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Different Voices, Different Choices: Playing at Law and Literature

Published online by Cambridge University Press:  18 July 2014

Anne McGillivray
Faculty of Law, University of Manitoba


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Review Essays/Notes critiques
Copyright © Canadian Law and Society Association 1992

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1. Cited in Friedland, M. L., ed., Rough Justice: Essays on Crime and Literature (Toronto: University of Toronto Press, 1991) at xiGoogle Scholar.

2. Cited in Grey, T. C., The Wallace Stevens Case: Law and the Practice of Poetry (Harvard: Harvard University Press, 1991) at 101CrossRefGoogle Scholar.

3. The relevance of literature to the study of law extends beyond the LL.B.-granting law schools. Law-related literary works have been used in disciplines as different as philosophy and criminology.

4. Grey, supra, note 2.

5. Cf. Thomas, B., Cross-Examinations of Law and Literature: Cooper, Hawthorne, Stowe, and Melville (Cambridge, Mass.: Cambridge University Press, 1987)CrossRefGoogle Scholar.

6. “[L]egal history can help us measure how accurately literary works portray legal issues …,” ibid. at 7.

7. Grey, supra, note 2 at 2.

8. That this was one of Posner's ulterior purposes (see infra for the other) is a suspicion shared by Grey, , who notes that his Law and Literature: A Misunderstood Relationship (Cambridge, Mass.: Cambridge University Press, 1988)Google Scholar “mak[es] the point that practitioners of the dismal science have souls and read good books too, but that this does not shake them from their sternly toughminded and economistic view of the serious legal world,” ibid., c. VI, note 3 at 145. It is noteworthy that both Posner and Stevens attribute their interest in law to their fathers, in literature to their mothers. Law is manly, literature for after hours. Grey explores the implications of this rigid demarcation for Steven's own dual careers and self-justifications.

9. White and Fish (infra), as well as Grey, unkindly but convincingly argue that this is Posner's real purpose: all “law ands,” and in particular the compelling association of law and the humanities, must be excised to make way for law and economics (which, Posner insisted in a 1987 lecture at the University of Toronto, is somehow “inside” law as law and philosophy, for example, is not and is therefore the only “legitimate” scheme of analysis for case law).

10. White, J. B., The Legal Imagination (Boston: Little, Brown, 1973)Google Scholar.

11. See, e.g., White, J. B., “What Can a Lawyer Learn from Literature?” (1989) 102 Harvard LR 2014CrossRefGoogle Scholar, reviewing Posner's Law and Literature: A Misunderstood Relation, supra, note 8.

12. Fish, S., “Don't Know Much About the Middle Ages: Posner on Law and Literature” in Doing What Comes Naturally: Change, Rhetoric and the Practice of Theory in Literary and Legal Studies (Durham, N.C.: Durham University Press, 1989)CrossRefGoogle Scholar. Although an avowed supporter of disciplinarity (in a recent lecture given at the Manitoba Law School), Fish is the quintessential boundary-jumper. He is Head of the English Department of Duke University and a tenured Professor of Law; despite the lack of a law degree, he currently teaches Contract Law and is researching constitutional implications of the Miltonian conception of free speech. Grey has put his own appreciation of language and law to work drafting guidelines on campus freedom of speech for the ACLU.

13. As Thomas observes: “[A] critic intent on ideological analysis cannot be content with recovering the surface meaning of a text but must reconstruct its historical horizon, in order to repose the questions to which its narrative is an imaginary solution. A knowledge of legal history can greatly facilitate this act of reconstruction,” supra, note 5 at 7.

14. Grey, supra, note 2 at 7.

15. Ibid. at 6.

16. Ibid. at 3.

17. Ibid. at 4.

18. Friedland, supra, note 1 at xii.

19. Grey, supra, note 2 at 115 no 3.

20. Cited ibid. at 5.

21. Mary McCarthy describes a fictional poet as “John D. Rockefeller drenched in attar of roses,” probably a reference to Stevens and an apt metaphor in any case. For Marianne Moore, Stevens was “the meditative man with the perfunctory heart.” For John Berryman, he was “[t]hat funny-money man” who “lifted up, among the actuaries, /a grandee crow.” Ibid. at 13, 12.

22. The line inspired a library-user's annotated obscenity. Ibid. at 19.

23. Stevens understood poetry as the meditative “poem of the act of the mind.” The mind here is one which clearly suffers in a very human way from an incapacitating alienation from humanity, finding in a passion for place a metaphor for that alienation. His attempts at socially conscious poetry were pitiable, but, as Grey points out, Stevens was “less spectacularly wrong-headed” than his contemporaries, Yeats, Pound and Eliot, who took their poetic politics to the public arena with what would have been disastrous consequences had they succeeded. Ibid. at 32.

24. The solitary, research-oriented and company-driven nature of his work, its utter lack of oratory, rhetoric, publicity and direct human interest, exclude Stevens from the grand class of lawyer-poets occupied by the Icelandic bards, the Ciceronian statesmen, the judge-king-poet David of Israel, Shelley's vision of the poet as legislator.

25. Ibid. at 7.

26. Ibid. at 68.

27. Ibid. at 52.

28. Ibid. at 40.

29. “Connoisseur of Chaos,” cited in ibid. at 76.

30. “An Ordinary Evening in New Haven,” cited in ibid. at 77.

31. Ibid. at 73.

32. Ibid. at 84.

33. Ibid. at 85.

34. Ibid.

35. “[If] either could have been made to take the other's view in addition to its own, little more would have been needed to make its doctrines correct.” Cited in ibid. at 107.

36. Ibid. at 7.

37. A phrase reminiscent of both Carol Gilligan and discourse theory, but in fact taken here from Dickens' Our Mutual Friend cited in Friedland, supra, note 1.

38. N. Frye, “Crime and Sin in the Bible,” ibid. at 3.

39. An example is the 1991 judgement of the Supreme Court in R. v. Chaulk: when legal insanity is claimed, ability to appreciate moral rather than legal wrong is the standard. The opportunity for further discussion of the relationship between crime and sin from Frye's literary viewpoint was foreclosed by his death as the book went to press.

40. P. J. Eberle, “Crime and Justice in the Middle Ages: Cases from the Canterbury Tales of Geoffrey Chaucer,” supra, note 1 at 19.

41. R. E. Chamberlin, “Oscar Wilde,” ibid., 141 at 150.

42. “Disobedience, in the eyes of any one who has read history, is man's original virtue. It is through disobedience that progress has been made, through disobedience and through rebellion. Sometimes the poor are praised for being thrifty. But to recommend thrift to the poor is both grotesque and insulting. It is like advising a man who is starving to death to eat less … Man should not be ready to show that he can live like a badly fed animal … As for the virtuous poor, one can pity them, of course, but one cannot possibly admire them. They have made private terms with the enemy and sold their birthright for very bad pottage.” Oscar Wilde, cited in ibid.

43. Ironically, he was convicted under an 1885 amendment to the Criminal Law Act intended to prevent the “white slave trade” in young girls.

44. Riel, founder of Manitoba and mystical leader of the Métis, was descended from a French family which settled in Ireland in the 17th century and emigrated after the Treaty of Limerick. His Irish background may have given him special insight into the plight of the aboriginal people. Davis, R., “Irish Nationalism in Manitoba, 1870–1922” in O'Driscoll, & Reynolds, , eds, The Untold Story: The Irish in Canada (Toronto: Celtic Arts of Canada, 1988) at 393Google Scholar. The flag of Riel's Provisional Government combined the fleur-de-lys and the shamrock but (partly as a result of his execution of the Orangeman Thomas Scott) most Manitoba Irish joined with anglophone Ontario immigrants rather than with Riel's causes.

45. See Davis, ibid., Part II, “A Hidden Holocaust in History,” and particularly P. O'Laighin's account of Grosse-Isle, at 75. The overt and subvert racism which has characterized the history of the aboriginal peoples of Canada has unmistakable parallels in the treatment of the Irish.

46. D. Duffy, “Wiebe's Real Riel? The Scorched-Wood People and Its Audience,” in ibid. at 200.

47. Riel was the scriptural voice of the Métis people, whom he believed to be descendants of Jewish slaves brought to North America by the Egyptian founders of the Inca and Aztec civilizations. The Israelites intermarried with the plains tribes of the north and their descendants were further enriched by marriage with the trappers of New France. (Riel was not alone in this. Similar beliefs have been held by the Mormon Church, the Afrikaaners and a group of Welsh immigrants to the Americas, among others.) The cosmic clock by which God timed human intervention, based on four times four numerology, resonated with Cree culture. The year 1876 in this cosmology was the centrepoint of cyclic change. Louis “David” was the new prophet, Riel and Gabriel, the herald angel whose name includes Riel (his second-in-command, Dumont) represented reason and emotion.

48. Ibid. at 210.

49. Or pageant of state power and control: see Hay, D., “Property, Authority and the Criminal Law” in Hay, et al. , eds., Albion's Fatal Tree: Crime and Society in Eighteenth-Century England (New York: Pantheon, 1975)Google Scholar.

50. A. Saddlemyer, “Crime in Literature: Canadian Drama,” ibid. at 214.

51. Ibid. at 215.

52. Agent protests that “ours is a civilized country,” but in that civilization, Indian does not exist: “I never been anybody. I not just dead … I never live at all.” Agent says: “You belong in jail!”; but Indian answers: “We been in jail along time now, sementos [soulless ones].”

53. Ibid. at 215.

54. Ibid. at 217.

55. Ibid. at 220.