The Rhetoric of Law and Literature

Abstract:     
This short piece, prepared for a symposium revisiting Richard Weisberg's 'The Failure of the Word', focuses on the structure of claims that are often made about law's relationship to literature. These claims purport to contrast literature, portrayed as textured, nuanced, and emotionally resonant, with law, portrayed as a dessicated, abstract world composed mainly of rules. Rhetorically, this contrast constructs and entrenches a highly contestable definition of law's boundaries even as it purports to describe them. Worse, by assuming that law is an independent space mostly bounded by rules, and that literature is a separate and contrasting space, the strategy suggests a rather impoverished view of interdisciplinarity. In this view, interdisciplinary work is work that crosses borders; if what is inside the realm of literature were already inside law, there would be nothing interdisciplinarity could accomplish.

Although Weisberg inverts the usual rhetoric of opposition, and instead draws parallels between law and literature, his work is nonetheless reminiscent of that part of law/literature rhetoric that associates almost everything worth having - emotions, sensitivity to context, respect for variety and otherness in human nature - outside of law, while associating law itself with abstraction, cerebration, blindness, and moral indifference. Despite this problem, I argue, Weisberg's project exemplifies one of the more admirable ambitions of the law/literature enterprise, the ambition to make lawyers and judges explicitly aware of, and accountable for, the ethical dimensions of their conduct. Whether right or wrong, Weisberg's infamous analysis of Billy Budd suggests that moral values inhere in the law itself and therefore do not have to be hijacked from a separate domain located "outside" of law.

Number of Pages in PDF File: 9

Keywords: Law and literature, interdisciplinarity, interdisciplinary

Accepted Paper Series