Practice Extended

Beyond Law and Literature

Robert Ferguson

• Publisher: Columbia University Press
• Year: 2016
• ISBN:
  9780231540599
• Topic: Literature
• Subtopic: Literary Criticism
• Index: Literature

Written by a renowned literary critic and legal historian, Practice Extended illuminates the intricacies of legal language and thought and the law's relationship to society, literature, and culture. Robert A. Ferguson details how judicial opinions are written, how legal thought and philosophy inform ideas, and how best to appreciate a courtroom novel. With chapters touching on a wide range of subjects, including immigration, eloquence, the U.S. Constitution, and the Supreme Court case over James Joyce's Ulysses, Practice Extended provides an ambitious argument for the importance of language in law and a much-needed analysis of the often vexed relationship between law and literature.

Ferguson challenges the notion of law as a hermetic enterprise only accessible to experts. He reveals the discipline's relationships to history, religion, philosophy, psychology, anthropology, and the visual arts, offering a rich account of how the law has shaped and has been shaped by communal thought. He also recognizes the critical role of literature and other outside views in showcasing the social problems that law takes up. Practice Extended reflects Ferguson's crucial role as a pioneer in developing the field of law and literature. His writing reminds us of the need for a critical approach to the law that draws on the insights of literature to better understand political and legal history and the documents, laws, and arguments that shape our present. At the same time, this volume also showcases the ways in which the law has been integrated into works of literature, from Billy Budd to contemporary courtroom thrillers.

PART

Literary Components in the Legal Imagination

LAW, A REACTIVE MODE, MUST translate a problem presented to it into legal terms. Does the client have standing to be in civil court? Has sufficient evidence been found to proceed against an accused in criminal court? The focus is calculatedly narrowing. Everything depends on what law can and wants to undertake. Nevertheless, re-translation back into communal terms remains a necessary part of any decision. Is the matter really worth pursuing? Many a case should not end up with an indictment or in court for reasons beyond the legal focus.

The legal process also tries to leach out the passions from experience that a client brings to it. People enter law in some level of misery, routinely expecting the legal solution to their problem to answer that unhappiness. This expectation is an unreasonable one. Even a successful lawsuit involves a great deal of time, vexation, and money. Winning, while vehemently desired, often leaves clients wondering why they needed law in the first place. Why didn’t they simply receive what they already knew they deserved from the get-go?

To protect themselves and to inoculate themselves from the generally dispiriting nature of most legal conflicts, lawyers and judges resort to objectifying language and procedures. Yes, a proper spirit of objectification is an essential aspect of all legal reason in clarifying the problem at stake, but it also keeps everyone’s emotions in check, particularly the irrelevant ones, and it has the added effect of lifting law sublimely above the messiness of a specific quarrel.

The vulnerability of the person served by law is thereby doubled. The necessary translation into legal terms satisfies only in part and the happiness quotient expected from judgment will always be less than the hope that led to the courtroom in the first place. Of course, few people seeking a legal remedy ever realize these difficulties, but the realm of fiction about law never forgets them. The courtroom novel or other form of fiction is thus a corrective of sorts, and one of the greatest—and certainly the most direct—in this vein is Stephen Crane’s powerful short story, “An Eloquence of Grief,” written in 1896 and first published in 1898.¹

Crane, in this briefest of encompassing narratives, manages to show much of what the legal imagination regularly leaves out but that no one involved in law should forget. His two-page story unfolds through the point of view of onlookers at a preliminary hearing, not seemingly the stuff of high drama. Why is the crowd there? In a variation of the popular injunction, they have come to court not “for charity’s sweet sake,” but “for curiosity’s sweet sake.” They are voyeurs after the heartache of those caught in law’s web. They wait for “a cry of anguish, some loud painful protestation that would bring the proper thrill to their jaded, world-weary nerves.”

The philosophy of naturalism that drives much of Crane’s fiction means that no one in this courtroom is really in control even though there is the semblance of control. We are given an assembly line of justice moving rapidly along its mechanical way rather than the enlightened forum of deliberation that we might expect. This is a disappointment that anyone who has ever appeared in traffic court will immediately understand and appreciate.

At the same time, we know that a cry of anguish is in store, and it comes from a sobbing young immigrant servant girl who has been “accused of stealing fifty dollars’ worth of silk” from one of two “well-dressed young women” who wait “with the serenity of people who are not concerned as to the interior fittings of a jail.” They are accompanied by a similarly well-dressed gentleman who supplies “dignity,” which he does “heavily, almost massively,” to protect his companions from the unseemliness of having to appear in criminal court.

The odds are already heavily stacked three against one, and when the cry of anguish comes—“I am innocent! Oh, I am innocent!”—the reader’s sympathies are naturally on the girl’s side. But that is not Crane’s real interest; he does not even bother to tell us the outcome. Nor are the invidious class distinctions stressed, although they are there. Three more significant elements hover over this scene, and they all tell us what the law ignores.

First, and most obviously, is the interactive relation of courtroom and community. This event happens the way it happens because a watching community wants it to happen. The “spasmodic movement” of the loungers in the wake of the girl’s cry is what these otherwise uninvolved onlookers have been waiting for and the public side of law readily accommodates it. How many legal events become high-profile trials because of the people’s desire for entertainment?

Second, and more intrinsically important, is the calloused indifference of all aspects of the law to the vulnerability of the accused. There may be no greater public exposure than entering a courtroom under a criminal accusation. As the subject under discussion, an accused person endures the pejorative and rudely steady gaze of everyone else there. The ordinary social defenses of decorum available to make another individual look away in the public sphere are unavailing here against a negatively inclined collective public. Indeed, any such attempt, any visual return by the person in the dock, only intensifies interest and further scrutiny.

Crane gives most of his brief account to this second element in several distinct ways. The contending lawyers enjoy themselves in “preliminary fire-wheels” as formal adversaries in a familiar process. They are earning their pay, and the one earning the most, the lawyer for “the well-dressed contingent,” then asks more pointed questions “with the air of a man throwing flower-pots at a stone house.” The author gives us a quick but utterly casual—even routine—example of courtroom cruelty, one with shattering consequences for the helpless recipient of it.

To make sure that we do not feel intelligent control over the presumably objective but actually very subjective nature of this process, Crane tells us that the crowd, watching some distance away, “could not always see the judge, although they were able to estimate his location by the tall stands surmounted by white globes that were at either hand of him.” When you cannot see the judge in courtroom fiction, justice is also missing. The courtroom lights do not reveal this figure; they are at “either hand.” The suggestion is of arbitrary alternatives. Meaningful judicial investment is not apparent; it exists, if at all, in unplumbed shadows.

The story makes more subtle use of a third procedural element. This is a preliminary hearing, but no one has bothered to tell the accused that. She believes that she has been formally judged and found guilty, and her fears are confirmed when “a quick-eyed court officer” clears the way and leads her, now committed for trial, through “an austere arch leading into a stone-paved passage.” The implication is of a journey directly to jail, and the policeman is “quick-eyed” and efficient rather than sympathetic in the task. No one, in effect, feels sympathy. We are left instead with the suddenly intrusive voice of the narrator, hidden until now.

The narrator, in the background until this moment, does not want to let this moment go. The panic of this frightened young girl belongs to us all in the experience of life. It occurs when we feel bereft, betrayed, suddenly mortal, or in danger in a world of questionable meaning. The cry of innocence against presumed guilt is “so graphic of grief,” it strikes “so universal a tone of the mind, that a man heard expressed some far-off midnight terror of his own thought.”

What is ultimately missing in this courtroom is thus another quality: mercy for a suffering person’s moment of unnecessary distress. Why is it missing? Law fears gestures of mercy; they imply unequal treatment when offered in some cases but not in others. Strict regularity is more certain and desirable, and that strictness of approach easily extends to all aspects of law. As far as we know, this judge has given no word of explanation to the accused, now a defendant.

Nor are some leading legal theorists at all pleased at the prospect of other disciplines taking a role in such issues.² Recently, though, problems in law have led many to question that independent stance. Imaginative literature has assumed a greater role precisely because so many areas of law can no longer be left to the hermetic expertise of the profession, which does make mistakes and does fail to solve serious problems at an alarming rate.

Part 1 takes on three such areas where the study of literature has something more to tell us. Chapter 1, “The U.S. Constitution as Literature,” questions the impact of overly narrow, legalistic interpretations of the U.S. Constitution. Should the Constitution be seen as separate provisions “full of contradictions and ambiguities, sources of endless contestation,” or as “a general political scheme that is sufficiently just to be taken as settled for reasons of fairness”?³ Questioners must realize that we lack the skill to write a constitution today that is anywhere near as good as this one from 1787.⁴ The Constitution of the United States was written as and remains a unified literary text for the American people to read and abide by, and this chapter, along with recent longer studies, works to recover that more basic understanding.⁵

The second chapter, “The Place of Mercy in Legal Discourse,” raises a second problem of growing relevance in the interdisciplinary study of law: the absence of mercy in American law.⁶ Why does the United States punish more severely than so many other countries? The intersection of law, philosophy, theology, history, and literature offers the beginning of some answers. Among other things, we see why legal professionals so persistently misinterpret the most famous passage on mercy in English literature, Portia’s speech on the subject in William Shakespeare’s The Merchant of Venice.

Chapter 3, “Immigration Law: An Answer to Intractability,” discusses why the United States cannot solve its problem in illegal immigration despite universal recognition that it is a crucial issue demanding immediate answers. The involved texture of the immigrant novel reminds us what it means to enter this country as a person in need of better understanding than is now provided by legal or social discourse. Only an alternative frame of reference can break the political logjam that so consumes and embarrasses the nation today.

The U.S. Constitution as Literature

THINKING OF THE CONSTITUTION OF the United States as literature restores the text to the American people beyond its existence as a battleground parsed by experts phrase by phrase. Legal acrimony over the framers’ intent and strained understandings of specific language ignore the overall craft that made the document a triumph of collective expression in 1787.

Restoration is admittedly no easy task. Literary, constitutional, and religious frames of reference are all relevant if we are to grasp an eighteenth-century act of extraordinary creativity. The nature of that creativity is important because it remains a potent safeguard. It protects the health of a text that to a remarkable extent defines the country itself, a text that we could not possibly write as well today.

The U.S. Constitution is many things, but it is first words arranged for all to read. Arguments begin when specific integrations of past and present create differences about the scope, intent, and construction of constitutional language. They grow sharp over how to interpret the vitality of language against the meaning of history. In what manner do the statements of 1787 control the modern nation-state? How do original intentions apply to unforeseen consequences or circumstances? Where are the permissions in clauses that are so deliberately circumspect? Can the framers be wrong on certain issues?

We have learned that such questions do not lend themselves to easy legal distinction. Debate turns instead on implicit, often unarticulated assumptions about the nature of constitutional language, and these debates turn on minute phrases in the document rather than on a holistic sense of a unified text. Recovering those unities can also test the underlying assumptions where differences begin.

The nature of constitutional language is a poorly understood subject because it is so seldom examined on its own historical terms despite much talk about the framers’ intent. Arguments about the use of given words have stripped phraseology of its place in a larger complexity, the major source of its original vitality. Readers of the Constitution need to remember that writing thrives on a wealth of circumstances and social assumptions beyond claims about authorial purpose.

The writers of the Constitution entered Philadelphia as accomplished eighteenth-century men of letters with a number of specific skills to justify that description. What were those skills and what do they suggest about capacity in the use of language? What did the framers think they could create in 1787? What was their understanding of the kind of text they strove to make, and how did that understanding change—or develop—across a long summer of debate and documentary exchange?

The real power in language lies in the particulars of perceived possibilities and in the manipulations and methodologies of style, tone, genre, and substance that expand those possibilities. These elements are literary skills. They represent a neglected source of the living Constitution. Closer attention to the developing genre of public documents in the Revolutionary Era is thus a necessary corrective, and it can reveal a great deal about the actual craft in such writings.

Philosophically, between 1776 and 1787, the framers became less convinced about the self-evidence of truth. The weakness of the system established by the Articles of Confederation, growing factionalism, Shay’s Rebellion, unrest in the western territories, and economic depression—the very facts that brought them to Philadelphia in 1787—made them less certain of agreement and more worried about the textual basis on which agreement might rest.

Even so, an important consistency remains. The writers of both the Declaration of Independence and the Constitution believed in a text as the foundation of agreement, and within this qualified faith, the events of the 1780s brought them together to search for a new aesthetic of control in the writing of the actual Constitution. A major question consists in how these elements come together. We can see the aesthetic at work in Benjamin Franklin’s famous closures when he signs first the Declaration of Independence and then, eleven years later, the new constitution of federal union.

Signing the Declaration, Franklin observes, “We must, indeed, all hang together, or most assuredly we shall all hang separately.”¹ The Declaration functions as the artifice behind Franklin’s witticism and the artifact of the solemnly sworn policy that he enunciates. The writers of this document not only hang together, they swear to do so in the Declaration. Their concluding oath guarantees the “facts” they submit to “a candid world.” Their oath—“we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor”—is then physically figured in the grouped signatures that conclude the document as an open indication of the risks taken. The world is understood as “candid” in the Declaration because it accepts facts as given and hence a right of revolution based on them. Facts are submitted, again in the words of the document, “to prove this.”²

In 1787, incontestable facts, let alone proofs, were much harder to come by. Placed in the same ceremonial situation at the Constitutional Convention, Franklin achieves a similar cer...

Table of contents

• Cover 
• Title Page
• Copyright
• Dedication
• Contents 
• Acknowledgments
• Introduction. The Letters in Law
• Part One. Literary Components in the Legal Imagination
• Part Two. The Nature of Judgment
• Part Three. The Public Uses of Eloquence
• Part Four. When Law Fails
• Coda. How to Read a Courtroom Novel
• Notes
• Cases Cited
• Index