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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“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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