What is it like to be like that? The progress of law and literature's “other” project

• Published date: 29 February 2008
• DOI: https://doi.org/10.1016/S1059-4337(07)00602-3
• Pages: 21-52
• Date: 29 February 2008
• Author: Rob Atkinson

WHAT IS IT LIKE TO BE

LIKE THAT? THE PROGRESS

OF LAW AND LITERATURE’S

‘‘OTHER’’ PROJECT

Rob Atkinson

ABSTRACT

A central interest of the modern law and literature movement has been

how literature can show lawyers what it is like to be different from what

they are – in a word, ‘‘other.’’ This essay examines the course of that

‘‘other’’ project through three critical phases: the taxonomic, which

purported to give lawyers an external account of others, the better to

serve their own clients; the empathetic, which has tried to give lawyers an

internal account of others, the better to enable lawyers to improve the lot

of those others; and the exemplary, which holds up models of how lawyers

themselves might be more firmly and effectively committed to the

commonweal, particularly the good of others less well-off. It argues that

the law and literature movement should embrace this third phase of the

‘‘other’’ project. Although analytically last, this phase is chronologically

first, anticipated in Plato’s Republic. This essay concludes by placing the

Special Issue: Law and Literature Reconsidered

Studies in Law, Politics, and Society, Volume 43, 21–52

Copyright r2008 by Emerald Group Publishing Limited

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1016/S1059-4337(07)00602-3

21

exemplary phase of the ‘‘other’’ project at the center of the law and

literature movement’s mission, with the Republic at the core of the

movement’s canon.

And so the lawyer, whose highest problems call for a perfect understanding of human

character and a skillful use of this knowledge, must ever expect to seek in fiction as in an

encyclopedia, that learning which he cannot hope to compass in his own limited

experience of the humans whom chance enables him to observe at close range.

John Wigmore, A List of One Hundred Legal Novels.

My central subject is the ability to imagine what it is like to live the life of another person

who might, given changes in circumstance, be oneself or one of one’s loved ones.

Martha Nussbaum, Poetic Justice.

It is this particular that makes the study of history salutary and profitable: patterns of

every sort of action are set out on a luminous monument for your inspection, and you

may choose models for yourself and your state to imitate, and faults, base in their issue

as in their inception, to avoid.

Livy (1962),A History of Rome.

INTRODUCTION

This essay explores what is, in two senses, the law and literature movement’s

‘‘other’’ project. In the first and most significant sense, a central interest

of the modern law and literature movement, from the beginning, has been

how literature can show lawyers what it is like to be different from what they

are: in a word, ‘‘other.’’ As Thomas Nagel asked fellow philosophers to

redefine consciousness by asking themselves ‘‘What is it like to be a bat?’’

(Nagel, 1974), so the emerging law and literature movement asked the

legal profession to re-orient itself by experiencing the inner life of others in

listening to their stories.

This interest in the ‘‘other,’’ however, has never been the law and

literature movement’s only project

1

and, over time, that project has become,

at best, peripheral. This is the second sense in which it is the movement’s

‘‘other’’ project. The ‘‘other’’ project has become something of a neglected

stepchild, if not quite an embarrassing illegitimate, in the movement’s

extending family of tropes and themes.

My thesis is that the law and literature movement’s ‘‘other’’ project, if

properly appreciated, should move from the margin to the center, not only

ROB ATKINSON22

of the law and literature movement, but of a much wider front, inside

academia and out. To sustain that admittedly ambitious claim, this article

examines three phases, roughly chronological, of the ‘‘other’’ project:

the taxonomic, the empathetic, and the exemplary. The first offers a

scientific, or at least quasi-scientific, taxonomy of character types; the

second, a medium and method for empathizing with others, particularly

‘‘outsiders’’; the third, a pantheon of moral exemplars and a pandemonium

of villains. These three perspectives are reflected, respectively, in my

epigraphs; we will consider each of them in turn in the paper’s three parts.

The relationship among the three phases of the ‘‘other’’ project, we shall

see, is one of increasing complexity and ambitiousness. Examining that

relationship will illuminate the limits, even dangers, of the ‘‘other’’ project,

even as it reveals that project’s very great, but still largely unrealized,

promise. Behind the promise and the peril is a paradox. To overcome its

problems, the ‘‘other’’ project must become both more and less than it has

been: less, by acknowledging a legitimate division of labor between literature

and other disciplines; more, by transcending the confines of imaginative

literature as conventionally understood.

Unpacking this paradox will take us back to an earlier, even

more ambitious integration of reason and imagination that was the goal

of Plato’s Republic (Plato, 1968). On the one hand, it will require a re-

reading of the Republic informed by a post-modern skepticism about the

eternal values supposedly announced there. On the other hand, it will both

require and expand the possibility of renewed commitment to radically

improving the lot of humanity. It thus will be a re-reading that tries to do for

our post-modern time nothing less than what Kant attempted in the first

post-Enlightenment generation: restore a right balance between faith and

reason.

1. THE TAXONOMIC PHASE: CATALOGING LIFE’S

CHARACTERS TO HELP OUR CLIENTS

The first phase of the ‘‘other’’ project came well before what most consider

the beginning of the contemporary law and literature movement in the 1970s

(Binder & Weisberg, 2000, p. 3). Its paradigm, now nearly a century old, is

John H. Wigmore’s ‘‘A List of One Hundred Legal Novels.’’ This will serve

as a useful starting place because it is not only chronologically first, but also

theoretically simplest.

The Progress of Law and Literature’s ‘‘Other’’ Project 23