Maria Aristodemou, Law & Literature: Journeys from Her to Eternity. Oxford: Oxford University Press, 2000. Pp. 304, ISBN 0-19-876436-7
Review by Ruth C. A. Higgins
Balliol College, Oxford
For every gadfly, there are bound to be several mayflies suffering delusions of grandeur. And for those who believe, as I do, that post-modern critique, with all its bugbears, belongs to the latter species, Maria Aristodemou?s new monograph will prove troubling reading. Others may doubt my entymology, and, for those excited by post-modernism, feminism or psychoanalytic theory, Law and Literature may prove a deeply rewarding read.
?Law and literature? is a school within legal theory that encourages an inter-disciplinary, critical and cultural analysis of law and legal systems. It discourages the hermeneutic study of law; the idea that legal reasoning is autonomous or unique in its methods; and instead advocates a situated understanding both of the subject of law and the legal subject: ?it hopes to enhance our understanding of ourselves as subjects of language, law and culture? (10). Viewed from within, the legal universe will always escape understanding. We must think from the outside.
Literature is the invaluable means to this understanding because:
the literary imagination creates alternative, fictional, worlds, but unlike the legal imagination, it does not pretend, nor does it expect others to pretend, that those alternative worlds are ?real? (18-19).
Aristodemou hopes that analysis of law through literature
may throw light on the construction and fictionality of the so-called real world, including that of the legal world, its values and conventions and of ourselves within it.? (25)
The book proceeds through interpretation of several texts, including Aeschylus? Oresteia, Camus? The Outsider, Toni Morrison?s Beloved and Borges?s Fictiones. Aristodemou?s argument relies on eclectic authorities: from Socrates to Nick Cave, via Ally McBeal, a crazy-quilt of quotations constitutes a significant amount of the text. Some are desperately thin: ?go, go? is one puzzling quotation from the lyrics of Nick Cave. To quote so eclectically may suggest the emptiness of literary authority, the absurdity of reliance on others? ideas, or it may vindicate Da Vinci?s belief that reliance on authority signals the point at which argument is exhausted. More likely, such quotation hopes to imply the equal validity of all sources, and to expose the false hierarchies of knowledge. It seems only to confirm Socrates? observation that opinion marks the midpoint between knowledge and ignorance.
Arisodemou?s writing is often elegant, exhilarated and scholarly. Each page bristles with ideas and she dances through the texts she discusses with a dizzy kind of glee. However, three main themes are vulnerable: the nature of her characterisation of law; the role assigned to language and dreams within the criticism of existing legal systems; and the ultimate marriage of law and literature.
Aristodemou makes many startling observations about law:
Legal language resists doubt, gaps, and inconsistencies (23).
The law?is loath to admit that it makes mistakes (241).
Law also, like the Minotaur, kills without knowing its powers, oblivious to the fact that it inspires awe and fear (273).
I cannot imagine what serious-minded legal theorist holds such views. H. L. A. Hart, the most renowned of twentieth century legal positivists, discussed in detail the open texture of legal language, suggesting that it possesses a core of certainty and a penumbra of ambiguity. In these shadows, judicial discretion comes into play. Similarly, consequent to a 1966 ruling of the House of Lords, this forum, the highest civil and criminal court in England, allowed that it might overrule its previous decisions, thus at least implying the ever-present possibility of mistake (as indeed does the appeals process itself).
In speaking of the possibility of other laws, Aristodemou observes:
To conceive of a different world or worlds, we need different words (24).
But surely new worlds require innovative concepts and ideas. Where language is no longer a means of signifying reality, but a means of reconstructing reality, it is apotheosised only to be deprived of its proper role. The architects of Utopia should carry more tools than a clever pun. Fixating on language runs the risk that we separate ?thought from its immediate contact with reality? and thereby cripple ?its capacity to interfere in that reality effectively? (V. Havel, Open Letters, translated by P. Wilson, London, 1991, 11 f.).
Much the same can be said of the discussion of the importance of dreams and fiction:
In a world where reality is a fiction, fiction becomes the only reality? (22).
Reason?s inability to understand, let alone tame and control the realm of dreams, suggests that dreams may be the sublime form of intelligence, or oneiric logic or law whose murmurs we ignore at our peril (258).
One leading biological explanation of dreaming is the activation-synthesis model developed by J. Allan Hobson of Harvard Medical School. This understands dreaming as an incidental effect of the editing and organisation of information in the memory during sleep. In this model, the brain creates a fantasy of often impossible forms and contents, which the waking brain interprets and tries to reconstruct with some linear narrative coherence (see the excellent discussion by E. O. Wilson, Consilience: The Unity of Knowledge, New York 1998, 77-88). Imagine for a second that this scientific explanation is accurate. Dreams might then be a somewhat irresponsible programme for reform, and hubris exceedingly dangerous. In addition, every child who has woken fitfully from a nightmare, relieved on realising that it was not ?real?, but a fleeting mental construct, grasps perfectly well one significant distinction between fiction and reality.
These points unite in a criticism of the law and literature project. Law and literature may both be ?in the first instance, signs on a page? (1) but in the final instance they are significantly distinct projects, with distinct institutional structures and purposes. Plural interpretations and infinite subjectivity may make great literature, but they make a dangerous statute and an incoherent judgement. Derrida?s deconstructionist cry of ?Il n?y a pas de hors-texte? is unsafe philosophy for anyone passing judgment on the life of another. Literature enjoys the freedom to question and reject society. Law must typically answer to and reflect society. This creates an important form of dialogue as opposed to an alternative way of seeing law. Aristodemou dreams of a law that relies on ?aesthetic judgments, judgments based on feeling? (262) that ?makes jokes, absurd ones, unsettling even? (293). However, law is not this free or unconstrained. Nor should it be, since it deals fundamentally with the freedom and constraint of others.