Law and Literature: A Misunderstood Relation (review)

Reviews421 Does midfiction exist? As Hemingway's thoroughly modern ironist Jake Barnes might say, it's pretty to think so. In Middle Grounds, however, Alan Wilde's tertium quid proves too narrow to encompass the amplitude of recent American fiction. University of HartfordWilliam L. Stull Law and Literature: A Misunderstood Relation, by Richard A. Posner; xi & 371 pp. Cambridge: Harvard University Press, 1988, $25.00. Richard Posner attempts to give the field of"Law and Literature" a foundation which, he claims, that field still lacks. Hence his subtide; hence also his captious dismissal of other writers who have contributed to the field. Posner's purpose leads him first to clear the ground of this other work, notably that of Richard Weisberg and James Boyd White. Weisberg has written mainly about issues of the law as themes in literature; Posner's criticism here is that Weisberg does not go far enough in showing either the prominence or the significance oflegal issues in this role. White has applied literary theory to legal texts; in contrast to Weisberg who does not go far enough, White, according to Posner, goes too far—since legal texts differ essentially from literary texts and require correspondingly different means of analysis. Other theoreticians and critics are scolded along the way: Ronald Dworkin, Stanley Fish, Terry Eagleton, Robin West, Derrida—even Kafka, for seeming to write about legal themes, as in The Trial and In the Penal Colony, but not actually doing so (for failing to do, it seems, what he arguably never intended). In between this settling of scores, Posner's own position emerges episodically and with a notable lack of theoretical awareness, considering the claims that are being made. Posner does, to be sure, provide a useful "anatomy" of the issues that define the field of "Law and Literature" itself. The two central issues are those mentioned in connection with Weisberg and White: the law as a literary subject, where the text is "about" legal proceedings or issues ofjustice; and the question of interpretation, mainly as it discloses the relation between legal and literary texts. Posner also cites three other topics: the rhetorical character of (some, not all) legal texts; literature as a subject of legal regulation, as in issues of copyright, obscenity, or defamation; and the literariness or "theatricality " of the legal process itself. This is in some ways a useful map. Even here, however, Posner's distinction between the second topic—interpretation as applied to legal texts—and the third—the rhetoric of legal texts—is tendentious, as it simply assumes the dis- 422Philosophy and Literature tinction between the two. Posner thus makes his views on the status of textual meaning quite clear: on the interpretation oflegal texts, he is an "intentionalist," positing a determinate meaning fixed at the time of writing in the mind of the writer; this, he contends, is in contrast to the meanings of literary texts which are free (or at least freer) of such constraints. The basis for this distinction is not itself argued, although Posner explains why it would be useful to interpret legal texts by authorial intention ifthat were possible. Legal interpretation, he asserts, has more urgent consequences than literary interpretation—"unhampered by command responsibility, the author ofa literary work need not strive for a clear statement" (p. 240). It is thus more important that the meaning oflegal texts should be fixed and accessible. But the limitations on intentional interpretation asserted in recent literary theory and hermeneutics refer to what is possible, not to what is desirable—and on the former issue, Posner is consistendy vague. He concedes that the interpretation of intentions which underlie legal texts often concludes in reasonable disagreement (e.g., in applying the Eighth Amendment's rejection of"cruel and unusual punishment")—but he evidendy does not believe that this has any theoretical implications. And the paradigmatic example he proposes of a legal text interpreted intentionally—the settling of an unlikely conflict about a contract for the sale of frankincense at $100 a pound—hardly supports his more general claim. One might well ask why it would be necessary here to speak ofintentions at all, when the words are quite plain. By the end of...