Vol. 20 No. 5 (May, 2010) pp.187-189
THE AFFECTIVE LIFE OF LAW: LEGAL MODERNISM AND THE LITERARY IMAGINATION, by Ravit Reichman. Stanford: Stanford University Press, 2009. 213pp. Hardcover. $50.00. ISBN: 9780804761666.
Reviewed by John Brigham, Department of Political Science, University of Massachusetts. Email: brigham [at] polsci.umass.edu.
This book looks to literature in order to understand some of the feelings generated by law. Law and literature have a good life together. This collaboration has enlivened the study of law and provided a new outlet for learning from literature. The analysis offered in Ravit Reichman's book is about how law is informed by what we sense or feel.
Reichman's reflections tend to be more about literature than law. But the mix is exciting and there is considerable depth. Her observations draw inspiration from and have some of the analytic strength of law. Literature and the humanities, when they interact with law, are notoriously soft. In this book, the treatment of law and the influence of law has clear parameters and it seems relatively hard.
In law, to adopt a perspective or focus on some part of law like torts or contracts usually amounts to a kind of refinement. But literature is a lens through which to view law. It is not a part. Literature, or literary concerns, change the focus from outcomes to meanings, from winners and losers to insight. In the realm of law and literature it seems to be a given that the author is going to be muddling liability, challenging property and against war. In fact, the specificity of these positions, which in law would not be all that specific, is quite different from what is possible with literature. That is one of the successes of this book.
The book is the first in a series on “The Cultural Lives of Law” edited by Austin Sarat. With theoretical and epistemological foundations in Walter Benjamin and Robert Cover, Reichman draws from the stories of Virginia Woolf and Rebecca West in fiction to Hannah Arendt in political and cultural criticism. Reichman examines normative content and normative structures in both literature and law. As a student of literature who is interested in law, she has a great deal to offer.
“Legal Modernism and the Literary Imagination,” the subtitle, nicely describes the book's focus and concerns. The title is evocative and challenging. In her Introduction she writes of “emotional responses to justice” as “affective experiences” and about “drawing on the interrelationship of affect and justice.” But, the “affect” that is most effectively presented is ultimately not “emotions like love or grief” but, and this results in another level of analysis, “intuitions and sensibilities.” Reichman suggests “a substructure of sensibility” as a common thread linking law and literature, justice and the imagination. This analytic depth develops the connection between these spheres and breaks down the positivist [*188] boundaries between feeling and knowing.
The parallels between law and literature, as different but related dimensions of our social life, are presented as exciting and mutually supportive. But with nothing more they can almost seem like accidental cross cultural phenomenon. There is little attention to power or structure in the world. In comparing PALSGRAF V. LONG ISLAND RAILROAD with Virginia Woolf coming home from a trip to France at almost the same time as the railroad accident, Reichman finds remarkable affinities in Woolf who agonizes in her diary over a railroad accident she witnessed. And she comments on an eerie association between the stutter of one of Woolf's unfortunate characters and that of Helen Palsgraf, the injured passenger in the eponymously named case.
On the other hand, the depth Reichman draws from Woolf's characters in JACOB'S ROOM, MRS. DALLOWAY, and TO THE LIGHTHOUSE parallels and develops aspects of tort law and property law. The trauma of WWII becomes a transition point evoked in Rebecca West's series “Greenhouse with Cyclamens.” This leads to discussion of war crimes and the perspective of Hannah Arendt. Here, even the more purely literary connections are very serious.
Reichman's use of the work of John T. Noonan, a judge and pioneer in the modern study of the legal imagination, is instructive. Noonan wrote PERSONS AND MASKS OF THE LAW in 1976. Part of his work was an exploration of the legal imagination and for this he drew on Cardozo's work not only as the writer of the opinion in Palsgraf but also as an early student of law and literature. Noonan is said to have discovered Ms. Palsgraf's stutter and he is critical of Cardozo's failure to take account of the huge imbalance of power between Ms. Palsgraf and the Long Island Railroad. This criticism was brought out in reviews just after MASKS first came out (McKenna, 1982). With regard to these positions, Noonan's and those of his reviewers, it seems that early law and literature scholarship had a more political bent. Contemporary law and literature, at least Reichman's is less political. Today, the affinities between the traditions are offered as serendipitous or just as examples of the randomness of the imagined world.
The most important dimension of Reichman's book seems to me to be a shift from affect in emotions like love and grief to something more substantial and constitutive. This would be the dimension of affect already mentioned as constituting consciousness. In this there is a politics and implications that take the law-literature connection beyond the emotions. Although this dimension is not drawn out as much as it might be, it does seem to be present. For law to actually have an affective life and not simply be subject to an unflattering comparison with literature for its aspiration to rationality, there must be more. I think there is more here when Reichman calls attention to “sensibility” as a key to law's underlying rhetorical, psychological, and normative structure.
In an Epilogue, Reichman returns to Woolf and the enormous pain of the modern condition. While her authors take on the somewhat grander scale that [*189] is the hope of literature there is hope for law as well. For by comparison with this literary ambition law becomes more real. While the literary vision promises not liberation but a capacity to live with pain, law's search for balance has its own long suffering quality. While Reichman finds law a differently abled master there is something in the modernist vision of these writers that seems capable of altering the conventional sense of what is possible for law. For while most of the energy in this book comes from its engagement with literature its distinctive character comes from the way literature and the structures of consciousness illuminate the aspirations of law.
Cardozo, Benjamin. 1930. “Law and Literature.” In LAW AND LITERATURE AND OTHER ESSAYS, Fred B Rothman & Co (1986).
McKenna, III James A. 1982. “The Judge as Dramatist,” AMERICAN LEGAL STUDIES FORUM 5: 40-44.
Noonan, Jr., John T. 1976. PERSONS AND MASKS OF THE LAW. New York: Farrar, Straus and Giroux .
Woolf, Virginia. 1922/1998. JACOB’S ROOM. Dover Publications.
Woolf, Virginia. 1925/1996. MRS. DALLOWAY. Penguin Classics.
Woolf, Virginia. 1927/2007. TO THE LIGHTHOUSE. Oxford University Press.
PALSGRAF v. LONG ISLAND RAILROAD CO. 428 N.Y. 339, 162 N.E. 99 (N.Y. 1928).
© Copyright 2010 by the author, John Brigham.