Review Essay: For the Love of the Law

Literature Compass, 2006

This essay examines the emerging ideological relation between literature and law in the Romantic era and the significance of this relation to modern Western conceptualisations of what constitutes 'law' and 'literature'. In particular, the article explores the problematics of juridical textuality in the Romantic period-the extent to which the law comes to be regarded as text-and seeks to set this within the context of developing conceptualisations of 'literature' as a juridically defined commodity. The modern understanding of 'literature' began to be shaped in the Romantic era by a juridical re-formulation of the relation between the author, the text, the reader and the publisher: creative, original writing-'literature'-becomes a commodity copyrighted to an author/publisher. This development is accompanied by the State's recognition of the growing cultural and political power of new and diverse textual forms in an era of the mass production and consumption of 'literature', and the article considers alongside the contemporaneous formulation of copyright regulations the draconian censorship of textual production in this period. With reference to diverse juridical and literary sources (Clara Reeve's The Progress of Romance, Blackstone's Commentaries, Bentham's Fragment on Government, Godwin's Enquiry and Caleb Williams, amongst others), I examine the extent to which these various phenomena reveal the subjection of textuality in the Romantic era to the modern force of law. Radical thinkers in the Romantic era began urgently to contest the legitimacy and consistency of national juridical discourse and, in so doing, they could be said almost to have anticipated certain late twentieth-century theorisations of law and language. 1 Theorists and activists interrogated the truth claims made by the law and in the work of William Godwin, Thomas Paine and James Mackintosh, for example, one can discern something close to Pierre Legendre's observation that 'every juridical system is guaranteed by a founding supposition [having] the status of a mythical justification for the system as a whole' (240). In the aftermath of revolution, as the law sought to re-enforce and often seemingly to re-invent the source of its authority, it became apparent to these writers and campaigners that an irrational and violent juridical order was being legitimised primarily through its myths of origin. The law was seen to 'hoodwink' (Paine 116) its subjects with its

Although Foucault can be rightly seen as one of the most influential thinkers of our times, his ideas have hardly been straightforwardly accepted. His vision of law in the modern era, in particular, has drawn some severe criticism. Scholar as diverse as Habermas and Poulantzas have expressed strong doubts with regards to Foucault's approach to law, accusing him of downplaying the role of the legal phenomenon in modern society to an unacceptable extent and with a distorting result. Such attacks are far from unwarranted. Foucault's argument appears almost counterfactual: How is it possible to claim that in the modern "age of rights" the individual, formally protected by a sphere of legal autonomy, is, in fact, subject to the continuous gaze of biopolitical forms of power? The present article is a contribution to the debate concerning this question. Focusing on the concept of the Rule of Law I will try to demonstrate that the basic tenets of the modern legal system are not incompatible with Foucault's reconstructions of the dynamics of modern power. My claim is that the problematic relationship between biopolitics and law within Foucault's theory is to be understood as the problem of the contemporary gendering of freedom. Building on Foucault's suggestion that freedom and power should be seen as an almost co-extensive couplet (and not as oppositional poles) I suggest that modern law does indeed foster individual liberty but it does so in a way that also allows a deeper penetration of power within the social body. In this perspective, I argue that the Rule of Law, shifting the legal paradigm from that of Hobbesian commands to that of the norm, proved instrumental for the flourishing of normalising dynamics that rely on the freedom of the individual for their establishment and propagation. Law, analysed through a biopolitical prism, appears as a normalising apparatus both in the sense that it translates the person into the discrete entity of the legal subject and in the sense that it provides the structuring rules framing the general landscape and environment of social life.

Social Identities, 2005

In Modernism and the Grounds of Law (hereinafter Modernism), Peter Fitzpatrick provides a deconstructive social theory of law in which the mythic foundations of the social contract as the central source of Western legal legitimacy is shown to rest on shaky foundations. In a critical sense it is the claims of legal positivism that are the symbolic and even phantasmatic target of Modernism . For example the protestations of globalisation (Modernism , pp. 183 /215) only reveal the claims of a global society that is structured around the ambivalent foundations of one version of the locale, that of Occidental neo-liberalism (Norrie, 2003, p. 124). As Alan Norrie notes this is a ‘patient depiction of the theoretical foibles of modernity’, and of the claims of positivism in both legal and sociological guise. It shows how legal discourse is thoroughly implicated not just in the discourse of race, but how the very identity of Western law was formed and continues to be generated through the relation with racialised forms of alterity. This argument will be of interest to anyone working with critical legal theory in general and for those researching in law and postcolonial studies comparative law specifically. Fitzpatrick’s approach to the questions of foundations is implicitly inspired by what Lyotard characterised as a consensus that is never reached for ‘somebody always comes along to distort the order of reason’ (1984, p. 61), and thus ensures that the search for an origin, the origin of modernity, of the universal, or of the nation is destined to remain structured by an aporia that signals the productive irresolution of signification (Derrida, 1982, p. 6). In a sense presence is always to arrive in the future. The absence of ground for Fitzpatrick is characterised by the phantasmatic core of legal positivism, the illusive beyond of law that functions as its paradoxical origin (Modernism , pp. 97 /101). Modernism opens by documenting the grounds of law that Freud essays in Totem and Taboo . This sets up the argument for the rest of the book. Civilisation must constantly repeat its foundational moment, but this act of repetition is always

2010

Vol. 26(2) 208–229

This article critically engages with a particular reading of Jacques Derrida’s deconstructive legal theory which argues that his methodology marginalizes engagements with the ‘socio-historical’ of law at best or is incapable of such engagements at worst. After explaining this meta-ethical reading, the piece offers a retort via a broader and more in-depth reading of Derrida’s legal theory. Here the article problematizes the distinction at the core of the meta-ethical reading; this being that Derrida’s work established a mutually exclusive separation between a ‘sociolegal’ critique of law and one considered of ‘critical legal theory’. This separation will be shown to be misleading by firstly referring to Derrida’s essay ‘Force of Law’ and arguing that therein the sociolegal and ‘critical legal’ theories are in fact mutually dependant and that Derrida’s concept of surenchère illustrates this. Secondly, a wider reading of Derrida’s work will then illustrate that such a conceptual binary is incompatible with his deconstructive metaphysical critique. This will be evidenced with reference to what is argued to be the central point of the meta-ethical reading, something which is itself born from Derrida’s work; this being the distinction between la and le politique, ‘politics’ and ‘the political’. With due regard for the history of this important and complicated deconstructive distinction, it will be argued that the reductive reading in the meta-ethical critique does not do justice to the inherent paradox in maintaining a separation between sociolegal theory, la politique, and critical legal theory, le politique.

Law was once seen as a way to achieve Truth, as in the Greek origins of western though. Later, it has been politicized and organized by the Romans, achieving the status of an Art. Modern times, however, perceive Law as a technical tool to achieve Truth, caring more about the maintenance of the organization frames of social spaces already set by given and enforced laws than about justice or fairness. I recover the ancient Greek conception of the Truth to question whether Law could once again be seen as an Art. In the context of the bureaucratic world we live in, where art is not regarded a source of Truth, but of entertainment, performance art emerges as a possible breakthrough and the perfect ally to lighten the performative perspectives of Law by questioning the management of social spaces. The fact that performers stage their art with their bodies might be the key element to reveal a new aesthetic era for the Law.

NyUL Rev., 1985

Recent legal scholarship has engaged in a growing dialogue tying literary cn"licism to jurisprudence. In this article, Pro/essor Robin West adds her voice by advocating the reading oj legal theory as a form of narratil'e. Drawing from Northrop Frye's Anatomy of Crilicism. Professor West first derails four literary my/Its thot combine contrasting)f,wld visions and norrotilYi methods. She then applies Frye's categories to Anglo-American jurisprudential traditions and employs aesthetic principles to analyze influential/egol theorists within these traditions. Finally. Professor West argues thot recognizing rhe aesthetic dimension of legal debate/rees u.s to realize our moral ideals. I NTRODUCTION It is now a commonplace that lawyers and legal theorists have much to learn from literature.' We surely can learn something about the law NEW YORK UNIVERSITY LAW REVIEW [Vol. 60:145 persistently employ narrative plots at strategic points in their arguments. relating romantic sagas about mythical commanders and communities and saturating their writings with realistic anecdotes from lawyers' and judges' subjective experiences of law.) Fictive protagonists also play an important role in legal theory: Dworkin's heroic "Herculean" judge and Holmes's one-dimensional "bad man," for example, are central devices by which these jurists convey their conceptions of the meaning of law. It is not surprising that legal theory should rely so heavily upon narrative form. The subject matter of legal theory is the "nature of law." This nature is partly revealed by the content of law-its history and political and economic underpinnings. Examining law as a "fact" can help us understand what law is and what it has been in the past. But law is also an ever-present possibility, potentially bringing good or evil into our future. The nature of law is also revealed, then, by our aspirations for and our fear of law: fantasies and nightmares revolving around power, reason, and authority. When we discuss what is, we rely quite rightly upon description and analysis. But when we discuss what is possible, what we desire and what we dread, we quite naturally tum to stories about hypothetical communities and the legal actors and forms within those communities. If legal theories are, in part, aesthetic objects, then we should be trying to understand them in that sense. This Article argues that the narrative plots, protagonists, and images of major legal theories do, in fact, fall into recognizable literary categories. It develops this thesis by applying to legal theory the insights of a classic work of literary criticism, Northrop Frye's Anatomy of Criticism. 4 In this work, Frye, premiere

Law and literature, an exemplary product of the textual turn in the study of culture, has found itself challenged by the more recent visual turn in critical thought. However, debate hitherto has been largely based on a two-dimensional approach to the visual. By going beyond the metaphor of the 'legal screen' in favour of a theory of the 'statuesque', this essay adds a new dimension to the way we think about the force of law in culture. Drawing on eighteenth-century and contemporary aesthetic theory, and twentieth and twenty-first century public art, the article presents an account of the political aesthetics of law in which a place for the possibility of justice may be made.

Elgar Concise Encyclopedia of Law and Literature, 2025

Law and literature has seemed variously to be one of the most obvious and one of the most improbable interdisciplinary conjunctions. Obvious, because both disciplines depend fundamentally on words and stories, and on the problems they create, raising questions about interpretation, narrative, genre, style and rhetoric, allusion and citation. Improbable, because literature appears (to some) to exist for purposes of entertainment and imagination, whereas law must provide definite answers to concrete disputes, and (according to this critique) cannot indulge in speculation or ambivalence. The present volume takes an agnostic, not an antagonistic, position on whether law kills or literature cures, or whether such ascriptions or prescriptions are even meaningful. The volume is constructed on a foundation that proceeds from the view that the most productive interchanges do not arise from investigations of specific legal problems but from more open-ended inquiries into the various ways that legal and literary resources converge and diverge. Readers will find entries that confront vexed and vexing problems of law and its history: abolition, blackmail, civil rights, death penalty, despotism, forgery, hate speech, imperialism, incarceration, murder, obscenity, refuge/asylum, slavery, and treason, to name a few. We have also taken the ambit of the literary to encompass a wide range of media, rather than restricting it to canonical novels, plays, and poetry. Readers will find entries on comedy, tragedy, detective fiction, gothic fiction, novel, realism, satire, and science fiction, and also on other forms, fashions, and media—advertising, online fan fiction, music, television, the film industry, photography, theater, and visual literacy. Our aim has been to give a sense of the various imaginative forms that creative artists have used to explore legal concepts and methods, and that scholars have discussed when examining these relationships, while also providing suggestions as to future avenues of research.

Reading Modern Law: Critical Methodologies and Sovereign Formations (Routledge, 2012) (edited with Ruth Buchanan and Stewart Motha), 2012