Russia's Legal Fictions

Introduction

Introduction Much has been written in recent years about the relation between law and the realm of fiction, narrative, and rhetoric.1 We have been told that law is vulnerable to the same contingencies of interpretation as any other written text and is as dependent on the master narratives of its time and place as any other cultural artifact.2 Legal scholars have called for more storytelling in legal practice and for more attention to the way that stories are told. Telling stories promotes "empathy" and understanding for others) While some of the Russian literary canon appears in debates about law and literature, almost no attention is given to the specific legal context in which these works were written, or to the rich legal culture of nineteenth-century Russia. Russian lawyers were profoundly aware that they were telling stories. With the exception of several histories of the law and legal institutions, very little has been said about Russian law and literature, perhaps in part because Russia is seen as outside the pale of the Western legal tradition. The conflict between the Russian writer and the law is a wellknown and even celebrated feature of Russian literary life in the past two centuries. This conflict plays a crucial part in the quasi-political, 1. See, for example, Peter Brooks and Paul Gewirtz, Law's Stories: Narrative and Rhetoric in the Law (New Haven, Conn.: Yale University Press, 1996); and Austin Sarat and Thomas R. Keams, eds., The Rhetoric of Law (Ann Arbor: University of Michigan Press, 1994)· 2. For an argument that emphasizes a particularly Nietzschean perspective on legal meaning, see Sanford Levinson, "Law as Literature," in Interpreting Law and Literature: A Hermeneutic Reader, ed. Sanford Levinson and Steven Mailloux (Evanston, Ill.: Northwestern University Press, 1988), 155-73. 3. See, for example, Kim Lane Scheppele, "Forward: Telling Stories," Michigan Law Review 87 (1988): 2073-98; and Richard Delgado, "A Plea for Narrative," Michigan Law Review 87 (1988): 2411-41. For a critical view, see Toni M. Massaro, "Empathy, Legal Storytelling , and the Rule of Law: New Words, Old Wounds?" Michigan Law Review 87 (1988): 2099-3153. Massaro is particularly critical of the call for more individualized justice . For an attack on the whole movement, see Richard Posner, Law and Literature: A Misunderstood Relation (Cambridge, Mass.: Harvard University Press, 1988). 2 RUSSIA'S LEGAL FICTIONS public, and moral role that has been much touted as the defining characteristic of the Russian writer since the first part of the nineteenth century .4 With one exception, the authors to be discussed in this studySukhovo -Kobylin, Akhsharumov, Suvorin, and Dostoevsky in the nineteenth century and Solzhenitsyn and Siniavskii in the twentiethwere all put on trial. All of these authors write about some aspect of their arrest, trial or investigation, and imprisonment. How they address their confrontation with the law is one of the basic issues that we will explore: how the writer imagines and represents the law and legal language and authority. But to focus exclusively on a single moment of conflict is to fall prey to the writer's own self-mythologizing.5 Furthermore, the question of the writer's response to and representation of the law addresses only one side of the equation. Another dimension is how the law imagines and represents the writer, the literary text, and the process of writing . As the work of Dominick LaCapra and Susan Stewart has shown, the literary trial encapsulates a set of assumptions about literary language , authorship, and meaning. Stewart's Crimes of Writing: Problems in the Containment of Representation discusses "specific cases of forgery, literary imposture, pornography, and graffiti," focusing attention on law as writing, primarily by showing its susceptibility to "temporality and interpretation."6 According to Stewart, these "crimes of writing" reveal what law tries to conceal in its self-creation as transcendent discourse . Crimes of Writing simultaneously investigates law in distinct domains, juxtaposing distinct historical time periods in order to delineate a wide-ranging problematic. Stewart's work enables us to see how the literary trial, not only in the cases she describes, but in other instances, such as censorship and libel, opens up a series of questions about, to use her language, meaning, subjectivity, and the law. When a written text is the scene of the crime, when the crime is an act of speech, the trial is an investigation into the nature of authorship. How does the law define the relation between the legal subject, the defendant, the 4. For...