Attorney General Edwin Meese III (arguing for reliance on ``original intentions''). While some of these essays are a bit technical, many are surprisingly readable.
`LAW and Literature: A Misunderstood Relation'' is a remarkably comprehensive, acutely critical attempt to evaluate the law and literature movement. A lecturer at the University of Chicago Law School and a judge of the US Court of Appeals for the Seventh Circuit, Richard Posner declares himself a modified New Critic when it comes to interpreting literature and an intentionalist when it comes to interpreting legal documents.
He argues persuasively that essential differences between these two kinds of ``texts'' necessitate two different approaches, and he is alarmed by the tendency of the law and literature movement to conflate the two.
THE first part of the book examines literature with legal themes, from revenge tragedies to Kafka's ``The Trial.'' While Posner's own readings of these works add little to literary criticism (they are sound, but break no new ground), he does a brilliant job of defending the universal resonance of literary masterpieces against the reductive interpretations some legal scholars have imposed on them.
In the second part, Posner outlines the limits of a literary-critical approach to law, while offering the interesting suggestion that techniques of stylistic and rhetorical analysis might well be applied not to laws, but to judicial opinions.
Posner is a prominent conservative who finds the economic analysis of law more to his liking than the literary tack, quite possibly because ``humanistic'' ideals like ``human dignity'' and the ``right to privacy'' have been used to defend liberal agendas, whereas ``marketplace,'' ``prosperity,'' and ``cost-benefit analysis'' - which he classifies as apolitical principles - in real life favor the current conservative agenda. The clash between his free-market principles and political expediency is readily apparent: Free enterprise is invoked to protect smokers' rights, but choice and the marketplace are tossed aside when he attacks judicial rulings allowing unmarried people to purchase contraceptives.
Such moments are disappointing not only in themselves, but because they detract from the overall excellence of a book filled with keen judgment, shrewd common sense, and great erudition worn gracefully. Posner's command of his materials - literature, law, and the bodies of commentary and scholarship attached to each - is truly impressive. Still more so is his ability to make the issues vividly clear to the average reader.
Posner's concluding survey of the regulation of literature - questions of obscenity, libel, and copyright - is especially valuable. Here, his conservative principles and his deep concern for literature come together in an eloquent and well-reasoned defense of the need to err on the side of freedom rather than restraint when weighing the rights of fiction writers against those of people who consider themselves injured by fiction.