Citation and Precedent: Conjunctions and Disjunctions of German Law and Literature by Thomas O. Beebee (review)

Few scholars of recent years have taken on the challenge of analyzing literary or legal texts from a system-theoretical perspective. Thomas O. Beebee has not only performed these tasks, but has overcome system theory's prohibitive generality and abstraction by pinning his analysis to concrete historical examples from Germany and Austria, including literary works by Goethe, Jacob Grimm, Kafka, and Weiss. Drawn by the large number of German-speaking Dichterjuristen as well as the systemic links between legal and literary discourse, Beebee explores multiple encounters, or conjunctions, to use his system theory terminology, at this interdisciplinary border. Observing that previous law-and-literature scholarship either observes legal themes in literature (law in literature) or reads legal texts using the methodology of literary analysis (law as literature), Beebee sets as his original course to observe the "intersystemic citations" between the discourses (11). Of central methodological significance is the vocabulary of system theory, including most importantly the terms citation, precedent, conjunction, disjunction, autonomy, structural coupling, and second-order observation. (Beebee follows the Library of Congress's preference for the term "system theory" over "systems theory.")

To follow the system theory terminology, the "technical name for the conjunction of law and literature is a 'structural coupling'" (2), which occurs when one "system considers something normally belonging to its environment (i.e. 'outside' of itself) as subject to its operations, or conversely as an 'irritant' that provokes a response" (2), as is the case in instances of censorship or copyright law, in which decisions are based on literary and aesthetic values, or in the case of literature that cites legal discourse or uses the trial as dramaturgical structure. Special emphasis is placed on instances that evidence the legal subsystem's "state of exception," "that is in a state of being without an ultimate ground—since there can be no law that legislates the existence of law. Citation and precedent are vital substitutes for the law's lack of ultimate origin and self-justification outside of its own operations" (13).

The book consists of eight "study-examples" of law-literature structural couplings from Austria and Germany. The three periods of focus are 1804-1809, under influence of the Napoleonic Code; the Weimar Republic; and the postwar period. The initial study-example on Jacob Grimm's essays and letters to Friedrich Carl von Savigny regarding his departure from the legal field is followed by a chapter on marriage law in Kant's Rechtslehre (1797), the Napoleonic Code, and Goethe's Die Wahlverwandtschaften. A particularly convincing reading of recursivity in Kafka's Der Prozess serves as the third case-example. Beebee draws a structural parallel among the novel's narrative form, the chain of doorkeepers in the "Vor dem Gesetz" parable, and Fibonacci numbers, observing that, just as in these examples "each subsolution turns into a subproblem" (108), Josef K. is "not a man who seeks admittance to the law, but is located somewhere in the chain of doorkeepers" (101) and that, read alongside other examples of recursivity, Der Prozess reveals itself as an equally infinite text.

Beebee's analysis of Weimar texts begins with Benjamin's reading of marriage in Goethe's Wahlverwandtschaften in striking juxtaposition with Carl Schmitt, leading Beebee to suggest that Eduard and Charlotte's marriage is "a microcosm of the Reichstag of Weimar Germany, their marriage contract a summary of the Weimar Constitution that resulted not from a decision, but a compromise" (137). The second Weimar case-example traces legal-aesthetic interdependence in regulating copyright, censorship, and the status of Schundliteratur; and the final Weimar example follows the aesthetic and legal influences of Rudolf Borchardt's little-known pamphlet Deutsche Literatur im Kampfe um ihr Recht. Bracketing out the years of the Third Reich, Beebee's inquiry moves to a reading of Carl Schmitt's essay on Melville's Benito Cereno, in which Schmitt uses Benito Cereno to reflect on...