The law, the norm, and the novel

• Date: 29 February 2008
• Published date: 29 February 2008
• DOI: https://doi.org/10.1016/S1059-4337(07)00603-5
• Pages: 53-77
• Author: Sara Murphy

THE LAW, THE NORM, AND

THE NOVEL

Sara Murphy

1. THE USES OF THE VICTORIANS

In Poetic Justice, Martha Nussbaum (1996) offers one version of an

argument frequently repeated in the history of law-and-literature scholar-

ship; to wit, that the literary imagination performs a salutary function with

regard to many domains of modern public life. While law and economics are

governed by logics of bureaucratic rationality and utilitarian calculus,

literature, in particular the novel, presents a counterdiscourse, inviting us to

empathize with others, expanding our moral sense, emphasizing the

importance of affect and imagination in the making of a just, humane,

and democratic society. Nussbaum’s broad goal is a commendable one;

concerned that ‘‘cruder forms of economic utilitarianism and cost-benefit

analysis that are yused in many areas of public policy-making and are

frequently recommended as normative for others’’ are, in effect, dehumaniz-

ing, she argues for the importance to public life of ‘‘the sort of feeling and

imagining called into being’’ by the experience of reading literary texts

(1996, p. 3). This sort of feeling and imagining, Nussbaum explains, fosters

sympathetic understanding of others who may be quite different from us

and a deepened awareness of human suffering.

Nussbaum’s book exemplifies a practice among law-and-literature

scholars of making arguments about the importance of literature to legal

Special Issue: Law and Literature Reconsidered

Studies in Law, Politics, and Society, Volume 43, 53–77

Copyright r2008 by Emerald Group Publishing Limited

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1016/S1059-4337(07)00603-5

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thought. A number of scholars have criticized the polarization of law and

literature that this approach entails, arguing that this type of argument

assumes an image of the literary as an unproblematic locus of sympathy and

virtue over against a conception of law as a soulless body of rules and

proscriptions (Baron, 1999, 2004;Binder, 1999;Sharpe, 1999;Peters, 2005).

In a recent article, Julie Stone Peters has pointed out that the effects of these

assumptions are anything but interdisciplinary: studies in law and literature,

she argues, ‘‘sought to break down disciplinary boundaries, but through the

imaginary projection by each discipline of the other’s difference, [they]

exaggerated the very boundaries [they] sought to dissolve’’ (2005,

p. 499). To the extent that this is an accurate description of things, we

might be better served by displacing efforts to break down boundaries in

favor of investigating the constitution and development of the boundaries

themselves. This chapter represents a modest effort at indicating some ways

such an investigation might be framed.

Poetic Justice presents a particularly compelling instantiation of

boundary delineation. Nussbaum’s analysis is structured around what

appears an inexorable chasm between modern modes of social control and

the field of the imagination, a faculty understood here to have particularly

moral potentialities. Because she relies so intensively on examples drawn

from the mid-Victorian period, Nussbaum’s discussion, perhaps unwit-

tingly, focuses our attention on a particular scene of mid-Victorian

disciplinary formation in which literature and governmental institutions

are often represented as not simply different, but in some central ways

opposed to one another. Part of what I want to argue here is that in so far as

this particular nineteenth-century opposition forms her interpretive horizon,

Nussbaum simply reiterates a set of relations between law, literature, and

the economic that we might instead interrogate. Viewed from another angle,

however, we can see that what is at stake among the Victorians is not really

a clear-cut opposition but a complicated struggle over the production of

social norms.

Nussbaum relies heavily on a formalist reading of Charles Dickens’ novel

Hard Times (1853), a fiction that itself develops an argument for the

importance of imagination over against a satirical image of mid-nineteenth-

century utilitarianism. For Nussbaum, Hard Times exemplifies the kind of

dichotomous relation between the world of imagination – personified in the

novel by young Sissy Jupe and her circus background – and the world of

facts and figures, personified by the philanthropic industrialist and future

M.P. Gradgrind. Dickens represents the dominance of utilitarian political

economy as effecting a complete perversion of morality: Bitzer, the star of

SARA MURPHY54