The Law-as-Literature Trope

Abstract

Rather than trying to apprehend the Law and Literature movement as a theory or hypothesis, this essay tries to apprehend it as a literary genre by reading its identifying trope, the analogy of law to literature. Drawing on romantic ideas of literature as liberating and Victorian ideas of literature as edifying and civilizing, the law-as-literature trope is too easily invoked in support of emptily skeptical or sentimental critiques of legal arrangements, or genteelly authoritarian apologies for them. The essay examines five variants of the law-as-literature analogy as deployed in legal scholarship, each emphasizing a different model of literary activity (interpretation, narration, rhetoric, signification, and representation). The first three illustrate the risks of skepticism, sentimentalism and authoritarianism respectively. The fourth illustrates the risks of both skepticism and sentimentalism. The fifth, combining insights from the others, shows promise of checking their deficiencies. Rather than imagining literature outside of law as an aesthetic reproach to law’s crass instrumentalism, a focus on law as an arena for representing and contesting identity can illuminate the ways in which legal advocacy and negotiation involve aesthetic choices that shape the expressive possibilities of culture.

Keywords: law and literature, jurisprudence, cultural studies, interpretation