BOOK REVIEW

Kieran Dolin, A Critical Introduction to Lawand Literature

Cambridge University Press, 2007, 263 pp, £45 (US$85),ISBN: 978-0-521-80743-2

Stephen Skinner

Published online: 7 May 2008

� Springer Science+Business Media B.V. 2008

Law and literature: three little words, 16 little letters that simply mean a world, or as

it is often expressed in the field, an alternative world, of possibilities. Law and

literature is one of the most exciting and malleable branches of ‘law and …’ studies

that have sprung from the tree of critical thinking about law over the past 30 years.

Whilst its origins are generally recognised to be American, with a predominantly

ethical thrust, it has meant different things to different authors. In addition to the

well known labels of ‘law as literature,’ with its focus on the language, rhetorical

techniques and ethical content of legal writing, and ‘law in literature,’ the study of

representations of law and legal themes in fiction, ‘law and literature’ also embraces

the study through fiction of law as authority and power in a psychoanalytic sense, as

well as ‘literary jurisprudence,’ or the exploration of more philosophical and

epistemological issues of significance for law and legal theory through the use of

fictional examples. These distinctions are not categorical or exhaustive though, as

the linkage of law and ‘literature,’ fiction and poetry, is open to varying degrees of

legal, jurisprudential, literary, historical and philosophical focus.

However, whilst ‘law and literature’ is increasingly well established and accepted

in the academy, both in terms of research and teaching at the undergraduate and

postgraduate levels, it is still an approach that requires careful positioning and

justification. Bringing such different matters as law and fiction together is not

unreservedly clear, not only due to the diversity of meanings of ‘law and literature,’

but also, perhaps above all, due to what might be called the power differential

between its two poles. In this light, explanatory overviews and objections have

S. Skinner (&)

Exeter University School of Law, Cornwall Campus, Penryn, Cornwall, UK

e-mail: S.J.Skinner@exeter.ac.uk

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Int J Semiot Law (2008) 21:161–168

DOI 10.1007/s11196-008-9073-5

already been produced1 and most law and literature studies published in recent years

include at least some engagement with the field’s antecedents and possible aims.2

With all this in mind, the publication of A Critical Introduction to Law andLiterature is an exciting development, as the prospective reader imagines an

explanatory and discursive overview of the field, its origins, branches, applications

and potential. Kieran Dolin’s thought-provoking new book, however, is somewhat

less general than the title suggests, but is nevertheless still important. In this

welcome addition to the field, Dolin sets out to examine the connections between

law and literature from different perspectives and across a broad historical time

frame, based on ‘the conviction that law and literature have common properties of

language and vision,’ and in order ‘to show how this connection matters, how it

works to shape a culture’s notions of justice and legal entitlement.’3 With an

emphasis on the cultural and social dimensions of literature and law, Dolin ‘charts

the history of the shifting relations between the two disciplines,’ as the back cover

synopsis tells us, in order to raise some important questions about the mutual

influences and inter-connections of these two areas and alternative perspectives on

each. Although he succeeds in identifying and opening these issues in his carefully

constructed examples, by the end the reader may be left with some reservations in

terms of methodology and purpose.

Dolin established himself as a distinctive voice in law and literature studies with

his first book, Fiction and the Law: Legal Discourse in Victorian and ModernistLiterature, published in 1999. In that work, he presented a jurisprudential basis for

readings across the boundaries of law and literature, grounded on Robert Cover’s

theory of narratives that support the law’s nomos, or normative universe. A

specialist in English and cultural studies, his first book was primarily concerned

with the mutual influences of law and literature in the nineteenth and early twentieth

centuries, including the adoption of evidentiary techniques in fiction and literary

representations of law, justice, wrongdoing and their moral frame. His new book

clearly builds on this historical and cultural analysis of law–literature connections,

and is to a large extent an introduction to that sort of approach.

In the Introduction, Dolin sets out the defining theme of his book—and arguably

of law and literature in general—namely, the significance of boundaries. The

Introduction is anchored in a study of a US Supreme Court decision about the

separation of powers, in which judicial argument partially engages with a poem by

Robert Frost, ‘Mending Wall,’ which questions the ambiguity of barriers (‘walling

in or walling out’). Dolin uses this example to set up two strands of argument about

the relationship between law and literature. The first involves drawing a simple, but

not unproblematic parallel:

Judges and lawyers routinely seek to clarify their pronouncements and

arguments about the law by resorting to metaphors and stories. They do so

1 For a well-known overview, see Ward [1] and for objections, see Posner [2] and Weisberg [3].2 See, for example, Williams [4], Manji [5] and Skinner [6].3 See Dolin [7, p. vii].

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because law is inevitably a matter of language. The law can only be articulated

in words.4

Whilst this is clearly true and opens the way for reducing both law and literature

to comparable cultural artefacts (texts that can be read, juxtaposed and examined in

productive ways), attention to the essential characteristics of law is vital. In this

regard, Dolin rightly recalls that ‘[a]s distinct linguistic forms of life, law and

literature speak different kinds of sentences: one commanding obedience under

threat of punishment, the other inviting pleasurable recognition and assent.’5

Dolin’s second reason for bringing law and literature together is the way in which

literature can open different perspectives on law. He expresses this as ‘literature’s

challenge to law: the challenge offered by a self-consciously creative domain, where

alternative voices can be heard, where hypothetical situations can be explored and

where the settled questions of society can be reopened through the medium of

fiction.’6 For Dolin, this can be explored mainly in terms of the mutually influential

cultural contexts in which law and literature are, and have been, embedded to

different degrees over time, and the ways in which the boundary between them has

been strengthened, broken down and crossed:

… law and literature are adjoining fields, divided by a boundary fence that

keeps breaking down, despite regular maintenance. The common ground of

language resists the forms and divisions imposed on it, opening ‘‘gaps even

two can pass abreast.’’ This resistance creates opportunities for dialogue

between the two disciplines, for licensed or unlicensed wanderings across the

border, for ‘‘subversion’’ as well as surveillance… As we shall see throughout

this book, the border between law and literature has sometimes functioned as a

bridge, promoting dialogue, and at other times served as a barrier inhibiting

it.7

Dolin’s book is therefore about the hearing of alternative voices and the

dialogues or tensions between law and literature. His arguments are structured in

two parts: the first, over two chapters, explores some of the main ‘bases for linking

law and literature’ and the second, over six chapters, presents ‘a historical account

of shifts in their relationship in Anglophone culture from the Renaissance to the

present.’8 The first two chapters are the most introductory, providing helpful

snapshots of key authors and directions in law and literature, although a little more

discussion of methodological issues and implications would have been welcome at

this stage.

The first chapter, on ‘Law’s language,’ principally introduces the concepts of law

as literature (‘the poetics of legal writing, the formal study of its literary quality’9),

4 Ibid, p. 2.5 Ibid, p. 9.6 Ibid, p. 5.7 Ibid, pp. 8–9.8 Ibid, p. vii.9 Ibid, p. 26.

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linguistic studies of law (including a brief mention of legal semiotics) and narrative

jurisprudence (‘a concentration on storytelling within the law’ in order to reveal and

‘aid the legally oppressed’10). Despite its occasionally rather note-like style, what is

perhaps most striking about this chapter is its practical engagement with legal

language. In its final section, Dolin seeks to illustrate some of the theoretical

analyses introduced in its first parts, by examining two cases involving women who

killed abusive partners: the well known English case of Duffy from 1949 and the

Canadian case of Lavallee from 1990. With regard to the former, Dolin outlines the

gendered narrowness of judicial construction and application of the partial defence

of provocation, whereas with regard to the latter, he shows how a more

contextualised, narrative account of the defendant’s experience allowed for a more

subjective and less doctrinally-bound application of self-defence law. These are

useful introductory examples of how judicial discourse and its ideological

underpinnings can—and need to—be questioned, and the discussion is pitched at

an accessible level. Further consideration of the differences between a literary

reading of the cases, perhaps compared to other forms of critical and contextual

reading, may have strengthened Dolin’s argument, however.

The second chapter engages with ‘Literature under the law’ and explores, again

through a contextual and historical account (ranging from ancient Greece to modern

Britain), the ways in which the law has imposed constraints on writers at different

times. Dolin explores the law on obscenity, blasphemy and sedition; criminal

protection against defamation; and the emergence of legal protection for authorship

and originality through the law of copyright. With regard to these Dolin highlights

the ways in which the law–literature relationship has been both mutually supportive

and antagonistic. Despite the slightly anticlimactic conclusion that ‘[i]n all such

instances of innovation and adaptation, the legal regulation of literary activity needs

to weigh both public and private interests,’11 this is an interesting chapter that serves

to remind us that the complex relationship between law and literature is not only

about textual and philosophical analysis, but also about rules, prohibitions and

disputes, which in turn can only be fully understood against a more complex

backdrop of cultural—and literary—change.

Part II opens with a chapter on Renaissance humanism and the new culture of

contract, which outlines the relationships between legal and literary life in the

sixteenth-century Inns of Court, the development of the concept of contract and its

influence on both political philosophy and literary expression. Anchoring the

discussion in an outline of Slade v Morley (1602), Dolin uses examples of well

known and marginal literary reflections on contract law (Margaret Cavendish’s ‘The

Contract’ from 1656 and Shakespeare’s The Merchant of Venice) in order to show

different perspectives and criticisms of its impact, using literature as evidence of

law’s reception. His ending though perhaps needs further explanation: the marginal

writings he considers, ‘obscure in their own times, reveal new perspectives on

authority, on contract, on language and on identity to us, as we continue to live our

10 Ibid, p. 31.11 Ibid, p. 71.

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lives in an ever-expanding market society.’12 Dolin clearly sees connections

between seventeenth-century literature and today’s consumer society, and drawing

them out for the reader would have been welcome.

The following chapter, on crime and punishment in the eighteenth century, traces

the ‘complex process of engagement, in which literature and law attempt to support

each other in the pursuit of a vision of order, yet the content of that vision produces

opposition, conflict and separation between the two disciplines.’13 Among

numerous legal and literary examples, Dolin uses shifts in the tone of Fielding’s

work as he switched from novelist to magistrate, in order to illustrate the increasing

differentiation between law and literature in the 1740s. With the strengthening of

this perceived difference towards the century’s end, Dolin points to how literature

gradually adopted a more radical and critical approach to law. This chapter,

therefore, serves to introduce the idea of literature’s developing role as social

criticism and its potential for illustrating alternative world views. Whilst certainly

introducing some key law–literature connections by tracing their history, a little

more critical vigour, perhaps drawing out more decisively the contribution of this

literary analysis, would have strengthened the chapter’s bite.

The radical and challenging role of literature is the dominant theme of Dolin’s

turn in Chap. 5 to what he terms the ‘woman question’ in Victorian England—the

struggle for gender equality and debunking of the myths of marital perfection and

privacy. Dolin concentrates on this aspect of nineteenth-century life as an ‘area of

symbolic conflict where the power of tradition proved especially resistant to the

movement for change.’14 Using examples from stories by influential writers, such as

Caroline Norton and Charles Dickens, Dolin shows how their works were vehicles

for social concerns that ‘subvert the boundary between public and private spheres,

and … imagine new spaces for women, new constraints on men.’15 Dolin argues

that literature is powerful not only as a critical space, but also as a reform engine,

due to its influence on readers and thereby on the political process. His claims about

the role of literature with regard to justice appear stronger here, but closer

engagement with the evidence of literature’s effects would have been welcome, as

would further reflection on the choice and representativeness of the authors he

considers. Once again, his closing suggestion that Victorian literary debates about

equality in relationships are still of relevance today requires perhaps a little more

attention than one line: the substance of the debates has shifted somewhat, and the

mechanics of law–literature interactions still demand exploration.

Chapter 6 is enticingly entitled ‘The common law and the ache of modernism.’ A

strong chapter, it conveys the tensions and shocks of the era in which capitalism and

industrialism led to modernism’s emergence as ‘a cultural movement critical of

modernity.’16 Dolin sets out to explore whether lawyers felt what Hardy termed ‘the

ache of modernism,’ and to see ‘what literary conventions they invoked in their

12 Ibid, p. 95.13 Ibid, p. 97.14 Ibid, p. 121.15 Ibid, p. 142.16 Ibid, p. 143.

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writings, and whether, when the shocks of modernity were brought to the

courtroom, they called forth any legal creativity.’17 To this end, after discussing the

common law’s ‘medievalist romance,’ illustrated by the work of Pollock, and

the modernistic elements of Wendell Holmes’s realism, Dolin’s gaze settles on the

place of pain and sympathy in modernist literature, society and law, factors that he

presents as emblematic of the modern age. In this respect, he contrasts revolutionary

shifts in modernist writing and its critiques of justice, stories of suffering and

attenuated hopes, with more cautious evolutionary adaptation in the common law in

the face of the losses and pain of industrialised society, brought to the courtroom

through the law of tort. Regrettably, the chapter stops at this observation of

difference: modernism’s philosophical engagement with the world is inevitably

different from the law’s, given the competing pressures and political limitations that

circumscribe the latter, and further comment on the potential applications of the

different literary readings seems necessary.

The book’s last two chapters address related issues, ‘Law and literature in post-

colonial society’ and ‘Race and representation in contemporary America.’ In the

former Dolin provides a deft interweaving of literary and legal perspectives on post-

colonial society and the place of law within it, by juxtaposing John Mortimer’s

autobiographical account of his involvement in the trial of Nigerian writer and

activist, Wole Soyinka, his fictional recasting of that experience through a Rumpole

story, and Soyinka’s own account of the same case. The last chapter focuses on the

USA in the mid to late twentieth century, drawing out similar themes. Here Dolin

points to the literary elements of key legal decisions and discourses about equal

rights, and underlines the turn to narrative in jurisprudential discussion as a way of

redressing imbalances in law’s perspective. In both chapters, Dolin shows how

literary representations of law and conflict seek to present alternative perspectives to

those permitted by legal reasoning, although the value of those perspectives once

observed seems again to reside in their potential in the reader’s mind.

Dolin’s Conclusion makes a strong claim for why law and literature deserve

attention. Presenting stories as ‘a way of intervening in the world, of reshaping

understandings and challenging relationships of power,’18 and underlining the

mutual interactions and influences of the legal and literary spheres, he emphasises

two ways in which he sees law and literature as significant. First, he argues, it is a

critical device for developing socio-political discussion relating to law, and second,

it is a field of cultural studies that observes the connectedness of two areas of

cultural production. The second, observing connections, he certainly does, but the

first is more problematic, particularly given his key argument for this sort of

interdisciplinary study, that holistic interpretation holds the greatest promise for

justice:

An integrated legal-literary approach… would analyse all the narratives

circulating in and around the case, the fictional, the factual and the unspoken

scripts about human behaviour, as a means of seeking a just interpretation of

17 Idem.18 Ibid, p. 207.

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the event. To do this would entail drawing on concepts and methods from both

law and literary studies. … Under the auspices of this interdisciplinary project,

ethics and aesthetics become active partners with politics in creating the

normative basis for a just society.19

This is a powerful rallying cry and one shared by many law and literature studies:

the aesthetic dimension, the turn to fiction and poetry in support of or counterpoint

to legal readings is almost always in the name of justice. However, without wishing

to challenge the value of Dolin’s admirable historical mapping of law–literature

relations and connections, it seems that some deeper methodological foundations in

three key areas would have strengthened the construction of his concluding

argument.

First, a little more reflection on the ‘inter’ of interdisciplinary, or the ‘and’ of law

and literature seems lacking. Dolin endeavours to balance legal and literary

discussion, and is clearly sensitive to the complexities of law and the different

demands of literature and cultural studies. He begins by outlining some of the

established bases of law as literature and literary approaches to law. However, as an

introductory text, some indication of how he would advise charting a course through

the different bodies of commentary and specialist knowledge on both sides of the

law–literature divide would have been helpful.

Secondly, in methodological terms, the choice of texts for the sort of study Dolin

presents and advocates also requires some reflection. Some texts present themselves

in self-evident terms of relevance, but not all literary treatments of cases or life

events may serve the aims of interdisciplinary reading in the name of justice so well,

and choices must be made (such as selecting serious fiction rather than frivolous,

classics rather than ‘airport’ or ‘pulp’ novels). By contrast, if the choice of relevant

texts is limited, the extent to which broad ‘cultural’ claims can be made also needs

explanation. Dolin certainly mentions the canonical or exceptional nature of his

texts, which are reasons for contrasting them, but further explicit reflection on the

element of choice, and of choosing and using fiction or poetry (and case law or legal

reports, for that matter), would have been valuable.

Thirdly, the book’s concluding argument provokes reflection that is equally

applicable to many other law and literature studies, and is as such an important

contribution. This reflection concerns the implications of stating that law and

literature can help create ‘the normative basis for a just society’ and has two main

aspects. The first is the perennial jurisprudential concern with the meaning and

nature of justice that would underpin the just society. Some indication of how the

term is used would seem crucial. The second issue here concerns the aspect of

creating that just society, a question that goes to the heart of the purposive identity,

or relevance, of law and literature—a contentious point. Dolin shows in some of his

studies how there has been over time a direct connection between the two: law has

restrained or liberated literature in the name of social concerns and artistic freedom;

literature has influenced law through the political concerns and pressures of moved

readers. Yet ‘law and literature’ studies at the academic level cannot necessarily rely

19 Ibid, p. 211.

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on such direct effects, so their role in laying just social bases needs reflection, as to

whether they are valuable due to their mere existence and critical process in non-

instrumental and non-pragmatic ways, or whether they are meant to feed into more

pragmatic and constructive debate in some other ways.

These issues, however, are not easy and it would be unfair to suggest that Dolin’s

work is diminished by leaving them open. Rather, his study provides a valuable

starting point for beginning to formulate such questions more clearly and, given his

detailed and stimulating discussions, perhaps to imagine the beginnings of answers.

With its outline of key areas, provocative studies, and bibliographical resources, ACritical Introduction to Law and Literature is a welcome publication, which will no

doubt attract much critical attention.

References

1. Ward, I. 1995. Law and literature: Possibilities and perspectives. Cambridge: Cambridge University

Press.

2. Posner, R. 1988. Law and literature: A misunderstood relation. Cambridge: Harvard University Press.

3. Weisberg, R. 1988. The law-literature enterprise. Yale Journal of Law and the Humanities 1(1): 1.

4. Williams, M. 2002. Empty justice: One hundred years of law, literature and philosophy. London:

Cavendish Publishing.

5. Manji, A. 2006. Law, labour and resistance to French colonialism in Sembene Ousmane’s Les Bouts deBois de Dieu. Legal Studies 25(2): 320, 322.

6. Skinner, S. 2007. ‘‘As a Glow Brings Out a Haze’’: Understanding violence in jurisprudence and

Joseph Conrad’s fiction. Legal Studies 27(3): 465.

7. Dolin, Kieran. 2007. A critical introduction to law and literature. Cambridge: Cambridge University

Press.

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