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A Defense of Law-and-Literature

In Arts & Letters, Jurisprudence, Law-and-Literature, Legal Education & Pedagogy, Literary Theory & Criticism on May 7, 2010 at 2:58 pm

“Why study literature in professional school?” people have asked when I said that I work in a discipline called law-and-literature. I usually reply, “For the same reason we study math from elementary school until college: to learn about ‘truth.’”

The concept of “truth” has become the subject of ridicule. The postmodern era of scholarship, with its roots in poststructuralism, deconstruction, and narratology, ushered in new conceptions of metaphysics and ontology: all texts, indeed all things emanating from texts, whether cultural norms or social values, are at variance with themselves. Nothing has essential meaning; everything is indeterminate and arbitrary. The self-evident “meaning” perceived by individuals is socially constructed, having been centered or passed down through networks of people and events. These, at any rate, are the simplistic accusations put forth by those fed up with postmodernist presuppositions.

I’m no enemy of postmodernism, but I tend to agree with French theorist Bruno Latour, who claims that we have never been modern, so we cannot have been postmodern, and besides, there is something to this concept of “truth.”  Why else would we have mathematics? Mathematics, like literature, has the capacity to bring about answers. True answers. Postmodernism has never quite debunked this truth-seeking field.

Even if mathematics is a pattern of metaphors, its function is to arrive at reality. There is no such thing as a number one floating around in the world, but there is a symbol, a numeral, that we associate with the number one, and there are actual, tangible objects that can be counted (one apple, one tree, and so on). The language of mathematics reveals things as they are. It does not necessarily describe external referents. It simply utilizes shapes, motions, and signs to understand the laws of the world and then seek out practical applications for those laws. It has a syntax, and its jargon can be incomprehensible to laypeople. I for one can’t explain what an arctrigonometric function is or does.

Language and literature can function like mathematics.

Mathematics is not, and cannot be, divorced from language and literature. Words are signs that stand in the place of the referent, or the reality that exists in the world. Words are signifiers. What they describe—i.e., the referent—is the signified.

From this basic premise follow various strains of academic discourse often institutionalized as either semiotics, stylistics, or grammatology, though these labels do not capture the heterogeneity of the movements. When left to their own devices, humans create meaning through the medium of language; cultural customs organize along lines of discourse. Language even begins to shape social institutions (like law) and the tools (like currency) that allow institutions to function. What’s a dollar if not a green metaphor for value?

I once traveled to Cambodia without first reading about the local currency. In the airport in Phnom Penh, I exchanged American dollars for Cambodian Riel. It wasn’t five minutes later, after my taxi driver deposited me onto a dirt road in a seedy part of town, that I realized that the white paper bills in my hand (were they pink?) were almost worthless. Their value was enough, thank heavens, to pay a man to point me towards my hotel.

This unfortunate experience taught me that language—in this case money—must have an audience, indeed is fashioned with response and reception in mind. The paper money was created for some form of use or exchange. To follow the logic of the system, I needed, if not fluency, then at least some greater familiarity with the local grammar. Dumping myself into an unknown culture and forcing myself to get around was like language immersion. I had to figure out, by testing and process of elimination, how to negotiate conflict and navigate culture.

All knowledge is, in this sense, interpretation. An utterance is a rule, be it a sound or a sign, such as writing, that people follow to communicate. When enough rules are established, a system of law emerges. Culture mimics language. It’s a form and function of communication. It enacts and reproduces rules and regulations. It creates and sustains a legal system.

It follows that a sustained study of literature and language produces a deeper understanding of law than would “regular” law school courses in which students, through no fault of their own, go about the motions—studying, memorizing, reciting—without any awareness of what they are really doing.

Like mathematics, great literature can give access to truth.

Mathematicians, more often than authors of imaginative literature, sets out to uncover truths about the world. If an author of imaginative literature reveals a truth about the world or the human condition, he or she probably does so accidentally. But he or she has accomplished something extraordinary, even if it might seem mundane.

To deny that there exist certain truths about the human condition is to stand against morality, justice, fairness—the perennial themes that frame our legal system. Are these socially constructed, or do they have roots in individual psyches or natures?

Why shouldn’t we view literature and language as vehicles for truth? Why shouldn’t we view mathematics as beautiful? Why can’t a mathematician be an aesthete? Not being a “math person,” I confess the notion of a beautiful proof or theorem strikes me as odd. But a beautiful reality—that’s something I can appreciate.

Literature belongs in law school curricula. It belongs because it extracts reality through imaginative forms rendered in concrete signifiers. It is not merely rhetorical but referential. It shows how law functions and how systems and representations are secondary to true meaning. We use literature the way we use numeral systems: to make sense of the realities that we know are there, but that we have difficulty articulating.

The ontology and etymology of law have always troubled jurisprudents. The questions they raise are especially pressing today, when we hear of global cries for human rights and social justice.

Is there such a thing as a right? Or are rights merely, as Jeremy Bentham proclaimed, “nonsense upon stilts”? Does law exist in tangible form? Can it be discovered, as Thomas Jefferson apparently believed, through application of the scientific method?

Literature may not supply answers to such questions, but it can translate the realities of law into something comprehensible, and do so in a way that’s entertaining.

Let’s use literature as we use mathematics, to the extent that we can. And let’s become better lawyers for doing so.

  1. […] 6, 2010 The topic of late—“truth”—is particularly fascinating. I see literature as having a similar function to mathematics. Literature uses various processes of signification to arrive at transcendent reality. It is a […]

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