Law and Literature - Criticisms of Law and Literature

Criticisms of Law and Literature

Richard Posner has played an important role in the law and economics movement. As the author of Law and Literature: A misunderstood Relationship (now in its third edition, titled simply Law and Literature), Posner is highly critical of the law and literature movement and the book helps to voice his more hard-lined interpretation of the law. The book can be seen as a reaction against the writings of Robin West, who has written substantially against Posner's economic take on legal interpretation. A powerful critic of the writings of White, Weisberg, and West, Posner sees literature as having no weight in the legal realm although he does hold the authors in high esteem. He writes:

"Although the writers we value have often put law into their writings, it does not follow that those writings are about law in any interesting way that a lawyer might be able to elucidate."

Posner does not believe in the use of literary discourse in jurisprudential debate, and in colloquy has described West's analysis of literature in legal debate as "particularly eccentric." Posner writes that "law is subject matter rather than technique", and that legal method is the method of choice in legal realms, not a literary one. To expand further, Posner believes literary works have no place in judicial debate because one can never truly contemplate the original meaning of the author, and that novels should only be considered in their contexts. He characterizes the discovery of laws in fiction as "ancillary" and asserts the main subject matter of a novel is always the human condition, and not the legal setting. From this perspective, the legal background created by Kafka and Albert Camus are simply that, background, and have no further meaning beyond the environment which they create.

This isn't to say that Posner doesn't think in literary terms-far from it. For instance he characterizes Albert Camus's The Stranger, as the "growth of self-awareness" on the part of the hero, Mersault. Posner gives weight to such situations on personal levels and only on personal levels, yet dismisses any sort of legal implications of such situations as lacking in "realism". Such assertions and arguments have placed him in sharp contrast with Richard Weisberg, who has cited The Stranger numerous times, among other books. Posner sees literature's importance in legal studies only because they may help the lawyer grow as an individual and to develop character, but sees no value in them as social critiques of the era in which they were developed and written, as Law and Literature scholars might ascribe to them. Certainly he sees no value in them as sources of legal philosophy and reform.

Highly critical of the notable Law and Literature scholars, Posner believes that such legal minds have taken literature "too seriously" and assigned them an unsubstantiated amount of weight in the expansion of legal knowledge and jurisprudential debate.

Richard Delgado and Jean Stefancic were against White and his theory of certain famous legal cases in American history and agree with Posner on several issues. Their theory is that the actual impact of contemporary literature on the substance of judicial opinion-making is limited because judges distinguish legal texts. According to Delgado and Stefancic, judges' moral positions are determined by normative social and political forces rather than by literature. They are firm believers of the critical race theory which is a school of sociological thought that emphasizes the socially constructed nature of race.