Law and Literature:

Goodbye Austin, Hello Austen?^

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SIMON LEE*

The study of law, it might be argued, would be much more enjoyable and
productive if we said goodbye to John Austin and hello to Jane Austen, auf
wiedersehen to Kelsen and wilkommen to Kafka. A pan-European introduction to
law through literature would stretch from the Irish Swift, through the English
Shakespeare and Dickens, on to the Continental Camus and Kafka, down to the
classical Greek Socrates and Sophocles and up to the Russian Dostoevsky. This is a
rich heritage and one which offers a critical yet rounded picture of law in society.
Students would actually read the texts rather than purport to tell me what, for
instance, Mill said when I know full well that they are actually telling me what they
think I said about what Han said about what Devlin said about what Mill said.
Rather than looking askance at being set thirty pages, they would willingly read
hundreds of pages a week. Students would also realize that there was more to law
than the decisions, or even more narrowly the decision-making processes, of
appellate courts. They would discover facts, criminal and civil procedure in
common law and civil law jurisdictions, evidence, witnesses, credibility, corrup-
tion, cynicism about lawyers and many other wondrous things. They would
discover how Portia used black letter tactics of literal interpretation to achieve what
has often been portrayed as justice (although we might differ on the fairness of the
outcome). They would inevitably be drawn into exploring Biblical references to
law, understanding that Ishmael rather than, say, Baby M, was the first surrogate
baby.' As Richard Posner, the leading economic analyst of law and now a United
States federal appeals judge, concludes in Law & Literature:

Law schools should offer courses in law and literature; some are doing so already. Most of
the issues that would be covered in such a course could, it is true, be covered in a course
on jurisprudence or legal process stressing the rhetoric, theoretical underpinnings and
dilemmas, interpretive problems and epistemology of law. But such a course is not likely
to be so vivid, memorable and entertaining as a well-taught course in law and literature
. . . A course in law and literature can also provide an introduction to legal history, legal

t A review of Richard Posner, Law and Liuraturt: A Mwmdmtood Relation (Harvard University Press, 1988),
£19.95 (hereafter Posner, L & L), and Stanky Fish, Doing What Coma Naturally: Change Rhetoric and tkt Practice of
Theory in Literary and LtgalStudies (Oxford University Press, 1989), £35.00 (hardback) (hereafter Fish, DWCN).
* Professor of Law, The Queen's University, Belfast-
1
h re Baby M, 537 A 2d 1227(1988).
• Oxford University Press 1990 Oxford Journal of Legal Studies Vol. 10, No. 2
SUMMER 1990 Law and Literature 253

anthropology, and comparative law . . . It may even provide a solution to the age-old
problem of teaching legal writing. In addition, law and literature provides a way into
feminist legal theory, the law-as-a-humanity movement and the critical legal studies
movement.2
Sociologists of law and some criminologists have, of course, also long been
interested in the ways in which law is perceived through popular culture. Most
obviously, changing images of the police, criminals and the criminal law can be

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traced through television series like Dixon of Dock Green, giving way to Z Cars,
then TTie Sweeney and now Waterfront Beat. But there are other questions of law
and morals which can be answered through contemporary television and film as
well as through the classics of literature. Michelle's double dilemma in Eastenders
could have had more impact on abortion decisions than could any number of
campaigns to reduce the law's time limit. The latest storyline in Eastenders at the
time of writing (December 1989) is an informed consent point about the way in
which Michelle's mother, Pauline, is led towards a hysterectomy. Or, to take
another example, a study of the Thundercats cartoon video, Exodus, could inform
many a jurisprudence seminar. In the words of Tigra, 'rules are only meaningful if
people agree to obey them; otherwise they're just words'.
Posner is right to claim that the study of literature ought also to broaden
horizons and expose students to the highest quality. The canon of law and
literature should not, however, be restricted to those works which have stood
Posner's test of time,3 the so-called high culture. On the contrary, one advantage of
introducing students to law-through-literature (or more broadly, through popular
culture) is that it can build on whatever is familiar to our students. Provided we
attach the important caveat that a wider canon of what counts as relevant to such
study is needed, his conclusion is a clarion call to law-through-literature which
should be heeded on this side of the Atlantic.
Yet Stanley Fish,4 in Doing What Comes Naturally, mounts a persuasive case for
doubting the arguments in much of the rest of Posner's book. Fish's subtitle
('Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies')
gives some indication of the enormous range of these essays. Fish writes with great
wit and style. He is a master of rhetoric but also of argument. The legal theorists
most discussed in the book are Dworkin, Unger, Hart and Posner. The first and
the last of these are vigorously and effectively criticized, Dworkin repeatedly so.
Dworkin is the victim of Chapter 4 'Working on the Chain Gang', Chapter 5
'Wrong Again', Chapter 16 'Still Wrong After All These Years' and Chapter 17
'Dennis Martinez and the Uses of Theory'. This broadens the critique of Dworkin
1
Pouter, L & L at 338. Ai Posner observe*, this U already happening. 1 am grateful to my Queen's ttudenu and
colleagues, particularly Ray Geary and Edith Devlin, for their co-operation in launching undergraduate and
extra-mural courses in Law and Literature.
3
Posner, L & L at 74.
* Stanley Fish is professor of more or less everything at Duke University, operating under the omnibus title of 'Arts
and Science* Distinguished Professor of English and Law*. He is rumoured to be one of the inspirations for David
Lodge's larger than life fictional character, Morris Zapp. See David Lodge, Changing Placet and Small World. See
further Lee, 'Judging Judges on Appeal', the extra chapter in the paperback edition oijudgingjudgts, (1989), replying
to critics in a novel way, comparing my fictional Mrs Justice Leonora Haughty with Lodge's Zapp.
254 Oxford Journal of Legal Studies VOL. 10

beyond the territory of those lawyers who have long since realized that Dworkin
was an unsafe guide to all but a few leading American cases on civil liberties. 5 Now
we are told by Fish that Dworkin is wrong, wrong and wrong again whenever he
talks about non-legal interpretation and, for that matter, when he claims that
lawyers in general and judges in particular are always philosophers. As Fish puts it,
in a comment aimed at the Critical Legal Studies movement as well as Dworkin:
'law is not philosophy, and it will not fade away because a few guys in Cambridge

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and Palo Alto are now able to deconstruct it'. 6 Dennis Martinez, mentioned in the
title of Chapter 17, is a baseball player and is introduced so that Fish can mock
philosophers who claim that 'the only good judge is a philosopher judge or that the
only good baseball player is a philosopher-baseball player'. Fish would prefer his
judges to be 'good at being judges'. 7
While I might beg to differ with Fish on his dismissal of the relevance of legal
philosophy to legal practice, 8 I found myself in complete agreement with his
critique of Dworkin-as-literary-critic. Indeed, Fish uses much the same language
as others have used about Dworkin-as-lawyer. For example, Fish notes the way in
which Dworkin benefits from his 'vague and slippery' 9 style so as to run
contradictory assertions with the result that 'when he feels himself pressed on the
one, he can always avail himself of the vocabulary (and therefore of the presup-
positions) of the other'. This is not a conscious strategy, according to Fish, it is
simply 'because he is confused'.10
Let me give just one example of the crushing way in which Fish makes these
points against Dworkin:

Dworkin declares that to interpret [an Agatha] Christie mystery as 'a novel about the
meaning of death would be a mistake, because it would make the novel a shambles, and
that is not because all novels announce their own genre but because her novels become
wrecks if we try to read them in that particular way". This is a nice sentence because the
basic Dworkin move is performed twice . . . [I]n the same sentence we have a positivist
assertion followed by a repudiation of positivism followed by another—virtually
identical—positivist assertion.''

Moreover, as Fish observes, Dworkin seems unaware of the critical literature

9
See eg Let, Judging Judges, especially cb 3.
6
See Fish, OWCW at 397.
7
Fish, DWCN at 398. Fiih would also like his baseball players to be good baseball players rather than good
philosophers of baseball. The chapter ii constructed around a journalist's question to Martinez about his coach's words
of wisdom before a game, namely Throw strikes and keep 'em off the bases'. Martinez's response to the coach was
'OK' tnd to the journalist, he added with a precision which Fish thinks Wittgenstein might have envied, "What else
could I say? What else could he say?1 Fish thinks that 'It is hard to imagine why agents genuinely committed to a
practice would hand over responsibility for judging it to some other practice, especially to a practice that takes place
almost exclusively in college classrooms*.
* Although Fish might regard this as inevitable given my professional interest, some legal philosophers agree with
him that the power of jurisprudence is not in its relation to practice, see eg Harris, Legal Phltaophts, at 2.
9
Fan, DWCN at 112. See Levinson Taking Law Seriously; Reflections on Thinking Like a Lawyer* (1978) 30
Stanford Law Review 1071, acknowledged by Fisb and, for a non-lawyer, Brian Barry in Tht Times Literary
Supplement, 25 October 1985, at 1195.
10
Fish, DWCN»t IU.
11
Fish, DWCN n 112.
SUMMER 1990 Law and Literature 255
about Agatha Christie's work.12 As an example, Fish offers his own defence of
Agatha Christie's theory of evil, comparing her amoral and chameleon-like villains
with Shakespeare's Iago and Milton's Satan.13 In words which echo lawyers'
criticisms of Dworkin's legal examples, Fish concludes that 'Dworkin, it would
seem, could not have chosen a worse example to support his case'.14
Fish is equally biting in his criticism of Posner. In the relevant chapter, entitled
'Don't Know Much About The Middle Ages', Fish's point seems to be that Posner

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is a poser or poseur with regard to law and literature not really understanding his
chosen subject-matter. (The punch line of the Larry Adler song, a line from which
forms the title of this chapter, is 'Don't know much about nothing at all' which
gains in emphasis what it loses in grammar.) Fish feels constrained to correct the
errors of Posner's ways, at least as represented in a law review article15 which
formed the basis for Posner's book on Law and Literature. The article is variously
described as 'a slight andflawedpiece, full of misinformation and blunders'16 and
as 'uninformed and slipshod'.17 Fish is also critical of Posner's subtext or hidden
agenda. Is he pushing literature aside to leave the coast clear for economics as the
solution to law's problems?18 Yet for all these faults, and others such as the one I
have noted above (the concentration on a limited selection of literary works), there
is considerable merit in Posner's book. He has given us an important lead in
exploring the manifold relations that exist between law and literature.
I will pick four important connections from the many more which Posner
offers.19 First, both lawyers and literary critics interpret texts. Second, law and
justice are perennial themes of literature. Third, literature is a perennial theme of
legal regulation and litigation. Fourth, both law and literature employ techniques
of rhetoric and drama.
Posner's wide-ranging book encompasses the first three of those relations, the
first is the one which most concerns Fish and Dworkin, the second is the one which
currently intrigues me, the third is the one with which lawyers have traditionally
felt most comfortable and the fourth is the one which perhaps offers the most
interesting possibilities for, if you will pardon the expression, novel developments.
One theme pervades all of these relationships. In all of them, law receives a bad
press. Legal interpretation is perceived as mechanical whereas literary interpret-
ation is imaginative.20 Law is identified with injustice in much of the literature.21

12
See eg Grostvogd, Mystery and Its Fictions:fromOedifms to Agatha Chrisnt (1979).
13
Fnh,DlFCNat96-7.
14
Fish, DWCN at footnote 13 to ch 4, at 360; cf Lee, Judging Judgts, tt 21-2.
" Posner, 'Law & Literature: A Relation Reargued', (1986) 72 Virginia Law Revitw 1351.
16
Fuh,DIPCA/at310.
17
Fish, DWCN at 311.
11
Fuh, DWCN at 308.
19
See eg Posner, L Qt L at 6-9, 71-2.
20
From time to time, admissions tutors are depressed by head-teachers' reference* which sty something like 'Mary
is highly intelligent, not very imaginative but she has a good memory and works hard, so she should make an fir****"!!
lawyer'. Such a verdict on her lack of imagination should not determine poor Mary's future but it should act as a
warning about head-teachers' perceptions of law, lawyers and legal study.
21
See eg Posner, L & L , ch 3 "The Literary Indictment of LegaJ Injustice'.
256 Oxford Journal of Legal Studies VOL.10
22
The law's predilection for censorship is notorious. And as for rhetoric, lawyers
are frequently seen as straining the quality of credulity, if not mercy.
Much of this scepticism is justified and is a valuable corrective to legal smugness.
Nevertheless, some of the cynicism is ill-founded and all of it should be a matter of
concern. Perceptions of law, through high and low culture, are important for the
way in which the law operates in practice. Those who are put off the law by popular
misconceptions may be denied justice.23 Hence it is important to confront the

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images of law presented through all manner of media, to acknowledge when the
cynical account is justified and to take steps to change the law or practice, and to
stand up for the truth when cynicism is not justified.
One example which is close to home for those of us who are concerned with legal
education, and therefore close to one of the concerns of this review article, is when,
in a famous passage in Gulliver's Travels, Swift tells us that lawyers are 'bred up
from their youth in the art of proving by words multiplied for the purpose, that
white is black, and black is white, according as they are paid'. 'It is a maxim among
these lawyers', you will recall, 'that whatever hath been done before, may legally be
done again: and therefore they take special care to record all the decisions formerly
made against common justice and the general reason of mankind. These, under the
common name of precedents, they produce as authority to justify the most
iniquitous opinions'.24 One way in which to do something about that image of legal
education as the handing on of a commitment to injustice is to take such writers
seriously.
Examples could be multiplied. All law students ought to be familiar with
Dickens' Bleak House, not simply for the intricacies of chancery but for the
symbolic fog with which the law obscures justice and for the oft-repeated line that
the one great principle of English law is to provide work for lawyers. Of course, we
should be wary of some of the endless examples which could be paraded. As
Richard Posner observes,25 lawyers are too keen to take law infictionat face value.
He likens this to agricultural degree courses taking George Orwell's Animal Farm
as a tract on farm management. Nevertheless, while law may be symbolic for
society's wider ills in much of this literature, its significance even as symbolism
should not be allowed to escape our students' notice. This classic diet should serve
to stimulate thought about law and justice, to encourage thought about profound
questions, not to provide banal answers.
Turning to the first of Posner's connections, the importance of interpretation for
both lawyers and literary critics, all and sundry seem nowadays to have a view on
the relationships between legal and literary interpretation. Posner divides the

22
Eg the Spycatcher saga and the Home Secretary 1 ! 1988 Order restricting televised speech by Sinn Fein. For
discussions of both and of other examples, see Lee, Tht Cost of Fret Speech (Faber, forthcoming 1990).
23
Note, eg, the Labour government's concerns to keep courts out of welfare state issues in the 1960s partly because
many Labour voters were wary of courts and would otherwise fail to vindicate their rights, see eg Harlow & Rawlings,
Law & Administration (1984), p 71.
24
Swift, Gulliver's Travels, Pan IV, 'A Voyage to the Houyhnhnms', ch 5 (295-7 in the Penguin Classics edition).
25
Posner, L & L at 180.
SUMMER 1990 Law and Literature 257
26 27
world into intentionalists and New Critics. He is an intentionalist as to legal
texts and a New Critic as to literary texts, primarily because the former constitutes
his business where he is in a powerful position as a judge without the disciphne of a
free market in judging and judicial interpretation, whereas the latter is, for him, a
leisure activity of no great importance where the market will weed out hopeless
interpretations. Dworkin is characterized by Posner as a New Critic in relation to
both kinds of texts, trying to interpret each so as to make them into the 'best' work

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possible (where best refers to political judgment for legal texts and aesthetic
judgment for literary ones). 28 Intentionalists defer to the author of a text as much
as possible, New Critics arrogate to themselves as much power as possible.
But the dividing line is elusive. Both approaches seem to accept that the context
has some relevance as well as the text, and the dispute is as to which and how much
context. Fish therefore sensibly spends much of his book rejecting the terms of the
intentionalists v New Critics debate and other common pitfalls such as the obsession
with the unhelpful distinction between a purely objective and a purely subjective
interpretation. 29 His message is that: 30
it is neither the case that interpretation is constrained by what is obviously and
unproblematically 'there', nor the case that interpreters, in the absence of such constraints
are free to read into a text whatever they like . . . Interpreters are constrained by their
tacit awareness of what is possible and not possible to do, what is and is not a reasonable
thing to say, what will and will not be heard as evidence, in a given enterprise; and it is
within those same constraints that they see and bring others to see the shape of the
documents to whose interpretation they are committed.
More prosaically, I would suggest that the debates about the relationship
between legal and literary interpretation could be clarified by a clearer understand-
ing of what forms of legal and literary activities are under discussion. Is the legal
text being interpreted, for example, by a solicitor or barrister who is paid to read it
in the interests of one side, or by a judge who is paid to resolve a dispute which has
as one of its elements the text, or by an academic who is being half-paid to analyse
the text in whatever way seems scholarly? Is the literary interpreter a novelist,
chain novelist, playwright, theatre director, television producer, literary critic or
actor?31
I would also argue that, whatever the sophisticated theory one might hold as to
the deep nature of interpretation, all would surely agree that the basic connection
between the legal and literary world is their dependence on language. At this
humdrum level, the immersion of law students in literature is of great benefit.
26
'A legal intentionalist hold* that whit you arc trying to do in reading a statute or the Constitution is tofigureout
from the words, the structure, the background, and any other valuable information how the legislators whose votes
were necessary for enactment would probably have answered your question of statutory interpretation if it had
occurred to them': Posner, L Gf L at 218.
27
A 'New Critic judge [i]s one who believes that what is important in interpreting a statute is to assign a coherent
and satisfying meaning to the words': Posner, L & L at 219.
" Posner, L & L at 227; see Dworkin, Law't Empire at 379-80.
M
Fish, DWCN, passim, especially chs 4, 5, 6.
30
Fish, DXPCN u. 97-8.
31
For some acknowledgment of this point, see Posner, L & L at 258.
258 Oxford Journal of Legal Studies VOL.10
Lawyers are wordsmiths and their words reflect values. The more they can
command the language and understand the values projected by the law, the better
lawyers, citizens and human beings they will be. Yet in the competitive, exam
results-oriented world of admission to law schools, it is sadly unrealistic to expect
proto-law-students to be widely read. It is also unrealistic to expect them to
understand the distinctive, or allegedly distinctive, features of legal interpretation
if they have not had time to reflect on other forms of interpretation.

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Hence I return to the suggestion that students should be introduced to a
broad-based diet of literature about law in the course of their legal studies. That
should serve many purposes, one of which is to develop language skills while
another is to raise in a memorable way important questions about law, justice and
society. Students then need to be steered in two directions. They should be invited
to analyse their interpretive practices in the light of these books by Fish and
Posner, at least if the publishers can provide paperback copies or if student loans
can be extended. They should then be encouraged to attempt to answer the
questions with the aid of systematic study of more orthodox jurisprudence (and, I
would hope, unorthodox jurisprudence).32 Come back Austin and Kelsen; all is
forgiven.
Which takes us on to the fourth relationship., that between law on the one hand,
and rhetoric and drama on the other. Taking rhetoric first, Fish observes that what
Dworkin 'is on to is not a mechanism by which decisions are generated, but the
complex of rhetorical gestures to which one has recourse when a decision, already
made, must be put into presentable form. Dworkin, in short, is a rhetorician'.33
Once again we see a non-lawyer coming to the same conclusions as have many
lawyers about Dworkin's writing. In a nice twist, what Dworkin presents as being
about judging, Fish judges to be about presentation. Thus, in Fish's essay on
'Dennis Martinez and the Uses of Theory', Dworkin is not a player in the game,
like Martinez the baseball pitcher for the Baltimore Orioles, nor is he the coach,
nor even Law's Umpire. Fish downgrades Dworkin to the role of cheerleader, his
work amounting to little more than an exhortation to judges: 'C'mon, fellows, do
your best'.34
But while Fish is right, and while we should focus primarily on how judges
actually reach their conclusions rather than on how they present them, this should
not lead us to underestimate the importance of rhetoric for lawyers and others. Is it
not the skill which lies at the heart of the current Bar Wars controversy over rights
to advocacy? Why not master the art of presenting a case, whether in law or politics
or any other walk of life, as persuasively as possible?35 Come back Dworkin; much
is forgiven.
As for drama, surely this is under-utilized in law schools. I can think of few
better ways to explore the age-old question as to whether there is a moral obligation
a
See Lee (1989) 104 LQR 147, reviewing inter ilia Leith & Ingnm, Tht Jimspnidenc* of Orthodoxy (1980).
33
Fuh, DWCN at 389.
34
Fuh, DWCN at 392.
33
Fish, DWCN, chs 20 & 22.
SUMMER 1990 Law and Literature 259
to obey the law than by encouraging students to perform the age-old play,
Antigone. Some classes will take a creative leap and adapt the text to modern
circumstances, perhaps casting Antigone as the sister of a paramilitary/freedom-
fighter at whose burial there is a dispute between the civil and church authorities
on the one hand, with the family and paramilitaries on the other hand, as to the
display of paramilitary paraphernalia. As for the way in which the powers-that-be
and the-people-who-were-there perceive events differently, what better introduc-

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tion could there be than Brian Friel's play, The Freedom of the City, parts of which
could be interpreted as displaying an uncanny resemblance to Lord Widgery's
inquiry36 into the events of Bloody Sunday in Derry?
There is a message in all this not only for students but also for teachers,
practitioners, judges, legislators, administrators and other officials. We could all
benefit from a renewed look at jurisprudence. We are most unlikely to take such a
second look through the eyes of John Austin but Jane Austen37 or other literary
figures might just inspire us. Lawyers of all vintages should be encouraged to
address important issues of law and justice through the more attractive Looking
Glass of literature. Swift's A Modest Proposal would form a rich ten-page
introduction. We should all be modest about our present understanding of legal
culture. We should be immodest in our aspirations for a deeper understanding.

* Widgery, Report of the Tribunal appointed to inquire into the evenu on Sunday, 30th January 1972, which led to
Ion of life in connection with the procexsion in Londonderry on that day (London, HMSO 1972, HL 101, HC 220).
" See Treitel (1984) 100 LQR 549.