Date30 December 2004
Publication Date30 December 2004
AuthorPeter D. Rush,Andrew T. Kenyon
Peter D. Rush and Andrew T. Kenyon
The misfortune in speaking is not speaking,
but speaking for others or representing something (Deleuze, 1994, p. 52).
The order of law is not the order of the court; the law is not what the court says
it is. What remains to be accounted by much of the contemporary study of law,
politics and society is the mobile and nuanced relations between these two orders.
On the supposition that there is a subject of law, we will suggest that the order of
the court and the order of law are fated to be interrupted by the work of discourse.
Both orders will only come to mean – and mean something – in the defiles of
discourse. As Foucault taught us, discourses are constitutive and performative;
theyare“practices that systematically form the objects of which theyspeak”(1972,
p. 49). If the order of the court does not simply repeat the order of law, how is a
legal order transmitted? The law and literature movement provides one entrance
to this question.
As an interdisciplinary enterprise, the relation between law and literature has
more the character of a battle waged between already established and distinct
disciplines. The disciplines of legal study and literary criticism have simply found
another way to represent both their objects and themselves, without changing their
epistemological and ontological concerns. This is as much the case for Dworkin’s
hermeneutics as it is for Fish’s pragmatism and their various adherents.1More
generally, as Shoshana Felman has noted:
When not borrowing the tools of literature to analyse (rhetorically) legal opinions, scholars
in the field of law and literature most often deal with the explicit, thematized reflection (or
An Aesthetics of Law and Culture: Texts,Images, Screens
Studies in Law, Politics, and Society,Volume 34, 1–30
Copyright © 2004 by Elsevier Ltd.
All rights of reproduction in any form reserved
ISSN: 1059-4337/doi:10.1016/S1059-4337(04)34001-9
“representation”) of the institutions of the law in works of the imagination, focusing on the
analysis of fictional trials in a literary plot and on the psychology or sociology of literary
characters whose fate or whose profession ties them to the law (lawyers, judges, or accused)
(2002, p. 55).
From one side, it is as if law would lose all its legal authority, butat least it would
become more decorous and more humane. If no longer legitimate, law would be at
least edifying for the chorus of professionals bored with their role of reproducing
the functional orders of the court. From another side, literature would appear fated
tobe irrelevantinasocial order answering to the demands of bureaucracy,technical
efficiency, plain English, and the time of managerial reason. The attraction of law
would be thus to enhance the legitimacy of literature, even if the price would be
to lose that which is literary. The battle is fought in the name of authority and
voice, and as such the law and literature debate returns to the classical question of
jurisdiction. Jurisdiction is not simply a question of the determinations of authority
within an extant legal system but rather refers to the power and authority to speak
in the name of the law (Dorsett & McVeigh, forthcoming; Rush, 1997, p. 150).
Yet, it is a question which quickly disappears – or is at least rendered opaque.
Having fought, there would be a victor and a vanquished, or else the combatants
would simply have turned around and gone home as if to fight another day. In
either case, the relation between law and literature will have come to an end,
hollowed out of all meaning and value in the same way that “signifying sound
and fury” has become a clich´
e. Whether the critic identifies with the names of law
or of literature, or both, the battleground is constituted by the presentation and
reproduction of the disjunctive oppositions between rhetoric and substance, style
and formalism, decoration and transparency, poiesis and mimesis, and pathos and
logos (see Philadelphoff-Puren & Rush, 2003, p. 195). What then if we did not
approach the study of law and literature as a question of disciplinary polemics?
This possibility is broached by an inchoate movement in contemporary scholarship
to which we here give the name of law and aesthetics.2
In its most general formulation, law and aesthetics names that weave within
contemporary critical studies which turns to examine practices of representation
and their relation to juridical and cultural formations. Rather than turning to a
sociology of legal governance and domination, in order to provide an external
critique of the effects of law, it explores the ways in which law emerges and
performsas a modality of communication and transmission through which subjects
relatetothemselves,toothersandtothetext.It addresses itself to the textual politics
of the institution in order to internally transform and interrupt doctrine. While
recognisably literary texts continue to provide resources with which to attend to
theseincorporeal transformations of law,theemphasisis upon aesthetic formations
asprovidingthevery material through which the legal institution becomes juridical.

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