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LEGAL THEORY
ON LAW AND LITERATURE
C. R. B. Dunlop (1991). ‘Literature Studies in Law Schools,’ Cardozo Studies in Law and
Literature, Vol. 3, No. 1, pp. 63-110.
What does it mean to study literature in a law school?
This essay is an attempt to summarize the main points raised by C. R. B. Dunlop in a
paper that he published in 1991.
In this paper, Dunlop explains the difference between literature - as conventionally
understood in literature programs - and what law schools are trying to do with
literature, literary theory, and literary criticism.
As is well known by now, the interest in studying literature in law schools is related
to the pioneering work of James Boyd White on the ‘legal imagination’ in 1973.
Subsequently, a number of law schools began to introduce courses in this area.
Dunlop has taught courses in law and literature for the better part of his career.
It is safe to assume that most Canadian and American law schools not only have
course offerings in this area, but let their faculties teach and do research in this area
as well.
There are two important schools in the law and literature movement.
They can be broadly differentiated in terms of how they approach the relationship
between law and literature. Scholars in this area can focus either on ‘law in
literature’ or on ‘law as literature.’
Law in literature is an attempt to understand how law is represented in literary texts;
it should not be conflated with the study of the law as such involving the use of
cases and legal treatises as study materials.
Law as literature is an attempt to delineate the literary dimensions of legal writing. It
can also be described as ‘legal aesthetics’ or ‘legal poetics.’
Both these critical approaches can generate their own canons of texts for study.
Law school courses in literature involve both aspects. The emphasis however might
vary depending on which of these areas the instructor and students find more
interesting or useful.
An important pitfall to keep in mind however is that while the law is mediated by
texts, it is not reducible to texts in the way that literary studies is thought to be.

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Likewise, the preoccupation with theory is more in law and literature than in
technical approaches to the law.
In other words, law and literature as an academic movement is an interdisciplinary
approach to legal studies like critical legal studies, law and economics, and law and
psychoanalysis.
Dunlop’s main argument is that the rapid growth of this approach to legal studies in
law schools makes it important for us to think through what has been done and what
remains to be done.
Dunlop is also trying to answer a few difficult questions:
Should law and literature be taught in the core curriculum? Or should
interdisciplinary courses be taught as electives? Is it really important that law faculty
and law students learn the techniques of literary criticism?
In other words, what is at stake is the intermittent need for a pedagogical manifesto
that is experienced by legal scholars working in this area.
Dunlop would also like to identify the underlying assumptions in the law and
literature movement and surface them for critical analysis.
While Dunlop is convinced that there should be a significant place for the law in
literature, a lot more theoretical work has to be done to bring coherence to this area.
In Dunlop’s account, the movement is still dependent on the academic space cleared
by James Boyd White’s pioneering work (on the legal imagination) in law schools.
The affinity between White’s approach to literary analysis and those of the new
critics has to be studied in greater depth in order to situate his methods of
interpretation.
Needless to say, not all schools of literary criticism are adequately represented in law
and literature. Deconstructive approaches, for instance, are more likely to be found
within the ambit of critical legal studies and critical race studies than in law and
literature.
Though Dunlop does not mention law and psychoanalysis and law and psychiatry, I
think these interdisciplinary approaches in legal studies are also important to situate
the law and literature movement.
In order to do so, it is important to dig out what assumptions about subjectivity
constitute the main approaches to interpretation in law and literature.

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What is really at stake if we take interdisciplinary approaches seriously – whether
we situate it at the level of core courses or elective courses in the law school
curriculum – is the ‘nature of legal research’ itself.
That is why Dunlop cites Richard Posner’s point that when he was a student at the
Harvard Law School, the study of the law was considered to be an autonomous
discipline.
It was only later that interdisciplinary approaches began to proliferate in law schools
forcing a rethink on what exactly constitutes the scope of legal studies.
Richard Posner has himself played an important part in developing areas like law
and economics and law and literature.
Another way of thinking about the difference between the internal and external
approaches to legal studies is the difference between doing research in law and
pursuing research about the law.
What law school deans focus on is the relationship between these two approaches
when they reconstruct the law school curriculum. Dunlop examines the advantages
and disadvantages of both these approaches in his paper.
So for those who want to practice the law, the core curriculum is more important.
But for those who want to teach or do research in the law, interdisciplinary
approaches have a greater attraction.
Then again the latter approach is useful for those who want to find legal solutions to
the kind of problems that have not been broached earlier.
A specific instance might be the relationship between law and technology in the
context of copyrights, patent law, and intellectual property. The applications of such
approaches to science-based business should be obvious.
Once the validity of this approach is recognized, it will spawn any number of
interdisciplinary approaches both at the level of theory and practice for which
knowledge of more than one area is required.
It is therefore not possible to restrict law schools to the core curriculum as used to be
the case before. Legal studies then must be understood in the extended sense of the
term as indicated by the any number of courses that begin with the title ‘Law and…’
Dunlop points out that while there are journals which specialize in legal humanities
from the law schools at Yeshiva and Yale, papers in this area have also appeared in
any number of mainline law journals including the Harvard Law Review.

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The structure of the law and literature movement is analogous to the proliferation of
interdisciplinary courses in English studies where there are any number of courses
which relate English literature or American literature to areas like culture, history,
linguistics, psychoanalysis, and sociology.
Then again the relevant question is whether what matters is the literary canon as
such or whether the contexts that determine literary study should take pride of
place. The legal equivalent of this is whether the canon of classic texts in law and
jurisprudence should be read from an internal or an external perspective.
The theoretical and historical pre-determinants of any text then will threaten to
usurp the text itself. So the actual amount of effort that goes into relating the text
with its contexts can be endless.
Another important dimension relates to literary skills.
Exposure to literary texts is not an end in itself unless it is possible to determine
whether students have imbibed the skills needed to read, interpret, and write about
canonical texts in law and literature.
In addition to textual exposure and skills, students must also imbibe the ability to
empathise and relate with those they have to deal with - be they colleagues, clients,
judges, or other legal functionaries.
Dunlop envisages literature then as a corrective to what is missing in the law.
While the law is replete with ‘rules,’ it is not obvious why the rules came into being
in the first place or the contextual dimensions in which they must be related to the
common law.
Literature also makes it possible to explore questions of ethics and values that are
not obvious within mainstream legal analysis.
The best instance of this is that literary texts work with a dialogic model of reason.
This model makes it possible to find a place for a range of voices that cry out to be
heard in any instance of litigation or legal action.
A law and literature approach to the desegregation of public schools in the United
States and the Civil Rights movement following the Brown decisions of the Supreme
Court would be a good place to find the more human dimensions of the law.
It should also be possible to blend the study of race and gender within a literary
consciousness. This is already the case in the work of law professors like Derrick Bell
and Patricia Williams.

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These law professors insist on bringing a narrative dimension to their studies of race
and gender so that the affective dimensions of legal reform are better understood by
members of the legal community. They are also able to relate their understanding of
the law within memoirs of their own professional formation as lawyers.
So even if courses in law and literature are not always a part of the core curriculum,
there is a lot more space in the elective curriculum than we expected it to be.
While it initially appeared that interdisciplinary courses would dilute legal studies,
it is increasingly the case that ‘hard law’ courses are seeking insights from outside
the traditional curriculum.
There is now a new generation of lawyers and law school professors in place who do
not find interdisciplinary courses a distraction from the core curriculum. That is
probably the main difference between the situation when James Boyd White started
the law and literature movement and where it finds itself now.
Dunlop also compares the relationship between law and literature courses with
courses in legal history and legal theory which are more main-stream.
His point is that law school deans must go beyond a curriculum where these courses
are managed as modest extensions of the curriculum and boldly rethink what it
means to do legal studies.
The work of H.L.A. Hart and Richard Weisberg is relevant in this context.
These legal scholars have demonstrated the extent to which the law functions within
legal philosophy making it difficult to differentiate between legal philosophy and
philosophy as such.
The aims of the law and literature movement are also to examine whether it is
possible to assimilate literary theory to read legal texts. This, if successful, should
lead to the study of legal aesthetics.
There are already instances of this approach in the stylistic analysis of judicial
opinions. Judges like Benjamin Cardozo and Richard Posner have studied judicial
opinions as rhetorical constructs.
Generic analysis of famous dissents in Supreme Court opinions have taken on a new
importance in the law and literature movement.
What such forms of rhetorical analysis demonstrate is the importance of the writing
techniques that Justices of the Supreme Court deploy in order to keep their dissents
alive until it eventually becomes the law of the land.

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Would these Supreme Court dissents have survived if they were badly written?
The analysis of judicial opinions then is the most powerful instantiation of the law
and literature movement because a great deal of what we mean by the case method
in law schools is nothing more than the analysis of Appellate and Supreme Court
opinions.
The analysis of such opinions then from a rhetorical point of view is the point of
entry that the law and literature movement has been on the lookout for in the core
curriculum.
There is also a growing body of work on the role of the case method in legal
education in American law reviews.
In order to get a glimpse of the inherent potential of the law and literature
movement, we must relate it to the case method.
It is only by bringing together the analysis of the case method within the purview of
the stylistic analysis of judicial opinions that this potential can be fully realized.
Only then can the legal imagination take cognizance of the pedagogical imagination.
SHIVA KUMAR SRINIVASAN