In this book, the first to offer a comprehensive examination of the emerging study of law as literature, Guyora Binder and Robert Weisberg show that law is not only a scheme of social order, but also a process of creating meaning, and a crucial dimension of modern culture. They present lawyers as literary innovators, who creatively interpret legal authority, narrate disputed facts and hypothetical fictions, represent persons before the law, move audiences with artful rhetoric, and invent new legal forms and concepts. Binder and Weisberg explain the literary theories and methods increasingly applied to law, and they introduce and synthesize the work of over a hundred authors in the fields of law, literature, philosophy, and cultural studies. Drawing on these disparate bodies of scholarship, Binder and Weisberg analyze law as interpretation, narration, rhetoric, language, and culture, placing each of these approaches within the history of literary and legal thought.
They sort the styles of analysis most likely to sharpen critical understanding from those that risk self-indulgent sentimentalism or sterile skepticism, and they endorse a broadly synthetic cultural criticism that views law as an arena for composing and contesting identity, status, and character. Such a cultural criticism would evaluate law not simply as a device for realizing rights and interests but also as the framework for a vibrant cultural life.
Guyora Binder, Professor of Law at the State University of New York at Buffalo, is the author of Treaty Conflict and Political Contradiction and a coauthor of Criminal Law. Robert Weisberg, Edwin E. Huddleson, Jr., Professor of Law at Stanford University, is a coauthor of Criminal Law.
PREFACE ix INTRODUCTION Law as Literature 3 From Letters to Literature 7 Literary Canons and Academies 13 The Risks and Possibilities of Law and Literature 16 Genres of Criticism 20 CHAPTER ONE Interpretive Crises in American Legal Thought 28 Introduction 28 1.1 The Crisis of Whig Hermeneutics 31 1.2 Progressive Interpretation 56 1.3 The Crisis of Progressive Interpretation 87 Conclusion 109 CHAPTER TWO Hermeneutic Criticism of Law 112 Introduction 112 2.1 Literary Theories of Interpretation 114 2.2 Law as Literary Interpretation 154 2.3 Legal Hermeneutics in Practice 188 Conclusion 199 CHAPTER THREE Narrative Criticism of Law 201 Introduction: The Law as Narrative Trope 201 3.1 Literary Theories of Narrative 209 3.2 Instrumental Claims: Narrative as Law's Antagonist and Salvation 232 3.3 Law and Narrative as Mutually Inherent 261 Conclusion: Performing the Law and Narrating the Nation 287 CHAPTER FOUR Rhetorical Criticism of Law 292 Introduction: Law, Rhetoric, and the Problem of Authoritarianism 292 4.1 A Very Brief History of Rhetoric 299 4.2 The Conservative Model o Rhetoric 309 4.3 Is a Liberal Rhetoric Possible? 330 Conclusion 376 CHAPTER FIVE Deconstructive Criticism of Law 378 Introduction 378 5.1 Derridean Deconstruction 380 5.2 Deconstruction as Epistemological Criticism 408 5.3 Deconstruction as Ethical Criticism 440 Conclusion 460 CHAPTER SIX Cultural Criticism of Law 462 Introduction 462 6.1 Theoretical Sources for Cultural Criticism of Law 464 62 Cultural Readings of Disputes 480 6.3 Cultural Readings of Capitalism 507 Conclusion 538 INDEX 541