Reading the Intersections of Law and Literature in the Eighteenth Century

During its twenty-five year history, the field of law and literature has attracted scholars from both law schools and English departments, generated dozens of excellent monographs, and spawned several academic journals. One key journal, Law and Literature—published as Cardozo Studies in Law and Literature from 1989 to 2001—describes the field in highly interdisciplinary terms on its website, suggesting that "the [law-and-literature] movement, which extols law-related literature and the literary value of legal documents, provides a unique perspective on how law and literature are mutually enlightening." Despite this very real interdisciplinarity, law schools and English departments do approach the combined study of law and literature differently. For legal scholars, the tendency is to focus chiefly on the textuality of law, using insights from literary theory to question and complicate claims for the hegemony of legal discourse in a variety of situations. The focus on law as literature differentiates this approach from the methods used by literary scholars, who focus mainly on law in literature—sometimes in a simple representational way (think Bleak House), but more often in a broad-based historicist way, ranging from the study of the role of law in print culture to more explicitly new historicist studies of how reinterpreting legal texts creates new frameworks for understanding literary ones.

Eighteenth-century studies has been in the vanguard of the law-and-literature movement since its inception. Mark Rose's Authors and Owners (Harvard, 1993) and Martha Woodmansee's The Author, Art, and the Market (Columbia, 1994) are two pioneering examples of how eighteenth-century scholars have melded legal and literary texts and methodologies, and the books under consideration here share this interdisciplinary approach. While the specifics they cover range widely, all five books draw on law and literature to create genealogies for some of eighteenth-century studies' most familiar (and important) concepts. Authorship, the reading public, the novel, nationalism, and poetic identity emerge from these books as concepts deeply shaped by legal and literary intersections in eighteenth-century culture.

Jody Greene's The Trouble with Ownership is most explicit about its genealogical aims. Its direct progenitor is Michel Foucault's 1969 essay "What Is an Author?"—a key text for much law-and-literature scholarship in eighteenth-century studies because Foucault identifies the eighteenth century as the moment when law and literature became inextricably linked. The eighteenth-century emergence of literature as an individually produced, aesthetically based commodity means, for Foucault, that this was the moment when "the possibility of transgression attached to the act of writing took on, more and more, the form of an imperative peculiar to literature" (Foucault Reader, Pantheon 1984, 108). Foucault's essay has been richly provocative for eighteenth-century law-and-literature scholars in part because (like his other work) it makes compelling claims with minimal evidence—and part of Greene's explicit aim is to fill in some of those evidentiary gaps. "In some sense," she writes, "this book attempts to offer one piece of such a socio-historical analysis, with particular attention to the author's status and to his (or her) changing place in a system of 'attribution,' out of a conviction that through the process of attribution, the twin poles of modern authorship—ownership and liability—come together" (10). In the course of her socio-historical analysis, Greene revises triumphal accounts of eighteenth-century...