ISLL Papers the Online Collection of the Italian Society for Law and Literature

ISLL Papers The Online Collection of the Italian Society for Law and Literature

Vol. 4 / 2011

Ed. by ISLL Coordinators Carla Faralli e M. Paola Mittica

ISLL Papers The Online Collection of the Italian Society for Law and Literature http://www.lawandliterature.org/index.php?channel=PAPERS

Vol. 4 /2011 ISBN - 9788898010561 Ed. by ISLL Coordinators DOI - 10.6092/unibo/amsacta/5574 C. Faralli & M.P. Mittica

Table of Contents

José Calvo González, «Odia el delito, y compadece al delincuente». Memoria de Correccionalismo, Antropología cultural y Literatura popular («Despise Crime, and Show Compassion for the Criminal»: Recollection of Correctionalism, Cultural Anthropology, and Popular Literature)

Domenico Corradini H. Broussard, Il diritto attraverso lo specchio e quel che Francesca vi trovò (The Law through the Mirror and What Francesca Found There)

M. Paola Mittica, Fabbricare il tempo (The Making of Time)

Michele Cuccu, Interview with Martha C. Nussbaum

Ilenia De Bernardis, Romanzo, natura e diritto. Sul Saggio intorno alla condizione delle donne nello stato civile, ed alle leggi coniugali e sulle Osservazioni intorno alla nuova legge abolitiva de’ delitti di stupro di Galanti (Novels, Nature, and Law: Comments on two Essays by Giuseppe Maria Galanti)

Domenico Corradini H. Broussard, Ciò che dice l’Angelo dice la Sibilla (What the Angel Says, So Says the Sibyl)

Flavia Marisi, Ermeneutica giuridica ed ermeneutica musicale: una proposta di comparazione (The Interpreter’s Role in Law and in Music: A Comparative View)

Francesca Faenza (ed.), Law and Narrations: Issues in Law, Literature, and Other Arts. Abstracts from the Proceedings of the Second National Convention of the Italian Society for Law and Literature, Bologna, June 3–4, 2010

Domenico Sivilli, Anatomia del Mostro. Una riflessione sul Male analizzando “M”, il capolavoro di Fritz Lang (Anatomy of a Monster. A Comment about Evil: Analyzing "M," the Cinematographic Masterpiece by Fritz Lang)

José Calvo González, Derecho y Literatura: Anatoliĭ Fedorovich Koni (1844-1927). Sobre Cultura jurídica de la literatura y Cultura literaria del Derecho en la Rusia imperial de Alejandro II a Nicolás II (Law and Literature: Anatoliĭ Fedorovich Koni)

Alberto Andronico, Il regalo di Holden. Riflessioni sul dono e sulla cura (A Present for Holden: Reflections on Gifting and Caring)

Luigi Alfieri, Sul bene e il male ne Il Signore degli Anelli di Tolkien (On Good and Evil in Tolkien’s Lord of the Rings)

Alberto Andronico, “Grande piccolo?” Il problema dell’accettazione (“Big Small?” The Problem of Acceptance)

José Calvo González, Bionarrativa de la Justicia en el periodismo literario de César Vallejo (Bionarrative of Justice in César Vallejo’s Literary Journalism) Reviews

Lieve Gies, Law and the media – The future of an uneasy relationship, Routledge-Cavendish/ Glass House, 2008, 166 pp. by Maria Francisca Carneiro.

Student's contributions

M. Bertocchi, E. Bisci, L. Chiuselli, V. Coppola, M.C. Maggio, M. Orazi, G. Ponti, U. Rubino, D(i)ritti fra le righe. Esperienze dal corso di “Diritto e letteratura”, Università di Urbino, a.a 2009-2010 (Rights Between the Lines: Experiences from the Law and Literature Course Taught at the University of Urbino, 2009–2010)

“D(i)ritti tra le righe” è l’esito di un fruttuoso corso pilota di Diritto e Letteratura che ha avuto luogo nell’a.a. 2009- 2010 nell’ambito delle attività della Laurea Magistrale in Sociologia della Multiculturalità, presso la Facoltà di Sociologia dell’Università di Urbino. Il volume raccoglie i contributi di coloro che vi hanno partecipato, con l’intenzione di presentare questa esperienza, auspicando il confronto con altre sperimentazioni didattiche, che si stanno svolgendo presso varie università italiane, e tra gli studenti, i quali hanno accolto con autentico interesse le attività proposte. In tal senso gli ISLL Papers inaugurano, con questa pubblicazione, uno spazio che intende accogliere le rassegne dei lavori di L&L nell’ambito della formazione. L’augurio è che i corsi di Diritto e letteratura e di Law and The Humanities possano moltiplicarsi e radicarsi anche nel nostro Paese come sta accadendo al livello internazionale.

ISLL Papers - Interviews INTERVIEW WITH MARTHA C. NUSSBAUM By Michele Cuccu (University of Sassari)

M. Cuccu: To start I would like to congratulate you and your team for the excellent organization and the interesting papers presented at this year’s conference on the relationship between Law and Literature focused on “Gender, Law, and the British Novel”. This is the second year in a row you have organized a conference on this topic, last year was focused on Shakespeare. Could you give some introductive detail on last year’s conference and this year’s meeting? For example I found the central part of the conference particularly interesting when you, other professors and students played scenes from “The Beaux' Stratagem” and “Mrs Warren's Profession”, the Interlude from Monteverdi’s “L’incoronazione di Poppea”, and also the participation of students in the conference as panelists. M. C. Nussbaum: Yes. The first thing to say is that we had had a longer series of classes on law and literature topics. The law school has a type of course, called Greenberg Seminars, which are informal, half-credit courses, offered in faculty member’s homes. The point of it is to have a more informal type of class that will bring the law students together with the professors in an informal atmosphere. And for about six years, Judge Posner and I had been teaching those seminars on law and literature topics. We did Shakespeare twice. We did Shaw once. We did Greek tragedy once. We did Oscar Wilde. And so the most recent time that we did Shakespeare, we included Richard Strier, who is a scholar in the English department.

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He helped us with the critical literature on Shakespeare. And because we were enjoying it so much, we decided it was a good time to have a conference. The law literature side of our law school had become more prominent. And so we just thought it was a good time to make it more prominent still. So in consultation with Strier, we invited a bunch of scholars for literature and from law, and the Shakespeare conference was very successful. And we’re planning to publish a book as a result; Strier and I are working on the editing of it. And student papers were involved in that too. Actually, that wasn’t the first time that we’ve had student papers at a conference. The first time we had student papers was a conference on speech, privacy, and the Internet, that I also co-organized, where those papers are coming out as a book with Harvard University Press now. And two of the student papers are actually in the book. So they were really first-rate. The result of that was that we decided that that was a really good feature of a conference, to give the students an opportunity to do scholarship and to have experience presenting their work in front of other people, and so we included that in the Shakespeare conference and then in this one. The theatrical component, well, I decided that we needed some way to get law students to come who weren’t part of this small group that were already studying law and literature. And since our keynote speaker was Justice Breyer from the Supreme Court, that was certainly going get them to come to that panel. But I thought that they would get more involved still if there was a theatrical component. And it happened that Justice Breyer had named three plays that he wanted to talk about in the keynote panel. They were Hamlet, Measure for Measure and As You Like It. And so I thought well, a very good way of getting the audience ready for that discussion is to perform one scene from each of these three plays. Now it happens that Posner is a very keen actor, and he and I had done play readings often. I mean, whenever we held one of these Greenberg seminars, we always had a last meeting that was a play reading. So it wasn’t hard to take the next step and actually do scenes that were fully staged. And of course, then the thing that I had to do was to get more faculty members involved and get them to be willing to memorize their parts. But Posner played two parts. He played Jacques in the As You Like it scene, and he played Polonius in the Hamlet scene. And Justice Breyer was a very good sport: he played the ghost in the closet scene from Hamlet where the ghost makes just a brief appearance. But he was very nice. And he did his job with great good will. And you can certainly see photographs from that, you can just look on our Web site, or I could send them to you, anyway, the whole video of those

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Shakespeare scenes is available on our Web site1. So that’s how we did it in that conference. And then in this one, I thought, well, that was so successful that we had better do it again. And the only difference was that I got even more people involved because I was getting a sense of which faculty members are really good at this sort of thing. And of course, I think they were really terrific.

M. Cuccu: Thank you. Why do you think it is important to discuss and debate the connection between law and literature?

M. C. Nussbaum: Well, I think there are a number of things, you know. I think the law and literature movement isn’t a single thing. I think one thing is that literary works are rich sources of information for the history of law. So knowing about literary works helps us see how some of the legal issues emerged and what was thought about them at the time. And at the same time, knowing about the law helps us understand the literary works better. That’s a kind of new historicist approach to the literary works. But I myself think there’s something deeper to be gained. When you really understand how human emotions are affected by legal doctrines and legal change, when you really see the complexities of the human situations that law addresses, then you have a less mechanical and more richly human awareness of the role of law in a society. So when I teach a whole course on law and literature, I always want to focus on the way that literature makes us aware of human complexity, of human emotion, of the importance of each individual struggle to lead a decent life, and that sort of thing.

M. Cuccu: What perspectives do you see for the law and literature studies? In particular what perspectives can we draw from the law and literature studies in the academic area, in the teaching area, and also in public life? And what advantages could these areas have? M. C. Nussbaum: Well, you know, I think the first thing is we just have to keep it going. Because I think the law and literature movement started with a lot of enthusiasm. But now, you know, people are reading books less than they did before. And I find my law students often aren’t readers to the same degree that they used to be. So I think the first thing that we have to do is just get people excited about it and keep – get them reading and get them more involved. But then, I guess where I think where the advances should come is at this deeper philosophical level, that connects literature with moral philosophy, that talks about perceptions of what is salient – about the nature of the imagination.

1 http://uchicagolaw.typepad.com/faculty/2009/06/video-shakespeare-and-the-law-conference.html [N.d.R.]

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Now, this was part of the birth of law and literature in the US, because James Boyd White, who was the first one, really, who taught law and literature in the US, always had that richer, deeper view. But, you know, it’s kind of gotten lost sight of. I think some of the things that are produced now are more mechanical. And so we need to return to those deeper philosophical sources.

M. Cuccu: Which particular area of law do you believe is closest to a literary reflection? For example, is the philosophy of law closer to literature than other areas of law?

M. C. Nussbaum: Well, I don’t know what you mean by philosophy of law. If you mean analytic jurisprudence, I don’t think it’s not close at all because it’s so abstract. It isn’t close to human predicaments at all. To me, the philosophy of law includes everything that’s philosophically interesting in the law, and that’s pretty much everything. But I think the areas that are most illuminated by literature are many. I think you could see in the conference, criminal law, inheritance law, the law of gender discrimination. So there’s no end to it. And I don’t find any limit when I teach. I just finished teaching a course called emotions, reason, and the law. And there, I took my examples from criminal law and constitutional law simply because those are the areas that I know best. But of course I know that the same sort of discussion – and we did read quite a lot of literature in that course – would be pertinent to tort law, property law, and yet other areas. So I think any area of law that one’s interested in, with very few exceptions, would bear that kind of inspection.

M. Cuccu: And what method do you use to teach law and literature during your classes?

M. C. Nussbaum: Well, you know, since I’m a philosopher, and I have a joint appointment with the philosophy department, what I’m really supposed to be doing is to teach philosophy. And so I teach several different kinds of courses, but they all have some kind of moral and political philosophy content. So then, I use literature where it seems to me to be an appropriate way of conveying what the problems are that I’m grappling with. For example, in this course I just finished teaching, Emotions, Reason, and Law, it seemed to me that to understand different conceptions of emotion, it was quite important to read some works of literature. Proust was one that we spent a lot of time on. And if I do feminist philosophy, I also include literature because I think that’s a very good way of getting to understand the problems that women face.

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So then of course, I teach these more specialized courses in law and literature that I’ve described to you.

M. Cuccu: Do you think it is important and why for law schools to have law and literature as an institutionalized subject, in this case I can say “inter-subject”, looking at the differences between US and European Universities? M. C. Nussbaum: Yes, I do. And I think different nations have different problems here. Since law in the US is a second degree, and since we have a liberal arts system of undergraduate education, more or less every law student has studied literature at the university level. Because almost every good liberal arts college requires courses in literature as part of their general education requirement. So we can presuppose at least some sophistication in the students. And then of course we have many who are actually majors in literature. So those students who presented papers at the conference, well, one of them was a philosophy graduate student, but the two law students who presented papers, they were people who had studied a lot of literature in college. And so those people are easier to reach. And I think in Europe, where people might do law as a first degree, then the question is what has been their exposure to literature and how to get them more exposure. And I think then the case for really putting it centrally into the curriculum and including it in required courses would be very strong.

M. Cuccu: In your interesting paper focused on “The Stain of Illegitimacy: Gender, Law, and Trollopian Subversion” presented during the conference on “Gender, Law, and the British Novel”, you showed the difference between women and men even being in the same condition as illegitimate, and how Trollope’s novels work to change the stereotypes of that condition. You ended up saying “The specific struggle over the social status of illegitimate children is basically over. The battle in the heart over individuality and convention, order and disorder, continues”. This reveals the universal role of literature: how do you think we can extend the important voice of literature to the contemporary era?

M. C. Nussbaum: Well, yes. Of course, one way is to think about what art forms people are engaging with and to do more with film, for example. And a lot of people do that. I myself don’t have that kind of training, and there’s really not much I can offer there. I do find that if we read dramatic works, because they’re shorter, and because people are still going to the theater a lot, that can be helpful. The novel is more difficult because people just don’t have the patience to read these long novels these days. I was amazed, by the way, that 12 students all read all the way through Richardson’s Clarissa, which is 2,000 pages long. So that was impressive. But you couldn’t ask a larger group to do that.

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I think you just have to make it exciting, and you have to show what’s exciting about it. I certainly think one way is to engage with more recent works. We were engaged with the 18th and 19th centuries there just because a number of us really love that period and had written about it and so on. But I guess I think it’s helpful to turn to more modern works. Now, as I said in that passage you quote, I think that works that deal with some very specific struggle can still have a larger importance because they help us think about stigma more generally. So let’s say a novel like Ralph Ellison’s Invisible Man, which seemed very topical when it came out in the 1950s and it was about the civil rights movement and about a particular racial struggle. But because it’s a wonderful novel, I think it resonates on a number of different levels, and you can use it to think about stigma much more generally. You could also read Sophocles and read Philoctetes. The exclusion of somebody with a disability is portrayed in that play in a way that resonates across the centuries and well apart from any specific topical issue that’s addressed. But I think, you know, you have to show people that that’s true and you have to show it with the eloquence of our own writing about it and the passion with which you engage with it. But I do think the choice of literary works makes a difference. And I find that with my own writing, it kind of depends which country I’m in which parts people can relate to. For example, everyone in Europe can relate to Proust. I mean, that’s part of the common culture. And they can relate to Greek tragedy. But Henry James is not a part of the common culture in Europe, and I find that those parts of what I’ve written on literature are less read by people in Europe. So if I were focusing on how I would attract a European audience, I would focus on different texts from the ones I focus on in my own country. So I think one has to be careful that way to approach people where they are and engage the texts that move them. Fortunately, Shakespeare and Greek tragedy are pretty much universal. So you can always include that, anyway.

M. Cuccu: The battle may be to change some positive rules, or to change some “non- written” rules, or modify the prejudices, or eliminate the stereotypes, or defend women’s rights or defend human rights. How do you think can we tackle these issues? For example in my research on the relationship between law and literature I’ve found the important roles of literature interesting in helping to understand, to explain in a different way, and to criticize the law, and also to give a voice to those who have no strong voice and so on. So, if we have better law we can have a better public life, if we have a better public life we can have a better quality of life. What do you think? M. C. Nussbaum: Well, yes. I mean, of course. Law is one major contributor to the quality of life. And as a political philosopher, that’s the part I focused on in books like Frontiers of Justice and Women and Human Development. Of course you can give the Italian titles for those, because they’re both translated.

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You know, I focused on how the governmental structure of a nation, including its whole legal system and its constitution and so on could protect various human choices, opportunities for choice, which is what I mean by capabilities. And so I think that’s a very major part of improving the quality of life. But not the only part, because of course laws are made by people. And laws will not – good laws will not come into existence and if they are in existence, they won’t be sustained unless people are educated in a certain way and they want laws of that kind. So I think even if you have good institutions, you need also to worry about the minds and hearts of people and how they are growing up in that society. Again, part of that you can influence through government, such as the system of public education. Part of it is much more informal. It’s out there in the peer cultures that children are parts of. Their family cultures and so on. So that’s a much more diffuse struggle, and it’s much harder to enter into that.

M. Cuccu: On the other hand I think the advantage is not only unidirectional but bidirectional, not only can literature help the law but with its expertise the law can also be helpful for literature. What do you think? M. C. Nussbaum: Oh yes. I mean, you could see, I think, in the conference, that having people who are experts in inheritance law and financial law illuminated certain things that were going on in those novels that maybe people at the time understood , but certainly by now we’ve forgotten that. And we don’t know anything about it. So I think that’s really what new historicism as a literary movement is all about is that if you really understand the social context in greater detail, including prominently the legal context, then you can understand things in the works that otherwise weren’t understood.

M. Cuccu: We know how complex the studies on the connection between law and literature are becoming, and that shows how rich and vital that field is. Different interpretations, different ways, different perspectives, internal and external critics and so on. I can say the position that aspires not to be the only one but wants to explain in a different way, or wants to cover new aspects in a different way, or wants to be an alternative way, that in a few simple words is not to exclude other positions but to collaborate with the other positions is one good choice. What do you think? And how do you see your reflections in the debate on the relationship between law and literature? M. C. Nussbaum: Well, I guess I’ve always been in favor of much more collaboration among different parts of the university generally. I think philosophers are always collaborators, really, because we don’t have a subject matter of our own, so we’re always talking about somebody else’s subject matter. But this university is also built on a principle of interdisciplinarity, and it’s

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just very natural and normal that faculty members from different disciplines will teach together and collaborate. The fact that I offered this seminar with Judge Posner and with Richard Strier is an example of that collaboration. This year the seminar was with Alison LaCroix, who’s a historian, so there are multi-disciplinary cooperations. And I think that’s very helpful, because we ask different questions, we bring different insights to the work. My own writing on law and literature, I think, it’s fair to say, focuses on moral philosophy. My main intervention has been to say that I think that literary works contribute a distinctive perspective to moral philosophy. That’s what Love’s Knowledge is really about. How does that bear on law? Well, then those same insights about the, as it were, Aristotelian idea of perception that I connect to the novels that I talk about has a bearing on law, because it’s a certain quality of imagination, which can be but isn’t always realized in the judge’s imagination, in the imagination of jurors, but also in the animating spirit of actual laws. So I feel that the work that I started out to do was not about law at all. It was about philosophy and literature. But it does already have implications for law, because law deals with issues of human justice, just as philosophy does, and therefore it needs to confront the same questions. I also think that the opponents that I was contending against were really the same. That is, in writing about moral philosophy, I was really focused on the excessive simplicity of utilitarianism and its reductive qualities, its determination to aggregate all parts of the human good into a single formula. And I think that’s also the main opponent in law, I mean, the main obstacle to a richer kind of human reasoning. So I think law and literature can play a very similar role in the law to the role that literary study plays in philosophy.

M. Cuccu: Are you working on something new on the connections between law and literature, if so could we hear about it?

M. C. Nussbaum: Well, my main project right now is a book about – that connects my work on emotions to my normative political philosophy. So it’s going to be a book about the emotional underpinnings of a decent society that would realize human capabilities. So of course, in some ways, it is very much about law. It’s about social justice and how the emotions play a role in getting us to social justice. It’s not directly therefore about literature, but I think that in the end, I’m going to have to be talking quite a lot about how habits of mind that are formed when you read works of literature are crucial parts of the progress toward social justice. And of course, this is why I’ve been so concerned about the decline in literary

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and humanistic education. So my newest book, which is called Not for Profit: Why Democracy Needs the Humanities is about why good societies need the humanities. And so that concern for the future of the humanities will be a very big part of this new book. As to more specific projects on law and literature, I’m going to be working on this conference volume. I really want to add some papers. I want to write a theoretical introduction in which Alison LaCroix and I will talk about the relationship between this conference and the whole law and literature movement. And then of course revise and improve my own paper.

M. Cuccu: Going back to the starting point, have you already planned the next conference?

M. C. Nussbaum: Well, we haven’t yet for sure. And I think probably next year we won’t have one, because I’m on leave, and I want to just save that time for writing. But the English department is very interested in doing one on American literature. So I think that’s probably what we’ll do. And we’ll do it maybe the year after next. It’s good to have a longer organizing time anyway. But I think a good one on American literature could also be more contemporary and it could include a session on 18th, 19th, and then 20th centuries. Because we have such major American novelists who really do repay study in connection with law, such as Saul Bellow, Philip Roth, Joyce Carol Oates, John Updike, and since Oates is actually a friend of mine, I think I might be able to get her to come here, in fact, I invited her for this conference, and she wanted to come, but she had a conflict. So anyway, I think these are all people who really write about the impact of law on human beings. Whether the conference should have a gender focus or not, I don’t know yet for sure. But I think if it did have a gender focus, I guess we’d have to have a lot of criticism of Updike and Roth and Bellow too. But we’ll see. And I think there are great authors in the earlier period too, to go back to – I mean there are early female authors. One of my ancestors, Mercy Otis Warren, was a dramatist at the time of the American Revolution, and wrote some very interesting plays about the Revolution. So law and literature were really joined at the time of the American founding. And then there are of course writers like Hawthorne and Melville, who were very concerned with law. So I think that would probably be the next one.

M. Cuccu: Okay. Thank you very much. M. C. Nussbaum: Yes. Well thank you. That was great. That was lovely.