Law and Humanities

ISSN: 1752-1483 (Print) 1752-1491 (Online) Journal homepage: http://www.tandfonline.com/loi/rlah20

Law & Literature (as an epistemological break in

legal theory)

Gilles Lhuilier

To cite this article: Gilles Lhuilier (2011) Law & Literature (as an epistemological break in legal
theory), Law and Humanities, 5:1, 3-9

To link to this article: http://dx.doi.org/10.5235/175214811796219754

Published online: 07 May 2015.

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 (2011) 5(1) Law and Humanities 3–9

Crossing the Borders

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Law & Literature

(as an epistemological break in legal theory)

Gilles Lhuilier*

What comprise the activities of a scholar involved in the diverse disciplines grouped
together under the heading ‘Law and Literature’ or ‘Law and Literature and Art’? To be
more precise, what does it mean for me, a ‘jurist’, to write a book entitled ‘Law, a Novel’?1
I will not discuss this book here. It has already been written! What I would like to spell
out is why I wrote the book. It seems to me that I quite simply wanted to move away from
the mainstream, going off the beaten track of legal knowledge, of the founding of this
knowledge, and the dynamics of this academic written production. Forging a new path
in this way creates what epistemology calls a ‘break’.
I will, therefore, make the following hypothesis: Law and Literature is, in fact, the
space of thought and practice into which one enters when one steps off the main road of
legal theory—an excessively tedious theory, based on the philosophy of jurists, the style
and spirit of which still too often conforms to that of nineteenth-century academic
rationalism. Indeed, Law and Literature is the proof of an epistemological break that
today is spreading through legal thought.
This hypothesis makes it possible to interpret anew—and to draw links between—the
three possible definitions of Law and Literature.

* Professor of Law, South Brittany University, France; Fellow of the Advanced Studies Institute of Nantes,
France; Vice President of the non-governmental organisation Humanrightscertification; coordinator of the
Global Legal Studies Network, GLSN.eu. He is senior expert for the European Union especially in the African
area, and an international commercial arbitrator. He alternates writing books on law—Introduction to Law,
Labour Law, Corporate Law …—and philosophy—The Body and its Representations, The Return of the
Camps: Sangatte, Lampedusa, Guantanamo …, Law, a Novel …
1 G Lhuilier, La loi, Roman (PUL, 2008).

3
 4 Law and Humanities

WHAT—IN LITERATURE—BEARS A TRACE OF LAW

This hypothesis allows us to reach a clearer understanding of the first meaning of Law and
literature: namely, the investigation of the elements in literature that bear a trace of the
law. Straightforwardly, Law and Literature is simply the investigation of how literary
fiction represents the world of justice and law. In this sense, the pioneers might be named
as Wigmore, Cardozo and Posner, whilst their (more interesting) successors include
Richard H Weisberg or François Ost, with Sade and the Law.2
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The idea of this trend is to investigate how literary fiction deals unceremoniously
with the law and the major legal institutions. According to Denis Salas, ‘The writer, who
from the Calas case to the Dreyfus case, refuses to assist, powerless against the injustices
of his time, appropriates through literature the world of law’.3 The writer recreates
characters, and evokes laws or trials, and in staging this confrontation of man and law in
fact broaches the issue of justice. For a jurist, the critical power of such an approach is
obvious, in that it foregrounds the analysis of the law, its objects and its methods; a leap
out of positivism which nonetheless avoids the traps of jus naturalism. It is a way to
question what is just, but from a new point of view. This is obviously the value of François
Ost’s work, which reintegrates law into the field of social sciences and makes it the object
of an original philosophical examination—for example, by questioning law from the
angle of perversion. The works of Sade are studied for their relationship to the law,
moving between philosophy, literary theory and psychoanalysis to examine the face of
radical evil, and of perversion at the heart of law.
This discipline, Law and Literature, in fact posits a certain style of philosophy, which
might be described as philosophising with a hammer, according to Nietzsche’s metaphor
from Twilight of the Idols:

And regarding the sounding out of idols, this time they are not just idols of the age, but eternal
idols, which are here touched with a hammer as with a tuning fork: there are no idols that are
older, more assured, more puffed-up—and none more hollow. That does not prevent them
from being those in which people have the most faith; nor does one ever say ‘idol’, especially
not in the most distinguished instance.4

Idols are not presented as such; this is the marvellous effect of faith or the will to truth.
They need to be sounded out: a hammer must be used so that those who have ‘a second
pair of ears’ can hear the sound that rings from them. Nietzsche’s hammer does not
shatter, but probes, sounds out. This is what I mean when I say going off the beaten track:
leaving the path of positive law and the philosophy of law, in order that ‘that which would

2 F Ost, Sade et la loi (Odile Jacob, 2005).

3 D Salas and A Garapon, Imaginer la loi (Michalon, 2007) 4. My translation.
4 F Nietzsche, Le cas Wagner/Crépuscule des idoles (Flammarion, 2005) 60. My translation.
 Law & Literature (as an epistemological break in legal theory) 5

remain silent … become[s] outspoken’. This is philosophising with a hammer, in that it

forces the categories of law and the philosophy of law to ring out, so we can hear them
differently.

LAW AS LITERATURE

Equally, this hypothesis allows us to form a better understanding of the second meaning
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of Law and Literature. In this second definition, Law and Literature is a way of looking
at law as a literary text. This, then, is law as literature: the reading of a legal text through
the framework of literary analysis. Two different trends are visible in this version of Law
and Literature.

Jurists and Law as Literature

In the United States, Common Law sets itself forth as an immense jurisprudential account
which is perpetually reconsidered, reinterpreted and reinvented. Ronald Dworkin quite
naturally criticised legal positivism, which reduces laws to only the rules of law, since this
does not take into account the practice of law, itself an interpretation of the rules. For
Dworkin, the law is the interpretive attitude of a community which carries out its sense
of justice. The activity of law is creative, and the interpreter is as much a source of the law
as the texts he interprets. This commonplace statement eradicates the theoretical
presupposition of positivism, which severely reduces what is legitimate in the law. But
then, by what criterion can we analyse the legitimacy of a legal decision, if not through
the literal application of the law? Dworkin answered this question by using the
interpretation of a literary text as a model for judicial interpretation, emphasising the
difference between the intentionality of the author and the freedom of the interpreter.
Dworkin explicitly adopts the hermeneutic point of view of law as a continuous creation,
a ‘chain of law’; a large text, of which interpreters (successive judges) have all written
chapters. This is a collective piece of work, determining, through the elaboration of the
most morally correct solutions, or the ‘Right Answer’, a law that suits society.
The theory that Dworkin proposes of the ‘narrative coherence’ of the law is thus just
as much a description of the activity of a judge as a real political theory. Indeed, it
expresses the impossibility, or at least the difficulty, of distinguishing between the creation
and the application of the law, that is to say distinguishing between the different powers.
This distinction is supposed to be the basis of even today’s democratic systems of
government, according to what is called, quite seriously, political science and consti-
tutional law. The theory of law as a novel thus constitutes the guiding thread of a
particular strand of legal thought in the United States. It has also conditioned the thought
of conservatives such as Stanley Fish (who moved from literary criticism to the law, and
 6 Law and Humanities

who developed the concept of the interpretive community), and the beliefs of centrist
liberals (such as Ronald Dworkin) or even the more radical Critical Legal Studies
movement.5
However, Dworkin, like the others, remains within the framework of what in America
is said to be the realist trend, according to which the law is found not only in the words
of the legislator, but also in the concrete applications of the law through the courts. He
certainly goes off the beaten track, but he nonetheless remains within the framework of
positive law, assuming the traditional posture of legal doctrine.
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The Humanities and Law as Literature

In law, as in literature, there is also a trend specific to the humanities. In the United States,
for a while, political imagery took refuge in literature departments. Let us now look at one
icon of this trend: Judith Butler, who studies the constitution of the subject through
normative discourses of identity, whether gender, culture or sexuality. Discourses of
identity—including legal discourse—are considered ‘coercive subjectivations’. There is
little that is really new here, other than an elation in bringing together Derrida’s
deconstruction, Lacan’s identification of the subject, and even Althusser’s interpellation
doctrine, as well as, quite obviously, the phenomena of exclusion, discrimination, sub-
division, and division studies by Foucault. Taboos, along with threats, set off the ‘machine’
of thoughts, desires and temptations—to borrow an expression of Deleuze and
Guattari—which guide the structuring of the subject. The ‘power’ then moves through
bodies and behaviour, creating mechanisms of self-control and transgression, by
separating the healthy from the honest, the good from the bad, the licit from the illicit.6
However, this American tradition, which Butler exemplifies, has a wonderful
peculiarity: its insistence on identity as an artefact, which allows one to replace the notion
of a fixed identity with the idea of constant displacement, a succession of ‘performed’
acts.7 It is not enough to denounce the pretension of world order, including the masculine
order, in favour of the universal and natural, creating a perfect balance between social
structures, sexual divisions at work, etc, and the cognitive structure involved in bodies
and spirits. Instead, this world order also has to be played out. Thus, by assimilating
identity and gender actions, a subject can, by changing its actions, change its gender, or
take on several genders.8

5 RM Unger, The Critical Legal Studies Movement (Harvard University Press, 1986).
6 G Lhuilier, ‘Le rire de Foucault. Pour une archéologie de la discrimination’ in M Mercat-Bruns et al (eds),
Personne et discrimination: perspectives historiques et comparées (Dalloz, 2005).
7 F Cusset, French Theory. Foucault, Derrida, Deleuze & Cie et les mutations de la vie intellectuelle aux Etats-
Unis (La Découverte, 2005).
8 J Butler, Gender Trouble: Feminism and the Subversion of Identity (Routledge, 1990); J Butler, Bodies that
Matter: On the Discursive Limits of ‘Sex’ (Routledge, 1999).
 Law & Literature (as an epistemological break in legal theory) 7

In this ‘play’, resistance to the norm is possible: by reformulating, re-acting and re-
interpreting one’s roles, the subject regains control over his constructed identity.
This is quite some distance away from the beaten track. Law is linked to a persona, the
mask of the actor, who speaks a text (per sonar), thus creating his own ‘person’, in the
sense of the ‘subject’, I ‘I’, me, etc.
By going off the beaten track, law is ultimately reinserted into the social sciences, and
takes it place at the heart of contemporary philosophy.
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LAW AND LITERATURE AS A TURN OFF THE BEATEN TRACK

A third definition of Law and Literature is slowly starting to emerge. This is Law and
Literature as a place where the theory of law is forcibly dragged off the beaten track. It
entails seeing Law and Literature as a meeting place for what might be called the science
of literary texts and legal science; an emblem of a much more widespread movement that
has affected the whole of legal thought.

FROM LAW AS AN INSTITUTION TO LAW AS AN ENUNCIATION

A theory of law as enunciation has progressively become the main trend in legal and
political thought, which is no longer dominated by judicial positivism. Contemporary
legal thought has gone off the beaten track, creating a ‘movement of law as an institution
of law as enunciation’ according to Bruno Latour.9
This change in legal theory was particularly obvious in Cracow in August 2007, during
the 23rd World Congress of the International Association for Philosophy of Law and
Social Philosophy (‘IVR’). In the congress and the debates that followed, expressions such
as ‘the unending agony of positivism’ or ‘post-post positivism’ were rife. Although the
organisers asked Eugenio Bulygin and Manuel Atienza to open the congress with a debate
on the controversy between legal positivism and jusnaturalism, they quite simply refused
to carry out the debate and decided to transform the confrontation into a comparison
between positivism and the theory of law as argumentation.10 Thus, as Bulygin observed,
‘these two concepts can be seen as a new version of the old controversy between legal
positivism and natural law’.11

9 B Latour, La fabrique du droit. Une ethnographie du Conseil d’Etat (La Découverte, 2002). My translation.
10 M Atienza, ‘Is Legal Positivism a Sustainable Legal Theory?’ in T Gizbert-Studnicki and J Stelmach (eds),
Law and Legal Cultures in the 21st Century: Diversity and Unity (Wolters Kluwer, 2007).
11 E Bulygin, ‘Normative Positivism v the Theory of Legal Argumentation’ in Gizbert-Studnicki and Stelmach
(n 10).
 8 Law and Humanities

This movement from legal positivism towards legal semiology was the happy result
of an unprecedented polyphonic and methodological patchwork: this hermeneutic
turning point came about rather abruptly, taking just a few years to catch up with what
language sciences and philosophy had achieved in a century. This is why this turning
point derives greatly from hermeneutics which are clearly constructivist, or from
hermeneutics of presence.12 In the world of legal thought, Gadamer and Vatimo are
convoked as much as Nancy or Steiner.
These theories study not only the positive texts of political authorities, but also
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productions of the most diverse origins. They privilege either the ‘dialogic’ properties of
text—studying not the univocal truth produced during their enunciation, but rather the
multiplicity of sensory impressions they can produce according to the context in which
their enunciation-reception takes place—or the effects of ‘presence’ in fiction, whether
literary or legal. These theories share the rejection of all the presuppositions of positivism:
it is impossible to separate the observer from the object observed; observation and
‘scientific’ discourse are necessarily involved in the judgement of values due to their
structural impurity; the object of the science of law is not only the law as set forth by
political authorities, but also the study of the concrete conditions of enunciation/
reception of positive law. Thus, moving far beyond pure positive law, the field of legal
thinking henceforth comes to include all of the discourses, practices and values of the
actors who ‘make sense of’ the act of legal enunciation/reception, and effect the very
‘presence’ of legal texts.
This epistemology thus renews the political presuppositions of legal theory for the
benefit both of the community of legal actors, and of our understanding of the law—for
example, the supposition of a distinction between the authorities who create the norm
and the subjects subjected to the law. It could even be said to question the very idea of
judicial order, acknowledging the impurity of law—the corollary of which is a porosity
both between the law and the subject of law, and between law and the other discourses
that are involved in the construction of individual and collective identities.

ART, LAW, LITERATURE AND CRITICAL THINKING

This hermeneutic type of thought is therefore also a critical thought, an impure thought
that refuses to accept the neutrality of the law, or recognise the subject as simply a ‘subject
of law’, answerable to an overarching authority. Instead the subject himself is also an
‘author’ of the norm. And with so many authors possible, it is impossible to choose
between them!

12 HU Gumbrecht, Production of Presence: What Meaning Cannot Convey (Stanford University Press, 2004).
 Law & Literature (as an epistemological break in legal theory) 9

Francisco Viola, for example, rereads the ‘rule of law’ as a tool for opening up the
legal system to a plurality of meaning that can provide an interpretive community with
its rules.13 Seyla Benhabib, another icon, elaborates the notion of ‘jusgenerative politics’,
assuming that the role of the judicial system is to be the social organisation of power (a
definition close to positivism), but also simultaneously postulating the idea of the judicial
system as existing through meanings, the words of which have not only a legal, but also
a linguistic, cultural and political dimension. These words are thus used, transformed
and redefined by how the community (whether democratic or polemical) uses them. This
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dichotomy—judicial order v linguistic order—creates a free space on which no legal system

can impose any meaning disconnected from factual activity.14
Ko Asekawa is also currently working on the idea of ‘Creole law’ by using Creole
literature as a metaphor for Japanese law, created by the languages-imaginations-laws of
the different provinces.15

LAW AS A NOVEL

Law, then, is a novel, with characters who wear masks and have specific roles; with
multiple, changing texts that are both very ancient and forever updated; with a set and a
backdrop, painted with the colours of the sacred and the profane, of the putrid and the
pure, of violence and order. Style, song, breath, genre, the actor, the role, the mask, the
figures of metaphor and metonymy, the notion of narrative coherence … all the necessary
categories are examined in order to put together a narrative that can enchant man, his
presence in the world, his body, his dreams and his cities.
Law and literature is the way off the beaten track, a graceful sidestep, a movement
that legal thought is taking today.

13 F Viola, ‘The Rule of Law in Legal Pluralism’ in Gizbert-Studnicki and Stelmach (n 10).
14 S Benhabib, ‘On the Philosophical Foundation of Cosmopolitan Norms’ in Gizbert-Studnicki and Stelmach
(n 10).
15 K Hasegawa, ‘Incorporating Foreign Legal Ideas through Translation’ in A Halpin and V Roeben (eds),
Theorizing the Global Legal Order (Hart Publishing, 2009).