READING FOR THE LAW: BRITISH LITERARY HISTORY AND GENDER ADVOCACY

by Christine L. Krueger. Charlottesville, VA: University of Virginia Press, 2010. 288pp. Hardcover. $39.50. ISBN: 9780813928937.

Reviewed by M. Kelly Carr, Department of Communications Design, University of Baltimore. Email: kcarr [at] ubalt.edu.

pp.337-344

READING FOR THE LAW is an ambitious project, requiring similar ambitions from the reader. It is well worth the effort. Pulling from a wide and impressive array of primary source materials from seventeenth- to nineteenth-century Britain, Christine Krueger weaves into their descriptions historical and critical contextualizations that represent the best of what the Law and Literature enterprise has to offer. Indeed, this is her professed main goal (although she chases quite a few secondary goals in doing so): “the principal question I address is how ‘reading for the law’ as literary history can contribute to the progressive educational purposes for which the Law and Literature movement was founded” (p.1). She concentrates mostly on eighteenth and nineteenth century English law, in various iterations: witchcraft, insanity, adultery, indecent assault, infanticide, juvenile laws, and property laws, to name a few.

The strength of this book comes from Krueger’s literary historian’s approach. Krueger makes a persuasive argument about the benefits of this approach to understanding law and literature by revealing, through a combination of literary accounts and print and legal records, an eighteenth- and nineteenth-century British judicial system “prone to aestheticism and sentimentality” (p.21). This tendency, combined with lack of access, forced disenfranchised people with valid empirical claims to resort to narratives in order to be heard – and even then, not with happy outcomes (p.21). Given this, she posits the question, “How is it…that we have come to see storytelling and legal reasoning as mutually exclusive, so much so that a whole movement now devotes itself to reconnecting them?” (p.21) Remembering the circumstances that motivated their separation (she’s alluding here to the turn to realism and objectivism), “should we desire their reunion?” (p.21) In asking these questions, Krueger attempts to revise a long-held assumption of Law and Literature scholarship – the belief that combining the two unleashes the humanizing power of revealing individual subjectivities within legal institutions – by providing a broader lens through which readers can view their interrelationship.

Much of her book is spent evidencing the complicated role of narrative in legal thought and discourse, including: evolving Victorian literary standards such as omniscient narration and realist fiction; the emergence of witchcraft as an evidence-sparse crime reliant upon narratives for conviction; epistemological shifts from romanticism to realism both in literature and the law; government agencies whose primary task was to listen to stories of people [*338] incarcerated in insane asylums; and the use of “cover stories” to shelter certain crimes from prosecution. These uses of narrative range from mildly emancipatory and agency-building to fairly ineffective, and her analysis is always tied to larger social, political, and gender histories that pleasantly blur the causal lines sometimes drawn by comparative scholars. In several chapters, Krueger takes to task feminist advocates who would use narrative jurisprudence as an “antidote” to masculinist modes of reasoning, reminding readers that “no mode of representation enjoys special powers of advocacy” (p.51). Rather, literary techniques earn critical treatment because they are just as culturally bound as are legal processes; literary treatment is not “an autonomous aesthetic subject, but is itself historically contingent” (p.51). Krueger shows that a deeper investigation of the interrelations between literature and legal discourses, while carefully considering the historical context in which they acted, can help us understand both the limitations of specific attempts at “outsider advocacy” and to find evidence of those attempts, within literature, that are not represented in formal legal discourse.

The high degree of interdisciplinarity she uses to support her claims makes the book a demanding read – be ready to pull on your knowledge of J├╝rgen Habermas, Robin West, Michel Foucault, Stanley Fish, James Boyd White, Richard Delgado, Jeremy Bentham, various literary, political, cultural, feminist, and legal theories, Latin legal terms, and the like. This rigor makes the beginning of the book slow-going, which Krueger acknowledges before asserting: “But the risks incurred by the interdisciplinary scholar are, I believe, worthwhile. I can only hope that my readers find their patience rewarded” (p.11). Her hopes are realized as the hard work required in the dense introduction and Part One pay off in later chapters. Each chapter takes a different approach to combining literary and legal discourses and cultures – Krueger lets the overarching themes guide her, rather than a particular methodology or way or reading. Her commitment to literature and law as a multidisciplinary act is strong, and her book both proves the value of multidisciplinarity and highlights its challenges. It also makes it difficult to summarize without reifying the dichotomy she works so hard to break down. Potential audiences for this book include those interested in the Law and Literature movement and narrative or feminist legal theories, as well as legal historians and graduate faculty who wish to complicate their students’ understanding of law and popular culture and instill in them an appreciation of historical methods.

READING FOR THE LAW is divided into four parts. In Part One, Krueger explores the theme of precedent, although the individual chapters within this section are the least directly tied to the theme than the others. In Chapter One, Krueger teases out the problems of offering an historical account of British witchcraft trials, which defied both rationalist and progressivist explanations of gender, motivation, and patterns of occurrence. Using Elizabeth Gaskell’s LOIS THE WITCH (1859) as her primary example, she asserts a recurring theme of the book: that Victorian literary techniques such as the omniscient narrator and realist storytelling offer [*339] “retrospective justice” to the women involved, in this case by historicizing witchcraft prosecutions within their political, social, religious, and individual contexts. Such an approach is preferable to the subjective, therapeutic storytelling experience that is the proclaimed benefit of narrative, which when applied to witchcraft trials “threatens to dissipate into a bewildering array of special cases” and has the potential for turning the narratives into a kind of folk law, reaffirming women’s outsider (and outlaw) status (pp.44-45).

In Chapter Two, Krueger tackles the feedback loop between legal, political, and public spheres, accelerated in part by the rapid emergence of print culture. “Witchcraft,” argues Krueger, “was perhaps the first crime legal historians understood as having been created discursively” (p.53). In this chapter, she outlines the array of printed accounts of witchcraft prosecutions for both lay and elite audiences, including sensationalist trial pamphlets, treatises, grand jury guides, and controversial writings, all of which influenced the form of the modern novel genre (pp.56-57). Wide access to literature about witchcraft meant that juries and legal officials alike were almost certainly influenced by them – a nice point to make in a law or media studies classroom when students complain about the influence of television and internet on contemporary trials.

Chapter Three: “The Historical Turn in Witchcraft Literature,” traces the concurrent epistemological and literary shifts from romanticism to realism. Here, Krueger examines the writing of Chaplain Francis Hutchinson, who called for the condemnation of witchcraft prosecutions as well as the clerical and legal elite who succumbed to the “superstition, cowardice, and perversions of justice” that killed innocents (pp.78-79). Yet he seemed more concerned with the precedents witch trials would set for men, and Krueger notes that the eventual repeal of witchcraft legislation “bears no sign of interest in women’s legal sensibilities,” but rather its obsoleteness as Whig political strategy (p.83). Similarly, while philosophical rationalism failed to explain witchcraft mania, it would aid in “retroactive advocacy” in legal and literary spheres: the former, through more critical attention to witnesses, both lay and professional, and the latter, through realist fiction which Krueger likened to the use of circumstantial evidence in a courtroom. Realist fiction thus “served much the same goals Enlightenment liberal political theorists sought to achieve through proceduralism;” perhaps even more effectively so, because authors could employ extra-legal narrative innovations such as omniscient narration and dialogic voice (pp.96-97).

Part Two examines gendered agency as it relates to legal reasonableness and property. Chapter Four explores a Habermasian dialectic between de jure and de facto fairness as Krueger articulates the gender implications of a universal standard of reasonability. Nineteenth-century Britain relied upon the Reasonable Man standard, bringing up the question of reasonability for women. Yet, even the twentieth-century, gender-neutral Reasonable Person standard fails to consider the “individual life contexts” that make women’s lives different, serving to highlight the de facto inequalities of the treatment of [*340] women (pp.101-102). To demonstrate women’s catch-22 between group identity politics and liberal individualism, Krueger offers an alternative reading of Mary Wollstonecraft’s MARIA: OR, THE WRONGS OF WOMEN (1798) , a text Krueger claims has been rejected by feminist legal theorists as being overly sentimental and contrary to Wollstonecraft’s own defense of feminine rationality. Dichotomizing rational and sentimental discourses rendered the reading of MARIA incoherent and, more problematically for Krueger, engaged in ahistoricism: “These arguments…misconstrue the relationship of reason and emotion in the context of late-eighteenth-century political discourse” (p.111). Furthermore, Krueger sees MARIA’s main shortcoming in its employment of multiple first-person narratives. Rather, Krueger asserts that the most effective feminist literary advocacy used omniscient narration and free indirect discourse, offering the reader access to motive and dialogic rationality.

Chapter Five, entitled “Agency, Equity, Publicity,” addresses two texts: the first, a novel from Victorian muckraker Charles Reade regarding people wrongly incarcerated for “lunacy,” and the second, a set of meeting notes from the Commission in Lunacy, a government body charged with listening to inmates’ stories to determine if they were wrongfully incarcerated. Krueger’s interest in British lunacy laws centers on two main points: the explicit adoption of narratives within the legal process, and the fact that propertied men’s incarcerations placed them in the agency-deprived position of women because it “robbed them of agency, understood most basically as ownership of their stories” (p.127). A series of lunacy reform laws were enacted, driven in part by literary and journalistic advocacy (p.127). Yet the Minute Books of the Commissioners in Lunacy reveal the failure of narrative advocacy within the legal process, because “translating” those narratives into the bureaucratic language that would affect legal change on their behalves proved largely impossible – especially when the victims were women, with few legal rights to begin with.

The third section of the book examines the use of testimony in literary and legal advocacy. Chapter Six is packed with evidence and arguments, beginning with a critique of a common metaphor of the relationship between law and the feminine: a metaphor of silence. Krueger does not see women’s lack of legal voice stemming from their inability to speak so much as being rendered legally incompetent, prevented from “attaining legal literacy and exercising forensic eloquence” (pp.158-159). From an advocacy standpoint, the “silencing” metaphor is useless as well, rendering law utterly hegemonic and patriarchal, and framing women’s encounters with the law as only traumatic.

Krueger highlights several moves in nineteenth century trial procedures that altered the use of voice in the courtroom, including the Prisoner’s Counsel Act, which introduced the right to defense counsel, the right of the accused to testify under oath, and an extended category of witnesses who were considered competent (p.159). Yet these seemingly progressive acts had the practical effect of privileging legal actors over “outsiders’” stories; women [*341] were still sentimentalized, and the accused who defended themselves instead of relying on counsel were now treated as eccentrics. Krueger persuasively points out that this sentiment has persisted in both the courtroom and in popular culture.

Krueger examines both literary and legal texts to evidence the disparate treatment of voice, as well as the upper hand that literature played in giving women a competent legal voice, or at least in highlighting their lack of voice in the courtroom. For instance, in Charlotte Elizabeth Tonna’s HELEN FLEETWOOD (1841), the protagonist takes to court "what is probably the first conceptualization in law or literature of sexual harassment as a crime,” (p.163); in Elizabeth Gaskell’s MARY BARTON (1848), the protagonist is called to the witness stand only to be given scripted lines to read and to tell the jury “a love story” (p.167). Next, she examines witness statements given by men and women in indecent assault cases, concluding that an analysis of the gendered discursive strategies reveal “the ways in which the law appeals to gendered literary conventions in order to determine legitimacy, authority, guilt, and innocence in policing sexual practices” (p.173).

Chapter Seven explores conflicting popular representations of litigants who represent themselves. On one hand, pro se litigants are discussed as pitiable or foolish, unseemly in their “vulgar breach of professional legal etiquette” (p.186). On the other hand, we strongly believe “that a democratic justice system must hear the voices of the people, not merely of legal professionals” (p.186). Krueger offers a fascinating history of the epistemological shift between the 1700s and the Prisoner’s Counsel Act, which was passed in 1836. Before the act, jury members were chosen based on their knowledge of the people involved in case, rather than their impartiality. In the same shift to objectivism that moved jury selection to the latter, nearly all criminal defendants had counsel representation; women did not represent themselves (with one remarkable exception explored by Krueger); those who did represent themselves did so to challenge the system’s legitimacy rather than their cases; and all pro se litigants were found guilty from 1836-1900. Pamphlets and newspaper’s represented pro se litigants as rambling, ignorant of rules of evidence, and reliant on emotional appeals to the jury, and newspapers snarkily marked audience responses in parentheticals. Yet Charles Reade’s literary work, GRIFFITH GAUNT, was practically a how-to guide in defending oneself and a “precursor of our Web sites devoted to instructing pro se litigants” (p.192). And, significantly, his protagonist was a forensically eloquent woman.

The final section centers on the motives of advocacy. Here, Krueger makes one of the more thought-provoking arguments of the book (of which there are many): that the goal of narrative advocacy is not, and should not, always be to call attention to legally unrecognized groups. Rather, Krueger suggests evidence that literary and legal advocacy might also be “motivated by a desire to shield victimized groups from prosecution by producing ‘cover stories’” (p.203). Having spent three sections highlighting the representational masterpiece that is the omnisciently narrated novel, with its benefits in [*342] focusing on understanding motive and others’ minds, Krueger examines “an alternative strategy of literary advocacy” which seeks to conceal that subjectivity with believable cover stories (p.218).

In Chapter Eight, Krueger details some of these literary and legal cover stories for juvenile offenders and women accused of infanticide. The material on juvenile offenders is less successful in highlighting the section’s theme than the material on infanticide, which is very compelling. The infanticide law itself was premised on concealment, as there was no reliable way of determining the cause of an infant’s death; thus, a woman concealing a birth was presumptively implicated in the murder of her child, because the act of hiding implied guilt. From this history, Krueger evidences both literary cover stories and legal cover actions. For literary texts, she covers Wordsworth’s poem “The Thorn” (1798), Walter Scott’s THE HEART OF MID-LOTHIAN (1818) and George Eliot’s ADAM MEDE (1859), concluding that such texts highlighted the private nature of infanticide for women, usually in naturalized settings and often rendering the woman’s voice and image unclear. She also describes the judges, juries, and even prosecutors who resorted to legal fictions in order to shield women from conviction.

Chapter Nine posits the agency of juries in accepting or co-creating these cover stories. Whereas the previous chapter featured juries cooperating with defense counsel’s cover stories to protect women, Krueger argues that nineteenth-century sodomy prosecutions offer a unique case study because, “unlike women, homosexual men in the nineteenth century may have been tried by juries of their peers” (p.237). Finding the “secret agency” embedded within these cover stories and jury verdicts “requires attention to a more subtle deployment of narrative advocacy and its tacit reading by jurors” (p.238).

Krueger finds the solution in looking to the “intersection of institutional and popular legal cultures” by reading a literary text and a legal case “across each other” (p.238); Anthony Trollope’s ORLEY FARM (1862), a novel portraying a women accused and acquitted of forgery, and the 1871 trial of Boulton and Park, men accused and acquitted of conspiracy to commit sodomy. Krueger reads ORLEY FARM as a Foucauldian example of resistance against Victorian mechanisms of surveillance and the disciplinary technologies of knowledge, through cover stories and tacit agreements between characters that are hidden from public eyes during the legal process. As Krueger notes, “only in a fiction could such fiction-making practices of the law be brought into representation and defended. In law, fictions are efficacious only insofar as their fictionality is tacitly denied” (p.241).

Finally, Krueger examines the transcript of the trial of two men who were arrested for disturbing the peace still while dressed in the women’s clothing they were wearing after their female roles in an amateur theatrical production. These charges were upgraded to a felonious sodomy after a police surgeon examined the men in jail and claimed to find evidence of sodomy – yet this evidence was not offered during the trial (p.247). Instead, the attorney general relied largely on letters between the men and their friends, which he claimed was [*343] written “in the language of love”; evidence which Krueger claims “called for a particularly literary judgment as to probable narratives” (p.247). Indeed, the defense did not dispute the evidence, but argued for a satirical reading – “their behavior was all impersonation, forgery, ‘a lark’” – paired with evocation of a gentlemen’s code: that learned men share love for each other in an intellectual and spiritual capacity without sensual desire (necessarily) going along with it (pp.248-249).

Krueger’s approach to bridging the bifurcation of law and literature is multipronged and effective. She traces the well-known critique of the Law and Literature movement by Judge Richard Posner and Martha Nussbaum’s response to it, as well as Guyora Binder and Robert Weisberg’s seminal work LITERARY CRITICISMS OF LAW and Robin West’s feminist jurisprudential approach, yet she rejects all in favor the literary historian’s approach. Krueger rejects them, in part, because law-and-literature scholars tend to address themselves to the “decision-making elite” within a justice system, rather than focusing on “enabling nonprofessionals to address courts in a forceful and efficacious manner. In so doing, they recapitulate a high/low culture divide” (p.195). Krueger goes well beyond the standard humanities view of the Law and Literature movement to explore what the interrelationship reveals about advocacy. I think this targeted end-goal helps her avoid many of the criticisms that the movement typically incurs.

In doing so, she also takes seriously the impact of the generic form on voice. As William Lewis notes in “Law’s Tragedy:” “Trials…do offer alternative stories, but all of those stories gain their intelligibility and their effect from the restrictions within which they are written and read” (p.19). Krueger’s descriptions of the Minute Books from the Lunacy Commission highlight how even consciously articulated outsider narratives within a legal forum fail to affect change on behalf of those outsiders. This failure occurs because, as Peter Goodrich asserts, “Law is a literature which denies its literary qualities…it is a language that hides its indeterminacy in the justificatory discourse of judgment” (p.2). Yet legal actors are part of the wider culture, and the linguistic and epistemological conventions embedded there necessarily influence the form of legal processes, argues Krueger. The rise of the omniscient narrator and realist form of fiction, themselves influenced by political and social shifts and constraints, brought to attention the possibility of alternative subjectivities and the limits of human understanding allowed within the legal process. The most significant (if slightly depressing) conclusion I found in this book, however, was that the best protection to be offered to legal “outsiders” within the law is to hide their motives or subjectivities via cover stories; at least, until the laws and procedures catch up with epistemological and social shifts. But to wait for justice to occur either within the law or outside it, in literature, is a false dichotomy, argues Krueger, because “to reduce the dynamic of advocacy to a binary of law and literature, or rule-based reasoning and narrative…ignores a far richer account of the struggle for legal recognition” (p.153). [*344]

REFERENCES:
Goodrich, Peter. 1994. “Of Law and Forgetting: Literature, Ethics, and Legal Judgment.” ARCHNE, Vol.1/2.

Lewis, William. 1991. “Law’s Tragedy.” RHETORIC SOCIETY QUARTERLY, Vol. 21/3.


© Copyright 2011 by the author, M. Kelly Carr.