The law, the norm, and the novel

Date29 February 2008
Published date29 February 2008
AuthorSara Murphy
Sara Murphy
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
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

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