Document Type

Article

Publication Date

1989

Abstract

Richard Posner's new book, Law and Literature: A Misunderstood Relation, is a defense of “liberal legalism” against a group of modern critics who have only one thing in common: their use of either particular pieces of literature or literary theory to mount legal critiques. Perhaps for that reason, it is very hard to discern a unified thesis within Posner's book regarding the relationship between law and literature. In part, Posner is complaining about a pollution of literature by its use and abuse in political and legal argument; thus, the “misunderstood relation” to which the title refers. At times, Posner suggests that this is the major thesis of the book-he simply wants to rescue literature from its misuse by critics of legalism. By the end of the book, however, it is clear that Posner has no real passion for his claim that great literature is never really about law, that it is always about more exalted things, and that its use in legal or political arguments therefore is improper. Rather, Posner's real concern is the celebration and vindication of liberal legalism, and he is as happy using literature to celebrate liberal legalism as are its critics in making their attack. I will argue that Law and Literature ought to be read primarily as an impressionistic and impassioned celebration of legalism-liberal or conservative-and that the book contributes little to an understanding of either the works of literature or the legal and literary theories which it discusses. Although Posner's interpretations of pieces of literature that deal with legal themes are sometimes surprising and often interesting, those interpretations are transparently dependent on his main agenda, which is a spirited celebration of legalist virtues. Posner's book nevertheless should be of great interest to professional and academic legal audiences. It tells us something important about the distinguishing commitments of liberal legalism and the type of personality which it attracts. That alone, and entirely apart from the merits or demerits of the literary interpretations Posner presents, makes the book's celebration of legalism of great interest.

More specifically, I will argue that the “liberal legalism” celebrated and passionately defended in Law and Literature rests on two essentially conservative convictions: (1) that our present law is, for the most part, as it should be, and (2) that our present law is, for the most part, as it must be. Legal authority, as it is presently constituted, Posner teaches, is generally both necessary and desirable; neither can we, nor should we, make fundamental changes in our law. Indeed, the book's impassioned celebrations of legal authority and of what Posner calls the “morality of obedience” to legal authority well illustrate the Critical Legal Studies movement's central and most controversial claim about liberal legal orthodoxy: that it is an essentially conservative and “Panglossian” faith in the virtue and necessity of existing authority-including, but not limited to, legal authority-that motivates as well as defines liberal legalist thought. The lasting importance of Law and Literature may turn out to be that its celebratory and conservative endorsement of authority unwittingly proves at least this aspect of the critics' case.

I will also argue in this review that Law and Literature tells us something important about what motivates liberal legalism and what kind of personality is attached to it. It is often assumed, at least in the Critical Legal Studies movement, that the “Panglossian attitude” unique to liberal legalism-the distinctive faith in the virtue and necessity of legal authority-is motivated by “sentimentality,” and, more specifically, by a sentimental view of the relation between our ideals and our law. According to the critics, this sentimentality is reflected in a paradigmatic type of argument, which I will call the “sentimental argument,” in liberal legalist discourse. Thus, liberal legal arguments, according to their critics, typically begin with some independent value or moral ideal, such as efficiency, procedural fairness, or legal equality, as the first premise.

The emotional need expressed by this second argument for liberal legalism-and the need which, I will argue, Posner's book makes fairly explicit-is not the sentimental need to see actual authority as perfectly congruent with our moral ideals; rather, it is the need to constrain the individual will by an external authority. If Posner's account of liberal legalism is at all representative, then the appeal of liberal legalism may be that it gives voice to the deep and human need to identify the individual's will, worth, power, and fate with the judgment of a higher, nonnatural, or simply “other” authority. If so, then liberal legalism may continue to resonate in the law school culture despite the barrage of debunking criticism directed against it, because it is the only ideology to do so.

Publication Citation

83 N. W. U. L. Rev. 977 (1989)