Special Issue Law and Literature Reconsidered: Volume 43

The phrase “e proboscis unum,” a parody on the more familiar Latin phrase that means “out of many one” is taken from the courtroom scene of the 1964 Broadway musical Hello, Dolly! In this scene, the entire cast is under arrest for disturbing the peace, but the young impoverished clerk Cornelius Hackl takes the opportunity to proclaim his love for the milliner Irene Molloy in the song “It only takes a moment.” The matchmaker Dolly pokes fun at the judge, the figure of authority, by commenting on the appearance of his nose, which she characterizes as “a flaming beacon of justice” and “living symbol of the motto of this great land,” “e proboscis unum.” The bickering, fighting crowd, however, in spite of the parody, are transformed into a community as they witness the young man's declaration. As this episode shows, popular culture reads the law and the courts as making possible a space for personal transformation and transformative sociality. The recent debate about same-sex marriage in Massachusetts shows that both individual persons and the law itself are open to a process of mutual transformation. The chapter uses Hello, Dolly!, the 2003 Massachusetts Supreme Court decision on same-sex marriage, and Shoshana Felman's The Juridical Unconscious to argue that the study of law and literature is crucial in the current academic environment in which many critics, influenced by Giorgio Agamben, argue that law and the courts are merely the space for the exercise of the state's sovereign power to carry out punishment.

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 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.

In Poetic Justice, Martha Nussbaum (1996) offers one version of an argument frequently repeated in the history of law-and-literature scholarship; 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…used in many areas of public policy-making and are frequently recommended as normative for others” are, in effect, dehumanizing, 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.

Although criticized as illegitimate, literary elements are necessary features of legal argument. In a modern liberal state, law motivates compliance by justifying controversial prescriptions as products of an appropriate process for representing the will of society. Yet because law constructs the will of individual and collective actors in representing them, its representations are necessarily figurative rather than mimetic. In evaluating law's representation of society, citizens of the liberal state are also shaping their own ends. Such self-expressive choices, subjective but non-instrumental, entail aesthetic judgment. Thus the literary elements of rhetorical figuration and aesthetic appeal are fundamental, rather than merely ornamental, to legal justification.

Textuality within the Western tradition has functioned in Derrida's analysis as the essential, yet disavowed supplement of a logos that perpetually sets itself against the necessary interventions of writing. Derrida compares textuality to a pharmakon, an ambivalent substance that has the capacity to act as both poison and cure. The ‘cure’ that textuality offers to the law pertains to the law's inability to establish its own permanence, or presence, without some literary intervention: only once it is ‘put into writing’ does the law remain ‘on record’, its permanence ‘ensured [by the text] with the vigilance of a guardian’ (Derrida, 2000b, p. 113). At the same time, however, textuality could be said to commit a kind of crime against the logos: it improperly appropriates the ‘presence’ of the law, steals it and substitutes itself for it. Writing is, as Maurice Blanchot puts it, ‘the enemy of all relationships of presence, of all legality’ (Blanchot, 1987, p. 156). The law's ‘presence’ nevertheless depends upon this criminal narrativity. In particular, the emergence of law requires the emergence of a narrative capable of resolving the trauma that attends the inception of communal and individual subjectivity: the law acquires its ‘presence’ only after a certain violent communal fantasy has established a vital untruth about the law's origins. The founding moment of Western law is a representation of a fictive transgression that serves to account for the terrifying, symbolically unrepresentable rupture that separates the individual and the community from the pre-symbolic void. In order for the law to take its place, it is necessary to stage a ‘crime’ and then to re-present it as the law's sure foundation. This crime is parricide and Derrida links it explicitly to the advent of narrativity as the law's uncanny, necessary condition of being:[…] this quasi-event bears the marks of fictive narrativity (fiction of narration as well as fiction as narration: fictive narration as the simulacrum of narration and not only as the narration of an imaginary history). It is the origin of literature as well as the origin of law – like the dead father, a story told, a spreading rumour, without author or end, but an ineluctable and unforgettable story. (Derrida, 1992, p. 199)

Over the past few decades, the law and literature movement has fragmented, expanded, and evolved to include fields as diverse as hermeneutics and narrative theory. This chapter discusses the developments in and contributions of these two strains of the law and literature movement and argues that each respectively provides us with important ways of seeing acts of interpretation and the use of stories in the legal culture. Hermeneutics provides an understanding of the phenomenon of interpretation that avoids the trap of choosing originalism or postmodernism as the accepted method of interpreting legal texts. Narrative theory provides tools for understanding and critiquing the burgeoning use of stories in the law.

Reading African American literature through the lens of American legal history broadly construed and reading American legal history through the lens of African American literature reshapes both texts of American experience and provides new readings of the literature and new perspectives on the law. Consequences for the understanding of each socially constructed “text” of reality proceed from examining their common narratival practices, specifically calling for a new periodization and taxonomy of African American literature and for a new “romantic” history of American law.