What Remains 'Real' About the Law and Literature Movement? A Global Appraisal

Abstract

For several decades, the reincarnation of studies labeled Law and Literature has served to enliven, challenge, and threaten traditional legal discourse. Always in implicit competition with the interdiscipline of Law and Economics, Law and Literature has withstood (and been strengthened by at least some) criticism from within and without. Recognized in late century and beyond as one of the primary contributors to North American jurisprudence, Law and Literature continues to inspire from both sides of the aisle a discourse not so much of ironic abhorrence of the law as of an aspiration to just norms of law and an insistence that perennial deviations from such norms are neither inevitable nor inexplicable. In many iterations, and in what follows here, Law and Literature seeks the reunion of the fields, conjuring a 2000-year- old continuum from Cicero to Cardozo as a challenge to more obvious and more flawed trajectories, some of which — like the development of mainstream Western religious discourse — have arguably brought about these deviations.

This essay first brings the non-specialist reader up to date on the various claims, counterclaims, and provocations connected to American Law and Literature scholarship. It reveals that the field has burst through to dynamic invocations in many other countries. Finally, it restates what is always already there in the modern version of the interdiscipline: the rigorous assessment through stories of the way law operates, of how it is interpreted by its major speakers, and of how — above all — its minor, major, and catastrophic errors can be traced through the unique medium of stories to idiosyncratic deviations in the words and deeds of authoritative lawyers and judges. The path to justice always is readily available in these stories; it is the identifiable reason for its denial that helps the practitioner understand and correct why law so often goes terribly wrong. The claim is that only fictional narratives, which move through time together with characters whose actions and words are revealed, permit us to understand dynamically the jurisprudence of our era.