Courting Failure: Women and the Law in Twentieth-Century Literature

Introduction. Literature, Law, and Desire

Introduction Literature, Law, and Desire To the extent that law itself is a narrative, it cannot only be the accumulated record of issues resolved through application of law to facts by a neutral decision maker. By recognizing the tinted narrative lens, we can understand how law reinforces the views of the powerful through the continual retelling of stories from the dominant perspective.1 This book emerges out of the recognition that women’s literature and literature about women seem insistently to revisit questions of the law, the parameters of the court, and the regulation of desire. It is not based on whether the representations of the law in literature are accurate or truthful (though there are instances in which I will be comparing the real life basis of the texts with their fictional, dramatic, or filmic counterparts), but it is rather an exploration of what is still a relatively underexplored aspect of the law and literature field(s): women and the law in contemporary literature and culture. My interest in the field is as a literature specialist and a feminist, and I am particularly concerned with how women as subjects of courtroom dialogue and debate become translated into objects on display and with the ways in which their voices become contained or controlled by narratives to which they have only limited access. Carolyn Heilbrun and Judith Resnik, pioneers in the area of feminist law and literature, argue that the feminist branch of the field is particularly interested in women’s stories: how they are told, what they might reveal or conversely conceal, and how shared or familiar tales intersect (in this, they have much in common with Critical Legal Scholars ). Disappointed that much of this sharing of stories involves a 1 2 Courting Failure recitation of women’s injuries and silences, they argue that feminist studies should instead explore women’s “right to anger, their use of powerl.l.l.l[and] their noncomplicity in the role of sex object.”2 This is a utopic desire. Indeed, one need only read the latest newspapers to discover that although one may prefer to read of women’s power and success in the courtroom, one is confronted—as we shall see—with images of the mad, the bad, and the powerless instead. That the law comes first in the law and literature movement is clear from a quick examination of much of the movement’s critical work, and it is within this context that my introduction proceeds. It has become almost compulsory for law and literature books to start by exploring the rich, and sometimes beleaguered, history of the law and literature movement (such as it is), and so this book is no exception. The idea of a movement calling itself “law and literature” can be traced back to the early part of the twentieth century in an oft-quoted article by Benjamin Cardozo entitled “Law and Literature” (1925). The next significant text in the field was James Boyd White’s The Legal Imagination (1973), which is most often seen as having kickstarted the movement in its current formulation(s). Since then, the field has been divided into a variety of subsets, the most common of which are the “law as literature” and “law in literature” constructions. Richard Weisberg credits this division to Ephraim London, a New York lawyer.3 Law as literature is primarily concerned with the literary quality of the law, thus reading legal texts as literary texts, whereas law in literature focuses on how the law is depicted in literature itself, and this latter subfield is the main focus of this text. More recently, Tony Sharpe has suggested two further categories: “literature as law” (“a competitive emulation of law by literature”) and “literature in law” (the “comparison within a literary text, between legal methodology and its own ways of working”).4 Sharpe’s reformulation of the law and literature project is not meant to privilege literature , but to “consider some of the ways in which law has been misunderstood or misrepresented in literature.”5 In this formulation, Sharpe follows in the footsteps of a high-profile critic of the law and literature movement: Richard Posner. Posner argues that “[t]here are better places to learn about law than novels—except perhaps to learn how Introduction 3 laymen react to law and lawyers.”6 Posner’s stance is particularly confrontational , but other critics welcome the...