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  • Citation and Precedent: Conjunctions and Disjunctions of German Law and Literature by Thomas O. Beebee
  • Ralph Grunewald
Citation and Precedent: Conjunctions and Disjunctions of German Law and Literature. By Thomas O. Beebee. New York: continuum, 2012. viii + 281 pages. $120.00.

The field of law and literature has paid surprisingly little attention to the comparative beyond the discussion of law and literature as different literatures. In Citation and Precedent Thomas Beebee approaches new territory and explores the interactions between German law and literature and what he calls the intersystemic citations where law cites literature or vice versa (11). Methodologically, Beebee follows Niklas Luhmann’s systems theory as a means to look at “structural couplings,” the connections between the legal system and its (literary) environment (21). Beebee assumes that legal systems can “cite and take as precedents the a[d]judications provided by literature, history and other discursive formations” (12).

The book is divided into four chapters that cover different historical periods (3). In each chapter various texts and authors and their relation to law and literature are discussed. The introduction provides the methodological background on systems theory and how it can be used to understand the interaction of the two systems. In the following chapters and subchapters Beebee looks at selected and not systematically connected texts or authors of those interactions. Beebee begins with a portrayal of the complex relationship between Jacob Grimm and Carl Friedrich von Savigny, an influential 19th-century German jurist. Grimm, who moved from a legal to a literary profession, sees a natural unity between both disciplines, whereas Savigny, the promoter of the reception of Roman law in Germany, believes in the self-creation (“autopoiesis”) of the legal system. Here and subsequently Beebee describes connections between both areas and how authors were influenced by the other system. In the second subchapter Beebee portrays the law and ethics of marriage in Johann Wolfgang Goethe’s Wahlverwandschaften (Elective Affinities) and discusses how Goethe was influenced by Kant’s Rechtslehre (Treatise on Law). Both Kant and Eduard, the protagonist [End Page 127] in Elective Affinities, maintain that marriage means the lifelong possession by each partner of the sexual organs of the other (78).

In Chapter Three, which consists of four subchapters, Beebee argues that Franz Kafka’s Der Prozess (The Trial) is a statement about the law and that the idea of autopoiesis is reflected in the recursive qualities of law but also the narrative itself. For instance, the beginning of the novel, where the main character, Joseph K., is arrested, shows parallels to the closing chapter where again two men come and arrest Joseph K. before they execute him. In the third subchapter, Beebee turns to censorship (Zensur), copyright, and the process of canonization of what was considered “literature” as opposed to Schund (“pulp fiction”) in the early 20th century, especially during the Weimar Republic. In Chapter Four, Beebee devotes the first of two subchapters to Carl Schmitt and his allegorical reading of Melville’s “Benito Cereno.” Schmitt, according to Beebee, was deeply influenced by that story and its features and superimposed it in many ways on Germany’s and Europe’s situation in the Weimar Republic. The idea of globalization and a world with multiple levels of legal systems is addressed in this part as well as in the second subchapter, which looks at Peter Weiss’s Die Ermittlung (The Investigation), a play based on the Frankfurt Auschwitz Trials. This play uses exact citations of the court proceedings, and because of this Beebee sees in that play one of the most intense structural couplings between law and literature—he calls it a second-order observation of law by literature.

Beebee is a professor of Comparative Literature and German. From the perspective of a legal scholar this book appears to be well researched and argued. Beebee’s reading of the texts he chose is thorough and his understanding of German legal history and culture is impressive. The connections he draws between the legal and the literary subsystems are insightful. But to gain (all) those insights, is the systems theoretical perspective a necessary feature? It is not. Carl Schmitt’s reading and internal transformation of “Benito Cereno...

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