Law and Literature: Third Edition PDF
Preview Law and Literature: Third Edition
Law and Literature Law and Literature T H I R D E D I T I O N Richard A. Posner Harvard University Press Cambridge, Massachusetts . London, Eng land 2009 Copyright © 1988, 1998, 2009 by the President and Fellows of Harvard College All rights reserved Printed in the United States of America Excerpts from “Easter 1916,” “The Second Coming,” “The Wild Swans at Coole,” and “Leda and the Swan” by William Butler Yeats are reprinted with the permission of Simon & Schuster from The Collected Works of W. B. Yeats, Volume 1: The Poems, Revised and edited by Richard J. Finneran, copyright 1919, 1924 and 1928 by Macmillan Publishing Company, renewed 1947 and 1952 by Bertha Georgie Yeats and 1956 by Georgie Yeats; and by permission of A. P. Watt Ltd. on behalf of Michael Yeats. Excerpts from “The Waste Land” and “Little Gidding” by T. S. Eliot are reprinted from T. S. Eliot, Collected Poems 1909–1962, copyright 1936 by Harcourt Brace & Company, copyright © 1964, 1963 by T. S. Eliot, and Four Quartets, copyright 1943 by T. S. Eliot and renewed 1971 by Esme Valerie Eliot, by permission of Faber and Faber Ltd. and Harcourt Brace & Company. The excerpt from The Sweeniad by Victor Purcell is reprinted by permission of Routledge Ltd. Library of Congress Cataloging-in-Publication Data Posner, Richard A. Law and literature / Richard A. Posner.—3rd ed. p. cm. Includes bibliographical references and index. ISBN 978-0-674-03246-0 (alk. paper) 1. Law in literature. 2. Law and literature. 3. Legal stories—History and criticism. I. Title. PN56.L33P67 2009 8099.933554—dc22 2008035602 For Charlene Contents Preface xi Critical Introduction 1 Part I. Literary Texts as Legal Texts 1. Refections of Law in Literature 21 Theoretical Considerations 22 The American Legal Novel 35 The Law in Popular Culture 51 Camus and Stendhal 60 Farcical Trials 70 2. Law’s Beginnings: Revenge as Legal Prototype and Literary Genre 75 The Logic of Revenge 75 Revenge Literature 86 The Iliad and Hamlet 99 3. Antinomies of Legal Theory 124 Jurisprudential Drama from Sophocles to Shelley 124 Has Law Gender? 163 4. The Limits of Literary Jurisprudence 170 Kafka 170 Dickens 187 Wallace Stevens 191 5. Literary Indictments of Legal Injustice 195 Law and Ressentiment 195 Romantic Values in Literature and Law 197 Billy Budd, The Brothers Karamazov, and Law’s Limits 211 viii Contents 6. Two Legal Perspectives on Kafka 229 On Reading Kafka Politically 230 In Defense of Classical Liberalism 237 The Grand Inquisitor and Other Social Theorists 247 7. Penal Theory in Paradise Lost 251 The Punishment of Satan and His Followers 257 The Punishment of Man 259 The Punishment of the Animals 266 Part II. Legal Texts as Literary Texts 8. Interpreting Contracts, Statutes, and Constitutions 273 Interpretation Theorized 274 What Can Law Learn from Literary Criticism? 276 Chain Novels and Black Ink 319 Interpretation as Translation 324 9. Judicial Opinions as Literature 329 Meaning, Style, and Rhetoric 329 Aesthetic Integrity and the “Pure” versus the “Impure” Style 361 Two Cultures 379 Part III. How Else Might Literature Help Law? 10. Literature as a Source of Background Knowledge for Law 389 Arch of Triumph 390 From Huxley to The Matrix 393 11. Improving Trial and Appellate Advocacy 419 Sherlock Holmes to the Rescue? 419 Legal Narratology 424 Fictional Depictions of Lawyers 446 The Funeral Orations in Julius Caesar 450 12. But Can Literature Humanize Law? 456 Aesthetic versus Moralistic Literary Criticism 456 Then Why Read Literature? 481 l Contents l ix Part IV. The Regulation of Literature by Law 13. Protecting Nonwriters 497 Pornographic Fiction 497 Defamation by Fiction 511 14. Protecting (Other) Writers 518 What Is an “Author”? 518 Copyright, Plagiarism, and Creativity 520 Parody 536 Conclusion. Law and Literature: A Manifesto 545 Index 553
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