The Rhetoric of Law

Reading the Law

Reading the Law Adam Thurschwell In every era the attempt must be made anew to wrest tradition away from a conformism that is about to overpower it. -Walter Benjamin, "Theses on the Philosophy of History" I have felt warranted heretofore in throwing out the caution that continuity with the past is only a necessity and not a duty. -Oliver Wendell Holmes, Jr., "Law in Science and Science in Law" 1 "Poetry makes nothing happen;' mourned W. H. Auden, reflecting in verse on the death of William Butler Yeats on the eve of the Second World War.1 Even the mythmaking of as great a national poet as Yeats could not heal Ireland's communal madness; much less could it stave off the coming global catastrophe. One hears in Auden's lament an echo from the side of literature of an accusation generally leveled at literature-that it has no place in the conduct of the world's affairs. The poet's impotence, according to the familiar story, lies in This essay originated as a comment presented at a symposium titled IIDeconstruction and the Possibility of Justice" held at the Benjamin N. Cardozo School of Law in New York City in October 1989. I thank the organizers of the symposium for giving me the opportunity and incentive to put these ideas in a semblance of coherent form. I also want to thank several individuals whose criticisms and encouragement greately improved this final product: Ellen Hertz, Adam Bresnick, David Cole, Jonathan Elmer, Scott Rhodes, and Pam Thurschwell. 1. W. H. Auden, IIIn Memory of W. B. Yeats," in Selected Poetry of W H. Auden, 2d ed. (New York: Vintage Books, 1970), 53. 275 THE RHETORIC OF LAW the gulf between the purely linguistic nature of literature and the hard world out of which it grows: even the most political of poets trades simply in the language of fiction and figure, not the cold facts of political-legal-economic reality. The flip side of this dismissal is the claim that the poet's participation in the governance of the worldly city would be actively dangerous, because the fictional and seductive character of literary language leads the people away from, rather than toward, the true and the good. It has thus been a home truth of political and legal theorists from Plato to Posner2 that within the realm of political and legal practice "the literary" is at best an irrelevant distraction and at worst a pernicious, irresponsible contaminant . As Judge Posner has been only the most recent to argue, literature thrives on ambiguity, fiction, and the free play of the imagination, values that at least appear to be anathema to the univocal interpretations and sober-in Posner's loaded term, "mature"attitude required by the sovereign's need to decide and act. Of course, precisely because it is poetry, Auden's categorical assertion of poetry's impotence remains subject to an ironic reading that calls into question the statement's literal force, a reading that in fact overtakes the pessimism of the literal statement as the poem's extraordinary concluding stanzas shift from elegy into triumphal cadences.3 The conventionally "literary" status of the declarationit occurs in a poem, not a statute, treatise, judicial opinion, or similar example of what is sometimes called "serious" discourse4 -licenses 2. See generally Richard A. Posner, Law and Literature: A Misunderstood Relation (Cambridge: Harvard University Press, 1988). 3. The poem concludes with an urgent call to poetry's redemptive powers: Follow, poet, follow right To the bottom of the night, With your unconstraining voice Still persuade us to rejoice; With the framing of a verse Make a vineyard of the curse, Sing of human unsuccess In a rapture of distress; In the deserts of the heart Let the healing fountain start, In the prison of his days Teach the free man how to praise. 4. On the well-known distinction between IIserious" and Unon-serious" discourse, see J. L. Austin, How to Do Things with Words, 2d ed. (Cambridge: Harvard University Press, 1975), 104-5. Interestingly, Austin's distinction recalls Auden's dictum- READING THE LAW 277 the reader to interpret it as meaning something other than what it seems to say: that poetry does (or, more true to the poem's hortatory conclusion, should) "make something happen:' This seductive possibility of turning the tables on lawlike assertoric pronouncements, combined with the growing recognition that law...