"In a Field of Pain and Death": Law/Rhetoric/History/Culture

Murder Most Foul: The Killer and the American Gothic Imagination. By Karen Halttunen. New York: Oxford University Press, 1998; pp. 322. $31.50.

History, Memory, and the Law. Ed. by Austin Sarat and Thomas R. Kearns. Ann Arbor: University of Michigan Press, 1999; pp. 360. $57.50.

Minding the Law. By Anthony G. Amsterdam and Jerome S. Bruner. Cambridge: Harvard University Press, 2000; pp. 448. $36.95.

 

"Legal interpretation takes place in a field of pain and death." ¹

—Robert Cover, "Violence and the Word"

This essay opens with a well-known epigram from Robert Cover because there seems to be something essentially epigrammatic about law itself: the telling moment, the apt phrase, the vivid image, the striking character. "If the glove doesn't fit, you must acquit" is now heard as more than an appeal by a clever defense attorney; it is the vibrant sign of a set of disputed social relationships integrating race relations, marital violence, wealth, and celebrity with law. Each of the books reviewed in this essay works from particular sites to make broad theoretical points and significant social interventions. Law is rich with such sites, as these books reveal. Murders, divorces, and claims of violations of social morality, of racial injustice, of gender inequality, of censorship are all grounds for public action. Crimes, cases, trials, judicial opinions, imprisonment, and execution are all sites for the social display of law's meaning. This review is intended to give a sense of the possibilities, and some of the problems, of the rapidly developing literature that considers the role of legal discourse in the broadly human quest to make meaning out of our social experience.

Rhetoric and Law

Now is a good time for a reexamination of the literature connecting law, rhetoric, history, and culture. For many years, the fertile intersections of these conceptual domains went relatively unexamined. Rhetoric, of course, had a role in law in its ancient capacity as forensic rhetoric—persuasive practice oriented toward the past in the interests of determining guilt or innocence within the broader topoi of justice and injustice. Rhetoric was presumed to be relevant to courtroom advocacy, but was a presumptive fault in other forms of legal and judicial discourse. The discourses of law positioned legal reason against the partisan passions of political commitment and social conflict. Similarly, "legal history" was treated either as a practice internal to law—the study of the development of a particular set of doctrines or principles—or as a set of social forces external to law—the study of the ways that law evolved in response to historical changes. Culture, and particularly popular culture, was presumed to be within the regulatory sphere of law, but irrelevant to its conception or operation. The possibility of cultural influence was treated as a malign accident to be rooted out wherever it appeared. Journalists were to report on the law, but trials had to be shielded from the influence of the press; movies and novels used the law (particularly trials and courtrooms), but they were expected to adhere to standards of legal accuracy. The ideals of judicial discourse were set by a model of legal formalism distinguished by its commitments to objectivity and rationality, and by its independence from disputes over the nature of interpretation or the character of morality. Oliver Wendell Holmes could confidently declare early in the twentieth century that law and morality were different things. Ed Mease, Reagan's attorney general, drew on a long and well established tradition when he famously declared that legal interpretation could—and should—involve only the objective application of facts to established legal principles.

Throughout the latter part of the twentieth century, however, these modernist commitments have been confronted by a wave of attack, revision, expansion, reassessment, and defense that has now expanded into a substantial body of literature from a variety of perspectives. Increasingly, law has been treated as a range...