In the past several years, my academic writing, university teaching, and literary criticism have focussed on what formally is termed “law and literature. “ I believe that a better label for the field, particularly insofar as it treats law in literary works (as opposed to law as a form of literature), would be justice and literature. My own work, in any event, centres itself there, and the methodology I propose extends more generally into what we might call justice and humanities. My writing in the field includes:
Ishmael Reed’s “Beware : Do Not Read This Poem” is the last offering in The Norton Anthology of Poetry of 1970. It’s aged well – it’s still clever and very funny – and I always have appreciated that, never mind his gruff iconoclasm, Reed responded generously to a letter about his novel, Reckless Eyeballing. (See my Ardor in the Court: Sex and the Law, at 213-14.) I can’t remember what my wife and I were talking about at breakfast one Saturday, but it led me to pull out the poem and read it to her, and then, perhaps compulsively, to wonder, “How would I explain this to my students? How would I analyze it in the law-and-lit context?” Which fetched me up here… “This Poem Is a Outlaw: The Demonic Inversion of Justice.” (Click on the title to read the essay.)
Do law and literature really have anything to say to each other? Until the publication of this work, that threshold question haunted law-and-literature studies. Founded in archetypal criticism, Structures demonstrates that the two disciplines spring from the same cultural impulses – that socially and imaginatively, they cannot help but intertwine. Drawing on the ground-breaking work of Northrop Frye (under whom I studied during graduate work at the University of Toronto), the book takes a unique, quasi-scientific approach to the subject, covering off both law in literature and law as literature (the case law, statutes, etc.).
Structures is also unique in the brilliant and engaging literature it analyzes. It moves beyond the traditional canon (Kafka, Dickens, Melville, Harper Lee, etc.) to consider traditional ballads, the biblical narratives of Moses and Job as mixed tragedy and comedy, literature from South Africa and France (particularly the delightful stories of Marcel Aymé), as well as works in Yiddish and Hebrew, the poetry of W. B. Yeats, stories by John Updike, John Mortimer, and John Sayles, Scottish nationalist writing by James Kelman, the golem legend from the Talmud to modern novels, etc. As well, it investigates legalese as a dialect in a universe of its own making, provides a concise summary (513 words) of the entire method proposed, and concludes with “further cases in point” – extended essays on selected works that render the method’s application particularly graphic.
Theories of justice are too often vastly speculative, in part because they are promulgated by moral and political philosophers, making them impractical for use in our legal systems and governments. This book proposes a radical new theory of justice that melds idealism and practicality; it approaches justice from a legal, and thereby more pragmatic, perspective, as against “blue-sky” moral or political philosophy. As well, it makes the justice case for a broad, liberal education, and demonstrates that law and humanities are not only culturally contiguous, but that a dialogue between them is crucial to building civil society. In this sense, Justice as Nostalgia is a sequel to The Structures of Law and Literature (and in fact contains a special section on justice and French literature), but also a stand-alone work on justice theory.
As a matter of basic anthropology, our conceptions of law and justice are inextricably linked with the metaphorical in our cultural imagination. For any theory of justice to have cultural resonance, it must vibrate sympathetically with this imaginative life, which drives everything in our lives individually and socially. Whether or not we are religious, the foundational narrative of who we are and how we got here presents us a happy beginning, a golden age or paradisal garden where there is no suffering for any creature, a “pastorale” where neither depredation nor death intervenes. Here, “in the beginning,” we are pre-law and the pastoral serves as a metaphor for right reason, the pre-eminence of natural law. We are also pre-comedy and pre-tragedy, for this is a beginning without end, at least in conception (forgive the pun). Perfect, immortal justice resides here, providing a model that we can work toward nostalgically, all the while knowing that we can never quite achieve it in this world.
To get as close as possible to such a happy ending, we ask ourselves how the paradisal model might apply in any given situation in our fallen world, and how we might adapt the most advanced thinking and techniques of our civilization to that end. Seen in this light, nostalgia for justice is emblematic of the mature civilization. It longs to meet what Harvard law professor Lon Fuller has called the challenge of excellence. In responsible adulthood, it invokes the perfection that is the childhood of the race, but on mature, socially-conscientious reflection. In our beginning is our end.
In order for the application of the model to be practicable, it must be founded in the existing jurisprudence of our democratic rule of law, adapting that jurisprudence to reach a legal consensus based on an empathic, moral consensus. … As with other contractarian theories of justice, mine depends on rational, liberally educated participants. Whatever elitism this engenders (the philosopher-king conundrum) is mitigated by social planning that ensures the widest possible availability of education and consensus-seeking.
In the early stages of research and writing, this work attempts to do for music what my Structures book does for law and literature (see above; similarly, a better categorization might be justice and music), again using archetypal criticism to propose a methodology. My treatment of ballads in Structures indicates some first steps in this enterprise.
My work on justice theory – the ideas of retrospective nostalgia for perfected justice, through consensus morality based in empathy – began with an attempt to develop a theory of justice for animals. The impetus here was the fact that the many legal and moral approaches from Greek classicism until today, many of them graphically persuasive and intelligent, have mostly failed – notably attempts to have animals declared legal persons instead of property in our era of globalized factory farming and scientific research as an arm of obsessive capitalism.
- R. v. Khadr: Did Prime Minister Harper Commit a Contempt of Court?, The Advocates’ Journal, Vol. 34, No. 3, Winter 2015, 10-14.
- “What the Sirens Sang: A Law and Literature Answer,” Law and Literature, fall 2012, vol. 24, no. 3, 380-7.
- “The Magical Legalism of Marcel Aymé: Charming Rogues and the Suspension of Physical, Natural, and Positive Law,” Cahiers du droit, septembre 2012, vol. 53, no. 3, 649-665.
- The article immediately above was translated into French by Dr. Jean-Pierre Belleville and published in Cahier Marcel Aymé, No. 32, (Paris, 2014), 29-49.
- “Mythologizing Mrs. Modigliani’s Bed” (2011), Il giusto processo civile : rivista quadrimestrale (Italian translation, under the title Il mito del letto della signora Modigliani, of my essay in English).
- “The Mouse in the Bottle: An Historical Survey of Some Legal Responses” (1998), 20 Advocate’s Quarterly, 483-506.
- “The Unwritten Law of Adulterous Provocation” (1995), Canadian Journal of Law and Society, Vol. 10, no. 2, 99-108.
Some of these essays are posted on my Social Sciences Research Network page