ILLUSORY INTERDISCIPLINARITY

The idea that law is a realm of rules has affected the way in which the enterprise of ‘‘interdisciplinarity’’ has been carried out with respect to law and literature Oversimplifying just a bit, one important analytical mode of law and literature at least on the law side has been the compare-and- contrast Work in this vein argues as follows: ‘‘Here is the rich textured, nuanced picture of human nature in Great Expectations (or the novel, play or poem of your own personal choosing) and here is the desiccated ster­eotyped abstract picture offered in Smith v.

‘‘Interdisciplinarity’’ in this formulation is a matter of making compar­isons and drawing into one realm what is found in the other ‘‘Here is what law is like there is what literature is like let us examine the differences ’’ One field is composed of say Xs and the other of Os ‘‘Interdisciplinary’’ work imports some of the Os into the land of the Xs enabling a game that could not be played were the fields kept apart All this only works obvi­ously if the fields really are different if law is truly a land of Xs with no Os (and it would seem to follow literature is a land of Os with no Xs).

But the ‘‘really’’/‘‘truly’’ in the preceding sentence is seriously problem­atic To see why let us return to the ‘‘lawful lawlessness’’ of clemency The ‘‘lawlessness’’ part we saw stemmed from the essentially discretionary ad hoc, unruliness of the clemency power If clemency were ‘‘total lawlessness’’ we could say that law to be law requires rules and nothing but rules and thus that metaphorically speaking law is a land of Xs But as Sarat and Hussein note clemency is not total lawlessness but rather is itself required by law Thus law to be law requires rules and also at least some power not governed by rules Law then is a land of both Xs and Os But if law already is a land of Xs and Os or to skip the metaphor if law is not really different from literature then ‘‘interdisciplinarity” defined as drawing contrasts and bringing into one realm what is found only in the other becomes impossible.

Fortunately the compare-and-contrast does not exhaust the ‘‘interdisci­plinary” efforts of law and literature An almost opposite approach focuses not on the differences but on the parallels between literature and law Con­sider the following paragraph which opens a recent article by Rosanna Cavallaro (2004) on the lessons of Pride and Prejudice for the ‘‘policies, perceptions and principles that underlie [the] rules of proof” under the Federal Rules of Evidence.

Among the many intersections between law and literature is this: just as the legal process is concerned with the accurate and orderly evaluation of disputed facts and past events, and the parts played by people in those events so too many works of fiction concern themselves with identical inquiries What makes a good or great novel is to some degree, measured by the novelist’s skill in rendering characters and events for the reader's evaluation through dialogue and other descriptive narrative In addition just as the legal process asks judge or jury to evaluate a variety of proofs in order to allocate criminal blame or civil liability novels invite the reader to exercise her judgment about individuals and events to determine by the novel’s end the truth of those events. Finally where the legal system has constructed rules of evidence to shape the body of proof that may be used to determine facts writers of fiction offer the reader a variety of “proofs” by which she may judge the truth of their works (pp 697-700).

Law and literature in this view are importantly alike rather than different; there is a ‘‘correspondence’’ between the two fields (Cavallaro 2004, p. 699). Thur ‘‘although when she wrote Pride and Prejudice, [Jane] Austen was not at all concerned with the legal system or its procedures for determining disputed facts the novel’s examination of the kinds of proof that form the basis of quotidian personal judgments offers fertile ground for evaluating modes of judicial proof’’ (Cavallaro 2004 p 700)

In this version ‘‘interdisciplinarity’’ functions by reflection as a mirror.

How exactly this contextual change works to bring insight is alas a bit unclear But beyond or apart from this methodological difficulty lies another set of questions about the ‘‘interdisciplinarity’’ of using literature as a mirror of law We are not interested in literature in this view because it is literature Cavallaro makes this point herself in acknowledging what she calls ‘‘a vulnerability of this genre of scholarship ’’ namely that one must simply accept (on faith?) that the ‘‘insights’’ of Pride and Prejudice ‘‘have some worth beyond mere entertainment” ‘‘I contend” she continues ‘‘that like all great literature Austen’s novel captures a kind of truth that amplifies and enriches the truth of our own [legal] experience and therefore can offer meaning beyond the aesthetic’’ (Cavallaro 2004, p. 701).

Now I do not want to be understood to be arguing here that to be interested in literature qua literature one must limit one’s attention solely to ‘‘the aesthetic.” Such an argument would essentialize literature in exactly the way that the law-is-rules argument essentializes law What I do want to suggest however is that insofar as its interest is pretty much solely law ‘‘interdisciplinarity-as-mirror’’ does not seem very er ‘‘interdisciplinary’’ Or perhaps more accurately ‘‘interdisciplinarity’’ in this view operates as a kind of scavenger hunt seeking in literature (and presumably other disciplines such as the pictorial arts or in science¹⁴) nuggets useful to the improvement of law This is a fairly ‘‘law-centric’’ form of ‘‘inter­disciplinarity’’ and to the extent that its ultimate object is the reform of legal doctrine one wonders in what way it is ‘‘interdisciplinary’’ at all

Beyond the compare-and-contrast and mirror forms of allegedly ‘‘inter­disciplinary’’ work are others which in the past went by the names of ‘‘law in literature’’ and ‘‘law as literature’’ The former studies explicitly legal themes and plotlines in literary works such as Antigone (Gewirtz, 1988) or Billy Budd (Weisberg 1984, pp.

Again generalizations are dangerous But let us try a thought experiment Imagine that a graduate student or professor in an English or Comparative Literature department were to examine themes of love or of loyalty or of friendship or of kinship (etc) in Antigone or Billy Budd (or to repeat a phrase the novel play or poem of your own personal choosing) While I am not positive I think that such an examination would fit conceptually exactly in the middle of what a person in literary studies is expected to do in the ordinary course of his or her professional life That is a study of love or kinship themes in a famous play novel or poem would be thought of as central to the discipline of English or Comparative Literature

What then changes if the scholar examines themes of law rather than love in the works in question? Does the work become ‘‘interdisciplinary’’ simply because the themes being examined are legal? ‘‘Interdisciplinary” in what sense?

There is no reason to suppose that the work would become ‘‘more inter­disciplinary” if the scholar were to examine the way that the law is treated, not in a play or novel, but in a complex or contested judicial opinion such as Lawrence v. Texas (539 US 558 (2003)) the recent case holding it uncon­stitutional to criminalize intimate sexual relations between homosexuals or Grutter v. Bollinger (539 US 306 (2003)) upholding the constitutionality of certain affirmative action programs There is a lot to say about the way the law in general is treated in these cases both of which overruled existing precedents That is putting the outcomes to one side much can be said about the concept of law implicit in these opinions as there is much to be said about the concept of law articulated by the various characters in the literary works with which this thought experiment began But examinations of legal themes whether in literary works or legal works by people who study literature are not per se ‘‘interdisciplinary” unless we give that term the very thinnest meaning of the study of anything legal by one who is not a lawyer¹⁵