Customer Reviews

Law and Literature: Revised and Enlarged Edition

5 star:		(3)
4 star:		(1)
3 star:		(0)
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1 star:		(4)

 

 

This self-congratulatory tome spends most of its time ignoring the literature and instead giving potted summaries that say more about the author's inability to understand literature than they do about the books themselves. A number of very talented writers have discussed inter-relations between law and literature -- such as Robert Ferguson and Brook Thomas -- but this book does not deserve to be included among them.

There is not a chapter in this book - indeed, if you omit the index, it would hard to find a five-page stretch - that does not swarm with errors and absurdities. And what is notable is that the errors cannot be classed among those that even the well-informed are liable to make from time to time. They are not mere slips of the pen, they are not minor or superficial, nor of the kind that can simply be skipped over because they play little role in the argument that is being developed. No, they are everywhere manifestations of confusion and ignorance. Posner's merry obliviousness to even the simplest facts about literary interpretation and history is in itself remarkable enough, but what is truly extraordinary is the recklessness with which he parades his ignorance for all to see.

For example, in attempting to make sense of "defamation in fiction" - a real tort for which many authors have been held liable, and thus a problem that requires real legal standards - Posner attempts to explain how novelists fashion their fictional worlds out of the materials they observe (and therefore to indicate what authors must be allowed to do if novels are to be written). Simplification, Posner explains, is the crucial process in that process: a good novelist will not bog down the story in particulars, but will try to capture "the *representative* life and the *representative* incident. Real people are too complicated, many novelists say, to be put into a novel without change." For this last proposition, Posner's footnote directs us hopefully to chapter 3 of E.M. Forster's *Aspects of the Novel*. One would look long and hard at Forster's book without finding anything resembling Posner's assertion - and that is not surprising, since Forster understood the craft of fiction. (Forster does, famously, develop a contrast between "round" and "flat" characters, but his point is that novels typically focus on a few characters whose thoughts and motives are probed at length, while the rest of the fictional world is filled out by characters who do not receive such attention. He nowhere suggests that either flat or round characters result from the simplification of real-life personalities, and it hard to see how anyone could imagine that he does). Posner, with his law-and-econ "maximize production at the lowest cost" mentality, may imagine that the simplest representation, with the most general application, will get the biggest marketplace bang for the smallest expenditure of literary energies and ink, but no sane novelist would approach the matter this way. To say that people are "too complicated" to be slapped down on the page "without change" simply misunderstands what fictional representation is - since that proposition assumes, first, that it even makes sense to speak of "putting" someone in a novel "without change," and second, that any change that occurs is a way of avoiding "complication." Yes, it would be absurd to say that anyone can simply be "put into a novel," but it is no less absurd to say that this is so because fiction is simple and humans are complex. To take that view is, first, to betray a sensibility so deadened and hollow as to sacrifice any credibility that might have been afforded for one's literary judgments, and second, to demonstrate such a complete misunderstanding about what novelists do as to prove oneself incapable of fashioning legal standards that will facilitate the creation of fiction at all, let alone in a way that will prevent liability for libel. In short, neither the literary nor the legal worlds can profit from this treatment.

The problem is simply that Posner knows very little about literature and literary history. Thus he is given to fatuous efforts such as his speculations on why Shakespeare did not publish his collected plays when the fact is that in the early 17th century, playwrights made very little from publishing their writings, and hardly anyone bothered to publish their collected works. (When Ben Jonson did in 1616, he was widely ridiculed.) Posner's book is riddled with egregious misstatements of this sort, which would be comcial to anyone with the most basic education in literary history. In attempting to draw legal conclusions based on faulty information of this sort, he only creates further confusion.

I fail to see how Law and Literature has gotten such great reviews. What a tempting topic, but what a boring treatment of it! A vastly overated book.

People who have an appetite for words and the law will enjoy and profit from "Law and Literature." The prolific Richard Posner has updated his intellectually stimulating first edition to present once again an important study of how the fields of literature and law intersect and inform each other. As you read it, have a dictionary handy: in no other book of its size are you likely to encounter such words as antimonies, ressentiment, simulacra, sitzfleisch, bildungsroman, fictive, and agonistic. From time to time I thought he was just showing off his vocabulary, but I came to believe that that's the way he really thinks. It's a challenge, but it's worth it.

I must admit a bias for Posner because much of his thinking about law and economics has influenced my thoughts and opinions. Needless to say it was a pleasant surprise to find this book that handles the law-literature relationship as well as the relationship between law and economics. There is an eclectic selection of books and poems reviewed, and the organization is impeccable. The most important thing that I can say about this book is that it introduced and encouraged me to read other fields of literature that I had ignorantly dismissed in the past as being irrelevant.

Judge Posner's insights are always illuminating. He is throoughly mainstream one minute and totally out of teh box the next. This book will give the conventional English lit major whiplash. Icons toppled followed by cliches rejuvenated. They shouldn't worry. Posner has been making lawyers and law professors reexamine all assumptions for nearly 40 years.
From some of these reveiws it seems the English Lit types are a little more protective of turf than the lawyers have been.

Judge Posner is one of the more wondrous polymaths of his generation. Law and Literature, although not the greater of his achievements, is a thoughtful opus, full of illuminating insights. I read his book 6 or 7 years ago but I remember how impressed I was by the sharpness of his analysis of the legal implications of Kafka's Trial and Melville's Billy Budd. I have been roused to giving my opinion because all the other commentators are so uniformly negative about the book. Clearly, either they are missing something, or I am wide off the mark. I propose it's the former, and recommend "Law and Literature" to anyone who wants to know how one of the heights of contemporary legal thought tackles many of the issues that have occupied anyone who knows the law and enjoys literature. The fact that Posner doesn't indulge in deconstructionist twaddle is no reason to abstain.