The document summarizes Richard Posner's 1986 paper on the relationship between law and literature. Posner argues that while literary criticism techniques can be useful for legal interpretation, there are also important differences. Specifically, judges wield governmental power, so they have less freedom of interpretation and must be constrained by legal texts, unlike literary critics. Additionally, statutes are often incomplete and delegate lawmaking powers, so judge-made law and accommodation of changing needs play a role. Finally, Posner analyzes how rhetorical techniques are important in creating authoritative judicial opinions, using Holmes' Lochner dissent as an example.

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LEGAL THEORY
ON LAW & LITERATURE
Richard A. Posner (1986). ‘Law and Literature: A Relation Reargued,’ Virginia Law
Review, Vol. 72, No. 8, pp. 1351-1392.
What is the relationship between law and literature?
The significance of this question relates not only to the fact that law schools in the
United States have started to offer courses in this area, but that law faculty have also
embarked on interdisciplinary research programs in order to relate the law to
literature.
This essay will summarize some of the main points raised by Richard Posner of the
University of Chicago in 1986 to delineate the give and take between these areas of
study.
The first observation that Richard Posner makes is that for more than a century the
law was an ‘autonomous discipline.’ What this means is that the problems of law
were to be solved by lawyers within the discipline of law itself.
But, increasingly, lawyers are turning to the study of canonical literature, literary
theory, and literary criticism to understand aspects of the law that could not be
illuminated within the autonomous approach to legal studies.
Richard Posner’s main interest in the law and literature movement is related to his
realization that the concerns raised by this movement will be of use to lawyers and
judges who work with theories of legal interpretation.
It will also be of use in the analysis of judicial opinions.
Though the law and literature movement was relatively new when Posner wrote this
paper in 1986, lawyers have always known that literary insights are valuable in legal
studies. As early as 1947, Benjamin Cardozo had published a study on the role of
literary style in the structure of judicial opinions.

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The law and literature movement in American law schools however is related to
recent developments. The most important of these was the publication of a book on
the ‘legal imagination’ by James Boyd White in 1973.
The main reason for the growth of the law and literature movement then is related to
the large-scale migration of literary scholars from departments of English to law
schools. It was also affected by the increase in the size and levels of faculty
specialization in law schools.
Richard Posner recognizes that the law and literature movement can spread in
various directions.
His task is not to delineate the movement in its entirety, but to focus on the law in
literature; the use of literary criticism in legal interpretation; and render a stylistic
analysis of the judicial opinion with specific reference to Justice Holmes’ famous
dissent in the Lochner case (1905).
Richard Posner however does recognize that there are a number of other areas that
are worth taking up in the context of the law and literature movement.
They include, for instance, the literary representations of trials; literature written by
lawyers; the theatrical structure of trials; comparisons between constitutional and
biblical interpretations; and the determination of whether or not controversial texts
have any social value in First Amendment jurisprudence.
Richard Posner basically defines literature as canonical texts that have ‘survived’ in
the marketplace of ideas.
The role of law in literature is however not to be understood as an attempt to ‘study’
the law as such, but as akin to understanding what is at stake in representations of the
law.
A good example of such a representation is Franz Kafka’s The Trial. Kafka was
himself a lawyer and what he depicts corresponds to the structure of the legal
system in the Austro-Hungarian Empire.

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The point of the book however is not to depict a particular legal system as such, but
rather to explore the world of the main protagonist who feels that he is subject to the
consequences a ‘hapless prank’.
It depicts not only the protagonist’s needless suffering but the masochistic resilience
with which he puts up with it.
The main takeaway from Richard Posner’s analysis is that as far as the law in
literature is concerned it is more a matter of subject matter rather than that of the
techniques of legal analysis.
So being a lawyer does not necessarily give the reader an advantage in analysing the
law in literature; familiarity with legal themes should suffice.
Richard Posner then considers whether the different methods of literary criticism are
of use in legal interpretation.
Most legal theorists identify their methods of reading with forms of literary criticism
that are akin to the new criticism, deconstruction, and intentionalism. This is as true
for judges as it is true for legal theorists.
New critics try to read texts as self-contained literary artefacts; deconstructionists
focus on moments of textual indeterminacy; and the intentionalists try to think back
to legislative intent while interpreting statutes by consulting the historical record.
Richard Posner then illustrates how critics of these three approaches would read a
poem. He then identifies the similarities between that and how they would read a
legal text in order to illustrate the strengths and limitations of these three
approaches.
The main difference that must be kept in mind however is that unlike a literary
critic, a judge wields governmental power.

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So while there are similarities between literary criticism and legal interpretation, the
consequences of legal interpretation have to be kept in mind because they culminate
in forms of judicial action.
Since legal interpretation is backed by the power of the law, judges have less leeway
in the interpretation of legal texts.
The public at large allow judges to exercise power provided that they are
constrained by the legal text itself.
That is why they cannot get carried away like literary critics who can re-invent a
literary text in its entirety at periodic intervals.
Another important difference, for instance, is that literary critics work on the
assumption that a poem is an ‘organic’ whole. This leads them to attribute
significance to every detail that emerges in an act of interpretation.
Literary critics take pride in ‘reading for the details.’ That approach may not make
sense with statutes which are written in haste by committees.
In other words, statutes are not always the products of a ‘single mind’ whose
intention can be reconstructed in an act of interpretation.
Statutes also have a lot of redundant text built into it. So the basic assumption in
literary criticism that every word matters in literary interpretation may not
necessarily be the case for statutory interpretation.
Legislative intent is an interesting problem in legal theory.
It is not always the case that legislative intent can be clearly discerned or
reconstructed from the context of drafting. Sometimes, as Richard Posner points out,
legislative intent is simply ‘inscrutable.’
Furthermore, statutes, unlike poems, are not always complete. Legislatures often
delegate the law making function to judges or other legal functionaries. They are
expected to fill in the details.
There is a role then for judge made law within statutory interpretation since the
legislature cannot anticipate the contexts and circumstances in which the law will be
applied in the future.
Judges may also seek recourse to ‘free interpretation’ in cases where there are too
many limitations on the powers of the different agencies of government to intervene
in a problem-solving situation.

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This might make it necessary for judges to interpret statutory or constitutional
provisions in ways that can ‘accommodate’ the needs of government.
This is often not the case in literary criticism where the history of the text plays an
important role unless the critic decides to completely reinvent a text.
A critic might do this in order to free the text from the original contexts in which it
was written in order to make it relevant to contemporary audiences.
In other words, Richard Posner feels that reading literary texts and legislative texts
are not the same since they serve divergent functions.
So there are clear limitations to how the approaches to interpretation used in these
two contexts can be applied to each other.
And, finally, Richard Posner turns to the generic analysis of judicial opinions.
How will, Posner asks, an understanding of literary analysis help in the context of
reading judicial opinions?
What Richard Posner means by a literary analysis of a judicial opinion is akin to a
stylistic analysis of a literary text. The area of literary study that is bound to be most
useful in this context is rhetoric.
It is the effective deployment of rhetoric that creates the sense of authority that we
associate with a judicial opinion.
That is why the study of judicial opinions and judicial dissents by members of the
Supreme Court has become of consequence in the law and literature movement.
Needless to say, dissents are also important because they might have later become
the law.
It is not always possible for a judicial opinion, Richard Posner argues, to work with
‘logical or empirical proof.’ Instead, it might become necessary in some cases for the
judicial opinion to have the form of ‘a self-evident sense of rightness.’ In other
words, the judicial opinion deploys a technique that is known as an ‘ethical appeal.’

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Richard Posner then goes on to analyse Justice Holmes’ dissenting opinion in the
Lochner case (1905) which did precisely that.
The significance of this dissent is related to the fact that while it is not well-written in
the conventional, law school sense of the term, it went on become the most
important dissent in Justice Holmes’ career.
The Lochner dissent represents, for Richard Posner, a symbolic representation of the
fact that ‘rhetoric is important in law because many legal questions cannot be
resolved by logical or empirical demonstration’ alone.
But, despite that, it is not possible to prove after years of analysis that it was wrongly
decided. That, Posner points out, is often the case with ‘hard cases.’
That is why the study of rhetoric and rhetorical strategies can make a difference in
analysing judicial opinions, since there is no other way of making sense of such judicial
opinions.
This recourse to rhetoric as a form of literary explanation however does not mean
that the underlying conflict between a conception of law as a form of ‘humanity’ and
as a ‘technique of government’ will go away.
Though Richard Posner decides that the law is more of the latter than the former, the
deployment of this technique of government depends on the interpretation of legal
texts.
Insofar as that continues to be the case, Richard Posner concludes, ‘the practice of
law can gain from the sympathetic engagement with literature.’ Posner’s intent in
writing this paper was to demonstrate why that should be the case.
SHIVA KUMAR SRINIVASAN