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Literary Criticisms of Law

Literary Criticisms of Law

Copyright Date: 2000
Pages: 440
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  • Book Info
    Literary Criticisms of Law
    Book Description:

    In this book, the first to offer a comprehensive examination of the emerging study of law as literature, Guyora Binder and Robert Weisberg show that law is not only a scheme of social order, but also a process of creating meaning, and a crucial dimension of modern culture. They present lawyers as literary innovators, who creatively interpret legal authority, narrate disputed facts and hypothetical fictions, represent persons before the law, move audiences with artful rhetoric, and invent new legal forms and concepts. Binder and Weisberg explain the literary theories and methods increasingly applied to law, and they introduce and synthesize the work of over a hundred authors in the fields of law, literature, philosophy, and cultural studies.

    Drawing on these disparate bodies of scholarship, Binder and Weisberg analyze law as interpretation, narration, rhetoric, language, and culture, placing each of these approaches within the history of literary and legal thought. They sort the styles of analysis most likely to sharpen critical understanding from those that risk self-indulgent sentimentalism or sterile skepticism, and they endorse a broadly synthetic cultural criticism that views law as an arena for composing and contesting identity, status, and character. Such a cultural criticism would evaluate law not simply as a device for realizing rights and interests but also as the framework for a vibrant cultural life.

    eISBN: 978-1-4008-2363-5
    Subjects: Language & Literature, Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
    (pp. ix-2)
    (pp. 3-27)

    This book explores the uses of literary criticism in understanding and evaluating laws, legal institutions, legal arguments, and the decisions of legal actors. It identifies the sources and aspirations of this growing field of scholarship, explicates and evaluates its achievements, and recommends the most fruitful directions for future literary criticisms of law.

    The Law and Literature movement emerged in the 1970s around the time that the rival Law and Economics movement was achieving notoriety. The early Law and Literature scholars set themselves the twin tasks of defending judicial discretion and informing its exercise with Kantian liberal values. They anticipated that...

  5. CHAPTER ONE Interpretive Crises in American Legal Thought
    (pp. 28-111)

    The principal case for the relevance of literary theory to law casts literary theorists as experts on interpretation. Thus, the claim that law is literary most often precedes an argument that interpretation is the central activity of legal actors, that interpretation is nevertheless a lawless enterprise in need of legitimation or critique, and that literary theory, habituated to the wilder thickets of the human mind, can gently hedge legal interpretation, or free it to realize its potential. Literary theory, in short, can supply criteria for a hermeneutic criticism of law.

    In identifying interpretation as a contestable enterprise, Law and Literature...

  6. CHAPTER TWO Hermeneutic Criticism of Law
    (pp. 112-200)

    The Civil Rights era precipitated an interpretive crisis in Progressive jurisprudence by setting Progressive judicial activism against the social custom on which Progressive jurisprudence had long based legal interpretation. Legal theorists could no longer think of legal interpretation as a mirror of society. Legal interpretation was part of a “process” of “dialogue” with society, a stimulus to provoke majority deliberation on matters of “principle.” The role of the judge in this dialogic process was a demanding one, requiring incisive social criticism, inspiring vision, and rhetorical charm. The “legal process” seemed to require a judicial artist with the skills of a...

  7. CHAPTER THREE Narrative Criticism of Law
    (pp. 201-291)

    In the late 1980s, a symposium on “Legal Storytelling” appeared in theMichigan Law Review.Kim Scheppele’s foreword announced that “narrative [has] become an important and recurring theme in legal scholarship.”¹ Richard Delgado, the symposium’s organizer, noted that numerous legal scholars had begun to write “dialogues, stories, and metastories,” or had “dared” to “inject narrative, perspective, and feeling . . . into their otherwise scholarly, footnoted articles.” He added that many of these scholars are members of “outgroups . . . whose voice and perspective—whose consciousness—has been suppressed, devalued, abnormalized.”² Since the publication of this joint manifesto, narrative...

  8. CHAPTER FOUR Rhetorical Criticism of Law
    (pp. 292-377)

    One important strand of the Law and Literature movement urges that law reconnect to its roots in rhetoric.¹ While the claim that law is really a kind of literature has an air of paradox, identifying law with rhetoric—the art of persuasion—seems almost obvious. Yet the venerable history of “rhetoric” gives the Law as Rhetoric trope connotations that are more esoteric than self-evident.

    Rhetoric’s origins associate it with classical literature and philosophy. For contemporary legal scholars, it is often linked to the ideal of a civic republic in which politics engages all citizens, but in a disinterested way. According...

  9. CHAPTER FIVE Deconstructive Criticism of Law
    (pp. 378-461)

    Poststructuralist literary theory, especially in the form of Jacques Derrida’s “deconstruction,” has been influential in legal scholarship since the early 1980s. This influence is most immediately traceable to the conjunction of four events. First, of course, the interpretation debate raised the salience of literary theory in the legal academy. Second, in the late 1970s, Duncan Kennedy incorporated the nonliterary structuralism of psychologist Jean Piaget and anthropologist Claude Lévi-Strauss in law review articles that became the canonical texts of the Critical Legal Studies movement. Third, the American publication in the late 1970s of Derrida’s two most important theoretical works,Of Grammatology...

  10. CHAPTER SIX Cultural Criticism of Law
    (pp. 462-540)

    A familiar view of law in modern society presumes that the coercive force of the state must be justified by consent: the consent of individuals to private arrangements or the consent of populations to public policies. Legal judgment, then, polices the disputed boundaries between public and private, mine and thine, consent and coercion. The fundamental operation of law is to identify legal persons, entitlements, and preferences; when law has identified all of these, it has fully represented society. On this view of law, authority is vested solely in human will, and it is the essentially mimetic task of law to...

  11. INDEX
    (pp. 541-544)