The interdisciplinary field of law and literature is burgeoning, and various academics are making grandiose claims. “The field envisages,” says Richard Posner, “a general confrontation or comparison, for purposes of mutual illumination, of two vast bodies of texts, and of the techniques for analyzing each body.” The pretensions of this fledgling movement, however, indicate that it is in desperate need of a skeptic; it has found one in the erudite Judge Posner, who serves on the US Court of Appeals for the Seventh Circuit. In his Law and Literature: A Misunderstood Relation, Posner succeeds in delimiting the sphere of law and literature, castigating its more extravagant proponents for “paying insufficient heed to the profound differences between law and literature. In their hands literary theory, or particular works of literature, are contorted to make literature seem relevant to law, and law is contorted to make it seem continuous with literature.”

Posner begins with an examination of what seems to be one of the more salient links between law and literature—namely, revenge. “Vengeance,” he notes, “is either the earliest stage of law or an important part of the prehistory of law.” In fact, Posner says that “most criminal law, and much of tort law besides, can be viewed as a civilized substitute for what would otherwise be the irrepressible impulse to avenge wrongful injuries.” Moving nimbly through a critical analysis of revenge as “an extremely clumsy method of maintaining order,” he concludes “that law channels rather than eliminates revenge—replaces it as system but not as feeling.”

This “feeling” has played not only a central part in the development of law but has also staked a large claim in the Western literary tradition—a fact that is often curiously overlooked by “literary lawyers.” Posner traces the prominence (varying, to be sure) of the revenge motif from the Greeks through the Elizabethans to the present, adducing the Iliad, Julius Caesar, Hamlet, and Heinrich von Kleist’s Michael Kohlhaas, among other works, as evidence of the enduring literary preoccupation with vengeful passion. Moreover, Posner’s interpretations of these masterpieces are exceptional in their clarity and concision, and he pauses along the way to refute easily a great deal of the critical quackery—Nietzschean, Freudian, etc.—that has cluttered our understanding and appreciation of Hamlet.

Posner’s approach to literature is avowedly New Critical; this method is the reason for the cogency of his own interpretations, based solidly on evidence found (or not found) in the works themselves. Posner marks off the critical territory well: “Intentionalism assigns primacy in the creation of the meaning of the work of literature to the author, reader-response criticism to the critic or other reader. New Criticism to the work itself.” But he finds the New Critical method inappropriate when reading statutes and the Constitution: legal texts demand that one be attentive to the intentions of the “authors.” Posner defends those divergent approaches to law and literature with astonishing rigor, and he is worth quoting at length on this crucial distinction:

A poet tries to create a work of art, a thing of beauty and pleasure. He either succeeds or fails. If he succeeds, we do not care how banal his intentions were, and if he fails, we do not care how elevated they were. A legislature, however, is trying to give commands to its subordinates in our government system, the judges who apply legislation in specific cases. A command is designed to set up a direct channel between the issuer’s mind and the recipient’s; it is a communication, to be decoded in accordance with the sender’s intentions. If a message is garbled is transmission, you ask the sender to repeat it; that is intentionalism in practice. If you cannot reach the sender, you try to glean from everything you know about him and the circumstances of the failed message what he might have meant; again the correct analysis is an intentionalist one.

Law and Literature is not entirely concerned with correcting excesses. Posner, for example, finds “the literary analysis of [judicial] opinion is—highly promising.” Naturally, he turns to Holmes’s dissent in Lochner and, after an astute exegesis, declares it “a rhetorical masterpiece” but logically flaccid. (Posner’s analyses of other judicial styles are equally illuminating.) Furthermore, he avers that literature can offer judges guidance in “craft values”—that is to say, impartiality, scrupulousness, and concreteness. (One should note that Posner’s own disciplined prose possesses all these virtues.) Such “aesthetic integrity,” as he terms it, is especially needed today when “The avoidance of the concrete is ubiquitous in legal prose.” Literature can also assist in clarifying nebulous legal categories like defamation and obscenity. Interestingly, he favors a curtailment of copyright law for the solidly anti-Romantic reason that “literary imagination is not a volcano of pure inspiration but a weaving of the author’s experience of life into an existing literary tradition,” and thus an author must be able to use the tradition with some latitude if it is to thrive.

What animates Posner’s opposition to much of the law and literature movement is his obvious respect for the rule of law and the genius of our literary tradition. Yet one suspects that Posner’s plea for recognizing law and literature as overlapping but essentially discrete disciplines will go largely unheeded. After all, to declare oneself a literary New Critic and a legal intentionalist is to consign oneself to the dustbin that contemporary academic fashion has marked “reactionary.” Which is one reason Law and Literature deserves our closest attention.

Sullivan_Review

[Law and Literature: A Misunderstood Relation, by Richard Posner (Cambridge: Harvard University Press) 389 pp., $25.00]