ESLJ Volume 1 Number 1 Book Reviews
Fiction and the Law: Legal Discourse in Victorian and Modernist Literature
by Kieran Dolin
Cambridge University Press, 1999
Pp.234, £35.00 (hb)
ISBN 0 521 623322 4
Reviewed by:
ROSEMARY AUCHMUTY
School of Law, University of Westminster
Kieran Dolin might be surprised to find his book reviewed in a periodical called Entertainment Law. Yet the burgeoning discipline of ‘Law and Literature’ merits a place in a critical journal devoted to the intersection of ideas about law and culture. The novels here examined were written for, amongst other things, entertainment, and Dolin’s methodology, particularly his emphasis on the historical and ideological context of his chosen texts (politics as well as jurisprudence), provides an excellent transferable model for other studies of law and culture such as film or theatre. In any case, this is an excellent book which deserves notice, and I urge you to read it.
‘Law and literature’ embraces a broad field of scholarship. Initially confined to the examination of legal representations in literature and the application of techniques of literary analysis to legal writing, in the hands of feminists and critical legal scholars it acquired a more political character which challenged the hegemonic certainties of both disciplines. While many proponents urged the value of reading literature to find alternative readings of justice to traditional legal viewpoints, for others this project was not radical enough: literature, they claimed, by its broad appeal and cultural force, could act to critique and destabilise law and play an important part in the project of reform. That it played such a role in the past is clearly demonstrated by Dolin, whose six novels are selected from the pivotal century which encompassed the rise of the industrial West and the expansion of empire or, in literary terms, Victorian Romanticism and early twentieth-century Modernism. Dolin approaches his subject from the perspective of a legally-trained lecturer in English: his ‘decision to quit law for literary studies’ (vi) was shared by several of the authors whose work he discusses. This means his book eschews the reverence often manifested by lawyers talking about ‘great works of literature’ and the uncritical respect shown by some literary scholars towards law. The study begins with a description of the influence of legal ideas on the structure and content of the nineteenth-century novel – ‘an evidentiary model of narration, a plot concerned with the commission and rectification of crime and civil wrong, and the adoption of a critical tone with respect to official agencies of law’ (2) – and an account of the intellectual and social history of European law which gave rise to the modern Western nomos or normative world view. Dolin’s conclusion that ‘the history of the emerging idea of the supremacy of law becomes the fundamental narrative of the modern nomos’ (35) means that, in his view, the relationship between law and literature is dialectical: not only does literature describe legal and alternative world views, but ‘law itself can structure those literary representations’ (3).
Blackstone’s confidence in the wisdom and evolving perfection of English common law continued to dominate Victorian legal rhetoric, especially in relation to colonised societies, where it was imposed in an effort to spread ‘order’ and ‘civilisation’ across the Empire. But this traditional conception came under attack in the nineteenth century from both advocates of natural human rights, inspired by revolutionary movements in America and France, and utilitarians such as Bentham who wanted to codify the law according to rational principles. Both camps relied on universalist notions of law, which were in turn critiqued by the dominant artistic spirit of the age, Romanticism, with its emphasis on the importance of individual experience. For the Romantic, every person had his or her story to tell and it often ran counter to institutional versions.
Personal experiences of social injustice therefore became a major source for Victorian plots. Dolin shows how many nineteenth-century novelists drew their inspiration from the new vogue of ‘True Crime’ stories, leading to a reading public’s fascination with trials. These are fundamental to his chosen texts, as is society’s developing interest in the ‘sympathetic criminal’ in literature, influenced by and in turn influencing new trends in psychology and criminology.
The novels selected by Dolin for detailed examination are all canonical texts, each bringing with it a considerable body of literary criticism, and some, such as Dickens’s Bleak House, a body of law and literature scholarship as well, which Dolin draws on and himself critiques. In the earliest work discussed, Scott’s The Heart of Midlothian, he shows how ‘the authority of pure legalism’ (69) is destabilised by the different narrative modes the novelist uses, which permit the telling of stories not admitted by the legal process. Dickens’s Bleak House is located in the new tradition of reformist ‘novels with a purpose’. His attack on the workings of equity, once signifying justice but by his time ‘a by-word for injustice and as bound by precedent as the Common Law it was designed to supplement’ (78), still has its echoes today, a century and a half later! Trollope’s Orley Farm is notable for its portrayal of the legal profession, a portrayal rejected by some legal commentators because of procedural ‘inaccuracies’ in the story. Dolin defends these ‘errors’ on artistic grounds, pointing out that such criticisms ‘are symptomatic of a larger failure to recognise novelistic conventions when they conflict with legal expectations’ (103). In other words, fiction tells a different kind of truth from law.
For some critics, Melville’s Billy Budd marks the transition from natural law to legal positivism as the dominant legal theory of nineteenth-century America. Simultaneously, legal education became separated from general culture. While law continued to supply ideas for novels, the legal and the literary approach became, and remain, ‘distinct and mutually uncomprehending fields’ (124). But, as Dolin shows, the trial in Billy Budd represents more than simply the triumph of legal formalism; it shows how strict adherence to the letter of the law can be presented as neutral and fair but actually act in the service of a political goal, the preservation of social order. This justification, explained as ‘law’s overriding purpose’ (127), represents for Dolin the death of Enlightenment ideals and the victory of violence – a victory seemingly unchallenged today.
Conrad’s Lord Jim and Forster’s A Passage to India examine the workings of English law across the imperial seas. Lord Jim concerns a ‘sympathetic criminal’, a man who is more than his crime. The effect of the novel’s telling of his story is to unsettle the reader’s preconceptions and certainties about right and wrong and the ‘justice’ of law. In Lord Jim and, even more, in A Passage to India, indigenous societies are seen as having their own cultures and laws, but what Conrad seems to value in law-making remains in ‘a normative tradition that presumes to define itself exclusively as civilised and progressive’ (164).
Forster, however, is more critical of both British rule and Western rationalism. He shows how the much-vaunted ‘English freedom’ means ‘freedom for the Englishman but not for the subject peoples of his Empire’ (176). In juxtaposing the Indian viewpoint and English claims, he demonstrates not only the validity of the former but sometimes its greater morality, particularly when the clash of cultural expectations forces difficult moral choices. In its trial scene, A Passage to India leaves uncertain whether the achievement of the ‘right result’ signifies ‘a vindication of the rule of [English] law’ (183) – or not.
With its deft interweaving of literary, legal and historical materials, and thoughtful insights on every page, Fiction and the Law is a book which wears its scholarship lightly. It is very well written – certainly more accessible than many works in the field – and the one criticism I would make is that Dolin gives very little attention to gender issues. Indeed, the only error I noted was the date for the granting of the vote to British women on equal terms with men – 1928, not 1930 as stated (30). It is a tiny point, but symptomatic of a wider disregard for the concerns of women in academic scholarship generally.
The six novels discussed in Fiction and the Law, each a tale of individuals caught up in the legal net, offer ‘an alternative forum’ to the legal trial, ‘a second normative space’ in which authors could explore the limits and authority of Anglo-American law, and also incorporate those elements excluded from law: ‘the inadmissible, the scandalous, the heterodox’ (194). Dolin’s literary examples therefore offer clear, detailed pictures of the workings of law at the time of writing, but also of their shortcomings, of alternatives and possibilities. If any rationale for the study of law and literature be needed, it lies in Dolin’s demonstration that ‘such novels force a re-examination of the very mythology of liberty and legality’ (200) – a re-examination as necessary in the twenty-first century as it was in the nineteenth.
This is a book review published on 24th November 2004
Citation: Auchmuty, Rosemary, 'Fiction and the Law: Legal Discourse in Victorian and Modernist Literature, by Kieran Dolin' Entertainment and Sports Law Journal (ESLJ) Volume 1, Number 1 <http://www.warwick.ac.uk/go/eslj/issues/volume1/number1/reviews/auchmuty/>
