What has modern literary theory to offer law?[Literary Criticisms of Law.](Book Review).

• Author: Posner, Richard A.

LITERARY CRITICISMS OF LAW. By Guyora Binder ([dagger]) and Robert Weisberg ([double dagger]). Princeton: Princeton University Press. 2000. 544 pp. $24.95.

The title of this review is the question that the authors of Literary Criticisms of Law set out to answer in more than 500 pages of tightly packed print dense with learning. Although critical of much of modern literary theory, the authors conclude that it is a potentially rich resource for leftist critique of law. Many readers who slog through to the end of this fatiguingly long book will answer my question differently: "Nothing."

I think it is accurate to term the type of legal scholarship that this book represents decadent in the sense in which some of the literature and art of the late nineteenth and early twentieth century were termed decadent. That is, it is intricate, subtle, ornate, self-indulgent, and disdainful of utility. (Remember what Oscar Wilde said in the preface to The Picture of Dorian Gray, that classic specimen of fin de siecle decadence: "There is no such thing as a moral or an immoral book. Books are well written, or badly written. That is all." (1)) Despite appearances, I am not being critical in calling Binder and Weisberg's book decadent. There is nothing wrong with decadent writing in the sense just described; it is an important genre of nineteenth-century fin de siecle art and literature, and now that another fin de siecle has rolled round, a revival is welcome. I am identifying a genre, not condemning it. The authors are fascinated by, and minutely examine, a set of scholarly literatures that have no practical significance for law; some of them are not about law at all. The book has no pedagogic function or potential that I can see, will be inaccessible by reason of its length and its heavy weight of eruditions to all but the tiniest sliver of the legal profession (even to most other law professors), and contains nothing that could be used to understand or improve the law--in part because it doesn't (except very sporadically) discuss law, or for that matter literature, but instead confines itself to the scholarly literatures on these subjects. The authors evidently have different interests, Binder in intellectual history and Weisberg in literary theory, and their interests are imperfectly melded (that is another of the self-indulgent features of the book). None of which is meant to deny that Literary Criticisms of Law is an interesting book. It contains many shrewd and even pungent passages, and at least one first-rate chapter (chapter 3, on narrative).

To understand what the authors are about, it is necessary to distinguish between two different ways in which the law might be approached as a subject of literary criticism. (3) The first and more straightforward would be to analyze legal texts, such as statutes, wills, contracts, briefs, and judicial opinions (the most obvious candidate, given the literary distinction of some of our famous judges) as if they were literary texts. The imagery, narrative techniques, character portrayal, voice, tone, and other literary properties would be studied, compared, assessed. The focus would be on the text rather than on the theoretical apparatus that the analyst brought to it. The analysis would be "literary" only in paying close attention to the features of the legal text that a literary critic would attend to in a work of imaginative literature. (4)

That is not the way of Binder and Weisberg. They are not interested in legal texts as such. They are interested in "the law" at a high level of abstraction--namely law as a "cultural activity" and "a process of meaning making." (5) One wouldn't expect a working literary critic to have much to say about law so conceived; it invites theoretical reflection, and for guidance the authors turn to modern literary theory rather than to practical literary criticism.

Many readers will question both the focus and the instrument. Although law can certainly be described as a cultural activity, it is not obvious that this is a useful description. It invites the question: So what? Every human practice can be so described. And if the "so what" question can be answered (Binder and Weisberg do not try), still there are many perspectives from which to study cultural activity, and it is not obvious that literary theory is among the more promising. Modern literary theory involves a turning away from the classic works of literature to texts and practices (called "texts" also--everything is a text to today's literary theorists) that provide easier vehicles for making political points, invariably of a left-wing cast (though many of them contingently, not inherently, so) but decked out in a forbidding vocabulary drawn from a kaleidoscope of overlapping theories that go by such names as deconstruction, structuralism, poststructuralism, multiculturalism, hermeneutics, queer theory, postcolonialist theory, subaltern studies, reader response, reception theory, and the new historicism. These theories in their number and famously obscure jargon place a barrier rather than a magnifying lens between the literary scholar and the work of literature. They offend activists by channeling left-wing intellectual energies into politically inert obscurantism and faculty intrigue, and by inviting through their excesses right-wing ridicule that resonates with the general public and so pushes the intellectual Left further to the margin. Because postmodernist professors of literary and cultural studies "no longer think of themselves as citizens of a functioning democracy, they are producing a generation of radical students who think of 'the system' as irredeemable, and who therefore can think of nothing better to do with their sense of moral outrage than to fling themselves into curricular change." (6) To be of any practical use, leftist intellectuals must "giv[e] up the claim that philosophical or literary sophistication is important because it prepares us for the crucial, socially indispensable role that history has allotted to us--the role of 'critic of ideology.'" (7) "'On every campus ... there is one department whose name need only be mentioned to make people laugh....' [E]veryone knows that if you want to locate the laughingstock on your local campus these days, your best bet is to stop by the English department." (8)

The theory-mongering that is making laughingstocks of English departments is not an auspicious starting point for the study of law as a cultural activity. I think that Binder and Weisberg know this, for much of what they discuss under the rubric of literary theory is not modern, or is not literary theory at all, but instead belongs to history or to jurisprudence. When they do discuss modern literary theory they are critical (they explain in the introduction that the Romantic and Victorian conceptions of literature create the risk that literary theories will be sentimental, skeptical, or authoritarian), except for the new historicism, which is their preferred theory. But they are unable to identify any practical benefits that the legal system might derive from that or any other literary theory.

The book is divided into six very long chapters, each purportedly devoted to a different genre of literary criticism of law: interpretation, hermeneutics (viewed as a particular style of interpretation), narrative, rhetoric, deconstruction, and new historicism, or, the authors' preferred term, "cultural criticism." Each chapter reviews the history of its subject and summarizes the views of each of the principal theorists in a page or a few pages. So in eight pages on "The Hermeneutic Tradition" we zip from Schleiermacher to Dilthey to Nietzsche to Imgarden (taken out of chronological order) to Heidegger. (9) The summaries seem accurate, so far as I can judge, and give the book value as a reference work, but reading them consecutively, like counting beads on a string, is tedious.

The first chapter, on interpretation, is not about literary theory at all, which means that the book really doesn't get going...