Butterfly, the Bride: Essays on Law, Narrative, and the Family

Conclusion

Conclusion Outlining various possible relationships between law and literature, we make a mistake if we treat the two prime categories as clear and only the connectives as problematic. When we speak of law as literature , law in literature, literature as a subject of law and legal regulation, and so on, we should remember that these formulations assume a certainty in the basic terms that is far from obvious. Law is not merely an autonomous system of state-sponsored rules. On certain views, "private " groups can be considered among the sources of law. So, too literature , understood at the moment as referring largely to high culture, poetry, fiction, and drama, was once defined differently and much more broadly. Moreover, the connection between law and literature, as has recently been demonstrated, was once much closer.1 Law and literature-the more general term narrative has often been used in this book-have been used here both to explore certain contemporary issues in family law and to raise more general issues about law and society. The presentation has sought to avoid a central danger, the adoption of a partial truth,2 that which is "conventional" or "dominant ," as the whole. An idea of truth has been discussed that is not the precisely defined factual truth so often used in law. We can see that other sense of truth in a maxim of Goethe's-"It is not always needful for truth to take a definite shape; it is enough if it hovers about us like a spirit and produces harmony; if it is wafted through the air like the sound of a bell, grave and kindly.'~3 This approach to truth, however, may not facilitate the resolution of disputes, which it is precisely one of the law's jobs to conclude. Legal officials cannot rest at listening to bells or observing, from an Olympian distance, dialectical social or legal behavior. At the same time, legal officials, even operating within role constraints, can choose to see more or less, and to hear more or less. They should, I think, choose to hear more, to be more open to analogy and to descriptive and narrative material, particularly in the many legal 166 BUTTERFLY, THE BRIDE contexts in which the resolution of disputes does not occur in the course of adversarial proceedings. "Hearing" a story might not involve believing it or accepting its truth. It would typically involve an acknowledgment of it, a recognition of its existence, as a precondition of political dialogue. Law, at its most functional, can be seen as akin to plumbing. But law is its own endeavor, a technical field, perhaps a discipline, which has often been seen to require a particularly wide vision. Thus, Learned Hand, among others, argued for a humanistic understanding of law and law training, as human beings search for what we see as acceptable compromises and solutions. "An education which includes the 'humanities' is essential to political wisdom," Hand wrote, adding, "[by] 'humanities' I especially mean history; but close beside history and of almost, if not quite, equal importance are letters, poetry, philosophy , the plastic arts, and music."4 I do not know why Hand included music, but I would suggest the possible relevance of Cioran's comment: "When we have no further desire to show ourselves, we take refuge in music, that Providence of the abulic."5 Abulia, a loss of willpower, is not a word we necessarily associate with those directly concerned with the applications of power. But perhaps the idea has some relevance to law, at least to the extent that a kind of deliberate abulia, based on self-restraint, intellectual modesty, and prudence6 would reduce law's violence. In the end, the argument offered here rests on a view first of the limits of law and second of the relation between law and other humanistic undertakings. It adopts Learned Hand's explanation of the need for the humanities in law. This explanation is focused not on a problem with rules of law, but on what is ordinarily seen as the human condition . "Most of the issues that mankind sets out to settle, it never does settle," Hand remarks. "They are not solved, because, as I have just tried to say, they are incapable of solution properly speaking, being concerned with incommensurables." Even if that was not always true, he continues, the opposing parties seldom agreed on a solution; in fact the dispute may be fought again. When the dispute disappears, "it is replaced...