by Amy D. Ronner. Durham, NC: Carolina Academic Press, 2010. 320pp. Hardback. $45.00. ISBN: 9781594606373.
Reviewed by Margaret S. Hrezo, Department of Political Science, Radford University. Email: mhrezo [at] radford.edu.
Almost every judicial process textbook used to contain a section on the functions of law similar to that found in Frank A. Schubert’s GRILLIOT’S INTRODUCTION TO LAW AND THE LEGAL SYSTEM. The objectives of law were: (1) continuity and stability; (2) adaptability; (3) justice, speed, and economy; and (4) desirable public policy (GRILLIOT, pp.6-10). Today, however, discussions of the objectives of law seem to have disappeared from such works. Without some criteria that focus on why law exists, how can we evaluate either specific laws or the education of lawyers? We appear to have forgotten an important aspect of the background of law a part that integrates law into the pattern of order for a society and makes it a conduit for transferring and transforming social values, which, like the set design and costumes of a play, give us the necessary context for understanding.
Part of this trend is due to the movement of American law from a common law to an increasingly positive law foundation. After all, where law is the will of the sovereign habitually obeyed and backed by threats discussions of the functions or objectives of law are pretty much pointless. In part the change is the result of the increased specialization of law and of the hegemony of the crime control model in criminal law. These combine to make manipulation of intricate sets of rules and efficiency the only genuine tests of legal competence.
The importance of these changes that have been gathering force over the past twenty years should not be underestimated. However, the ever-increasing instrumentalization of both individuals and of human reason in American society may play an even larger role in the loss of criteria for evaluating our laws. Ultimately, every political community and every set of laws require some basic societal consensus which provides the context for understanding the society’s pattern of order. Without that consensus a society has no sense of direction or vision of an appropriate or genuinely human way of life. There is much evidence of a breakdown in consensus in the United States and that breakdown has leaked into the law.
In addition, both political science and the dominant method of studying and practicing law tend to ignore questions related to what it means to be human and to discourse on the nature of society and its values. As many observers have noted, modernity brought both amazing technological advances and the demise of any notion of the spirit. In the contemporary world this combination has resulted in politics and law being viewed primarily as methods of achieving personal political preferences [*534] and ideological goals. Thus the challenge presented our world is to acknowledge that law and justice are more than rules learned and implemented by rote and used as a means of achieving instrumental goals. Human reason, as the origin of responsibility, answerability and meaning, also is the means by which we evaluate the goals we choose in the pursuit of a happy and flourishing life.
Professor Amy D. Ronner’s LAW, LITERATURE, AND THERAPEUTIC JURISPRUDENCE emphasizes the importance of including in legal education the tools required for thinking about both responsible moral agency and fostering discussion of social goals and values. In her discussion of BARTLEBY, for example, she argues that “all of that thirst-hunger belies social, psychological and spiritual starvation” (p.265). At one level Ronner’s argument is simple and straightforward: If American legal education pays more attention to the humanities, especially literature, and to therapeutic jurisprudence, it will produce better lawyers (lawyers who have been nurtured socially, psychologically, and spiritually) and likely reduce recidivism. In chapter one she develops the context for her argument by providing histories of the legal sub-fields of law and literature and therapeutic jurisprudence. Her reading of the history of legal education as a movement away from humanistic considerations to technical ones is well supported. Anyone unfamiliar with therapeutic jurisprudence, the goal of which is to humanize the law by emphasizing the “…human, emotional, psychological side of law and the legal process” (p.5, citing Wexler) will find beneficial her exposition of its purposes and methods. The ultimate goal of therapeutic jurisprudence is to enhance the understanding of social values and moral agency of all participants in the legal system by emphasizing the importance of providing the defendant with voice, validation, and an opportunity for voluntary participation. Most of the material in chapter one has been covered thoroughly before elsewhere as the massive number of footnotes makes clear. What is new in Ronner’s presentation is her contention that there is a natural partnership between law and literature and therapeutic jurisprudence (p.28). Both, she argues, (1) celebrate humanity; (2) “activate the conscience, instill a sense of justice, and make lawyers, judges and clients aware of and accountable for the ethical and moral dimensions of their conduct” (p.31); (3) are rooted in storytelling; (4) share the goal of increasing empathy and kindness; and (5) following Nussbaum, help in accessing “the heart-brain,” experiencing “love-reason,” and nurturing “diversity-equality” (p.40). This is what it means to be “not just a lawyer, but a literary lawyer “capable of viewing law through the lens of therapeutic justice (p.27).
In chapters 2-4 Professor Ronner attempts to develop her argument through analysis of Herman Melville’s BILLY BUDD, Fyodor Dostoyevsky’s CRIME AND PUNISHMENT, Arthur Miller’s THE CRUCIBLE, William Wright’s HARVARD’S SECRET COURT, and Charles Dickens’ BARTLEBY. Possessing a law degree and an MA and PhD in English Language and Literature, Ronner is well qualified to undertake this work. The focus of chapter 2 is the importance of therapeutic jurisprudence to the practice [*535] of criminal law. She uses BILLY BUDD to highlight the importance of the defense lawyer in criminal trials and the lawyer’s role in providing the defendant with voice, validation, and voluntary participation in the proceedings. CRIME AND PUNISHMENT, she argues, provides important insights into the importance of therapeutic confessions. Next, in chapter 3, she relies on THE CRUCIBLE and HARVARD’S SECRET COURT to discuss the human damage that results from anti-therapeutic tribunals—those in which voice, validation, and voluntary participation are absent. The analysis of BARTLEBY in chapter 4 highlights the dangers to lawyers themselves of the current model of legal education and the benefits to prospective lawyers of learning experiences that incorporate therapeutic jurisprudence.
Ronner’s work combines several excellent insights into the contemporary legal environment in the United States with a tendency toward tedious and overblown writing. Not only is she thoroughly versed in the subject matter, but she also understands the challenges facing the American legal system today. Thus, it is very much worth the effort to get past the writing style to those insights. At first I was put off by her choice of materials. Does the world really need another analysis of BILLY BUDD, THE CRUCIBLE, or CRIME AND PUNISHMENT? However, for the most part, she brought new ideas to the material.
As a work of literary criticism, her insights into the other narratives were thought-provoking and useful. The chapter on BARTLEBY is particularly successful, but there are challenging ideas to ponder in her arguments concerning CRIME AND PUNISHMENT and THE CRUCIBLE. Her brief discussion in the final chapter of William Henry Hudson’s A CRYSTAL AGE is very interesting and the analysis deserves more development than she gave it. In fact, this chapter sets up discussion of the important issue that society must recognize and resolve if she is to achieve the book’s goal. Throughout she provides a powerful argument for fully integrating aspects of therapeutic jurisprudence and the study of literature into the law school curriculum. The literary analysis of BILLY BUDD was the weakest.
Still there are problems with her argument, as well as with the writing style. First, the legal argument works in chapters 3 and 4, but not in chapter 2 where her claims about the linkage between BILLY BUDD and the Sixth Amendment right to counsel jurisprudence seem forced. The Sixth Amendment protects the weak and unlettered from the strong and well-educated not only by providing voice, but also by providing understanding of the law. The major problem with this section, however, is instead of pointing out similarities between Melville’s story and therapeutic jurisprudence, she appears to infer that it was Melville’s intention to highlight the need for counsel or to advocate for therapeutic jurisprudence. The same criticism can be applied to the chapter’s attempt to link CRIME AND PUNISHMENT and therapeutic confessions. Professor Ronner makes good arguments about Dostoyevsky’s book, about the therapeutic power of confessions, and about the need to re-think the meaning of effective counsel. However, once again she primarily relies on assertion to forge the link between Dostoyevsky’s intentions and therapeutic jurisprudence. [*536] Thus, as an argument about law this chapter is unconvincing and sometimes confusing.
A second issue with the book is that the manner in which she presents the works of literature leaves the reader with the impression of a hard and fast dichotomy—therapeutic versus anti-therapeutic. Presenting the choice that way makes it difficult to recruit converts to the cause of therapeutic jurisprudence. Despite the fact that the book is written in dichotomies, what she actually appears to be promoting is a continuum. American law is never going to become strictly therapeutic and in most instances it avoids the worst case anti-therapeutic excesses found in the literature presented. Certainly, the criticisms she and others make of the American legal system’s over-emphasis on specialization, efficiency, and rule manipulation and of the need for increased focus on the humanities in legal education are accurate. If we choose, we can incorporate aspects of the therapeutic model into legal education and practice.
The need for reform, however, leads to the final problem with Ronner’s book—one that is not at all her fault. Underlying that simple argument with which she begins the book, however, is the fact that therapeutic jurisprudence flies in the face of contemporary social values and ideas about law and justice, as Ronner herself recognizes in chapter one. This book seems to argue that law can change citizens’ values and, thus, lead to a more humane society. Certainly law must be part of the effort. However, as Professor Ronner’s final chapter demonstrates much more is needed. Ultimately, Ronner is making a very complicated argument concerning a problem that is deeply rooted in American culture and that requires far more than reform of legal education. Until contemporary society as a whole reaches some consensus that there are purposes to law beyond the purely instrumental and that part of law is an agreement concerning what it means to be human and then embeds that understanding into its cultural values, there is unlikely to be much movement toward incorporating therapeutic jurisprudence into American law. Hudson’s’ A CRYSTAL AGE and LAW, LITERATURE, AND THERAPEUTIC JUSTICE, Ronner argues, both “value moral and ethical conduct, believe in story telling, prize empathy and kindness, and most significantly, celebrate love” (p.296). If we want our lawyers to embody such a consciousness, then our society first must come to value that consciousness. One of the main strengths of this book is that it calls us to recognize and acknowledge this fact.
Schubert, Frank A. 1996. GRILLIOT’S INTRODUCTION TO LAW AND THE LEGAL SYSTEM. Houghton-Mifflin Company.
Wexler, David B. 2008. “Therapeutic Justice: An Overview,” in REHABILITATING LAWYERS: PRINCIPLES OF THERAPEUTIC JURISPRUDENCE FOR CRIMINAL LAW PRACTICE, by David B. Wexler, ed. Carolina Academic Press.
© Copyright 2010 by the author, Margaret S. Hrezo.