LAW AND RELIGION: LAW, RELIGION, AND LITERATURE

The critique of "the textual bias" in studies of culture is important, and we ignore the implications at our peril: interpretation never exists independently of social context or setting, especially the institutional. Yet it is inevitably and decisively the case that language and its conventions play a dominant and decisive role in the complexly variegated realms of law and religion, and perhaps most acutely at their myriad intersections. Scholars of religion and scholars of law have each acted explicitly on this recognition, generating the fields of "religion and literature" and "law and literature." This shared "turn to the literary" reflects some common questions and interests. First, and most generally, there is the common recognition that to grasp securely the cultural standing of religion or of law mandates sustained attention to specific forms of expression; and that, in turn, that the relationship is dialogical, so that literature is understood to influence religion and law even as law and religion are understood to influence literature. It also reflects, secondly, a recognition that questions of linguistic construction and deconstruction, of determinate and indeterminate linguistic meaning and the degree to which social context addresses such concerns, is a central question. And, finally, in each instance but with differing degrees of emphasis and controversy, each includes on the part of some an attempt to correct or augment a deficiency in scholarship. The debate about the "turn to the literary" in law and literature is discussed below and is nascent by comparison to the discussions in religion and literature. Readers should consult relevant entries for its history in religion and literature.

That both legal systems and religions arbitrarily deploy language has as its crucial corollary the fact that in doing so they generate and employ literary conventions of both usage and form. The shared concept of "canonical" writings, whether sacred scripture or constitution and statute, extending in turn to commentary and judicial opinion, indexes the deep family resemblances between religion and law. It is the source as well of their common fascination with questions of hermeneutics. Elucidation of the canon is a great religious and a great legal expertise, hallowed alike in courtroom argument and Sabbath sermon, legal brief and scriptural commentary. Canons of sacred scripture include law in both literal and figurative modes: literally, as exemplified in the Jewish Torah by the Decalogue and the related prescriptions in Leviticus, Numbers, and Deuteronomy, and figurally in the Christian formulation penned by St. Paul in his Epistle to the Romans —itself an exegesis of Torah—regarding the spirit and the letter. Legal opinions and briefs deploy a range of narrative techniques to plot the "facts of the case" and thus shape the appropriate purview of juridical deliberation, and the writing of judicial opinions is, among other things, a rhetorical art of interpretation, whether in explication or dissent. The point is not to elide distinctive legal and religious traditions, but to underscore the less frequently noted, yet crucial and foundational, literary and interpretive connections between law and religion.

If law and religion both take innate recourse to literary expression, it is equally the case that works of imaginative literature frequently and vigorously engage religion or the law, or both. It is striking that scholars of law and literature whose work engages in sustained literary interpretation have lavished more attention on the novel. While there are important studies of law and poetry, and especially of law and drama (most notably Sophocles and Shakespeare), the modern novel's susceptibility to plurality in both linguistic expression and social setting, its sheer plasticity, afford it a particular fascination for the innately adversarial processes of argument and evidentiary discussion that characterize most modern legal systems. Standard citations tend to focus on twentieth-century works, and range from Franz Kafka's The Trial (1914) and Albert Camus's The Stranger (1940) to Truman Capote's self-proclaimed journalistic work of historical fiction, In Cold Blood (1965) and William Gaddis's A Frolic of His Own (1994). But the range, even limiting the purview to the novel, is extraordinarily wide and diverse. Henry Fielding (1707–1754), both a distinguished jurist and one of the first great English novelists, deployed in the creation of his self-proclaimed "new Species of Writing" the literary forms of sermon and legal brief in the service of cultivating his hallowed virtue of "readerly sagacity." The History of Tom Jones, A Foundling (1749), Fielding's greatest novel, displays its author's familiarity with classical legal argument in its sophisticated use of ongoing commentary, intercalary tales, and retrospective viewpoint. The novel constructs a scenario in which the maxim (averred by both the theology and the law of the day) "that Virtue is the certain Road to happiness, and Vice to misery" is brought into severe question but ultimately affirmed.

Also noteworthy for the interactions of law, religion and literature is the corresponding emergence, also as early as Fielding's own time, of the figure of the literary critic who renders learned judgment on literary works toward the formation of an authoritative canon of "the classics." What is perhaps the first major controversy of belles letters had to do with the concept of poetic justice, and its appropriate use in drama. Two English "men of letters," Joseph Addison and John Dennis, debated hotly the question of whether the drama ought to reflect the justice of this world or the next, of death or the Final Judgment. Instigated by the production and popularity of Nahum Tate's revised version of William Shakespeare's King Lear —in which Tate excised hundreds of lines from the original, and rewrote the ending to transform tragedy into comedy in the name of poetic justice—the Addison/Dennis debate was such that some seventy years later Samuel Johnson was constrained to take up the case in his authoritative Preface to Shakespeare (1765). Citing the popularity of Tate's version and his own aversion to the terrors of the original, Johnson effectively "found for" Tate's revision. While Johnson's judgment lacked the binding authority of a judicial ruling, Tate's King Lear rather than Shakespeare's was performed on the English stage for the next one hundred and fifty years.

As these brief and necessarily selective examples underscore, the engagement of law and religion in the realm of imaginative literature and literary criticism is manifest. Scholarship, however, has not kept pace with history in this regard. While scholars of religion and of law have in recent decades explored in systematic and parallel ways the relationship of their respective fields to literature and hermeneutics, their common efforts have not intersected. Before sketching these developments and discussing a particularly important and illustrative dispute in the domain of "law and literature," a brief caveat may be in order. The point of stressing these parallels is to underscore the prospect of comparative analysis rather than direct analogy. The Jewish tradition of halakhah, rabbinic exegesis addressing the proper understanding of (sometimes obscure) scriptural tenet to (sometimes challenged or compromised) religious practice, has no direct analogue in the Christian tradition. Yet both halakhah and Martin Luther's commentary on the Book of Genesis reflect an ongoing recourse in the Jewish and Christian traditions to interpret their scriptures in ways that inform the theological and moral livelihoods of their respective communities. Comparison that is principled—that does not fall into reduction or assimilation—affords clarity both about fundamental human cultural practices and their distinctive manifestations in individual communities. An excellent example of this concerns ongoing debates in American jurisprudence concerning the relationship of the Constitution to the rendering of legal opinion. When a Supreme Court Justice argues that his job is to elucidate the intent of the Founding Fathers, and only that, he is in fact engaging a set of hermeneutical issues that have a history dating to ancient Greece, and a relevance to a broad range of humanistic work in both religion and literature. Longstanding debates about the inspiration and interpretation of the sacred scriptures of Judaism and Christianity revolve around precisely the question the Justice invokes in his declaration. The European hermeneutical tradition is also represented, especially in the work of Juergen Habermas, Hans-Georg Gadamer, and Paul Ricoeur, and in important traditions in twentieth-century literary studies ranging from the American New Critical tradition of John Crowe Ransom, William Wimsatt, and Cleanth Brooks, to the deconstructionist theories of Jacques Derrida. A more vigorous comparative scholarship integrating law, religion, and literature can only enhance thought about canonical inspiration, its relation to exegesis and its obligations, and the interplay of the authorities of scripture, tradition, and experience in elucidating authoritative sources for contemporary life. The obverse also holds: Charles Dickens' Bleak House is deprived of its moral scope when it is not understood to be as fully engaged with social questions about the status of law in Victorian England as is any halakhic text with conceptions of Jewish duty in modern civil society. Correspondingly, halakhic discourse is deprived of its imaginative scope and figural discretion if we do not attend to its literary conventions and hermeneutical presuppositions. Only in such comparative contexts is it possible fully to recognize and appreciate the complex interplay of received tradition and contemporary practice that characterizes legal, religious, and literary practice.

The Turn to Literature in Study of the Law

If scholars have not pursued these conjunctions, recent decades have set the stage for the possibility of doing so through the turn, both in scholarship on the law and in scholarship on religion, to the study of literature and the complementary study of interpretive theory. The last two decades of the twentieth century witnessed an efflorescence of the "law and literature" field: courses exploring the interface now study legal curricular across North America, and the publications have kept pace. The field of religion and literature has a somewhat earlier pedigree, dating at least to the late 1940s and arguably to the earliest decades of the twentieth century. Its integration into the broader study of religion—witnessed by the widespread prevalence of the category of narrative in the study of religion, and the recourse to the hermeneutical tradition across nearly all dimensions of the study of religion—has been more systematic. Such has been the success of religion and literature so conceived that its integration across historical, theological, and human scientific study is manifest.

Such integration is less clear in the case of study of the law and literature. Central to the field is a debate about the use and abuse of the literary turn in the study of law. Two of the most important figures in this debate are James Boyd White and Richard Posner: each offers a formulation of the field, and each has engaged the other's work critically. White, whose The Legal Imagination (1973) served to crystallize interest in the field, argues that two predominant conceptions tend to delineate studies of law and literature: the "findings" conception, in which the law uses literature to establish truths about the inhumanity of law; and the "technologies" conception, in which the au courant terminologies of critical theory are deployed to perpetuate longstanding debates about legal interpretation. Dissatisfied with both conceptions, White argues for a third, better option: that law is best understood as a compositional art in which the mind uses language to make meaning and establish community. Because the law has this role, it follows that it is essential for lawyers to establish a voice, one that is both professionally excellent and individually authentic. White argues that, examined carefully, this recognition is not unique to the law: lawyers are in this regard one professional group contributing to the broader cultural matrix of professionals, including poets, politicians, priests, and indeed all citizens, who aspire to the same. White's conception thus seeks to move beyond the correlative formulation of law and literature to the descriptive formulation of law as literature: to the understanding that literature is not a recourse to expand reference or elucidate theory in the law, but is rather its essence. Law is neither more nor less than a cultural form of literary expression.

At stake for White in this claim is the public culture of a social order. Worried that law may simply take over and transform a culture into one that operates by adversarial argumentation, White advocates for the recognition—against the mechanistic tendencies that he sees to run very deep in our culture—that fundamental to our lives as human beings is the use of language to make meaning. Framed in this way, law is understood to be one of the fundamental processes by which society argues about its values. Promoting a kind of "negative capability," the Romantic poet John Keats' phrase for the ideal receptive state for poetic reception, White advocates a sensibility in which this recognition eases adversarial opposition and its ensuing isolation: we can admire opinions with which we disagree and condemn aspects of opinions with which we are in concord. This capacity will both underscore the commonality of the endeavor, and lead us to the essential recognition that the world is, in the end, a matter of conversation and discourse.

In contrast, Richard Posner regards the law precisely as a set of rules for social control, and he is dubious that literary criticism or works of literature can or do present a formalizable theory or method that can inform the law. Posner allows that lawyers and literary critics are both close readers, but they read very different materials, and therein lies all the difference. Hamlet and the United States Constitution both present puzzles, but the natures of the puzzles differ and there are few telling commonalities. There are, to be sure, craft values from reading literature, and perhaps literary criticism, that help judges to think and write better than they would otherwise. But the bottom line, in Posner's judgment, is that law and literature represent different realms of literary discourse that require different valuations.

Posner thus articulates distinctive approaches to law and to literature, and must formulate as well a rationale for their conjunction that is more willed than innate. He advocates respectively for a pragmatic approach to the law, and a formalist approach to literature. Following his claim that the problems of literary and legal texts are different, Posner argues that these approaches most fully honor the nature of their object: law adjudicates disputes and establishes the social arrangements that ameliorate them; literature delights us with its beauty and wit. One body of texts exerts social control, while the other is an art. Posner is in turn skeptical about establishing even a willed conjunction. He finds White's "law as literature" conjunction to be based on a view of literature as edification that is both vague and didactic—terms which together describe the antithesis, in Posner's view, of great art and thus do not persuade him. There is for Posner the further problem of social utility: what new insights does the study of literature bring to specific fields of the law? Here Posner contrasts literary theory unfavorably with economic theory, asserting that applications of economics permeate many standard fields of legal study and even create new ones. While Posner avers that law and literature should be understood to be complementary rather than competitive, it is clear that their conjunction is more social than dialectical.

As it stands this debate is intractable because of the stilted relationship in each case between meaning and power. For White, meaning is central and must trump pure power, while for Posner power in an important sense simply is meaning. The late Robert Cover, in a suggestive and necessarily incompletely developed but seminal article, anticipates precisely this dilemma. Postulating that every community has a nomos, or regulative code—it is telling that Cover reintroduces religion into the conversation by drawing a parallel between the Greek term and the Hebrew Torah—Cover argues that it is internally tensive in its parts: "For every constitution there is an epic," he writes, and "for each Decalogue a scripture" (Minow, Ryan, and Sarat, p. 96). Society constructs a nomos not solely of law, then, but of law and literature, to encompass power and meaning, and thus acknowledge the degree to which uncontrolled meaning destabilizes power, and uncontrolled power destabilizes meaning. The central point, Cover argues, is to recognize this conjunction for the fundamental tension that it is, and to expect the discretion of judges, and by implication artists, to be informed by it.

Cover's untimely death, and a style of writing that defies apodictic summary, leaves his readers without the full development of the idea of nomos, and its implications for the relationship between power and meaning, that one might wish. But the analogy of nomos to Torah that informs his work has its complementary development in both the Jewish and Christian traditions. Thus Jon D. Levenson shapes his treatment of theodicy in Judaism around the juxtaposition in the Scriptures of the Covenant between God and Israel. In that Covenant, fealty to the law assures divine guidance and protection. Yet the Jewish canon also includes the story of Job, in which a man utterly faithful to the Covenant nonetheless experiences tragedy and the utter absence of God. In strictly logical terms, the juxtaposition bespeaks a contradiction. Levenson has no wish to understate that fact or its impact. Yet, like Cover, he argues that the canonical incorporation of the covenant promise and the story of Job into one common scripture acknowledges that power and meaning do not fully accord in human experience. Religions of the book construct canons precisely to afford themselves both law and story, both power and meaning, and the crucial capacity to acknowledge their sometimes uneasy juxtaposition and even conflict in human experience. Religion adds to the study of law and literature a crucial umbrella of coherence, that enables full engagement and obviates the otherwise destructive impasses effected by the Posner/White debate. Through its processes of canon formation, and the intertextual reference the canon enables, religions of the book afford the fullest possible informing relationship and ongoing conversation—between the legal regulation of power, and the literary expression of vagaries of personal identity and experience.

Conclusion

Legal theorist and philosopher Ronald Dworkin proposes a view of legal reasoning as analogous to a chain novel, in which a judge inherits a history of opinion to which she or he must add the latest chapter. Dworkin seeks to capture with this formulation what he regards as the exquisite equipoise necessary for a responsible judiciary: it is constrained both by what has been written, and by the demand of a new chapter. Dworkin's formulation would not pass muster with either White or Posner: for White, it would fall into the technologies conception of theorizing, while for Posner the founding statutes of the U.S. Constitution are not analogous to the opening chapter of a novel. The above survey would appear to suggest, however, that White may underestimate the need for a requisite theoretical architecture to support his claim that law is one of a set of cultural expressions under the aegis of literature; and, correspondingly, that Posner may underestimate the degree to which a Shakespeare or a Tolstoy can accomplish a great deal in an opening scene or chapter. Dworkin's formulation appropriates and makes usefully concrete Hans-Georg Gadamer's conception of "the history of effects": the idea that, when we encounter a work of the imagination, we encounter not only it but its recensions and valorizations through time. Such a formulation honors the power of imagination in the human adventure with ideas, and underscores how central the imaginative capacity is not only to literature, but to religion and the law.

Bibliography

Dworkin, Ronald. Law's Empire. Cambridge, Mass., 1986.

Fish, Stanley. The Trouble with Principle. Cambridge, Mass. 1999.

Law and Literature (formerly Cardozo Studies in Law and Literature ), New York, 1989–. The longest running, and arguably the best, journal devoted to the field.

Minow, Martha, Michael Ryan, and Austin Sarat, eds. Narrative, Violence, and the Law: The Essays of Robert Cover. Ann Arbor, Mich., 1992.

Nussbaum, Martha C. Poetic Justice: The Literary Imagination and Public Life. Boston, 1995.

Posner, Richard A. Law and Literature. 2d ed., rev. and enl. Cambridge, Mass., 1998. The most useful and most complete extant survey, and a lively if at times tendentious treatment of major themes.

Rose, Gillian. Mourning Becomes the Law: Philosophy and Representation. New York, 1996. An exercise in the philosophy of law, deeply informed by continental thought.

White, James Boyd. Justice as Translation: An Essay in Cultural and Legal Criticism. Chicago, 1990. The best summary statement from White of his view of the field.

Richard A. Rosengarten (2005)