Vol. 10 No. 3 (March 2000) pp. 224-227.

LEGALLY SPEAKING: CONTEMPORARY AMERICAN CULTURE AND THE LAW by Helle Porsdam. Amherst: University of Massachusetts Press, 1999. 255pp.

Reviewed by Elizabeth Dale, Department of History, Clemson University.

Helle Porsdam received her Ph. D. in American Studies at Yale in the 1980s. While there, she tells us in the introduction to this book, she was struck by the fact that many of the bright undergraduates she met intended to go to law school and by the way those students spoke of that goal. As she put it, "Whereas in my home country [Denmark] the law is viewed solely as a technical means to achieving a certain end, for Americans the law, in addition to performing such a technical function, also carries a very important symbolic meaning. Unlike Danes, Americans are persuaded that the law, beyond protecting their rights and preserving their liberty, will provide them with truth and meaning -- Justice of a higher kind" (p. xii). This book is an effort to explore the role law plays in America, in particular the way law helps in "maintaining the American nation and identity" (p. xii).

To get at that dynamic, Porsdam examined the way law was depicted in a range of cultural works produced in the 1970s through the 1990s. Some of her sources were popular, she devoted a chapter to Judge Wapner and the television program PEOPLE'S COURT, another to Tom Wolfe's BONFIRE OF THE VANITIES (1987), and another two to the mystery writers Scott Turow and Sara Paretsky. Others were more literary. One chapter focused on Margaret Atwood's THE HANDMAID'S TALE (1986) and another on William Gaddis' A FROLIC OF HIS OWN (1994). She examined two non-fiction studies of law-in-action, PRAYING FOR SHEETROCK by Melissa Fay Greene (1991), and OUR TOWN, a study of fair housing claims in Mount Laurel, New Jersey written by David L. Kirp, John P. Dwyer and Larry A. Rosenthal (1995). She also considered works by scholars of law, including Patricia Williams, Duncan Kennedy, and Richard Posner, and she spent some time considering the law and literature movement. Porsdam used two studies, Jerold Auerbach's JUSTICE WITHOUT LAW? (1983) and Kenneth Karst's BELONGING TO AMERICA (1991) to frame her discussion of those disparate materials. As those choices suggest, her interest was in the way that ideas of justice influence theories of law in America, and she concluded that "Americans turn to the courts with a particular kind of faith and hope, which survives at a deep level despite all the disappointments and frustrations of the legal process. Deep down, Americans are not just stuck with law, they want to be -- all complaints about hypernomia, litigiousness, greedy lawyers, and the adversary system run wild notwithstanding" (p. 4). The chapters in the rest of the book are essays interpreting the cultural works she relied on, to demonstrate that conclusion.

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The interpretations offered in those essays are thought provoking, and might usefully provide a starting point for discussions of the popular perceptions of law's relation to justice. Having said that, two questions remain. One problem I had with the book is that the interpretations it offers, though interesting, are not always obvious. It is true, for example, that Margaret Atwood's HANDMAID'S TALE involved a world where people (especially women) had no individual rights or freedoms, and certainly the book criticized that world. However, unlike Porsdam, I do not read the book as "a warning to all critics of rights talk and individual autonomy: too much rights talk, too much reliance on individual rights may be bad, but no rights talk is infinitely worse" (pp. 167-68). Nor do I read it as a book that vindicates "traditional American regard for individualism and autonomy" (p. 168).

I may misunderstand HANDMAID'S TALE, or be interpreting it in a manner that fits my own biases as a reader. I cannot read the descriptions of the narrator's mother, the explanations of the fall of the old society and the rise of the new, or its ambiguous ending without concluding the book criticized people who rely too much on rights, individualism or autonomy, or generally assume that the society they live in will never collapse. Certainly, the end of legal protections for women described in the book seemed to me to indicate that rights and law were weak reeds that could not block political forces that wished to ignore the law. Likewise, the book's description of individual efforts to escape and resist the new order seemed to me to attack the idea of personal autonomy; the only people able to withstand the force of the new order were those who united in withdrawing from society, its laws, and its protections.

I read HANDMAID'S TALE as a much bleaker, and larger criticism than Porsdam does, and one that offers little or no consolation to people believing in law, the rule of law, or law's capacity to do good. It strikes me as an attack on the faith that law will provide a "Justice of a higher kind" that Porsdam attributes to Americans, not a vindication of it. As I said before, that reading may reflect my particular biases, but they are biases that continued to shape my interpretation even after I re-read the book upon reading Porsdam's interpretation. And, that raises the second, more significant issue raised by Porsdam's book.

Porsdam's interpretations are interesting, but they are quirky (they are chiefly interesting because they are quirky), and often depend on readings that are sometimes counterintuitive. I am not sure, for example, I can accept her argument that there is a thread of hope for law in BONFIRE OF THE VANITIES. It may be, as Porsdam argues, that we should view the fact that Judge Kovitsky is a decent person, committed to justice, and a member of the legal profession, as a sign that Wolfe feels the legal system is not completely corrupt. But I read Kovistky's statement, "They don't know how bad this is. . . .I'm their friend, their only friend," uttered as he is confronted by a hostile crowd, as an indication that there was no hope for the legal system, or a society that depends on one. Once again, the book seems to me to condemn law completely, not offer a thread of hope that it might, or even should, be expected to keep society just. What does this mean? For Porsdam's book, the possibility that the texts she has analyzed may be read differently from the way she reads them means a great deal. It means that the reader's personal context determines his or her analysis of the

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works, and that suggests, to me at least, that her underlying premise -- that these works demonstrate a shared, American understanding of law and its role, cannot be sustained. How can it be shared, if not all readers derive the same understanding of law in works about it?

The problem of interpretation goes beyond Porsdam's book, of course. Indeed, and somewhat ironically, she discusses the problem at some length in her chapter on the law and literature movement. There, she noted the various approaches to interpretation, focusing particularly on those who assume universal values will provide for common interpretation ("foundationalism") and those who argue that values are contingent, variable and "subject to accidents of history and culture" ("antifoundationalism"). Foundationism permits law to be precisely the source of justice that Porsdam asserts Americans wish it to be, but only by denying that law's meaning is contingent. Antifoundationalism, by asserting law's contingency, denies it the power of doing justice. This is an important point, which Porsdam does not seem to apply to her own study. As she admits, the antifoundationalists in the law and literature movement avoid the dilemma posed by law's contingency by "pledg[ing] allegiance to the law as a force for social change and social cohesion" (p. 248). They deny law's contingency and read commonality into it because that is the only way they can make their reliance on law as a source of justice make sense.

That means that in Porsdam's view all but the most ardent antifoundationalists deliberately misread legal documents in order to find commonality in law, so that they can MAKE law "the cultural glue" that holds American society together (pp. 248-49). It also means that, from the perspective of the antifoundationalists, at least, law does not naturally perform that function, and that they must impose sense of justice, and the faith in law that Porsdam ascribes to Americans, onto legal texts, rather than derive it from them. Porsdam's study seems to engage in a similar sort of misreading, in order to establish that even books that attack the law, legal system, or legal actors, do so from a perspective that holds law to a higher standard and a reflects a belief in its relationship to justice. Perhaps that is legitimate. And yet, I don't think that is a viable approach given her inquiry. If there is a particular American commitment to the ideal of law, or a uniquely American belief that law guarantees justice, then those views should be inherent in the cultural works she studied, not grafted onto them. At the very least, cultural works should offer the sense that law is able to achieve justice, even when revealing how it fails in a particular instance. Yet, few of the books Porsdam studies do offer that sense of possibility, and many seem to condemn people who depend on justice for law.

To be the glue that holds American society together, law's relationship to justice should be an obvious part of legal decisions, not one that must be read into them by people who wish to use law to advance justice. The absence of that sort of consensus, in law or literature or TV, suggests that if there is an American sense of the relationship between law and justice, it is more complex than this book suggests. Yet, by posing the question and doing so in the context of popular culture, Porsdam's book raises an important issue, even if the answer seems to be something other than what she describes. The undergraduates at Yale who started her on her inquiry, who

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wanted to study law to do good, and undertake legal studies to further their liberal educations, all too often leave law school to work in large, corporate firms, or become the lawyers who drop out of law frustrated by its inability to live up to their ideals. Their experience reveals a disjunction between popular ideals of law, and law in practice. Porsdam's sources offer an insight into how popular culture, as well as more professional works, wrestles with that disjunct. Read as a struggle to define and understand justice, and to condemn the legal system for failing to live up to that standard, her sources do offer an interesting perspective on contemporary views of law, they simply do not reveal that it acts as the glue that holds society together.



REFERENCES:

Atwood, Margaret E. 1986. THE HANDMAID'S TALE. Boston: Houghton Mifflin.

Auerbach, Jerold S. 1983.. JUSTICE WITHOUT LAW? New York: Oxford University Press.

Gaddis, William. 1994. A FROLIC OF HIS OWN: A NOVEL. New York: Poseidon Press,

Greene, Melissa Fay. 1991. PRAYING FOR SHEETROCK: A WORK OF NONFICTION. New York: Perseus Books.

Karst, Kenneth. 1991. BELONGING TO AMERICA: EQUAL CITIZENSHIP AND THE CONSTITUTION. New Haven: Yale University Press.

Kirp, David L., John P. Dwyer, Larry A. Rosenthal. 1995. OUR TOWN: RACE,

HOUSING, AND THE SOUL OF SUBURBIA. New Brunswick, N.J.: Rutgers University Press.

Wolfe, Tom.1987. THE BONFIRE OF THE VANITIES. New York : Farrar, Straus Giroux.


Copyright 2000 by the author, Elizabeth Dale