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Peter Goodrich, An Advanced Introduction to Law and Literature

Claire Wrobel
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Peter Goodrich, An Advanced Introduction to Law and Literature, Elgar Publishing, 2021, 144 pp. ISBN: 978 1 78990 601 1

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1As the author himself notes in the prologue, the book – An Advanced Introduction to Law and Literature – seeks to “advance” the discussion. Written by Peter Goodrich, one of the leading and most prolific scholars on the topic, the work may not be suitable for first-comers to the Law and Literature movement looking for a systematic overview of the field. The latter may be found in the numerous already-existing handbooks, research guides or critical introductions. While the prologue mentions landmark works such as James Boyd White’s The Legal Imagination (1973), the interest of the book lies in its offerFing insights into the most recent developments in Law and Literature, drawing on the most up-to-date literature, which is referenced in the footnotes. No bibliography is provided but an index helps readers navigate the volume.

2Goodrich devotes little time to the methodological controversies over the value of Law and Literature, which has been labelled a “misunderstood relation” (Richard Posner) or even pronounced dead (Julie Stone Peters). After making the strong statement that “[i]ntroducing an advance means moving beyond the institutional squabbles and sub-disciplinary turf wars that serve to entertain the tenured but lack a properly humanistic scope of perspective upon the longue durée of jurisliterature”, Goodrich goes on to develop a brilliant discussion centred on the concept of the jurisliterary, which he borrows from the work developed by French legal historical Anne Teissier-Ensminger (ix). In his view, “the concept of the jurisliterary allows for the development of a more expansive and legally relevant concept of the literature of law as an aesthetic genre in its own right.” (ix) Other key terms underlying the approach include Daniela Gandorfer’s “matterphorics”, which draws attention to the materiality of the law, and Alfred Jarry’s “pataphysics”, i.e. a science that “examine the laws governing exceptions and […] explain[s] the universe supplementary to this one” or, in Jarry’s words, “the science of imaginary solutions” (xiii, 107).

3The first chapter, entitled “The Republic of Lawyers”, reviews the classical tradition, from Greece to Rome to the Renaissance and early modern period. It borrows its title from Gennaro’s 1752 Republic of Jurists, in which the great jurists of the past can be met on an island. By presenting law as an insular territory, this Italian text defines law’s distinctiveness. It is also a text that seeks to provide an entry into law. Indeed, the chapter looks at pedagogic texts in particular and emphasizes the importance of dialogue in the teaching of the law, while carefully distinguishing between the various European legal traditions. Literature is what provides entry to law: “We come to law through literature and through its own literarity. The introduction to law is through its imagery, its narratives, its cases, portrayed both in fiction and other social media, and then again through its own reports and spectacles.” (17) The chapter goes back and forth between the classical tradition and recent texts in which dialogue remains a defining feature, such as the 1984 discussion between two law professors, Peter Gabel and Duncan Kennedy, on the foundation of critical legal studies. The centrality of literature in judicial decisions is illustrated by contemporary cases, such as Baigent v Random House (2006), in which the judge, who performed creative work in his analysis and even included a cryptogram in his decision, nevertheless felt compelled to state that “a judgment is not a work of fiction”, or Jeffrey Stambovsky v Helen Ackley (1991), in which a house’s reputation of being haunted was legally recognized as affecting a purchase agreement and in which William Shakespeare was used as the source of legal invention. All these examples show that while literature “is not itself a law”, its beauty “is that it opens up the doors of legal perception”. (23)

4The next chapter, entitled “The Discipline of Law”, examines the tension between Law’s claim to permanence and its materiality. The Law and its institutions present themselves as distinct and majestic, rational and transcendental, by means of clothing and architecture as well as Biblical and other scriptural sources. Religion, ceremony, and solemnity play an important part, as evidenced, in the English case, by the immemorial tradition. This is where Gandorfer’s matterphorical thought comes in, understood not as a “rhetorical device” but as “a practice and commitment to opposing transcendent thought, detached analysis, representationalism, and Cartesian rationalism” (27). As Goodrich puts it, “while law seeks to portray a system of rules that are general in nature and abstract in their orderings, this self-image omits a key aspect of so-called black letter law, as also of jurisliterature, which is that even its letters are material, coloured, haptic, housed and bound or now more often flickering across a screen but nonetheless spatially organizing, material and mattering.” (27) Even signs need a material support and even law’s buildings can become weathered.

5Chapter 3, under the title “Allegories”, offers an “analysis of legal allegory in recognition of the extensive role of the fictive and literary as sources of law”. Allegorisis is here understood as an “inventive and active mode of thinking”, which becomes necessary when law “runs out”, i.e. “whenever a new situation, be it a new person, a new fact, a new event, is genuinely encountered” (44). To illustrate the fact that in such circumstances, literature may become a source of law, Goodrich pays attention to “the symptoms of the literary, the slips and flights of expression, the figures of affect that slip past the author and provide the sense and drive of the text.” (46) Borrowing Deleuze and Guattari’s notion of “minor literature”, Goodrich probes minor jurisprudence because for him “the marginal is frequently the most indicative facet of paintings, texts, and here I would argue judgments.” (49) He thus offers an in-depth analysis of the role and functions of the allusion to the opening lines of Jane Austen’s Pride and Prejudice in the Levine v Blumenthal decision (1936). Far from being merely ornamental, the allusion performs a number of tasks – covering, persuasion and enforcement – which are essential when law indeed “runs out”. The use of King Lear in another, more recent decision (DPP v Chambers, 2013), shows how “when the legal text has been recognized, though seldom explicitly, as having run out, literature becomes the legitimation of invention and the vehicle of persuasion” (60). The presence of references to literary texts in judicial decisions is a symptom which reveals, more broadly, that “all juristic writing is jurisliterature” and that “[c]hoice of words, language of opening, style of argument, peroration and conclusion are all inventions, plays within and between jurisliterary genres.” (61)

6The fourth chapter is devoted to “legal imaginations” and seeks to expand the “literary criticism of law” advocated by James Boyd White, and then by Weisberg and Binder, so as to include the visual - “text and image, description and pictorial depictions, maxims and emblems”. (69) The chapter takes stock of recent evolutions, such as how the law deals with statements made on social media like Twitter as well as the transition to “the legal videosphere” (68). The materiality and performativity of law calls for new thinking of what is understood as a “text”. The intrusion of mobile computers and phone cameras, whose contents can be uploaded onto blogs or social media accounts, makes it difficult if not impossible for the juridical to remain isolated from the social. Goodrich examines the law of contempt of court as the area in which the “very limited critical comprehension” of such changes by the judiciary is most evident. It is his belief that “[t]he viserbal is now a necessary part of the relay of law, visual and verbal, text and image, words mingling with pictures”, and that “tolerance and a more sophisticated understanding of the competing narratives and differing montages of the juridical as an acceleratingly imaginal concatenation of phenomena is the necessary task of jurisliterary imagination. (77) Goodrich also comments on the use which judges have made of pictures in their decisions which, even though it may not be sophisticated, is “exposing”. In this chapter, the “imaginal” is analysed as “as trace and screen of the vanishing point where law encounters what it cannot formulate and does not know.” (89)

7The last chapter, entitled “Transitions”, focuses on the case of Judge Daniel Paul Schreber, who is well-known in psychoanalysis and psychiatry as the author of Memoirs of My Nervous Illness (1893), which has been analysed by Freud and Lacan. Goodrich’s perspective is different as he puts Schreber’s position as a senior Judge at the centre of his analysis and makes the claim, also argued in his 2018 book Schreber’s Law: Jurisprudence and Judgment in Transition, that Schreber, who believed he was becoming a woman, fell ill of law. For Goodrich, the text is “unique in jurisliterature” because it “provides the only existential account of a corpus iuris, a judicial body in transition and escape from the iron cage of high Judicial office.” (95) Indeed, in his Memoir, Schreber records the corporeal transformations that affect his body. Goodrich reads it as an “introduction to the complexities and conflicts of law” and “an attack on the hermeneutic institution of legalism and its exclusion of diversity of thought and feeling”. (95, 96) Performance – of gender – is also central to Schreber’s case, in keeping with new materialism, which “insists upon the performance that renders judgment in all instances of expression and not least in legal determinations.” (98) This notion of performance then guides Goodrich’s reading of the decision in Textile Unlimited v A..BMH and Co. (2001). He unravels the textile metaphor that runs through the text and concludes that “[p]erformance precedes the writing” (102). This American case is read alongside an English case, Baird Textile Holdings Limited v Marks and Spencer plc (2003), in which Goodrich focuses on the “umbrella” contract. Contrary to the “traditional perception of legal method” according to which the law must be applied as it is, imagination makes it possible to “introduc[e] alternate and more mobile domains of transitional being into the strictures of legality.” (108)

8The epilogue introduces A. Genovese and S. McVeigh’s “jurisography”, which consists in “examining how jurisprudence was written, thought and practiced in time and place and paying attention to how those traditions have been inherited”, and ends on a call to further expand the scope of the jurisliterary (110n).

9The book, which is very rich and dense, spans a historical period ranging from ancient Greece and Rome to contemporary times in barely over 100 pages. The texts of which close readings are provided are mostly judicial decisions, coming from different parts of the Common Law world – mainly England, the US and Australia. Goodrich’s approach is not limited to the way literary texts represent lawyers or to jurists’ forays in the literary world. Rather, he shows the numerous ways in which Law and Literature are interwoven, and how the discussion can be enriched by drawing on the insights offered by new materialism or by the growing focus on the visual or on affect. The writing is informed by the book’s keen awareness of the fact that form and matter are indissociable. The style is witty, rich in puns and assonances and, in the last chapter, experiments with pronouns to convey the fluidity of Schreber’s gender identity as well as the variations he observes in his body.

10Although Bentham appears nowhere in the book – unsurprisingly given its focus on judicial decisions, of which the philosopher never wrote any – it is striking how relevant several of the leads developed by Goodrich can be to take a fresh look at his writings, or at least some of them – probably those which are most polemic and in which affect is therefore most obvious, but not only. The Common Law tradition against which Bentham defined his own utilitarian project was of course embodied by William Blackstone, who (in Sue Chaplin’s 2007 The Gothic and the Rule of Law, 1764-1820) has been compared to a writer of historical romance and who, in light of Goodrich’s first chapter, may now be described as a jurispoet. To some extent, then, Bentham defied jurisliterature but, like several of the judges discussed by Goodrich, he could not keep his writing hermetically separate from the jurisliterary. Goodrich’s work draws attention to didacticism, dialogism and performance, three dimensions which are quite present in Bentham’s writings. Performance and theatricality are at the heart of “Blackstone Familiarized”, an unpublished 1828 essay written for didactic purposes, and discussed by Philip Schofield in Blackstone and His Critics (Hart Publishing, 2018). One may also think of the very dialogic “Truth vs Ashhurst” (1792), or of the conversations which Bentham stages between himself and other philosophers in “Auto-Icon; or, Of the Farther Uses of the Dead to the Living”. As evidenced by early writings such as A View of the Hard Labour Bill, Bentham was keenly aware of visual matters whether they be the symbols which should be hanging over prison gates or the scenography of the judicial stage. Moreover, although Bentham has long been associated with abstract rationality, recent work has highlighted the importance of the body, for instance Carolyn Shapiro’s chapter on “Bentham’s Image: the Corpo-Reality Check” in the volume edited by Anthony Julius, Malcolm Quinn, and Philip Schofield on Bentham and the Arts (UCL Press, 2020). In conclusion, not only does Peter Goodrich’s Advanced Introduction to Law and Literature shows that this “copulative enterprise” is far from having become sterile, but it also provides sound methodological tools to approach Bentham’s writings with a new lens.

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Claire Wrobel, « Peter Goodrich, An Advanced Introduction to Law and Literature », Revue d’études benthamiennes [En ligne], 20 | 2021, mis en ligne le 19 décembre 2021, consulté le 27 mai 2022. URL : http://journals.openedition.org/etudes-benthamiennes/9504 ; DOI : https://doi.org/10.4000/etudes-benthamiennes.9504

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Claire Wrobel

Université Panthéon-Assas

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