Law and Literature: Third Edition

589 Pages·2009·1.87 MB·English

by  The Honorable Richard A. Posner

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