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. 

On Posner’s presentation, both seem more artificial constructs than real traditions. Posner himself seems to be the only member of the first group; he says he aligns himself with Oscar Wilde—“I accept Wilde’s dictum—the creed of aestheticism, of art for art’s sake”—but concedes that Wilde himself wasn’t a true believer. (The narrator of Wilde’s most famous book makes it clear that literature can and often does have a powerful moral impact for good or ill when he declares that “Dorian Gray had been poisoned by a book.”)

Posner lists “Plato, Tolstoy, Bentham, and the Puritans” in the second group, an incongruous band with little in common beyond a suspicion of literature and a certainty that the social good required the promotion of their views, and preferably only their views. Although Posner doesn’t believe in “edifying,” he seems to think this group has good grounds for their suspicions. In his view, “the classics .  .  .are brimful of moral atrocities .  .  . the world of literature is a moral anarchy.”

Posner is thus at odds with a tradition of criticism he fails to mention, the central humanistic tradition of Western literary criticism which, despite sharp differences of philosophy and taste, has consistently affirmed that great literature unites literary or aesthetic quality with insight into human life. This tradition begins with Aristotle (“poetry is something more philosophical and more worthy of serious attention than history”) and continues through Horace (“usefulness with pleasure”), Longinus (“sublimity in all its truth and beauty exists in such works as please all men at all times”), Sir Philip Sidney (“the poet is indeed the right popular philosopher”), and Samuel Johnson (“Nothing can please many, and please long, but just representations of general nature”) down to Lionel Trilling (“literature is the human activity that takes the fullest and most precise account of variousness, possibility, complexity, and difficulty”).

Posner suggests that his formalist view of literature aligns him with New Critics, such as Cleanth Brooks, whom he rightly admires both for their analytic skills and ability to write for a general audience. The New Critics, like Posner, recognized that the paraphrasable “message” of even the greatest works is likely to be a banality. Brooks was even willing to accept with pride the charge of “formalism” made against the New Critics—with the all-important qualification that he rejected any notion of form as somehow divorced from content. 

For Brooks, the task of the poet “is finally to unify experience” and a successful poem “triumphs over the apparently contradictory and conflicting elements of experience by unifying them into a new pattern.” Thus the “form” important for Brooks and the New Critics is nothing mechanical or external, not a rhyme scheme or a verse form, but a “unification of attitudes into a hierarchy subordinated to a total and governing attitude.” Literary works, the New Criticism suggested, are valuable in large part because they help us to make sense of our lives, to achieve an overall point of view in a world in which life often seems to be just one damn thing after another. 

Brooks and others followed T. S. Eliot, who observed that, in ordinary experience, one “falls in love, or reads Spinoza, and these two experiences have nothing to do with each other, with the noise of the typewriter or the smell of cooking,” but “in the mind of the poet these experiences are always forming new wholes.”

The New Critics were thus part of the humanistic tradition. They believed that poetry and literature not only do provide aesthetic pleasure but also offer insight into human life by dramatizing ways to achieve a coherent outlook while honestly confronting the most disparate experiences. Brooks and the others argued that, for literature, “content” and “form” are inseparable; the “unification of attitudes” achieved in successful poems, plays, and novels is something far different and far more valuable than any paraphrasable “message” that could be extracted by divorcing content from form. 

Posner, however, thinks differently. For him the “moral content” of a literary work “is merely the writer’s raw material,” no more relevant to the writer’s achievement “than the value of the sculptor’s clay as a building material is relevant to the artistic value of the completed sculpture.” In arguing that literature has nothing interesting to say about human life, Posner disagrees not only with the humanistic tradition but with himself. He cannot help noticing in his discussions of particular works that great poems, plays, and stories do somehow manage to offer important insights into human life. Even the Iliad, an epic celebrating a patriarchal culture in which the most admirable quality is physical bravery in war, turns out to have an important lesson for our time, according to Posner.

“The Iliad,” he shrewdly observes, “teaches not only the excessive character of the passion for revenge but also its fragility as a principle of social order.” Meanwhile, readers of the Odyssey “are made to understand that reintegration into human society, though not itself a heroic destiny, is the best culmination of a heroic career.” 

Samuel Johnson admired Shakespeare but regretted that the great dramatist seemed “to write without any moral purpose.” Posner, however, finds valuable moral lessons throughout Shakespeare. The audience of Hamlet, like the prince, “comes to understand the ease with which we evade responsibilities and rationalize our evasions and the lack of candor in human relations” and by the fifth act reaches “a hard-won understanding of the nature of the human condition.” Measure for Measure provides “another lesson in the difference between public and private morality.” Posner even finds a lesson for everyday life in Kafka’s surrealistic short story The Metamorphosis, in which Gregor Samsa wakes up to find himself transformed into an insect: 

We all have Gregor’s problem, though in less acute forms. We cannot make our aspirations fully understood or bring our self-conception into phase with the conception that others have of us. 

It is fortunate that Posner rarely lets theory get in the way of readings; when he does, the results are unimpressive. Attempting to demonstrate that poetic greatness is compatible with simplistic meaning, Posner declares that Keats’s Ode to a Nightingale is “wonderful poetry” but nothing more than “a fairy tale in verse” and that “the beauty of the nightingale’s song reconciles the narrator .  .  . to death.” Eager to make his point, Posner apparently failed to read to the end of this short poem: Keats’s narrator soon realizes that, in death, he would be only a corpse—“a sod.” No longer allowing the nightingale’s song to reconcile him to death, the narrator rejects the appeal of “faery lands forlorn,” reflecting that “the fancy cannot cheat so well / As she is fam’d to do, deceiving elf.” Keats’s poem powerfully contrasts the attractiveness of the idea of death against the unattractive finality of the thing itself. Ode to a Nightingale is, indeed, “wonderful poetry,” but truly “wonderful” in the way its beauty and its wisdom are inextricably linked.

Posner’s theorizing about literature would not have contradicted his own experience as an attentive reader if he had developed the implications of John Gross’s observation (which Posner quotes with seeming approval) that “dramatic imagination, when it is pitched at the Shakespearean level, becomes a moral quality, a form of humanism.” Arguing that the imaginative identification promoted by literature has nothing to do with morality, Posner gets his history wrong as well as literature when he claims that Hitler, “with his unparalleled insight into the hopes and fears of tens of millions of Europeans must have had one of the most highly developed empathetic capacities in history.” Except during World War II, when his “empathetic capacities” egregiously underestimated the fighting capabilities of the British, the Russians, and the Americans.

Still, Judge Posner writes with lucidity and directness, so that even where one disagrees, he stimulates and clarifies. His characterizations of the contemporary academic scene are refreshingly cogent, as when he points to the motive behind the replacement of literary studies with cultural studies in so many English departments: “To knock literature off its pedestal and find vehicles easier than literary works for making political points.” We can only applaud when Posner calls on the law and literature movement to pay less attention to trendy cultural studies and more to criticism “by great literary journalists, such as Edmund Wilson and George Orwell, but also criticism written by academics of an earlier generation who wrote for a general audience”—all of whom, however, were part of the humanistic tradition he ignores. 

Posner’s distaste for academic grand theory in both law and literature is well justified. His own theorizing, unfortunately, fails to do justice to the many perceptive close readings and broad learning evident in this latest edition of Law and Literature.

James Seaton, professor of English at Michigan State, is the editor of George Santayana’s The Genteel Tradition in American Philosophy and Character and Opinion in the United States.

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