Hostname: page-component-77c89778f8-gq7q9 Total loading time: 0 Render date: 2024-07-20T19:34:10.269Z Has data issue: false hasContentIssue false
  • English
  • Français

The History of Genres: Reaching for Reality in Law and Literature

Published online by Cambridge University Press:  27 December 2018

Anat Rosenberg
Get access Rights & Permissions [Opens in a new window]

Abstract

Genres are historical formations; their ability to generate knowledge depends on their interrelationships within a culture. Since law, too, can be viewed as a genre, studies of specific historical relationalities between law and other genres are necessary for law's own history and theory. This essay discusses differentiations between Victorian law and literature, starting out from the recent publication of Ayelet Ben‐Yishai's Common Precedents: The Presentness of the Past in Victorian Law and Fiction (2013), which reveals some of that history. I examine two points: differentiations in legal and literary approaches to probabilistic knowledge, and differentiations in the author functions in law and literature. These differentiations bear multiple implications. I discuss implications for evidence‐law debates about probabilistic evidence, for contract‐law debates about the centrality of autonomy and self‐authorship, and for understandings of legal reasoning itself—the elusive notion of “thinking like a lawyer.”

Type
Review Essay
Information
Law & Social Inquiry , Volume 39 , Issue 4 , Fall 2014 , pp. 1057 - 1079
Copyright
Copyright © American Bar Foundation, 2014 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Allen, Ronald J., and Stein, Alex 2013. Evidence, Probability, and the Burden of Proof. Arizona Law Review 55:557–602.Google Scholar
Armstrong, Nancy 1987. Desire and Domestic Fiction: A Political History of the Novel. New York: Oxford University Press.Google Scholar
Atiyah, P. S. 1979. The Rise and Fall of Freedom of Contract. Oxford: Clarendon Press.Google Scholar
Ben‐Yishai, Ayelet 2013. Common Precedents: The Presentness of the Past in Victorian Law and Fiction. New York: Oxford University Press.Google Scholar
Davis, Lennard J. 1983. Factual Fictions: The Origins of the English Novel. Philadelphia, PA: University of Pennsylvania Press.Google Scholar
Duxbury, Neil 2008. The Nature and Authority of Precedent. Cambridge: Cambridge University Press.Google Scholar
Eisenberg, Melvin A. 2000. Why There Is No Law of Relational Contracts. Northwestern University Law Review 94:805–822.Google Scholar
Eliot, George 2002. Daniel Deronda. New York: The Modern Library. Original work published 1876.Google Scholar
Enoch, David, Spectre, Levi, and Fisher, Talia 2013. Statistical Evidence, Sensitivity, and the Legal Value of Knowledge. Philosophy and Public Affairs 40 (3): 197–224.Google Scholar
Foucault, Michel 1984. What Is an Author? In The Foucault Reader, ed. Rabinow, Paul, 101–120. New York: Pantheon Books.Google Scholar
Gallagher, Catherine 2006a. The Body Economic: Life, Death, and Sensation in Political Economy and the Victorian Novel. Princeton, NJ: Princeton University Press.Google Scholar
Gallagher, Catherine 2006b. The Rise of Fictionality. In The Novel: History, Geography, and Culture, ed. Moretti, Franco, 336–363. Princeton, NJ: Princeton University Press.Google Scholar
Guerra‐Pujol, F. E. 2013. Visualizing Probabilistic Proof: The Case for Bayes. http://ssrn.com/abstract=2271870 (accessed January 8, 2014).Google Scholar
Hacking, Ian 1987. Was There a Probabilistic Revolution 1800–1930? In The Probabilistic Revolution: Ideas in History, ed. Kruger, Lorenz, Daston, Lorraine J., and Heidelberger, Michael, 45–58. Cambridge, MA: Bradford Books.Google Scholar
Kennedy, Duncan 2006. The Rise & Fall of Classical Legal Thought. Washington, DC: Beard.Google Scholar
Kreitner, Roy 2007. Calculating Promises: The Emergence of Modern American Contract Doctrine. Stanford, CA: Stanford University Press.Google Scholar
Lukes, Steven 1973. Individualism. Oxford: Basil Blackwell.Google Scholar
Miller, Carolyn R. 1984. Genre as Social Action. Quarterly Journal of Speech 70:151–167.Google Scholar
Miller, D. A. 1988. The Novel and the Police. Berkeley, CA: University of California Press.Google Scholar
Muldrew, Craig 1998. The Economy of Obligation: The Culture of Credit and Social Relations in Early Modern England. Basingstoke, UK: Palgrave.Google Scholar
Newsom, Robert 1988. A Likely Story: Probability and Play in Fiction. New Brunswick, NJ: Rutgers University Press.Google Scholar
Nolan, Donal 1996. The Classical Legacy and Modern English Contract Law, Book Review of Good Faith and Fault in Contract Law, ed. Jack Beatson and Daniel Friedmann. Modern Law Review 59:603–619.Google Scholar
Olsen, Frances E. 1983. The Family and the Market: A Study of Ideology and Legal Reform. Harvard Law Review 96:1497–1578.Google Scholar
Polanyi, Karl 1957. The Great Transformation. Boston, MA: Beacon Press.Google Scholar
Poovey, Mary 1998. A History of the Modern Fact: Problems of Knowledge In the Sciences of Wealth and Society. Chicago, IL: University of Chicago Press.Google Scholar
Poovey, Mary 2008. Genres of the Credit Economy. Chicago, IL: University of Chicago Press.Google Scholar
Postema, Gerald J. 1987. Some Roots of Our Notion of Precedent. In Precedent in Law, ed. Goldstein, Laurence, 9–34. New York: Clarendon Press.Google Scholar
Rosenberg, Anat 2012. Separate Spheres Revisited: On the Frameworks of Interdisciplinarity and Constructions of the Market. Law & Literature 24:393–429.Google Scholar
Rosenberg, Anat 2013. Contract's Meaning and the Histories of Classical Contract Law. McGill Law Journal 59 (1): 165–207.Google Scholar
Sarat, Austin, and Kearns, Thomas R. 1993. Beyond the Great Divide: Forms of Legal Scholarship and Everyday Life. In Law in Everyday Life, ed. Sarat, Austin and Kearns, Thomas R., 21–61. Ann Arbor, MI: University of Michigan Press.Google Scholar
Schauer, Frederick 2009. Thinking Like a Lawyer: A New Introduction to Legal Reasoning. Cambridge, MA: Harvard University Press.Google Scholar
Searle, G. R. 1998. Morality and the Market in Victorian Britain. Oxford: Clarendon Press.Google Scholar
Shapiro, Barbara 2007. “Fact” and Proof of Fact in Anglo‐American Law (c. 1500–1850). In How Law Knows, ed. Umphrey, Martha Merrill, 25–71. Stanford, CA: Stanford University Press.Google Scholar
Singer, Joseph William 1988. Legal Realism Now, Book Review of Legal Realism at Yale, 1927–1960 by Laura Kalman. California Law Review 76:465–544.Google Scholar
Steinlight, Emily 2006. “Anti‐Bleak House”: Advertising and the Victorian Novel. Narrative 14 (2): 132–162.Google Scholar
Swinburne, A. C. [1883] 1970. Emily Bronte. Athenaeum. Extract reprinted in Emily Bronte: Wuthering Heights, ed. Allott Miriam, 94. London: Macmillan.Google Scholar
Taylor, Charles 1985. Philosophy and the Human Sciences: Philosophical Papers 2. Cambridge: Cambridge University Press.Google Scholar
Tomlins, Christopher 2007. How Autonomous Is Law? Annual Review of Law and Social Science 3:45–68.Google Scholar
Tomlins, Christopher 2012. After Critical Legal History: Scope, Scale, Structure. Annual Review of Law and Social Science 8:31–68.Google Scholar
Tucker, Irene 1998. What Maisie Promised: Realism, Liberalism and the Ends of Contract. Yale Journal of Criticism 11:335–364.Google Scholar
Wahrman, Dror 2004. The Making of the Modern Self: Identity and Culture in Eighteenth‐Century England. New Haven, CT: Yale University Press.Google Scholar
Watt, Ian 1957. The Rise of the Novel. Berkeley, CA: University of California Press.Google Scholar
Welsh, Alexander 1990. Burke and Bentham on the Narrative Potential of Circumstantial Evidence. New Literary History 21:607–627.Google Scholar
Whitehead, Alfred North 1925. Science and the Modern World. New York: Macmillan.Google Scholar