Review Article I Fought the Law and the Law
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REVIEW ARTICLE I FOUGHT THE LAW AND THE LAW WON David Fraser CROSS-EXAMINATIONS OF LAW AND LITERATURE by Brook Thomas Cambridge: Cambridge University Press, 1987 Price $102.00 You can’t go back and You can’t stand still If the thunder don’t get you Then the lightning will The Grateful Dead Introduction ritical Legal Studies has made two inter-connected contributions to the genre of legal scholarship, contributions which can now be said to characterise C.L.S.C work. The first of these is “the message of contingency”, the second the use of and reliance on interdisciplinary sources. C.L.S. scholars draw heavily on work 153 154 AUSTRALIAN JOURNAL OF LAW AND SOCIETY VOL 5 from history, sociology, philosophy, political theory and literary criticism. Each of these methodological devices, contingency critique and borrowing from other disciplines, serves to open up traditional legal theory and practice in order to bring to light the ideological underpinnings of “law”. Rather than accept the normal understanding of law as independent and free-standing, C.L.S. understands law in a “new” way, as historically contingent and related to a broad social and political context of which it is but a part. While debate still rages on as to the “exact” (and politically correct) place of law in this context (base/superstructure debates in all sorts of new disguises), the old days of “law” are, for Crits, a bad historical memory. Into this scholarly context of contingency and the deconstruction of disciplinary rigidity comes Brook Thomas and his work Cross-examinations of Law and Litera ture. In addition to its inherent interest and merit, Thomas’ work is worthy of “our” attention because it comes at the two-pronged C.L.S. attack from the “other end”. Thomas is not a lawyer but a literary critic, and while it is not unheard of that someone from this discipline should interest himself1 in law, it is uncommon that a literary critic should come at the topic of the inter-relationship of law, literature and history from a point of view which is distinctly sympathetic to, and which draws extensively upon, the work of prominent C.L.S. scholars.2 Thomas’ project is a complex and intriguing one. Using the works of the early American canon, Cooper, Hawthorne, Stowe and Melville, he indeed embarks upon “a cross-examination of law and literature.” Thomas’ aim is to situate the complex interactions of law and the life-world of these authors in order to offer a “new” reading3 of the dominant texts of early American literature. In his own words, Thomas sets upon a project where: Specifically, a cross-examination of law and literature can help us reconstruct the narratives that different segments of American society imagined in response to the social and economic transformations that they experienced, as well as the narratives that helped to legitimize and structure those transformations.4 Thomas’ study of these primary texts and his effort to disclose the interactions of law and literature in these works is complex and detailed. It is not my purpose here to offer a summary of his analysis or a detailed critique. Rather I want to explore two of the main themes which dominate both Thomas’ work and much of C.L.S. scholarship in order to open up Thomas to the same critique he offers of the American canon. These themes, by now familiar to legal scholars wonting in the field, are the issue of textuality and power and the all-important public/private 1 See, e.g.. Fish, Working on the Chain Gang: Interpretation in Law and Literature, 60 TEXAS L. Rev. 551 (1982) and Wrong Again, 62 Texas L. Rev. 299 (1983). 2 In particular, Thomas draws upon the work of M. Tushnet, The American Law of Slavery (Princeton U. Press 1981) and M. Horwitz, The Transformation of American Law, 1780-1860 (Harvard U. Press 1977). 3 Some of this work has, of course, been done before. For a study of the interconnection of Herman Melville’s oeuvre and the legal debates surrounding slavery, see R. Cover, Justice Accused (Yale U. Press 1975). 4 At 16. 1988-89 REVIEW ARTICLE 155 dichotomy. I shall address each of these, and in a final section I shall turn to a work of the new American canon, Tom Wolfe’s Bonfire of the Vanities 5, and by employing Thomas’ thematics, explore the seemingly enduring nature of these issues in American law, literature and life. Textuality and Power ince Nietzsche6 at least, the Western tradition in literature and philosophy has had to deal with the issue of the text as power. Thus, rather than embodying Stranscendent truth on the one hand, or being merely a frozen replication of the past on the other, a text is a living document, one which embodies present power relations within current political practices. Not only does the text concretise “the sheer presence of the past,”7 but it must always be confronted, in practice, with its politi cal nature. As Fredric Jameson argues: [T]he insistence on the pre-eminence of the historical situation underlines the inseparability of strengths and weaknesses within the work of art itself or in the philosophical system, and stands as a concrete object lesson in the way in which the very strengths themselves, in all their specificity, require the existence of determinate and correlative weaknesses in order to come into being at all.8 It is within this philosophical and political vision of “the text” that Thomas situates his critique of American law and letters. The almost universal theme in this book is the question of the presence or absence of a text - a deed, a trial transcript etc. and the subsidiary question of presence or absence within the text (where is the story of women? where is the testimony of the slave?). While the book contains many references to this theme and sub-theme, I shall limit myself to discussion of only several examples. The first, and perhaps the best, example of the powerful nature of the text in American law and literature is to be found in Thomas’ discussion of James Fenimore Cooper’s The Pioneers9. Speak ing of “the widespread disputes overland titles in the early years of the republic”10, Thomas establishes by an interesting analysis that Cooper’s work can be read to contain a subversive critique of the artificiality of legal and textual doctrine. The machinations which surround the property which is the key narrative device of Cooper’s text, with detailed discussion of equitable interests created by trust 5 Random House 1987. 6 F. Nietzsche, On the Genealogy of Morals (Gordon Press 1974). See also M. Foucault, Power/Knowledge: Selected Interviews and Other Writings (1972-1977) (Pantheon 1980). 7 H. Gadamer, Truth and Method 145 (Continuum 1975). 8 Marxism and Form 398 (Princeton U. Press 1971). 9 Chap. 1, at 24 et seq. See generally Mensch, The Colonial Origins of Liberal Property Rights, 31 Buffalo L. Rev. 635 (1982). 10 At 36. 156 A USTRALIAN JOURNAL OF LAW AND SOCIETY VOL 5 arrangements and property transfer through the convenience of marriage, are all for naught when it appears that the real “authority” which vests and legitimates ownership is not to be found in the doctrines of common law and equity but in the “authentic” transfer of title from the original owners (the Native Americans). Thus: Cooper gives the land to a representative of the agrarian past, not the commer cial present. Furthermore, the land is given by word of mouth and personal trust. The claim to it need not be incarnated in a paper document11. Thomas’ work is full of such analyses of the power of the text12 . 13Throughout, 14 15 we find that a key theme of American literature, from Hawthorne’s The House of the Seven Gables 13 to Melville’s Benito Cereno'4, to his Billy Budct5 has been the creation of truth through the reduction to writing. Indeed, as Thomas so clearly establishes in Chapter 8, Contracts and Confidence Men16, the quesiion of the writing/truth relationship was of special concern to both law and the world of letters. As he says of Melville’s The Confidence Man [I]n a world in which social relations are defined by written contracts, to explore the nature of writing is to understand better the society in which that writing takes place17. For Thomas, then, any attempt to ground truth in its textual embodiment i.e. writing, is indicative of and reflects existing power relations within society. As any good dialectician knows, however, any such move must contain its own contradic tion. Thus, the land claim in The Pioneers is verified by reference to an alternative discourse, the practice of Native Americans and in The Confidence Mar, The distance between the words of a written document and their source nos only makes their meaning impossible to pin down; it also renders them far easier to counterfeit than spoken words. The counterfeit... imitates not an object but an invisible authorizing ac. that grants a document legitimacy18. For Thomas, then, at its very least, the text, meant to embody truth, in reality embodies its own contradiction, the reality the counterfeit represents is a lie, a creation, a figment of constructed reality. At the same time, of course, the lie is the truth of the text. Appearance is reality, for reality based in authority (power) is what the text (power) says it is. ___________________ __ ____________ 11 At 72. 12 See, e.g., at 53, 69, 86, 88,104, 111, 165,183,248.