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As someone who was for a time the President of the Law and Literature Association of Australia, where work done under the ‘Law and Literature’ banner has developed very specific and local kinds of theoretical and political agendas, I find this book difficult to read, let alone review. It is not the first time that this has happened to me as I have read critical legal work produced in the United States,[1] a country with which Australia believes itself to have a lot in common. Let me begin by saying that if there are commonalities between the two countries, they are not readily found in the Law and Literature context. Posner, of course, coming from a position entrenched within what I consider to be the equally problematic ‘Law and Economics’ movement in the US, has almost as much difficulty with US versions of Law and Literature as I do with his readings of what Law and Literature might be.
What does Posner have to say and how does he argue his case in this book? He locates the nexus between law and literature in several contexts in the book, but sees the conjunction of law and literature as beginning with the publication of James Boyd White’s The Legal Imagination.[2] In Part One of the book he discusses literature, which is in some sense ‘about’ law. In Part Two he examines the relevance of ‘literature’ to ‘the legally operative document’ (for example, legislation or contract) and to judicial opinion. In Part Three Posner expresses his scepticism about scholars who ‘want to reclaim law as a humanity from economists’.[3] He categorises such scholars as belonging to the ‘Edifying School of Legal Scholarship’ and the ‘Legal Narratology Movement’.[4] Part Four deals with aspects of the regulation of literature by law, particularly legal issues associated with defamation, copyright and pornography. In his introduction Posner reveals something of his purpose in writing the book. In an explanation which is full of unexamined binary oppositions, he argues that ‘law and literature’ may manage to illuminate jurisprudential issues, but will never have any real effect on practice or policy, and that law is a system of social control best explored using the tools of the social sciences and judged by reference to ‘ethical criteria’, while literature is an art and the means of evaluating it are aesthetic.[5]
Similarly, Posner wants the Law and Literature movement to flourish, but not to be overrated. He seems to see it as a kind of decorative flourish to be added to the repertoire of the legal man in rather the same way as he sees style and content as binary opposites in his discussion of rhetoric in judgments later in the book.
None of these oppositions would work in Australia in relation to the serious business of the Law and Literature movement, which seems to me to be quite well characterised by the work of two Australian journals, the Australian Feminist Law Journal and Law, Text, Culture. Both of these journals were established and are edited by groups who have had close connections with Law and Literature in Australia.
Lesson one in cultural difference follows. In Australia, unlike the US,[6] there are few subjects called ‘Law and Literature’ in law schools. The few subjects that have existed in Australia have often been taught in English Departments (Sydney University is a case in point). The history and the current state of the teaching of English literature in Australia is also very different from its history in the US. In Australia in the early 1970s there was a decolonising struggle to establish Australian literature in Australian universities, probably exacerbated by the tendency of Australian (and indeed Australasian) English Departments to appoint expatriate Englishmen (and it was men) to teach English literature in what were still perceived to be the ‘colonies’. The Commonwealth literature movement came later, but was less important in Australia than the theorising of English under the impact and influence of critical theory from Europe (‘French’ or ‘foreign theory’ as it was then called in the media) and the emergence of Semiotics/Cultural Studies and Women’s Studies as places where ‘theory’ was permitted. Later came the multicultural[7] and indigenous literary claims.[8] Of course, these emerging fields were also places from which theory migrated into English Departments, although some of these departments showed remarkable resistance to it.
By the late 1990s in Australia, there are relatively few English Departments which do not also teach Cultural Studies, and a smaller number still which can actually staff a full complement of canonical English literature offerings. My perception, from a six month stay in the US in 1998, is that the canon of English literature is still much more firmly entrenched there than it is in Australia. Further, it appears that in the US, Cultural Studies is seen as the place ‘without theory’, whereas English is seen as the ‘home’ of high theory, but may also be very traditional. Of course, in the US, other newer contenders, such as African American literature and Asian American literature contest the dominance of English literature and also make claims to be the locus of ‘theory’. The situation I have described as existing in the US cannot be directly compared to the Australian one as described above. This needs to be borne in mind when I return to Posner’s account of literature below. ‘Literature’ is now many different things, and is valued very differently, in Australia and the US.
In both the Australian and the US contexts, the position of literature is further affected by sociocultural changes, some already complete, some emergent. These are matters that Posner’s economism might have alerted him to in more critical ways. In the 1980s, the changing demography in universities, the phenomenon of mass tertiary education, and changes in technology and communications (the new media) were part of the circuits of communication that produced many of the challenges to the academic hegemony of English literature. In the 1990s changing market economies, changing economic contexts, and the impact of localisation and globalisation, have again radically reconfigured university populations. This has occurred simultaneously with the impact of the ‘new’ media — the print media is losing the dominance it once enjoyed. One such change that must have an effect on law and literature is the new global emphasis on vocationalism in universities. This is already beginning to impact on the profile of the typical law graduate. In Australia, the case I know best, since the early 1970s, when ‘free’ education was introduced at tertiary level, such graduates have included a large proportion of Arts/Law graduates. Vocationalism is changing this. Soon they will be Science/Law, Business/Law, Medicine/Law and even Performance Studies/Law graduates. This is not going to produce the same legal habitus[9] and one can almost guarantee that such students will be much more familiar with the visual, the internet and the popular, than with literature. Posner does touch on these issues in chapters nine and ten, but in woolly literary ways, not in the informed economic terms that would have been interesting. Here he concludes that what we urgently need is a ‘study of what the disappearance of the literary judge will mean for American law.’[10]
It does not, however, occur to him to ask what the disappearance of a certain kind of white, male, middle-class hegemony in that site may also produce. The question of feminist work within the legal academy is something that he introduces rather like a ‘straw man’, only to dismiss it.[11] Given the extremely influential and important pedagogic work of feminist legal scholars in Australia, it would, I think, be far less easy to dismiss this as an issue in the Australian context. I refer here particularly to Graycar and Morgan,[12] Davies[13] and Thornton,[14] whose work has depended on the same critical uses of theory as those which changed the status of literature in Australia. However, Posner simply dismisses postcolonial and multicultural issues as ‘political correctness’. Politically, then, the differences between Posner’s conception of law and literature and what has been called ‘Law and Literature’ in Australia are significant.
Posner’s approach is, to a large extent, posited on economic rationalism, liberal individualism, a partial understanding of theory at best, and no particular knowledge about literature as a discipline. He assures the reader that both Law and Economics are disciplines with languages and methodologies that need to be learned to be understood and appreciated.[15] However, Posner seems quite content to remain the naive reader where literature is concerned and to adopt a kind of realist reading mode for which I, in my former persona as Professor of English, would probably fail most first year students. He speaks disparagingly from time to time of those in the Law and Literature movement who would want to bring ‘imaginative literature’ into the legal classroom in order to ‘present vivid pictures of the despised, the overlooked, and the downtrodden’.[16] His language here, particularly ‘vivid pictures’, sums up both his realist claims for literature and his failure to understand the theories of representation with which the work in literature he disparages does engage. The uses of literature that he will not tolerate are made clear when he refers to the resentment among whites over ‘affirmative action, multiculturalism, ... black victimology’ and so on,[17] all of which he is ready to label ‘political correctness’ and to refer to as ‘[o]ppositionist legal storytelling,’ as ‘whiney and self-pitying’, ‘the ghetto of complaint’.[18] Throughout the book he is careful to warn us against intentionalism in literary reading but that cannot, I am afraid, protect us from the obviousness of his biases and intentions.
Part of the effect of theory in the Australian academy has been a far greater scepticism about liberal individualism and humanism than seems to be the case in the US, at least in literary contexts. Thus, for example, I am inclined to agree with Posner that Yale School deconstruction is actually quite like the New Criticism.[19] It does not have the political edge that deconstruction is likely to have in Australia, particularly when it operates in non-literary contexts. Nor has the Foucauldian critique of discipline entered into Posner’s understanding of the teaching of literature. I have not always agreed with Ian Hunter about the implications of the uses of literature as a colonising, nation-forming and citizen-forming exercise.[20] However, many of Posner’s oddly circular arguments about the effects or otherwise of literature on populations cannot be sustained at all in the face of the valid aspects of Hunter’s critique.
There is also the question of language. In the Australian context, theory has really been about the ‘linguistic turn’; that is, whether we have been reading psychoanalysis, poststructuralism or deconstruction, and whether in feminist or postcolonial or some other mode, we have learned to think critically about language as ‘representation’, to think of ‘representation’ as construction, as productive of realities, as not simply realist or mimetic. ‘Representation’ is also always located in regimes of textual production which are themselves part of institutional networks of power and knowledge. For feminist theorists, the idea that bodies might actually be disciplined, formed, habituated and constituted within and by such regimes is by now readily accepted.[21] Moreover, there has been the deconstructive and feminist work on performativity to contend with. Such approaches proceed on the basis that a work of literature is a speech act, and as such, an event, a text which has force and power to enact the things of which it speaks.[22] These approaches are generally accepted, but often critiqued and debated. Indeed, they are the stuff of critical reflection in both feminist and much broader critical contexts. Such understandings are shared by critical theory and critical discourse analysis, both of which also borrow from social and cultural theory.[23]
In the Australian law and literature work, it is these ideas which tend to have been used to critically explore the fictional aspects of law as institution; the fact that it is inevitably subjective, always narrative, always generic and always intertextually related to histories, bodies and networks of other contexts. Literature is not privileged as somehow beyond economics, without needing to be ethical. There is, in fact, a whole literary theory tradition of work in the ethics of reading.[24] Literature is not seen in these contexts as merely aesthetic, not simply ‘art for art’s sake’, not disconnected from the social and cultural worlds which produce it and which it produces. As one kind of text among many in the networks that constitute us and the social, literature may help us to see how institutions like the law are themselves constituted and, more importantly, what they look like from somewhere else and how they could be constituted differently. In Australia, theory has certainly shown literary scholars how the literary institution could be constituted differently. Perhaps the reality of that kind of institutional change is precisely why Posner wants to have no truck with such ideas.
For all of these complex reasons then, it is difficult to even begin to dialogue with Posner’s work. It is my intention, however, that the above discussion enables at least some of my working premises to be available to the reader.
This long section of the book consists of six chapters, most of which are merely descriptive of Posner’s thesis that much literature is about law. It involves endless re-tellings of narratives that are better read in the original. Perhaps the most troubling aspect of this work is the ‘theory’ with which it begins. That theory is that ‘literature can be judged great only by its ability to survive in the competition of the literary “marketplace”’,[25] and that the survival of literature is ‘broadly speaking, Darwinian’[26] — and one has to suppose, therefore, ‘natural’. Then comes the question of the canon. Having rejected the traces of some arguments about the canon (very imperfectly understood), Posner decides that ‘great’ literature has stood the test of time because it deals with universal features of the human condition,[27] thus projecting his narrow understandings of law into the literary field and learning nothing from his excursions into that space.
What Posner ignores here, or simply does not know, is so huge as to be impossible to summarise. Structuralist understandings of literature as institution, of literature as poly-system, deconstructive understandings of the textuality which allows texts to be constantly recontextualised and resemanticised, feminist and postcolonial understandings of the very cultural specificity of literature, of its uses by and for governmentality, understandings of how educational institutions work through power to constitute as knowledge that which the publishing industry will then produce for profit, the influence of very specific kinds of theory in shaping and forming what will become curriculum and what will be excluded. All of these things lie beyond the ken of these chapters. What Posner sees is simple — the survival of the fittest in a kind of free trade environment. The real worry about this is that it is his model not only for literature, but also for those who come before the law.
Chapter two, ‘Revenge as Legal Prototype and Literary Genre’, deals with revenge literature as a useful reflection on justice as revenge, demonstrating the economic inefficiency of revenge in society and pointing to the way corrective justice in the form of the social contract controls revenge in the interests of social order. Revenge, however, is seen as a ‘natural’, rather than ‘selfish’ response to the infringement of one’s rights.[28] Progress is not in the direction of overcoming the selfishness of natural man, but rather is in the direction of supporting it. It is, says Posner, part of the move from collective societies to individual justice, ‘justice conceived in individual rather than group terms’.[29] This is a very problematic (culturally specific and gendered) argument, particularly in the context of countries like Australia which, in the aftermath of colonisation, have recently been trying to deal with the issue of reconciliation with indigenous peoples and questions of native title to land. One would have thought that it might also be an issue in the US. It seems not.
Chapters three and four involve similarly untheorised readings of ‘works of imaginative literature’ which Posner feels provide a supplementary course of reading to ‘the philosophical and legal literature of jurisprudence’.[30] Here he is almost exclusively concerned with the ‘reality’ or ‘realism’ with which works of fiction deal with legal issues, finding fault with The Merchant of Venice, for example, because of ‘[t]he absence of any reference to equity jurisprudence’.[31] You may find a list of fictions here if you are looking for a curriculum — you will not find much else.
Chapter three concludes with an attack on feminism (which Posner describes as more inflexible than law has ever been),[32] the argument that flexibility in law will produce ‘anarchy’[33] and the conclusion that ‘[a]bstraction is a precondition of thinking’.[34] This is all a somewhat unimpressive response to the question posed in the title of the last section of the chapter, ‘Has law gender?’
Chapter four reads several literary texts for their limits as accounts of jurisprudence, which of course they never set out to be. The exercise does convince Posner that to be a good lawyer one must be a careful, resourceful reader,[35] though just what that means remains to be seen. In any event, he fails to demonstrate any such qualities consistently to the end of the book.
Chapter five begins with a critique of Weisberg’s The Failure of the Word,[36] followed by a reading of Billy Budd[37] and The Brothers Karamazov.[38] It is Weisberg’s romanticism, his romantic Nietzschean ‘hostility to institutions in general’[39] which Posner targets, pointing to the fact that Nietzsche was an ‘anti-Semite’ and that ‘much of the Nazi program could be stitched out of passages from Nietzsche’s oeuvre’.[40] The trenchant criticism of Weisberg’s readings which follows takes its cues from this starting point. Posner always replaces Weisberg’s literary and historical intertextual readings with narrowly legal ones, discussing them as if they referred to real events and people, rather than to fictions.[41] In effect, Posner reads only one way, from law to literature. That is, he takes his legal knowledge and training (and his personal biases) and projects these onto the literary texts and the criticism that he reads. In this way literature is reduced to an economy of the same, and nothing changes. There is no attempt at interdisciplinarity, which would have required the judge to learn another way of reading either literature or law or both. Weisberg, whatever difficulties one may have with his readings, tries to bring legal and literary modes of reading together. Weisberg and Robin West, whose law and literature efforts are the target of the next chapter, have both produced critical work within a field which is already very different from the way Posner would want it to be.
Chapter six is devoted almost entirely to the way Robin West uses Kafka to criticise the Law and Economics movement.[42] Posner still does not seem to be reading as carefully as he promised he would, criticising West for reading too literally and arguing that Kafka’s fiction cannot be read as a criticism of bourgeois values.[43] This is followed by a defence of classical liberalism, an odd economics-based reading of sexual harassment[44] and a defence of freedom of contract against West’s criticisms of it.[45] She too, it turns out, is a romantic, a utopian dreamer who believes, like the rest of the ‘legal academic left’ in ‘the perfectibility of human nature and society.’[46]
What Posner fails to account for in both chapters five and six is the socially and culturally located specificity of reading practices which produces these different and opposed readings. Further, as he has deprived himself of the tool of the ‘author’s intention’ earlier in the book,[47] he cannot discuss the adversarial nature of these reading engagements with some of the more challenging among the major US figures in law and literature studies, including James Boyd White and Brook Thomas. Theories of subjectivity, intertextuality and habitus, or Umberto Eco’s ‘model reader’[48] with his habit of taking ‘inferential walks’,[49] would help Posner to understand what he and everyone else is doing here. Whether any of these attempts will succeed in changing the law is a moot point.
This section of the book I found marginally more interesting because it does make some attempt to deal with recent literary and cultural theory and to engage with the difference between legal and literary texts. Here, however, what Posner needs is some critical discourse analysis skills and these too he rejects. Posner reveals the underlying approach of previous chapters when he tells us that all the debates that have gone on around interpretation, whether in deconstruction or legal scholarship, manage to say only two things: that interpretation is always relative; and that one does not become a better reader by studying linguistics, that it takes lots of practice, not theories.[50] Indeed, the upshot of all this work, it seems, is that ‘interpretation’ just means reading to make whatever kind of sense one happens to be interested in.[51] Paradoxically, it appears that this is what Posner has been doing for about 200 pages at this point!
I would like to examine the problems I see in this remark, particularly in this context where Posner crosses disciplines, making comparisons between radically different kinds of textual genres, textual production and forms of institutional power. When feminists deliberately and self-consciously read black letter law or critical legal scholars deliberately read judgments, for example, in ways that such texts were generically and institutionally never meant to be read, they do it knowing that they are breaking the rules of the code, knowing that they are endeavouring to challenge those rules and to effect change by making the genres ‘mean’ differently (that is, making the genres tell a different story). When they do it well, they have usually taken the trouble to become competent as readers in both disciplines so that their interdisciplinary work is as well informed as possible. Indeed, they may not need to learn the rules if they are to continue to work in the discipline they are trained in, whose habitus they embody and therefore can perform without an explicit code. But if they want to start working in another discipline, they are foolish not to learn the rules of their own as well as those of the new one. Many of those rules are linguistic; discursive in the broadest possible Foucauldian sense of the term. Understood in this way, one does become a better reader by ‘studying linguistics’, as well as by reading widely in many fields and by building up an intertextual resource with which to read. Posner’s performance as the naive literary reader is less than impressive. Indeed, viewed less kindly, it is arrogant and dismissive of the work of others.
Posner next explains deconstruction to us,[52] reducing it in the process to precisely the kind of semiotics of encoding and decoding that constituted Derrida’s first and prime target.[53] In response to deconstruction’s supposed attack on interpretability (Derrida has always in fact argued that he was interested in the most complex and difficult conditions of interpretability, not the opposite)[54] and the obliteration of the author (Derrida’s account of the signature was never any such thing),[55] Posner now sets out to prove that if, after all, both interpretation and authorship are impossible, then Robin West was wasting her time ‘trying to show that Kafka’s fiction contains a radical message’.[56] This, like the reading of Nietzsche against Weisberg’s work on Nazism, is an example of ill-motivated and, quite simply, bad reading skills.
Reading should make some connection with the text it purports to read. Derrida himself has argued for the autonomy and structural continuity of the text, even when the signature cannot guarantee it.[57] In other words, language exerts a force on interpretation. Not all meanings are available to readings which respect the text, readings whose intertextual networks connect metonymically with the stuff of the text they are reading. Posner’s readings simply do not connect with texts — not when he reads law and literature scholars, not when he reads theory and, one suspects, not when he reads law.
Indeed, had Posner taken his next point to its logical conclusion — that deconstruction and New Criticism have much in common[58] — he might have come close to what I have just written. Instead, he makes another comparison between New Criticism and Legal Formalism and proceeds to expound on the failures of intentionalist interpretations and the necessary discursive construction of authors (the implied author) from their texts by readers.[59] So far so good, but then he risks some comparative readings — what he calls intentionalist, New Critical and postmodern. The first of these is really about the difference between a formalist and a contextualised literary reading of a poem, and thus covers the first two approaches. Posner prefers the former because it leaves the poem with a ‘universal’ or abstract meaning, a regular preference of his, since it leaves him in a world of legal commonplace where he feels at home.
Not surprisingly, he then tells us that abstraction is what must also characterise the language of statutes and contracts. Statutory texts are often collaboratively written, or written by committee. The only way to write them, he says, given their collaborative and often agonistic origins, is to ‘paper over disputes ... with general language, leaving the resolution to the courts.’[60] Language which is too specific would, he says, also ‘reduce its adaptability to social and technological changes’.[61] In the case of contracts, it is impossible to recover the intentions of those who made them. Thus, contracts cannot be read, and nor can statutes, as J Hillis Miller reads Wordsworth’s poem ‘Lucy’, where ‘the work of literature becomes a window into the poet’s mind’.[62] This is adduced as a typical example of deconstruction and its apparent failure to operate in this context is taken by Posner to demonstrate that literary ‘criticism’ cannot be applied to legal texts.
Now, I have to say that I would not use Hillis Miller as a model for the deconstruction of the literary text either — precisely because he fails to proceed very far beyond New Criticism, as Posner argues elsewhere. Nor would I see his deconstruction as ‘typical’. It is a very specific literary inflection of Derrida’s work.
Had Posner read Derrida, or Drucilla Cornell,[63] deconstruction would not have looked a bit like this. Works by these authors would surely have been better exempla since they have actually practised deconstruction on legal texts and Hillis Miller has not. Moreover, as Posner rightly points out, statutes ‘give commands’. We could translate this as ‘performative’ as well as imperative. They are not ‘works of art’.[64] The reading of legislative intention and poet’s intention have very different effects and are received very differently. I will not pursue his convoluted arguments about this difference here. There are metalanguages available which could help him to understand the different genres of discourse, the relative performative power of interpretations in different institutions, and the power differential those institutions produce as gendered, coloured and embodied habitus. There is a similarity, if only he knew it, between the legislative and judicial histories which become so embedded in the institution that they are difficult to change and bear little relation to the ‘intentions of the framers’,[65] and histories of literary interpretation. He thinks literary institutions work differently from this. He needs some literary history too.
There are some other remarkable statements that I would also want to challenge. For instance, Posner argues that literary criticism lacks a formalisable method or theory — my question would then be: why use it? Further, he states that theories of interpretation ‘could not be expected to alter the way judges decide cases’.[66] I would argue, if I had space, that it can be demonstrated that they will. Posner also considers that James Boyd White’s ‘translation’ metaphor for statutory and judicial interpretation is inadequate.[67] How, asks Posner, will we ‘know the meaning of a disputed statute’ or ‘verify the accuracy of its “translation” into a modern setting?’[68] The answer, of course, if he has learned anything from what he has told us already, is that we won’t and we can’t. He remains caught on the horns of this dilemma, and we, his readers, continue to wonder what all of this is intended to accomplish. Are we trying to read literature and law together for any particular reason? If we are, what is it? Posner really has no answers.
In chapter eight, on judicial opinions as literature,[69] he gives us the answer. Setting up form and content here as a binary opposites, in a very traditional rhetorical mode, he tells us that what judges can learn from literature is style. They can learn from ‘direct attention to the craft values displayed in it’.[70] The result of such learning it seems is the following:
Yet Buck v Bell is an eloquent and moving opinion even if one is revolted by the author’s evident enthusiasm for the eugenic breeding of human beings, just as The Triumph of the Will is a beautiful movie even though it is Nazi propaganda.[71]
What on earth does it mean to say this? What has the craft of literature taught us at this point? Not much I think, and this is why Posner needs critical legal studies and critical discourse analysis, which would show him how to deconstruct his own argument here and how to write much more effectively than his naive and muddled readings of literature and its criticism will ever enable him to do. There may be some argument about whether discourse analysis can make one a better reader. There is none about whether it can make one a more informed, self-conscious and critical writer. Surely the models for legal writing should come from the law first and only borrow from other contexts if they need changing for political, gendered, racial or other reasons, if they need changing to take account of cultural and other differences, if they need changing to make the law a more effective and just instrument of correction or social control.[72] Playing with literary craft and rhetoric in order to be eloquent among one’s peers seems an entirely inadequate motivation for bothering to bring any two disciplines together and simply replicates the worst excesses of literary elitism.
In Part Three Posner begins his debate with Martha Nussbaum and her view that ‘literature can enlarge our empathetic awareness of injustice and moral issues generally’.[73] Posner argues against this view in a long, involved and tortuous debate with himself, and with Nussbaum, about whether literature (art) can affect anyone for good or ill. Of course, he prefers to be able to say no, because he will arrive eventually at the feminist cause around pornography, and if he can show that art does no particular good, then he can also show that it does no particular harm.[74] Here, although I would discount most of his actual arguments, I agree with him that the mere reading of ‘good’ (for whom, why, when?) literature is not likely to have much effect on the legal institution or its practitioners. They have been reading it, after all, and rather like Posner, appropriating it to their own legal ends, for centuries. Much more is to be learned from explicit modes of critical discourse, cultural and other theory, which may help legal practitioners first to know themselves and then to recognise the limited disciplinary basis for their own inherited habitus, in order to look outside it into the real, not the literary world. A much better critique of Nussbaum, and one which does utilise these critical skills and perspectives, is to be found in Morrow.[75]
Chapter ten on narrative legal scholarship, which is the second in this part of the book, attacks feminist arguments about the need for new legal stories, as well as any other kind of critical recognition of the law’s own narrativity. It fails altogether to understand why narrative might be a useful tool for a better understanding of legal issues, insisting simply that there are enough legal fictions already, that ‘law is deficient in fact rather than fiction’,[76] thus missing this particular point altogether. Again it is a muddled chapter, confusing critical narrative analysis of law with stories written by lawyers as literature, and the biographies of judges.
This single chapter has been added to the second edition of the book and is called ‘Authorship, Creativity and the Law’. It is a sketchy essay on why the three areas of legal regulation of the literary process — the tort of defamation, copyright law and the concept of fair use — should not be further regulated. The arguments here suggest a better understanding of the writing process, of the history of authorship and literature as property, even of the fine line between literary borrowing, rewriting of earlier works, intertextuality and plagiarism, than is evident elsewhere in the book. His conclusion is that proposals to expand the copyright protection of literary works ‘cannot be defended persuasively on the basis of literary history or literary theory.’[77]
Were Posner to take himself seriously here, he might begin to see some of the real relevance of literary questions to legal work. The literary rewritings he uses to illustrate his arguments here are exactly like common law traditions of decision-making and rewriting of precedent. There is, however, little indication that Posner recognises this parallel or that he has yet begun to think about the copyright issues posed by new technologies, or the radical undermining of property in the text that such developments represent.
This book is a conservative and somewhat dated account of a movement which, fortunately, in the Australian context, has been transformed by much excellent critical work. This has included work on literature itself in a postcolonial context, on the gendered nature of the law and its institutions, and more recently on its colonial and invasive past as well as its failure to deal with the multicultural Australian present. In these contexts, literature and literary theory (but not literary criticism) have been used critically to provide tools for analysing legal texts and practices and to develop pedagogies for producing the legal habitus differently for a different future — both in law schools and in judicial education programs. Literature has been recognised as just one form of representation among many in the networks of hypercodes, events, bodies and semiotics which constitute cultures. It is time, for example, that we looked seriously at the visual, at the spatial, at the corporeal, that we stopped focussing on the verbal, print and the literary. In Australia, Law and Literature has not been concerned primarily with a humanist or liberal individualist approach to the literary canon as a way of ‘improving’ legal men.
You have to ask yourself then: what’s in a name? For me, these are open questions,[78] but they are questions that I believe need answers in the Australian context. This book has, after all, just been republished by a major university press. It continues to circulate and to enact a version of things that needs radical and constant challenge. How to meet that challenge and how to continue to enable critical interdisciplinary encounters around law? These are not questions to which this book offers any useful answers.
TERRY THREADGOLD[*]
[1] See, eg, Terry Threadgold, ‘The Quiet Revolution: Language Teaching in Schools and the Responsibility of the Universities’ (1988) 13 Arts 72.
[2] James Boyd White, The Legal Imagination (1973).
[3] Richard Posner, Law and Literature: Revised and Enlarged Edition (1998) 6.
[4] Ibid 305, 345.
[5] Ibid 7, 125.
[6] See, eg, ibid vii.
[7] Sneja Gunew, Framing Marginality: Multicultural Literary Studies (1994).
[8] Mudrooroo Narogin, Writing from the Fringe: A Study of Modern Aboriginal Literature (1990).
[9] Pierre Bourdieu, The Logic of Practice (1990) 52.
[11] Ibid 337–41, 348–9.
[12] Regina Graycar and Jenny Morgan, The Hidden Gender of Law (1990).
[13] See, eg, Margaret Davies, Asking the Law Question (1994); Margaret Davies, Delimiting the Law: ‘Postmodernism’ and the Politics of Law (1996).
[14] Margaret Thornton, Dissonance and Distrust: Women in the Legal Profession (1996).
[15] See especially Posner, above n 3, 49–92, 182–208.
[16] Ibid 6.
[17] Ibid 351.
[18] Ibid 349.
[19] Ibid 207.
[20] Ian Hunter, Culture and Government: The Emergence of Literary Education (1988); Ian Hunter, Rethinking the School: Subjectivity, Bureaucracy, Criticism (1994).
[21] See, eg, Elizabeth Grosz, Volatile Bodies: Toward a Corporeal Feminism (1994).
[22] Jacques Derrida, Margins of Philosophy (Alan Bass trans, 1982) 321; Jacques Derrida, Limited Inc (1988); Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (1990).
[23] Critical discourse analysis and poststructuralist feminist discourse analysis have been important adjuncts to critical theory in the Australian context. What has been different in Australia has been the conjunction of certain kinds of critical linguistics with poststructuralist and feminist theory. This conjunction has not happened elsewhere in the same way. It was the bringing together of the work of linguist Michael Halliday, in particular his theory of language as social semiotic (a system of meanings which functions to represent but also to produce and reproduce the social), with poststructualist theory, which has made the difference. Schirato and Yell, and Fairclough, provide excellent introductions to aspects of critical discourse theory and analysis: Tony Schirato and Susan Yell, Communication and Cultural Literacy: The Critical Study of Language (2nd ed, 1999); Norman Fairclough, Critical Discourse Analysis: The Critical Study of Language (1995). I have also written a monograph-length account of the same issues: Terry Threadgold, Feminist Poetics: Poiesis, Performance, Histories (1997).
[24] Derrida, Limited Inc, above n 22; James Phelan (ed), Reading Narrative: Form, Ethics, Ideology (1989).
[25] Posner, above n 3, 11.
[26] Ibid 15.
[27] Ibid 19.
[28] Ibid 58.
[29] Ibid.
[30] Ibid 93.
[31] Ibid 107.
[32] Ibid 124.
[33] Ibid 125.
[34] Ibid 126.
[35] Ibid 146.
[36] Richard Weisberg, The Failure of the Word (1984).
[37] Herman Melville, Billy Budd, Sailor (first published 1924). See Robert Milder (ed), Billy Budd, Sailor and Selected Tales (1997).
[38] Fyodor Dostoyevsky, The Brothers Karamazov (first published 1880, David Magarshack trans, 1958).
[40] Ibid 161.
[41] See, eg, ibid 181, where Posner, in considering Weisberg’s work, notes ‘his hectoring prosecution of both Vere and Haennig in the dock of history’ and ‘his lack of sympathy’.
[42] Robin West, Narrative, Authority and Law (1993) 27–78.
[44] Ibid 190–3.
[45] Ibid 202.
[46] Ibid 205.
[47] Ibid 209–11.
[48] Umberto Eco, The Role of the Reader: Explorations in Semiotics of Texts (1979) 7.
[49] Posner, above n 3, 31.
[50] Ibid 209–11.
[51] Ibid 211.
[52] Ibid 212.
[53] Jacques Derrida, Of Grammatology (Gayatri Chakravorty Spivak trans, 1976) 27.
[54] Derrida, Limited Inc, above n 22, 145.
[55] See, eg, Derrida, Margins of Philosophy, above n 22, 327.
[57] Derrida, Margins of Philosophy, above n 22, 327.
[59] Ibid 221–3.
[60] Ibid 231.
[61] Ibid.
[62] Ibid 235, in reference to J Hillis Miller, ‘On the Edge: The Crossways of Contemporary Criticism’ in Morris Eaves and Michael Fischer (eds), Romanticism and Contemporary Criticism (1986) 96, 108–10.
[63] Drucilla Cornell, Transformations: Recollective Imagination and Sexual Difference (1993).
[65] Ibid 242.
[66] Ibid 249.
[67] Ibid 254.
[68] Ibid.
[69] Generically, and in institutional terms, it is clear to me that judicial opinions are not literature.
[70] Posner, above n 3, 282.
[71] Ibid 272–3.
[72] Barbara Kamler and Rod Maclean, ‘“You Can’t Just Go to Court and Move Your Body”: First-Year Students Learn How to Write and Speak the Law’ (1997) 3 Law, Text, Culture 176.
[73] Posner, above n 3, 316.
[74] Ibid 333.
[75] Jonathan Morrow, ‘Soft Times: The “Literary Imagination” as Poetic Injustice’ (1998) 10 Australian Feminist Law Journal 35.
[77] Ibid 412.
[78] Terry Threadgold, ‘Deconstruction and the Possibility of Justice’ (1994) 1 Law, Text, Culture 140.
[*] School of Media, Journalism and Cultural Studies, Cardiff University.
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