Living in a Law Transformed: Encounters with the Works of James Boyd White

Law and Literature 1.01

“Law and literature” began in 1973. It is an Anglo-American phenomenon. To start an overview of interdisciplinary scholarship in the field of law, language, and literature and an appreciation of the importance of James Boyd White’s work in this way may strike you as odd or downright inappropriate. Are not such bold theses by way of opening statements examples of precisely the type of linguistic utterances that White has been critical of these past four decades? And has not “law and literature,” if anything, consistently questioned the (ab)use and effects of propositional language in all kinds of legal texts? Of course. Nevertheless, my opening statement is a deliberate one, should you by now question my credentials to contribute to this volume. In this chapter I want to draw your attention to the fact that there are good arguments for and against both theses and that their simultaneous existence is what matters when we talk about the value of “law and literature” as we now know it and discuss the future of humanistic legal studies in general. So my theses are as accurate as they are false and in what follows I hope to elaborate on them. After all, law works by opposition and I am a legal practitioner as well as one involved in literary-legal studies. What is more, since the days of Quintilian law students have been taught to argue both sides of the case, the method of the controversiae, and “law and literature,” if not born then raised in opposition to instrumental thought and economic reasoning, surprisingly perhaps, also has its own binary oppositions that we need to address if the field is to thrive.

The origin, then, of contemporary attention to the bonds of law and literature broadly conceived and, with it, the emergence of “law and literature” as a field of academic research can indeed be traced back to 1973 with the publication of James Boyd White’s The Legal Imagination.[3] But, as White himself modestly wrote, “... any claim that law and humanities began in 1973 would obviously be ludicrous, for the connections between law and the arts of language go all the way back to the beginnings of law in European history.”[4] And so it would seem that with the development of interdisciplinary legal studies the European roots for a reappraisal of the humanities for law, located in an era when the academic differentiation of disciplines was still a thing of the future, were forgotten along the way. Put differently, European “law and literature” from its start tended to pay homage to topics presented in Anglo-American scholarship, and White may be right here too when he wrote that the distinctly European humanistic sources belonged to “... a tradition that took itself largely for granted, and there was very little that addressed it directly”.[5] Obviously, given the Whitean source of the contemporary movement, there is also good reason to call “law and literature” an American phenomenon.[6] Not only because the American renaissance of the humanist tradition built on what very soon became seminal texts, John Wigmore’s “A List of Legal Novels” and Benjamin Cardozo’s “Law and Literature,”[7] but also given the legal and sociopolitical constellation in the decades before 1973 and its effects on law. As far as the latter is concerned, it is important to note the critique in the legal and political consciousness of the 1950s and 1960s of the dominance of the idea of law as an autonomous discipline as championed by, for example, the legal process school (with Herbert Wechsler and Henry M. Hart Jr as prominent contributors) that also found itself under attack for its presumed tendency to ignore the question of the values and principles underlying substantive law on the view that the objectivity in law that it cherished preserved law from politics. The American interest in legal positivism, pivoting on the debate between Herbert Hart, who defended the separation of law and morals and Lon Fuller, who advocated a natural law-based legal theory,[8] also brought to the fore the legal need to seek other disciplines’ help. The positivistic interpretative insistence on the separation thesis, with its tendency to out-of-context reasoning and its focus on the normative component of law, was also accompanied by a claim of neutrality, one that collapsed after the horrors of Nazi law unfolded in the wake of the Second World War.[9] The view on law as a science that considered the autarky of the discipline as a precondition for the objectivity of its results was challenged. As a counterweight interdisciplinary movements, “law and literature” among them, developed.[10] The realization that the formation of law and society is a reciprocal process made legal professionals (re)turn to the humanities because the tasks that they had to confront lay beyond those supposedly easily mediated by legal doctrine. Thus, literature entered the legal arena as an auxiliary discipline to provide the qualities that law as an autonomous discipline lacked. As further discussed later, the need felt to supplement law with supposedly external resources already contains the germ of potentially counterproductive dichotomous thought.

Fledgling “law and literature” took up the two challenges provoked by Wigmore and Cardozo. The Wigmorean focus on the literary portrayal of the legal system and its individual practitioners expanded into discussions of the normative aspects of law that resulted in a strand of research called “law in literature”. Starting from the premise that our cultural heritage in the form of literary works holds up a mirror as far as sociolegal and political developments and values are concerned, and that it shows an external view on law and the legal profession in action, “law in literature” has a distinctly ethical component. “Law as literature” is a follow-up on Cardozo’s claim that any legal professional, judges included, should develop a linguistic antenna sensitive to peculiarities beyond the level of the signifier and the signified; that is, the form of a word and its (dictionary) meaning. On the view that language is law’s only tool, and that law and literature are both producers and products of culture so that they reflect as much as critique, ideally at least, the prevailing societal convictions and conventions, an investigation of the literary creation of human experience may help us understand the ways in which narratives (re)construct reality. What is more, as the authors and readers of legal narratives we also have to acknowledge that law’s instrument is an institutional language that also imposes its conceptual framework on its users so that it behoves us to develop our linguistic sensibilities on this level too.[11]

Preliminary Hearing

James Boyd White’s major contribution to a revaluation of the humanist legal tradition, in my view, is that what he calls the legal imagination can be looked upon as an ever-present influence upon the many trajectories of literary-legal research. That is to say, the legal imagination serves as a linchpin for most humanistic reflections of law. White has consistently argued that the essence of a legal professional’s work lies in the process of dealing with authoritative texts and translating from other discourses into the law. To him, this is a literary activity that involves an, “enterprise of the imagination ... the translation of the imagination into reality by the power of language.”[12] Not incidentally, the working title of The Legal Imagination was Principles and Practices of Legal Expression, for here is the connection with the original aim of “law and literature” as inspired by Wigmore and Cardozo: to provide the law student with an introduction to what doing law means (and that includes a conception of law different from the positivist approach) as well as the student of law and/or the legal professional with insights into intellectual and ethical goals including, but not limited to the development of interpretive skills and an empathetic focus on the perspectives of others. An aim, I would suggest, that scholarship in the field soon deviated from in its focus on developing theoretical claims.[13]

No solitary chapter could hope to do full justice to the wealth of James Boyd White’s oeuvre. What follows first establishes some parameters of White’s view on law and then concentrates on three interrelated perspectives (distinguishable but not distinct) to offer a lens with which to view current issues in “law and literature” and White’s achievements, and to serve by way of backdrop to this volume’s other contributions: the paideic importance of “law and literature” for legal education and practice, the methodological consequences of interdisciplinary positions taken and the importance of historical awareness for the future of the humanistic study and practice of law.[14]

What made The Legal Imagination so highly innovative in 1973 was that it connected law to what for long, because of the dominant view on law as science, had been looked upon as a literary quality only, the imagination. To White, legal practice is characterised by a constant having to come to terms with the combined representations of events in narrative form and the systematic exposition of law as a language of concepts. A legal professional should therefore have a command of the language of law in a double sense. Firstly, an understanding of and the ability to handle the institutional possibilities and impossibilities of the culture that is law. Secondly, an awareness of the impact that her choices have, because the language of law is normative in that it is a proposal to get a grip on both language and world.[15] The ability and imagination pre-requisite for successfully accomplishing the translation of the case and the relevant legal texts to a new situation in the world demands insight into the fundamental difference between the narrative and the analytical forces in law. White calls this the difference between “the mind that tells a story, and the mind that gives reason,” of which the former “... finds its meaning in representations of events as they occur in time, in imagined experience; the other, in systematic or theoretical explanations, in the exposition of conceptual order or structure.”[16] What matters, then, is the ability to bridge these differences, in ourselves and when recognised as competing tugs in the texts we have to work with.[17] In other words, to learn to integrate the literary and the conceptual, on the understanding that “The law can best be understood and practiced when one comes to see that its language is not conceptual or theoretical—not reducible to a string of definitions—but what I call literary or poetic, by which I mean ... that it is complex, many-voiced.”[18]

Hence the reason why White speaks of the constitutive rhetoric of law as “an art of persuasion that creates the object of its persuasion, for it constitutes both the community and the culture it commends.”[19] Hence also why White proposes that we practise, “the art of talking two ways at once, the art of many-voicedness,” and that is, “learning to qualify a language while we use it: in finding ways to recognise its omissions, its distortions, its false claims and pretensions, ways to acknowledge other ways of speaking that qualify or undercut it.”[20] Not incidentally, this is also the ideal methodological starting point for our interdisciplinary ventures. Thus law should not primarily be looked upon as a system of rules or a tool of social control, but as a literary culture of argument, the essence of which is claiming meaning, as much in oral or written argument in court as in contributions to legal scholarship. All this makes law part of the humanities aimed at understanding human action, rather than the empirical social sciences aimed at explaining.

Inextricably entwined with the art of manyvoicedness is the reconciliatory counterpart of “comprehending contraries,” a quality that especially a judge should foster when deciding a case, both in the process of taking the decision itself and in the textual rendering thereof. It is at the same time the experience of the extent to which the central tendency perceived in law to try and restore the disrupted balance of human relations is given adequate attention.[21] The idea of “comprehending contraries” is a redefinition of the Coleridgean thesis that a good poet is able to balance discordant qualities by means of his imagination which in itself is, ideally at least, the harmonized result of contraries and complexities.[22] It foreshadows White’s later work on translation as discussed later. As far as law and legal practice are concerned, there is a direct link between “comprehending contraries” and the resistance to linguistic imperialism that White promotes in Living Speech, when he argues that precisely because the meaning of law depends on the way in which it is practiced we must learn to recognize when and how the dehumanizing, authoritarian “empire of force” is at work and learn how to oppose it not only in others but also in ourselves, for the empire of force too is a product of our habits of mind and imagination.[23]

Binary Oppositions or Wholeness? The Heart and the Head in Education and Practice

After William Blackstone, a writer of verse since boyhood, had entered legal practice in 1741 he soon lamented that he was forced to leave the companion of his youth in the poem “The Lawyer’s Farewell to his Muse.”[24] The lines used as the first epigraph to this chapter highlight not only the bifurcation Blackstone obviously experienced in his life, they are also indicative of the start of a development that made law and literature lose their original professional connections. In the Middle Ages, literary and legal life were perceived, much more than they are today, as the collective expression of a community of letters. In the fifteenth and sixteenth centuries this studia humanitatis strongly expanded and the integration of law and the artes liberales also brought about a unity of theory and practice.[25] From the eighteenth century onward law and literature went their separate ways as disciplines began to differentiate and obtained their institutional, academic forms. An external differentiation of law into economics, sociology and anthropology took place and literature became academically respectable with the foundation of Honours Schools. What is more, law’s internal differentiation of private and public law accelerated as a result of the growing demand for specialized legal knowledge during and following the industrial revolution and the transformative era of technological progress in the nineteenth century. Both processes culminated in the second half of the nineteenth century with the rise of scientific and legal positivism that also brought about a separation of the supposedly hard sciences and the humanities, and, with it, the desire to ground law too as a science. Each now autonomous discipline developed its own professional language and methodology, its own culture also in the sense of conceptual frameworks and values.[26]

With this development came the tendency to oppose law and literature as hard versus soft. It is precisely this creation of binary opposition and its resulting dichotomous thought that occasioned the starting point for “law and literature”; that is, to say its desire to develop its pedagogical aim to learn how to do law differently, or “well” in a more old-fashioned way as White would call it.[27] In other words, from the dominant emphasis in legal education in the 1960s on the vocational aspect of training for the job by means of a methodology focused on doctrinal and practical issues of solving cases to a broad, humanistic education that integrates rather than separates disciplines. Preceded by William Davenport in the 1950s, [28] Charles Reich advocated a (re)turn to the humanities, on the view that “After about one year, the law school has done almost all it can to equip the student ... If courses are to be of any value, they must offer something different.”[29] By contrast, legal professionals need a generalist outlook, because law deals with all aspects of people’s lives and it is prescriptive. Law meets literature and the other arts in the “critique and an overview of society” that are their common concerns, according to Reich who wanted to bring questions of justice in the curriculum.[30] In a similar way White opposes a form of legal education that is solely directed at the transference of what he calls legal “doctrine in a vacuum”[31] and suggests that we look at the things that law is analogous to. On this view, too, we should not speak of “law and sociology or history or economics or literature, but law as each of these.”[32] This remark contains the idea of translation as a model for interdisciplinarity that White develops in Justice as Translation, to which I turn shortly. Thinking in terms of integrating disciplines will necessarily redefine the academic curriculum. It will preclude any tendency to regard teaching as the mere conveyance of entities of meaning, and will redirect attention to the formation of character, professional and private, rather than the rainmaker kind of maximization of material wealth as the ultimate professional goal. It also demands a broader education for law professors to be able to teach law as a humanistic study. In short, it will mean the end to keeping law closed to outsiders that was the key to law’s autonomy.

So the study of language and literature was initially promoted in order to make the much desired difference to counter to the excessive emphasis on an analytical and instrumental reading of texts as part of the case method as the main component in the legal toolbox, and subsequently teach different ways of thinking like a lawyer, encompassing other disciplines. Connected to this aim of mitigating law’s traditional disciplinary tendency is also the consistent claim brought forward by Martha Nussbaum and others that the combined study law and literature may ideally join cognitive insights of morals and values in law with an empathetic understanding of the plight of those in whose lives the word of the law interferes deeply, on the view that the value of literature is that it “talks of human lives and choices as if they matter to us all.”[33] The experience of viewing the world of the text and its inhabitants empathetically can be transformed into a norm for judging human relations in general, or, as Nussbaum puts it, for “our social existence and the totality of our connections.”[34] Robin West offers the related view that reading literature helps us understand aspects of our own character and that our social lives demand that we recognise the needs of others.The empathic ability is therefore not only a product of, but also a precondition for, reading well. The ability to identify oneself with the other implies affective understanding as well as the capacity to act accordingly.[35] Nussbaum’s plea is also one for an alternative concept of legal and economic rationality which springs from storytelling and literary imagination. Against the economic reduction of the complexity of human life to utilistic preferences she puts the capacity “to imagine the concrete ways in which people different from oneself grapple with disadvantage,” and that is the heart of the literary approach that emphasises the particularity of human experience rather than an abstraction formulated on the basis of presuppositions that are hard to test.[36] Nussbaum’s term to denote this capacity is fancy—that is, “the ability to see one thing as another, to see one thing in another” or “metaphorical imagination.”[37] On this view, the recognition that telling stories is a way of knowing is crucial to law.

From a methodological point of view, the claim of literary jurisprudence is that narrative knowledge can help us integrate human experience and our reflection on legal interpretation. This, in turn, can promote in us a critical, professional reflection that contributes to the formation of a legal conscience of integrity or wholeness. In legal practice it alerts us to the need to recognise a diversity of rationalities when it comes to the exposition and valuation of the “facts” and the ability to present one’s story and case persuasively. On the view that a judicial decision is a form of reflection of what is and should be, the visual scenes that literary works evoke may therefore also serve as a form of ekphrasis (a term denoting the vivid description of a work of art that elicits a direct response in the reader) to trigger resistance to the reification that results from of a one-sided attention to the language of legal concepts.

What is more, on the premise that “Law is determined very largely by the ideas of those who are practicing it, and ... their ideas are very largely governed by the quality of their education,”[38] it becomes crucial to acknowledge that the danger of legal reification of human problems looms large when lawyers fall prey to the impulse to reduce human experience to legal cliché and real people to objects under discussion, which is “an internal aspect of the problem” that is “permanently with us,” as White puts it.[39] So we should learn “to understand the languages that inhabit our mind; to establish sufficient distance from them so that we can make them, and our use of them, the object of our critical attention.”[40] There is good reason for doing so, if we agree with White that any concept of law should encompass a notion of justice.[41] Turning to literature and cherishing the poetic faith advocated by Coleridge (his “willing suspension of disbelief for the moment”)[42] may teach us not only the necessary moment of epoché (from the Greek έποχή, suspension) in law and legal practice.[43] Such a turn might also to preclude challenge the divisions between thought and feeling and between the public and the private self. By such a turn we heed the warning of James Boyd White and save ourselves from the sort of overemphasis upon the analytical which was Blackstone’s vice and to which he was victim.[44] Immersion in the lives and problems of others via literature can help students acknowledge the tensions that are always at work in the life of the legal professional and these also include the tension between the language of law and those of other disciplines, (e.g., statistics or psychiatry), in trial situations. Furthermore, it helps instill into students a germ for the development of the necessary professional practical wisdom from the very start of their lives as lawyers: the legal aptitude that involves ordering materials in such a way that a new proposal for the world in the form of argument and judgment can be made. Or, as U.S. Supreme Court Justice Stephen Breyer eloquently promoted the idea of empathetic imagination:

That is why humanistic Bildung is not and should not be taught as a frill of the kind that law students sometimes disparagingly call “law and bananas” but as an essential component of legal education, lest legal practice remains unresponsive—as, I fear, has been the case so far—to its suggestions. Here, too, lies the project of academic “law and literature” to (re)connect legal theory and the practice of law in common law and civil law cultures. The latter code-based systems, no less than the former case-based systems, can benefit from the teaching of a critical attitude from the very start of legal education in order to encourage jurists toward improved imaginative creativity and greater ability to contextualise knowledge with regard to pragmatic and not merely doctrinal demands. The ability to enter imaginatively into any given situation is what matters, then, and with it, the disposition of prudentia which takes its deliberations from the circumstances of things, or phronèsis, as Aristotle called it.[46] Interpretation cannot thrive without practical wisdom, because legal knowledge is not a pre-existing truth. It is always a form of applied understanding, for it brings together rules that are not self-applying, and contexts that differ from case to case. Narrative knowledge, or rather a working narrative intelligence is therefore immensely important in legal practice, [47] not in the least because as practitioners we arrange events in a dramatic sequence, whether in oral pleas, written charges, or judicial decisions, and in doing so we already decide what and who is to be included or left out. Reflection on this process is essential and the same goes for our recognition of competing tugs in other people’s arguments and texts. Wholeness is all, combining the narrative and the analytical to arrive at integrity in the literal sense of the word (its Latin root integritas meaning “being whole”) both for the individual practitioner and the practice of law.

Binary Oppositions or Wholeness? Separation and Integration of Disciplines

The aforementioned argument also goes for interdisciplinarity itself. As I argue elsewhere,[48] if “law and literature” is to thrive, we will need to make it a whole as an interdiscipline—that is to say coherent and structurally a whole (i.e., integrated and intellectually sincere and conscientious). Only then will it stand a chance of accomplishing the aims with which it started. Only then can it be truly interdisciplinary as far as intellectual integration of the kind promoted by White is concerned when he wrote, “Indeed, in its hunger to connect the general with the particular, in its metaphorical movements, and in its constant and forced recognition of the limits of mind and language, the law seemed to me a kind of poetry... the activities of law and literature ... were in a deep sense the same thing, and I could not do the one without the other.”[49]

This also reminds us that our disciplinary starting point determines the form of cooperation. Because law’s way of being in the world starts with language, any “Law and” field needs to consider the disciplinary language views involved for they are of decisive importance for the narration in and of the texts of the cooperating disciplines.[50] To me, this speaks for our continued attention to the history of ideas. The idea that interdisciplinary scholarship is something new in that it brings together two (or more) originally separate and autonomous disciplines is a paradox when in retrospect we realise that this development took place as a reaction to the process of disciplinary differentiation that occasioned the rise of monodisciplinarity in the nineteenth century and with it, in Europe at least, the independence of national literatures. The European development coincided with the rise of nation states and their urge to distinguish themselves by means of national codifications. The growth of disciplinary autonomy was accelerated by the rapid expansion of technology and industry with their favored positivistic methodologies focused on explaining the world. This drove a wedge between the humanities and the natural and empirical sciences.

The epistemological and methodological debate that followed, or the Erklären-Verstehen controversy as it is called in philosophy, focused on the difference between the concept of explanation pertaining to facts and the concept of hermeneutic understanding of human action. It has had far-reaching implications for law and literature in the twentieth century, for as late as 1959 C. P. Snow still made the distinction between the two cultures, (i.e., of scientists and non-scientists), and dismissed the humanities because of their inability to contribute to solutions to global problems, a view that met with fierce opposion by F. R. Leavis, who promoted the idea of literature as rooted in human minds that thus constitute and affirm their humanity. The effect of disciplinary differentiation and the combined emphasis on facts and literal meaning that is the heritage of positivism, also for law, are beautifully illustrated in a scene from a Dutch classic, Multatuli’s Max Havelaar (1860), where the coffee-broker, Batavus Droogstoppel, criticises literature, and especially poetry for its lack of correspondence with the “real” world, saying

The success of the positivist paradigm brought with it a concept of law as science that in the late nineteenth century led to a profound belief in the transparency of objective knowledge in law. In the United States, C. C. Langdell proposed a method of inductive reasoning through accumulated cases in order to distil legal concepts and doctrines that in turn could be applied deductively to new cases and thus contribute to the formation of a true science of law. This occasioned the rise of legal formalism. In civil law European countries the positivist idea that legal decision-making must necessarily opt for the guidance of the system of rules became dominant. With it came law’s thrust for Normgerechtigkeit, as German legal theory had it (i.e., the principle that the strict application of the norm leads to a just result), and a concept of instrumental rationality on the view that, in a value-free legal science, the selection of the objectives was left to politics and the competence of the scientist would be limited to giving advice about the applicable means. The legal professional became an engineer.

Against this background it is obvious that in contemporary interdisciplinary ventures we have to address the question of the disciplinary concept we espouse. The success of disciplinary translation depends on it. This necessitates an investigation into the conceptual presuppositions as well as the interpretative strategies of the cooperating disciplines and other assumptions (shared or not). Put succinctly, for any “Law and” this means we have to decide. Does our view on law epitomise modern science with its emphasis on theoretical knowledge in which universality, objectivity, certainty, and rationality are the keywords? Or do we think of law as a hermeneutic discipline that cherishes the method of phronèsis, the practical wisdom rooted in the particularity of a specific situation, with as a result the acceptance of a plurality of viewpoints for debate and argumentation. In short, is a lawyer a mechanic in the sense that he “merely applies” what others have provided, or an architect, as the second epigraph to this chapter asks us to consider? Is law social engineering or is it one of the humanities?[52]

In early “law and literature,” the debate between Robin West and Richard Posner on the perceived contrast between economic man and literary woman provides an insightful illustration. To Posner, it should first be noted, law is divorced from legal theory and that is why the study of any other discipline is relevant only when it uses law “in some organic sense” as is the case with economics, or so he claims.[53] Literature as in “law and literature”, then, is of service to law only when it contributes to interpretation of the intentionalist kind. Now the economic goal of the individual participating in the marketplace is wealth-maximization—that is, maximization of individual preferences. On the meta-level, I suggest, this implies a methodological individualism that works from the presupposition that participants always choose rationally, and that disregards situations of dependence. Once decision-making in law is based on such supposed freedom of choice, this reveals a worldview in which human values are hardly recognised. That is the critical, political perspective that Robin West endorsed when she argued that Kafka’s fiction provides us with a clear picture of the horrors of such a world in which the individual’s consent to any transaction legitimates everything. To her, there is a strong contrast between the “outward descriptions imposed upon the transactions in which Kafka’s characters engage and the radically different inward experience of those transactions by the parties involved,”[54] as Joseph K. in The Trial, Georg in “The Judgement,” and the eponymous hunger-artist poignantly illustrate. The result of economic man’s emphasis of individual autonomy is that “He is as incapable of error regarding his own subjective self-interest as he is incapable of knowledge regarding the subjectivity of others. Empathy is as foreign to him as rationality is familiar.”[55] Hence, the need for a counterweight in the form of literary woman who, as noted earlier, by her reading of literature has developed an awareness of the complexity of the human condition.

The main point is this: in an economic environment that favours the positivistic hermeneutics that meaning is obvious, language risks becoming the supposedly neutral vehicle for the communication of information in which facts are entities in the world easily transmissible by words: the encoded perceptions of these very same facts. “Law and literature” opposes such language view because it assumes the unmediated representation of reality connected to the Cartesian idea(l) that scientific knowledge is theoretical knowledge only, easily conveyed by means of that neutral instrument called language. Such language view disregards the influence of our conceptual framework on our valuation of the world. The political relevance of the debate is obvious given our contemporary global financial and economic crises. A humanistic reconsideration of the primacy of instrumental reason in modernity therefore remains acute, for an instrumental reason enframed in a project of domination threatens our capacity to remake the conditions of our existence. As Charles Taylor claimed, we risk the growth of “a disengaged model of the human subject” at the expense of moral deliberation—that is, disengaged from our bodies, emotions, and life forms.[56] On the meta-level of interdisciplinarity, the consequence of the rationalist economic view, put bluntly, is that the language of the dominant discipline determines the form of cooperation. This leads to what White calls disciplinary imperialism, prioritizing the one language at the expense of the other.[57] The discipline connected by means of the “and” is then at best a tool or auxiliary, not a constitutive component.

In contemporary “law and literature,” the flipside of the “economic man-literary woman” argument is under scrutiny. As Stephen Jay Gould claimed, the only reason that we ever developed a model of opposition between science and the humanities is our “deeply entrenched habit of ordering our categories as oppositional pairs.”[58] While there may be nothing wrong with the opposition of scientific economic man (including the authoritarian man of law as science) to literary woman as a heuristic device for purposes of argumentation, we should consider whether to continue or not an antagonistic and gendered reasoning in terms of the deficiency of the one discipline compared to the superiority of the other, as scholars as varied as Jane Baron, Julie Stone Peters, Greta Olson, and Desmond Manderson have recently argued in their critiques of “law and literature.”[59] The question is acute for at least two reasons. First, when we realize that the supposedly mutual incomprehension that results from the (putative) dichotomy of the scientists versus the scholars in the humanities is itself the result of the differentiation of disciplines that the advocates of a humanistic study of law ask us to reconsider. Secondly, when we discuss the future of “law and literature” and its offspring (or siblings) “law and humanities” and “law and culture,” and do so from a “de-Americanized” point of view proposed by Olson, on the view that American “law and literature” scholarship has so far not done much to overcome the dichotomising.[60]

To White, by contrast, any interdisciplinary work should start from the idea that we constitute ourselves by means of the resources furnished by our culture, so that we have to remind ourselves constantly that how we express ourselves is to a large degree structured by our linguistic and cultural contexts, professional and otherwise. Thus, in using these resources we recreate the languages that make us what we are.[61] To counter any form of linguistic or disciplinary imperialism of the kind discussed earlier, White proposes translation as a mode of thought to resist utilistic thinking and promote intellectual integration as the making of “a third, a new whole, with a meaning of its own.”[62] Such integration works by seeking the homology between disciplines, by thinking in terms of fundamental commonalities rather than viewing literature as a disciplinary surplus with an additive value for law only—that is, “law as” rather than “law and” as noted earlier.[63] On this view, too, interdisciplinary research is comparable to translating texts: the construction of new meaning and the composition of a new form of language, and, with it, a new culture. The comparison is important if we consider that from time immemorial it has been the judge”s task to give words in law to what is literally unspeakable to the people who come before him.[64]

The idea of translation as integration implies that truly interdisciplinary work should aim at articulating the specificity of our acting with languages for only then can (the foundations of ) both disciplines be understood in their mutual connection. To White, integrative knowledge is therefore not “the transfer of ‘findings’ from field to field, nor the transportation of ‘method’ ... but a bringing to consciousness of the nature of our own intellectual and linguistic practices.”[65] To lay bare the analogies between law and other disciplines is the essence of translation. As a normative ideal it precludes any tendency to think in terms of the conveyance of entities of meaning. And since translation of disciplines is never a mechanical act, but something to be done time and again in a specific context, the imagination and, with it, practical reason play a crucial role for us to be able to understand analogies and know how to work with the materials available. The idea is behind all this is that

For, as White astutely reminds us, “One who believes that everything can be said in a language of theory and system is an impossible fool.”[67]

There is even more good reason to pay careful attention to the translation of our disciplinary narratives if we agree that scientific explanations and humanistic understandings are both forms of storytelling, [68] related though distinct: for judges who are unaccustomed to the specifics of a discipline other than their own, it can be most helpful to gain insight in the way in which other forms of cognition function when they have to decide cases in which the clash of disciplines is obvious as is the case in, for example, law and psychiatry, [69] or when they have to confront and overcome their own preconceived notions as forensic psychology suggest we all have in the forms of belief perseverance and confirmation bias. In short, even though the use of the term science seems awkward in a Whitean context, we should opt for “narrative schemes [that] may provide a science of the imagination.”[70]

Back to the Future

Since 1973, “law and literature” has become institutionalised, with courses at most Anglo-American law schools,[71] a separate entry in the Index to Legal Periodicals and Books, specialised journals, and anthologies,[72] and, finally, an exponential growth of the number of websites devoted to the subject. In Europe, too, the humanistic study of law, aiming at opening up the law to “dialogues across disciplines,” has gained momentum.[73] So it is high time to consider, also by way of conclusion, some possibilities for future research now that the humanistic study of law has once more gone global, if we recall its roots in the implementation of the Justinian Code of Roman law since the eleventh century. For a renewed legal humanism, then, one that takes as its object the plurality of aspects of the human condition, [74] the need for translation as a mode of thought remains acute. Rather than entering into fierce contestation with American scholarship or replicating it, we should engage in dialogue and reflect on our specific cultural and legal preoccupations. In short, the future lies in a comparative legal humanism—that is, a multilateral recontextualization of research topics. Contemporary pluralism in law and society strongly suggest the need for a study of unity and diversity at different levels, with attention to the traditions that brought us where we are today.

From the myriad possibilities that the humanities offer,[75] my suggestions are prompted by my conviction that given the mutual dependency of theory and practice in law jurisprudential studies should move beyond the purely academic, theoretical context and into the realm of practice. A renewed focus on doing law will give humanistic legal studies practical significance and, with that, perhaps also impact of the kind so highly desired by academic leadership.

To start with, I would like to point again to the importance of the historical perspective. Research into historical cross-sections of a field of law is admirably suited to generate new questions, nationally and internationally. This also goes for comparative law when we consider recent tendencies such as, first, the shift in civil law countries away from the traditional inquisitorial approach in trial situations toward more adversarial common-law features (e.g., equality of arms with respect to hearing expert witnesses), and secondly, the development by European courts of a European common law while, as Mary Ann Glendon already suggested, American courts seem to move toward a dogmatic stance.[76] To provide a space for cultural-legal translation is also especially important for partnerships such as the European Union in order to seek methodological integration and collaboration. In the sphere of legal language and concepts, attention to the inexhaustibility of contextual differences when concepts may have similar wordings but are nevertheless culturally and sociologically dissimilar (and that includes the discourses of gender, race, and ethnicity) is crucial. Another promising topic that ties in with current, technology-induced challenges with respect to questions of volition, authorship, and copyright in the digital world, would be the unity of law, literature, and historiography that once existed in the idea of the auctoritas poetarum, the authority in matters of truth and fact that Renaissance humanists ascribed to poets and historians alike.[77] Furthermore, research on the history of fictionality itself can help us to address the broader theme of the dominant epistemology and history of ideas of a specific era and reconsider the topic of how contemporary jurists seek refuge in the story in order to give their argument more weight, as their medieval precursors did before them. It can also further our inquiries into the Aristotelian opposition (in the Poetics) of mythos (narrative, story) to logos (dialectical discourse) that contemporary developments such as the growing importance of visuality and mediality in law prompt us to.

This brings me to my second perspective, occasioned by the influx of modern technologies in law and especially in the courtroom, that of the future of textuality in the digital age. How are judges to translate what they “see” in the pictures shown to them in evidentiary settings into the minutes of the trial session as is required in most civil law countries without jury systems? What “is” it that we actually see if we think of the influence of (popular) culture on the formation of the mental frames through which we perceive law and society, our local cultural imaginations, and scripts that are themselves narratives we live by?[78] Here, too, an exploration of differences and similarities between various legal cultures and systems, diachronicaly and synchronically, is called for. As a legal practitioner I strongly favour the idea of language as our cultural software,[79] firmly rooted as I still am in the idea of law as text. I would therefore hesitate to focus on aspects of mediality and visuality per se. My claim would be that it is precisely because of technological developments that law’s textuality remains important. This also goes for the technological developments in and of the humanities themselves. As Dave Parry recently put it, “Consider the fact that we do not have ‘pencil humanists’ or ‘typewriter humanists.’ This might seem like an odd observation, but we should ask what the adjective ‘digital’ is doing in ‘digital humanities.’”[80] While digital technologies greatly enhance the range and speed of all kinds of literary-legal textual analyses (computational and corpus linguistics, for example, can significantly contribute to the analysis of judicial decisions of supra and international courts), this does not preclude the demand for knowledge of such formal literary characteristics as genre. So the IT specialist who constructs the algorithm guiding the search cannot do without the input of the humanities traditionally conceived. Even when we would argue that our traditional human-centric view of legal codes must give ground to a machine-centric view,[81] as designers of the machines we remain responsible for their output, so code is still made by us.[82] On the view that resistance to what technocrats call nonmarketable knowledge[83] remains called for, I am optimistic about the close bond of the humanities and law on the plane of language and hermeneutic praxis. Their usefulness is not to be measured with a cost-benefit calculus but in terms of their contribution to law’s task: doing justice.