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

Published date29 February 2008
Date29 February 2008
AuthorRob Atkinson
Rob Atkinson
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
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.
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
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
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
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

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