The Magazine

Cases in Point

Understanding the rules of law and the laws of rhetoric.

Jul 19, 2010, Vol. 15, No. 41 • By JAMES SEATON
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Law and Literature

Cases in Point

Third Edition
by Richard A. Posner
Harvard, 592 pp., $24.95

Richard Posner has never been seriously considered for the Supreme Court, despite his impressive credentials as a judge on the United States Court of Appeals for the Seventh Circuit and a senior lecturer at the University of Chicago Law School. He is not a liberal Democrat and not exactly a conservative, but what really makes him impossible is not his politics but his publications. If a judge ambitious for higher office avoids leaving a paper trail, Posner has proved beyond cavil that he seeks to go no further than the Seventh Circuit. His paper trail adds up, at last count, to around 65 books and monographs on topics ranging from the legal—on the economic analysis of law, antitrust cases, property law, famous judges (Cardozo and Holmes)—to current events—the 2000 election, 9/11, the 2008 economic crisis and its aftermath—to what have you: aging, obesity, sex, public intellectuals, and plagiarism. 

He has also written and rewritten the most comprehensive study of the connections between law and literature. Law and Literature: A Misunderstood Relation came out in 1988, followed by a “revised and enlarged edition” 10 years later, and now by a third edition, simply titled Law and Literature.

Posner, whose 1988 survey of the field left him feeling that “the extent to which law and literature have been mutually illuminated is modest,” now finds enough going on to justify a nearly 600-page revision which nevertheless concludes with two warnings against extravagant claims by proponents of law and literature studies. Law professors and literary theorists, he writes, “need to abandon efforts, so far fruitless and likely to remain so, to apply principles of literary interpretation to statutes and to provisions of the Constitution.” The same parties, furthermore, “need to give up on efforts to humanize the practice of law by immersing judges, lawyers, and law students in literary works, unrelated to law, selected for ideological reasons, and viewed through the prism of moralistic literary criticism.”

To Posner’s first admonition, those even casually acquainted with contemporary theorizing in English departments and law schools can only say amen. Judges already inclined to esoteric interpretations of the meaning of the language of the Constitution do not need encouragement from the likes of a Stanley Fish explaining that “the Constitution cannot be drained of meaning because it is not a repository of meaning.” Likewise, Posner’s objections to a Martha Nussbaum arguing that the best fiction invariably confirms a left-liberal view of the world, or a Robin West asserting that Kafka’s fiction reveals the folly of capitalism, are entirely persuasive.

The soundness of Posner’s critiques does not, however, guarantee the validity of his own views. In law he considers himself a “pragmatist,” which seems to mean, among other things, that a judge is right to consider other matters than the law itself in rendering a decision. Posner rightly rejects the attempts of literary theorists to “deconstruct” legal texts. Those troubled by the thought of a postmodernist legal system, in which concepts like “truth” have no place, are unlikely to be satisfied with Posner’s view of such notions as mere “language games” finally irrelevant to a judge: “The pragmatist, while not doubting that right and wrong and true and false have useful roles to play in a variety of language games, doubts that justifying the decision in a close case is one of them.” 

Posner’s theorizing about literature and criticism is also unsatisfying and unnecessarily reductive, while his observations about particular texts are often much more perceptive and more interesting than his theory would seem to allow. Looking at the history of literary criticism, Posner descries two major schools, the “aesthetic tradition” and the “edifying tradition.” The first believes that literary works offer no insight about moral questions or human life in general that cannot be provided, with more precision, by history or the social sciences. Thus, criticism’s only proper role is commentary on the only truly significant aspect of a poem, play, or novel: its formal properties. The edifying tradition believes that literature should teach clear moral lessons but, noticing that it often fails to do so, considers most poetry, fiction, and drama dangerous to social harmony. 

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