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Reading for the Law

Reading for the Law: British Literary History and Gender Advocacy

Copyright Date: 2010
Pages: 320
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  • Book Info
    Reading for the Law
    Book Description:

    Taking her title from the British term for legal study, "to read for the law," Christine L. Krueger asks how "reading for the law" as literary history contributes to the progressive educational purposes of the Law and Literature movement. She argues that a multidisciplinary "historical narrative jurisprudence" strengthens narrative legal theorists' claims for the transformative powers of stories by replacing an ahistorical opposition between literature and law with a history of their interdependence, and their embeddedness in print culture. Focusing on gender and feminist advocacy in the long nineteenth century,Reading for the Lawdemonstrates the relevance of literary history to feminist jurisprudence and suggests how literary history might contribute to other forms of "outsider jurisprudence."

    Krueger develops this argument across discussions of key jurisprudential concepts: precedent, agency, testimony, and motive. She draws from a wide range of literary, legal, and historical sources, from the early modern period through the Victorian age, as well as from contemporary literary, feminist, and legal theory. Topics considered include the legacy of witchcraft prosecutions, the evolution of the Reasonable Man standard of evidence in lunacy inquiries, the fate of female witnesses andpro selitigants, advocacy for female prisoners and infanticide defendants, and defense strategies for men accused of indecent assault and sodomy. The saliency of the nineteenth-century British literary culture stems in part from its place in a politico-legal tradition that produces the very conditions of narrative legal theorists' aspirations for meaningful social transformation in modern, multicultural democracies.

    eISBN: 978-0-8139-2897-5
    Subjects: Language & Literature

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-xiv)
  4. Introduction: Theory, Advocacy, and History
    (pp. 1-22)

    I take the title for this book from the British term for legal study, “to read for the law.” The principal question I address is how “ reading for the law” as literary history c an contribute to the progressive educational purposes for which the Law and Literature movement was founded. I intend a sympathetic critique of Law and Literature from the perspective of literary and legal history, one meant to supply evidence for more robust and judicious appeals to literature and law for both scholarship and teaching. At a time when the field of literary scholarship was first registering...

  5. PART ONE. Precedent

    • CHAPTER ONE Historiographies of Witchcraft for Feminist Advocacy: Historical Justice in Elizabeth Gaskell’s Lois the Witch
      (pp. 25-52)

      Precedent and trauma are historiographic concepts describing continuity or persistence of a phenomenon over time. Both theorize how even the distant past may remain—for better or worse—a living force. Neither, however, accounts for change, attaching instead to acts of obsessive repetition. The prosecution of witches may seem a topic remote from any aspect of gender advocacy on which Victorianist literary critics and narrative legal theorists might productively converse. Felony sorcery legislation was repealed in Britain just over a century before Victoria ascended the throne. And yet, as precedent and trauma, witchcraft prosecution survived, not only into the nineteenth...

    • CHAPTER TWO Witchcraft Precedents as Literary History: From The Discoverie of Witchcraft to Sir Matthew Hale
      (pp. 53-75)

      Witchcraft was perhaps the first crime legal historians understood as having been created discursively. The Victorian legal historians Sir Frederick Pollock and Frederic William Maitland remarked that “sorcery is a crime created by the measures which are taken for its suppression.”¹ The crime of witchcraft was defined as much by its modes of publication as by its modes of suppression, however. Whereas actual prosecutions arose and subsided for what appear to have been particular, discrete, and even personal causes, such as those proposed inLois the Witch, literature on witchcraft prosecution has continued to fl ow steadily since the sixteenth...

    • CHAPTER THREE The Historical Turn in Witchcraft Literature: From Enlightenment Historiography to Historical Realism
      (pp. 76-98)

      Francis Hutchinson’sAn Historical Essay Concerning Witchcraft(1718) was the first skeptical treatment of the witch trials styled a “history.” It aligned the skeptical tradition with advocacy on behalf of women and demonstrates the interconnections between historical interpretation and legal reform that remain a significant strain in witchcraft studies. Hutchinson worried that the “legends” being promulgated through the popular press would overwhelm sober historical analyses and spread the superstitions that might provoke new waves of prosecution. Hutchinson had met the last woman to have been convicted of witchcraft, Jane Wenham, whom Lord Chief Justice Holt had spared after her 1712...

  6. PART TWO. Agency

    • CHAPTER FOUR Theories and Histories of Agency: Mary Wollstonecraft’s Narrative of the Reasonable Woman
      (pp. 101-125)

      Reasonable Persons did not exist in nineteenth-century Britain, though the Reasonable Man surely did. The Reasonable Person is a legal fiction of late-twentieth-century American jurisprudence, a standard of proof created in response to the perceived inadequacy of the Reasonable Man as a norm by which to judge evidence in sexual harassment suits, or where self-defense is pleaded by a woman accused of murdering her abusive husband, or other such cases in which the courts have understood gender to hold peculiar evidentiary signicance.¹ That critique holds that the Reasonable Man standard, by excluding relevant evidence, denies equal treatment under the law.²...

    • CHAPTER FIVE Agency, Equity, Publicity: Compos Mentis in Charles Reade’s Hard Cash and Lunacy Commission Reports
      (pp. 126-154)

      The history of agency in the law is embedded in a complex matrix of issues, including culpability, contract, and property ownership. Rationality as a qualification for legal judgment is itself a product of Enlightenment liberalism: the Reasonable Man emerges to replace the aristocratic man as the repository of decision-making power. Robert Unikel remarks that “it is difficult to pinpoint the precise origin of the legal concept of ‘reasonableness.’ ”¹ However, he notes its early use in a treatise on property, An Essay on the Law of Bailments (1781), by Sir William Jones, who wrote that “the omission of care,which...

  7. PART THREE. Testimony

    • CHAPTER SIX Gendered Credibility: Testimony in Fiction and Indecent Assault
      (pp. 157-185)

      Lewis Carroll’s dystopic legal fantasy, unlike the experiences of women denied legal agency discussed in part 2, resolves into a happy ending. Alice refuses to sit quietly by at the nightmarish Knave of Heart’s trial and her words magically release her from the bad dream of legal entanglement. What is more, they reduce the court to silent, agentless objects—a mere pack of cards. Carroll’s target certainly includes actual legal practice, but here, law is preeminently a metaphor for the adult world of force thinly disguised by rational procedure. Alice, doubly disenfranchised in the real world as a minor and...

    • CHAPTER 7 Women’s Legal Literacy and Pro Se Representation: From Griffith Gaunt to Georgina Weldon
      (pp. 186-200)

      “The man who defends himself has a fool for a client” is an old saw, heard whenever some poor sod, or raving lunatic, rejects legal counsel and chooses to exercise his right to represent himself. Unconcerned with the justice of his case, the phrase declares thepro selitigant guilty not merely of imprudence, but of unseemly display through a vulgar breach of professional legal etiquette. But type “pro serepresentation” into Google, and you will find hundreds of sites dedicated to disparaging lawyers and all their works and offering advice for the prospectivepro selitigant. Their central claim...

  8. PART FOUR. The Motives of Advocacy

    • CHAPTER EIGHT Concealing Women’s Mens Rea: Advocacy for Female Prisoners and Infanticidal Mothers
      (pp. 203-236)

      A primary aim of narrative legal theory, as has been evident throughout this study, is the use of narrative—with or against legal discourse—to bring unrecognized groups into representation and thereby to win them legal recognition. In this final section, I wish to call into question the central premise of narrative legal theory,viz., that the goal of gender advocacy should always be to bring disenfranchised groups into representation. While this is a compelling agenda, the history of “hyperrepresentation,” beginning with the advent of mass-circulation publications and mass literacy in the nineteenth century, suggests that literary and legal advocacy...

    • CHAPTER NINE The Secret Agency of Juries: Forging Resistance against Sodomy Prosecution
      (pp. 237-254)

      Narrative jurisprudence aims at influencing legal decision making, yet legal decision making itself is stubbornly opaque. Whereas judges’ written decisions cite precedents and principles, the more complex motivations of those decisions are not made evident in documents. What is more, in the cornerstone of Anglo-American legal procedure, the trial by jury, decision making is even more obscure, what Barbara Shapiro has termed the great “black box” of legal history.¹ And as Carol J. Clover has remarked, “The rules of evidence and protocol that are designed at the point of production to maximize fairness are, at the point of reception, a...

  9. Notes
    (pp. 255-272)
  10. Bibliography
    (pp. 273-290)
  11. Index
    (pp. 291-302)
  12. Back Matter
    (pp. 303-305)