Reading The Legal Case

Cross-Currents between Law and the Humanities

Marco Wan

• Publisher: Routledge
• Year: 2012
• ISBN:
  9781136328848
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This volume examines the nature, function, development and epistemological assumptions of the legal case in an interdisciplinary context. Using the question of 'reading' as a guiding principle, it opens up new ways of understanding case law and the doctrine of precedent by bringing the law into dialogue with the humanities. What happens when a legal case is read not only by lawyers, but by literary critics, by linguists, by philosophers, or by historians? How do film makers and writers adapt and transform legal cases in their work? How might one interpret fiction in the context of the historical development of the common law? The essays in this volume test the boundaries of the legal case as a genre by inviting perspectives from other disciplines, and in doing so also raise more fundamental questions of what constitutes law and legal thinking. This book will be of interest to anyone seeking a better understanding of the common law, the humanities, and the intersection between them.

Part I

Rereading the legal case

Chapter 1

Reading cases in interdisciplinary studies of law and literature

Alan Durant

The concept of a ‘case’ differs between law and other fields in which the term is used, including literature. So establishing what a case is, in interdisciplinary studies of law and literature, is an important step in identifying what is distinctive about such work. It is also important to establish what is involved in ‘interpreting’ a case, since each of the fields contributing to this interdisciplinary endeavour follows its own, distinctive approaches. Historically, the study of law and literature has been shaped by a series of approaches to interpretation which serves to define the field’s purposes and significance.

An influential example of interaction between interpretive approach and the value associated with studying law and literature provides my starting point for this chapter. As far back as his Preface to the second edition of Law and Literature, Richard Posner observed that ‘literary’ approaches to interpretation of legal discourse had ‘diminished in the face of a growing sense that interpretation is relative to purpose and therefore unlikely to raise the same issues for different interpretanda (dreams, operas, labels, constitutions, sonnets’ (Posner, 1998: viii). Later in the same volume, Posner observed that the decline of interest in ‘literary’ approaches to interpretation he was reporting also reflected considerations of method. Specifically, he argued, interpretation is ‘not much, and maybe not at all, improved by being made self-conscious, just as one doesn’t become a better reader by studying linguistics’ (1998: 211). In this chapter, I ask how far Posner’s scepticism about the value of ‘literary’ styles of interpretation applied to legal discourse (as well as his reservation about the usefulness of linguistic self-consciousness in reading) holds for cases in common law traditions, which differ in important respects from the statutes and constitutions on which Posner based his original argument.

My discussion¹ has two stages. To begin, I look at the general concept of a ‘case’, questioning how far the notion is coherent if extended beyond legal cases to literary topics and to literary works with legal themes. I suggest that invoking an undifferentiated sense of ‘case’ in interdisciplinary enquiry opens up interpretive possibilities but risks vagueness and ambiguity. In the second half of the chapter, I focus on ‘case reports’ in law: the genre of publication usually known as ‘law reports’. Such reports offer the most precisely defined legal representation of cases; they also often attract expansive comment as well as legal exegesis, including along lines influenced by literary studies. I explore how far genre considerations associated with law reports constrain the interpretive approaches that can be usefully brought to bear on them, as Posner argued was the case for statutes and constitutions. In partial agreement with Posner, I conclude that close links between the formal characteristics and purposes of law reports do place obstacles in the way of alternative readings. But I suggest that those obstacles need not undermine an extended sense of interpretation which can result in illuminating critical readings. My agreement with Posner’s argument is only partial, however. Against his further claim that reflexiveness in interpretation is generally unhelpful, I argue that even highly insightful literary readings of particular legal cases are less important than increased self-consciousness as regards how meanings are created by interpretive practices that differ in important ways, as well as overlap, between the two fields.

Different kinds of ‘case’

There is little risk of someone who is following an academic course in law and literature becoming confused by what is meant by a ‘case’ in different edited collections they are directed to read. If you open a literary-critical ‘casebook’ (such as Thomas Hardy: the Tragic Novels (Casebook) (Draper, 1991) or the ‘new casebook’ Tess of the D’Urbervilles (Widdowson, 1993)), you will find a selection of essays introducing the reader to critical approaches to the text or texts in question. The general purpose of such volumes is clear. In the General Editor’s Preface to the Casebook series, launched in 1968, A.E. Dyson explained that each ‘single author’ casebook would present critical readings of a well-known work, or cluster of closely related works, along with contemporaneous reviews and comment. In the General Editors’ Preface to the ‘New Casebook’ series, John Peck and Martin Coyle widened that aim to reflect a shift in literary studies: the new volumes, they wrote, would also reveal how contemporary criticism has ‘changed our understanding of commonly studied texts and writers, as well as of the nature of criticism itself’ (Widdowson, 1993: ii).

In striking contrast, in a legal textbook of cases and materials (such as Cases and Materials in Intellectual Property (Cornish, 2006) or Media Law: Cases and Materials (Barendt and Hitchens, 2000)), the reader is presented not only with a very different selection but with sources that serve a contrasting purpose. Such case collections in law are designed to bring together ‘legislative texts and extracts from cases which form the basis of United Kingdom law’ (Cornish, 2006: vii). In Barendt and Hitchens, focus is on ‘the range of topics comprising media law’ (2000: xi); and in Cornish on the ‘various aspects of intellectual property rights proper and those topics, such as liability for breach of confidence and passing off, which form adjuncts’ (2006: vii). Such texts provide either a combination of ‘key materials with critical commentary’ (Barendt and Hitchens, 2000: xi), or are ‘intended to be used together with texts that give an account of the law as a corpus … [the book] does not therefore have its own commentary’ (Cornish, 2006: vii).

Both kinds of volume – legal and literary – offer useful collections of ‘case’ material. But they deploy the idea of a ‘case’ differently. The contrast I have drawn between them is significant because the same word ‘case’ can be used of either type of publication. It is therefore worth examining what the word ‘case’ denotes, then relating the word’s varying meanings to wider understandings of ‘case’ at work in law and literature scholarship.

Even confining ourselves to common dictionary definitions, we find a range of senses. We may immediately rule out, as not relevant, the idea of case as grammatical category, formally marked by inflection. We might also take the view that the meaning ‘container, receptacle or box’ (which gives rise to upper-case and lower-case keyboard characters) is simply figurative in marking edges or boundaries, and again irrelevant. But there are other meanings which complicate what a ‘case’ is for the purpose of interdisciplinary work in law and literature.

We may pause, for example, over ‘a particular situation or instance, especially one that you are using as an example of something more general’. Based on evidence from the Cobuild dictionary project,² this is the most common contemporary sense of ‘case’. When we talk about ‘the case of literature’, we mean matters pertaining to literature as an instance of some more general phenomenon, in contrast with other cases (such as ‘the case of physics’). Those other cases are viewed as being different while also being members of the same larger class (in this case, that of objects of study).

This combined sense of particulars treated in terms of their membership of a superordinate class has ramifications both in law and in literature. A legal ‘case’, for example, is a highly detailed social and discursive event: it encapsulates an episode of what might loosely be called real-life drama; and its events are important lived experiences for the parties, sometimes deeply damaging or even tragic, which are selectively framed as a distinct entity for legal analysis and judgment.³ At the same time, each legal case is an instance of a more abstract, general category: a copyright case, negligence case, murder case, fraud case, etc. In relation to this superordinate classification, the facts of the particular case are exactly subordinate: the case is remembered in legal circles, if at all, as dealing with a legal crux of some kind, and the question at law has the effect of displacing the persons and their actions, despite the case being permanently labelled with their names as the parties.⁴ When juxtaposed with the first idea of ‘case’, this second, abstract notion suggests a different act of framing: a ‘case’ is less a specific situation that needs to be settled than a springboard offered by a set of particulars into generalisations which set out a legal principle.⁵

The ‘instance and category’ meaning is also applied beyond law. A literary ‘case’ depends similarly on a combination of particulars and overarching, discipline-specific categories. The particulars include details of production, such as a writer’s source materials, chosen themes, and habits of composition. There are also the different kinds of agency involved in the preparation, publication and circulation of a literary work, including the work of editors who amend passages and guide publication, reviewers and critics who advance alternative views, and literature teachers and students who argue over techniques and significance. In addition there are institutional settings: publishing houses, college seminar rooms, and reading groups. There are also equivalent abstract, disciplinary categories that a literary ‘case’ may exemplify. These include works by the particular author, work in a given genre, and work treating some recognised critical or historical theme or problem. Something similar also occurs beyond literature. Cases are treated as both specific instances and exemplars of a general category in professional fields variously concerned with disease, injury and hardship. The word ‘case’ is used of people attended by a doctor, for example, or who are in treatment with a psychoanalyst, or who become clients of a solicitor or financial advisor. In each of these professional fields of cases, casework, caseloads and case workers, the combination of ‘particulars plus treatment on the basis of membership of a disciplinary category’ is the clearly active meaning of ‘case’. What can nevertheless complicate the interdisciplinary study of ‘cases’ is that the general formula may be applied in ways that impose too strong a likeness on distinguishable instances of particulars and categories. Insufficient attention to differences may blur the distinction between principles of selection of an instance, and mix models of what will qualify any given instance as a member of the relevant category.

A further shading in the meaning of ‘case’ highlights special complexity when the ‘instance and category’ model is applied to verbal discussion. In such circumstances, ‘case’ can mean not only a topic of discussion, as with ‘the case of electoral reform’ (contrast: ‘the case of education reform’), but rather some argument or evidence supporting a particular position within such discussion (cf. ‘the case for electoral reform’). This meaning has considerable scope. It extends to the view of a literary work as an object of competing literary critical appreciations (e.g. ‘the case for seeing Tess as heroine rather than victim’). A literary case, then, may be not just a case study or test case, but a ‘topic’ case about which ‘argument’ cases are put forward from different critical positions.

What is significant about such polysemy (which if over-emphasised can begin to feel like a semantic game) is mostly not the prospect of local misunderstanding. Rather, it is that, when a notion such as ‘case’ is used in a new field or in interdisciplinary work between established fields, it is uncertain, without clarification, how a given ‘case’ should be investigated or exactly why a particular case deserves attention.

What sense or senses of ‘case’, we should therefore ask, are in play in interdisciplinary work on law and literature? Clearly the ‘court proceedings’ sense occurs frequently (used either of actual legal cases or applied to depictions of trials in fiction or drama, such as the scarcely narrated murder case in which the character Tess is the defendant). The ‘argument’ sense is also relevant (e.g. the defence case implicit in Tess’s circumstances at the moment she kills Alex, the formulation or rebuttal of which oddly features hardly at all in the novel). The ‘instance and category’ sense will also be found (e.g. ‘in the case of Tess but not of Hardy’s other protagonists in his “Novels of Character and Environment”’); and there will be the broad ‘framed narrative’ sense (as in ‘the case of Tess seems unique in nineteenth-century fiction’). This last meaning is challengingly wide, however. It evokes an only vaguely indicated category: possibly something related to actual events which took place during the controversy surrounding the novel’s publication, or alternatively some unspecified, more general social phenomenon, or alternatively again some compound of fictional characteristics of the character Tess with an unspecified mix of social and historical conditions in nineteenth-century England and Hardy’s known imaginative interests.⁶

We should take stock at this point. I am suggesting that contrasts between different kinds of ‘case’ collection reveal potentially important differences between legal and literary uses of the idea of a ‘case’. Each contrast problematises the issue of what should be studied in this field, and how any given ‘case’, as an object of study, should be treated.

There is a contrast of subject matter and treatment

Even where a selected literary ‘case’ (a novel, play, author’s work) directly represents a legal situation or trial, the treatment of legal material is different. Th...

Table of contents

• Cover Page
• Half Title page
• Title Page
• Copyright Page
• Contents
• Acknowledgements
• Contributors
• Foreword
• Introduction
• Part I Rereading the legal case
• Part II Perspectives on precedent
• Part III Reading literature in a legal frame
• Index