Dr. Isobel M. Findlay
Department of English
University of Saskatchewan
findlay@sask.usask.ca
My emphasis here is on Cultural Studies and disciplinary debate, and in particular on the place of the interdisciplinary study of law and literature within those larger discussions. First, I want to gloss my title, not only because the textual gloss is a genre much beloved of literary and legal scholars alike, but because the title was designed to effect convergence and open up spaces and opportunities of a particular kind. Second, I wish to ground features of this gloss in relatively familiar examples (from Shakespeare to the Clarence Thomas /Anita Hill hearings) chosen to illustrate historical, disciplinary, and cultural range; to identify places where authority and dissent interact both within the examples themselves and within the examples' respective reception histories. Third, I want to situate gloss and examples within the field of disciplinary, institutional, and anti-institutional practices known as cultural studies.
Cultural studies can certainly be seen as central to current debate about relations among academic disciplines--especially in the humanities, social sciences, and fine arts. However, that centrality is itself a shifting locus in an endlessly reconfiguring field of possibilities, practices, desires, determinations. It is useful, indeed necessary, to simplify and fix this centre strategically, if only for a moment. I therefore restrict myself to examining parts of a particular disciplinary nexus chosen both because it is the area in which I am currently teaching and doing research but also because it involves two traditions that variously and constantly renegotiate the sometimes competing, sometimes complementary claims of oral and written language and justice. Getting it right and saying it well are mutually implicated and ritually separated according to the nature of the context, the situation of address, the medium of exchange, and the power relations that determine what counts as expression--when and how exchange begins, where it goes, sustained by whom, and when it can be deemed 'complete.' Understanding how these processes are the products of and producers of culture is both an urgent pedagogical and scholarly challenge and an important opportunity.
My paper comes under the sign of oral and written law, a set of relational terms that do not point unproblematically to discrete identities, instead acquiring value and significance only within specific historical conditions. Poststructuralist, feminist, and postcolonial theories have put in question the binary logic so important to the project of modernity and the colonizing categories of Enlightenment rationality. Such work has enhanced critical and historical work by unpacking practices that suppress difference in the name of overarching forms of brotherhood or other social or moral "universals" and maintain hierarchy and uneven development by invoking discourses of objectivity, impersonality, independence, and freedom. Derridean textuality puts in question the naturalness and neutrality of generic (historical/fictional; legal/literary) and other demarcations (public/private; inside/outside, subject/object, literature/life) and hierarchies (major/minor; high/low; national/regional) of critical discourses, and hence "overruns the limits assigned it so far (not submerging them in an undifferentiated homogeneity, but rather making them more complex, dividing and multiplying strokes and lines)--all the limits, everything that was to be set up in opposition to writing (speech, life, the world, the real, history)" ("Living" 84). Given the importance of textuality as a site and source of excess, supplementation, transgression, what interests me are the ways in which particular relations between the oral and the written, between the law and literature, between legal process and cultural values are figured in different historical contexts--and in whose interests.
As Andrew Taylor makes clear in the context of medieval land claims, textual authority could not be assumed but continued to be contested by the oral. Indeed the imposition of written authority had then, as it continues to have now, unpredictable consequences. According to John H. Fisher, Chancery was a crucial part of the history of an emerging (but contested) standard English, Chancery Standard or Chancery English, even government English, in the written records of Chancery clerks in the fifteenth century. Linguistic form as much as literary and legal form, then, helped consolidate the legitimacy of the Lancastrian state. The difference between a language and a dialect, as the saying goes, is a matter of an army and a navy--and now maybe an entertainment industry too. As bell hooks reminds us, popular culture is the pedagogy for many right now.
In the context of Canadian legal history, it is equally clear that symbols of power have had much to do with the priority given to written over oral evidence--until the decision in Delgamuukw v. British Columbia. That decision is, however, less a resolution than a refiguring of the grounds of legal dispute, oral and written evidence acquiring "equal footing," even as they remain distinguished (see, for example, paragraphs 85-87) on the axes of binary logic (linear/ non-linear; objective/ subjective; universal/ local; science/ culture). It is equally clear that the oral and the written have always operated in both traditions: the letter of the law whether in manuscript or printed text or on beaded belt or carved artefacts is always translated or performed by authoritative figures. While language, literature, and the law have been deeply implicated in the consolidation of political power and the legitimation of empire, they have always another history too--a history of critique and resistance.
The first terms of my title ("Just Expression") play on the persistent contradictions, in the legal and in the larger cultural setting, in attitudes to expression. Correct expression, the precision of le mot juste, is, on the one hand, the merely decorative, the adornment of content, or even an irritant to the easy, innocent or transparent transmission of information. Such cavalier dismissal of expression is, in the legal setting, a crucial symptom and source of claims to that enabling fiction of impersonality that severs connections between expressive powers and particular human bodies. Correct expression is, on the other hand, crucially constitutive of justice, of getting it right, even of the legitimate exercise of state power. Plato's Laws is but one in a long line of texts that both deplore and depend on notions of right reading and writing as part of the regulatory apparatus of society. What we read and how we read are potent forms of censorship and that self-censorship so necessary to securing consent (in Gramscian or Foucauldian terms). For Plato, poetry is perilous business that is properly subject to the law: "That a poet should compose nothing that conflicts with society's conventional notions of justice, goodness and beauty. No one should be allowed to show his work to any private person" before the approval of "the appointed assessors" and "the Guardians of the Laws" (289). The true judge "won't be doing his job properly if he reaches his verdict by listening to the audience and lets himself be thrown off balance by the yelling of the mob" because he properly "sits in judgement as a teacher of the audience rather than as it pupil" (94-95). Nor is such figuring of the regulatory nexus limited to the western tradition. Confucius likewise connected the administration of justice and a country to the correction of language and the possibility of art:
My subtitle insists on process (via the participial Interdisciplining) rather than stable product, an ongoing and contested negotiation of disciplinary relations within institutional space. Thus I make no argument for the inherent value of Law and Literature but connect its stories to the ongoing struggles over cultural authority and meanings. If some bemoan in Law and Literature an overreliance on the Great Books model, others resent "an excessive passion for theory" (Dunlop 65). In my course on Law and Literature I explore intersections between the law and literature in history and in theory as well as engaging with the particular history and theories of the Law and Literature movement, especially in North America. A review of literature from Plato's Laws to Shakespeare to modern fiction, from work by men and women, high culture and popular culture, reveals its intimate connections to legal process both because literature was itself so often on trial and because legal practice and trials feature prominently in literature that helps construct modern subjectivity. Literature is approached not as a site of transcendent or immutable truths but, like the law, as an institution where contingency and orthodoxy conflict in historically determinate ways.
Shakespeare's Othello is one of my touchstone texts not only because the cultural capital associated with the name of Shakespeare makes him the most cited of literary authorities in the legal context but also because of the specific determinations of his own dramatic practice by the systems of surveillance and legislative powers invested in the Lord Chamberlain's office and the Stationer's Company. Like all citizens of his time and ours Shakespeare had to live within the law but could use cultural work to register and reflect upon that fact. In the drama where meaning can only exist in relation to both script and performance, it comes as no surprise to encounter the oral and the written constantly interacting in the staging of legality and the probing in a more plenary sense of what is meant by justice. In studying the play's deployment of poetic license, I am less concerned with the ways in which particular laws are inscribed in the text (women as legal property of fathers and husbands, for example) than with the ways in which the text enacts and interrogates judicial process and dominant (self-)images of the law, and the inescapability of the ideological contexts within which it operates (discourses of race, gender, class, reason preeminently and the roles of stereotypes).
Othello can be read as a study of the law's self-construction, its evidentiary protocols and interpretive assumptions, the weight of hearsay, the credibility of witnesses, the nature of motivation, prejudice and legal concepts of the prejudicial, the sufficiency of physical and eye-witness evidence, the power of visual epistemology, of empiricism, the independence of judicial authority, the force of norms, the derivation of facts, the bracketing of the social as the law's strength and weakness. This play is both challenging to and supportive of the law's self-constructions. The overdetermination of agency does not mean the elimination of accountability. Even within a dispensation where signs have no sure ground and texts and contexts cannot be securely separated, agency and accountability are available because ideology is neither single nor irresistible. Determinations are always made, but we need to reflect critically on whose interests are served by those determinations. Single, unified notions of ideology or culture or discourse or identity have a habit of being used to prescribe, control, exclude. But the play elaborates the multiple identities people inhabit despite the strategically simplifying processes of interpellation (as defined by Louis Althusser). Othello may be hailed as "Valiant Othello" by the Duke (1.3.48), but the play also explores his gendered, classed, and raced identities, Othello as alien and ally, hero and villain, man and monster, as slave, general, poet, orator, lover, husband, son, and brother. In the process the play encourages the audience to reflect on the construction of its own values and the complex interplay of identity and difference that constitutes self and others.
The play probes its legal themes through a series of more or less formal judicial processes in a civilized city-state--Venice--that is easily read as that England from which Queen Elizabeth in 1601 ordered the wholesale transportation of blacks (Kaul 4). The tragic plot begins in crisis, one that calls in question the natural order and standards of judgment of Venetian society: Desdemona, daughter of a senator (Brabantio), has eloped with the black general, a Moor, Othello. Brabantio is quickly unsettled in his confident presumption that such things do not happen in Venice ("This is Venice/ My house is not a grange" [1.1.105-06]). Indeed prejudice is unleashed by challenges to the foundations of Venetian rationality--the careful separations of masculine/feminine behaviour (a woman acting like men and vice-versa); separations of insider/outsider; black /white; beautiful/ugly; young/ old; public/private-- in the deeply threatening union of Desdemona and Othello. Brabantio is quick to follow Iago's provocative lead, his fears of miscegenation triggered by the racist and sexist discourse ("an old black ram/Is tupping your white ewe" [1.1.88-89]) which ironically underpins this society's sense of its civilized, rational superiority over the barbarous, irrational Turks and Moors--and male dominion over female frailty. The letter of the law cannot disengage itself from the oral transmission of customary belief. Within this patriarchal legal structure, charges are laid against Othello, who is accused of theft of a daughter, of being "an abuser of the world, a practicer/ Of arts inhibited and out of warrant" (1.2. 79-81). Brabantio can presume legal redress as Othello is brought to answer before Brabantio's "brothers of the state" (1.2.96). Like Brabantio, Othello shows an early confidence in his "services" to "the Signiory, "[his] parts, " [his] title, and [his] perfect soul" (1.2. 19-31), although he will later challenge Desdemona's confidence in her merits--a mark of the double standard of morality Emilia's alternative rationality unpacks in her speech to Desdemona immediately before the final act:
Nor can such standards be kept outside the hearing when the Duke constructs the law as "the bloody book of law" which Brabantio shall "read in the bitter letter/ After your own sense; yea, though our proper son/Stood in your action" (1.3.67-70). So much for the objectivity of the law. The Duke's reassurance proves self-incriminating in its noble patriarchal willingness to sacrifice his son to justice--as Abraham would Isaac. While the judiciary claims independence and objectivity, transcending particular interests, Venice's interest in and dependence on mercenaries in the context of the immediate threat of war is clear. To avoid the problems of Roman experience, Venice kept the legislature independent of the military, but such lofty goals left it crucially dependent on mercenaries (Jensen 157) just as the mercenary (Othello) will in turn depend on the counsel of the Venetian (Iago).
Consider too Othello's claim, consistent with that necessary legal fiction of the telling of the truth, the whole truth, and nothing but the truth: he "will a round unvarnished tale deliver" (1.3.90). Faced with Brabantio's claim of the unnaturalness of the elopement "Against all rules of nature", the Duke demands "more overt test" (101-07) and, altering the burden of proof, the First Senator poses the legal question "Did you by indirect and forced courses/ Subdue and poison this young maid's affections?" Othello gambles his life on Desdemona's testimony (1.3. 118-19)--but not before presenting his own evidence, telling the story of his past, of his friendship with Brabantio, and his courtship of Desdemona:
As recent commentators have remarked, the narrative structure of evidence is a powerful means of countering the normative stories of a culture, of giving voice to values and experiences otherwise suppressed or marginalized (Delgado; Papke). As a result, the Duke effectively decides in Othello's favour ("I think this tale would win my daughter too" 1.3.171), even before hearing Desdemona's testimony, and significantly uses a military image in attempting to placate the aggrieved Brabantio: "Men do their broken weapons rather use/Than their bare hands" (1.3.173-74). And equally striking is the prejudicial nature of the Duke's judgment: "Your son-in-law is far more fair than black" (1.3.290) --less a symptom of blind justice than a reinscription of a racist understanding of blackness.
Brabantio relents when Desdemona reasons her case and articulates a complex notion of obligation, demanding her right ("challenge") to transfer her duty from her father to her husband. While we might appreciate the silencing of the dark, unruly underside of Venetian society in the court, we might also recognize that Iago is literally silenced by his position in the social hierarchy. What is more, the court's legacy is the platitudinous wisdom of the Duke's "The robbed that smiles, steals something from the thief;/ He robs himself that spends a bootless grief" (1.3.208-09). But the judicial decision is not the end of the matter; it does not resolve all the issues. They have to live the consequences of legal judgment, as is clear from Brabantio's warning to Othello about the residual meaning of her actions, characterized not in a discourse of love but in sexist and racist terms: "Look to her, Moor, if thou hast eyes to see:/ She has deceived her father, and may thee" (1.3.292-93).
In the case against Cassio in Act 2 Othello is judge in an atmosphere of monstrosity and half-truths on the "warlike isle" of Cyprus (2.1.43) where Othello is ill-prepared and reliant on Iago. Iago's defence ("But men are men, the best sometimes forget" [2.3.241]) of Cassio's involvement in a drunken brawl prepares for Iago's subsequent charges against Cassio and Desdemona. Tautology ("men are men") is both universalist and empty--yet potently permissive in these circumstances. Othello repeats the Duke's claims to impartiality, denying his emotions in favour of legal logic--"Cassio, I love thee; / But never more be officer of mine" (2.3. 249-50)--which will play into Iago's hands when Iago accuses Desdemona and Cassio of adultery. Desire does not obey the law, and Othello's efforts to keep separate public and private domains, emotions and rationality, are no more successful than Venice's . The law of patriarchal desire means that murder becomes justice, indeed a sacred duty, in Othello's mind: "Now, by yond marble heaven,/ In the due reverence of a sacred vow/ I here engage my words" (3.3.460-62).
The play asks: How does woman proclaim her innocence within patriarchy, when norms of womanly behaviour mean that she must remain silent or court the appearance of guilt? The double bind of women means that Iago can "turn her virtue into pitch" (2.3.360), especially when concrete evidence, that powerful "ocular proof" justice requires (3.3.360) takes the form of a handkerchief: not the inconsequential piece of linen Thomas Rymer mocks on empirical grounds in his "Tragedy of the Handkerchief," but a symbol that brings with it a powerful set of intersecting theological, cultural, social, and literary contexts of meaning (Diehl 125-55; McPherson 159-68). If Iago likewise reduces the handkerchief to a trifle, he does not underestimate its evidentiary power: "Trifles light as air/ Are to the jealous confirmations strong/As proofs of holy writ" (3.3. 322-23). The play is itself a hermeneutic challenge, reflecting on how social, visual, and verbal codes are read, the motivated readings of ambiguous signs and the slippage among seeing/thinking/believing/ knowing (particularly in Act 3. Scene 3--and the power of the invisible that is underestimated in empirical systems like the law.
Stereotypes prove a powerful bridge between the inside and the outside of texts, literary and legal. In class discussions, my law students laid charges against Emilia--convinced that she was guilty of adultery. On what (admissible) evidence? Her worldly knowledge--disclosed to Desdemona in the privacy of the bedroom--and specifically her response to Desdemona's incredulity: "Dost thou in conscience think, tell me, Emilia,/ That there be women do abuse their husbands?" (4.3.61-62). In her response--"Why, who would not make her husband a cuckold to make him a monarch?" (4.3.75-76)--Emilia contemplates action only in so far as it will benefit her husband. Despite Emilia's efforts to do "nothing but to please [Iago's] fantasy" (3.3.299), Iago's jealous suspicions turn his "wit the seamy side without" (4.2.146) and cause him to discount evidence of Emilia's love and loyalty. In the final scene when Emilia acknowledges her wifely duty to "obey him" (5.2.193), even as she asserts her right to speak out on behalf of her murdered mistress, Iago discredits her as "Villainous whore" (229) as if to justify killing her. Still, from the vantage of the 1990s and a legal education, students (including women) did not read Emilia as an abused wife. Like so many critics before them, they had ironically assimilated Iago's cynical worldview, one more congenial to the empiricist, rationalist assumptions of Western epistemology and judicial process in particular.
The power of the invisible, of cultural myths, and of cultural capital is striking in the 1991 US Senate Judiciary Committee hearings, the Clarence Thomas-Anita Hill hearings. In her preface to the transcript of the hearings, Nina Totenberg underlines the orality and theatricality of the hearings: as a "spectacle laid out for the public" that "played like a three-act play that lasted three very long days" (Miller 6). Not only does Judge Clarence Thomas invoke literary categories (Kafkaesque, farce ) to underline the unAmerican character of the hearings, but Senator Alan Simpson of Wyoming labels the proceedings "a tragedy. What a disgusting tragedy!" having cited without any sense of irony the following (Miller 17, 117, 120):
The senator is so concerned to make capital out of his citation of Shakespeare that he does not reflect on the speaker and context, the white Iago giving the black Othello reason to believe his charges against Othello in the central scene of the play. Nor does the senator --or Clarence Thomas who claims the committee "have robbed him of something that can never be restored" (Miller 121)--ponder what men in Othello do in the name of reputation, their manly honour--and at whose expense. In turn Iago, Brabantio, Cassio, and Othello act out of a sense of shame nurtured by the patriarchal, hierarchical, and racist values of Venice. Men's insecurities and desire to retrieve their honour lead to revenge plots and violence against women--violence that remains invisible within cultural narratives of tragic heroism, manly honour and reputation. The double bind proves as powerful in the proceedings as it had in Othello so that men define and redefine reality to their advantage.
It is another shameful narrative that proves decisive in drawing sympathy away from woman as victim and it is one that Clarence Thomas plays and replays in the course of the hearings (Miller 118, 121, 157-58, for example). The generalized story of racial stereotypes and oppression takes precedence over the particular stories of sexual harassment told by Anita Hill. While Anita Hill is persistently represented as a "woman scorned" (Miller 66, 255) with all the furies that attend, although Shakespeare is cited as source rather than Congreve (Miller 323), Thomas claims to be "a victim of this process" who will not submit to scrutiny his "private life or the sanctity of [his] bedroom and "will not provide the rope for [his] own lynching or for further humiliation" (Miller 18). As bell hooks shows in the case of the O. J. Simpson trial--"the Othello of the twentieth century," according to novelist Scott Turow (McPherson 75)-- juries are constituted within broader cultural fields in ways that radically reduce their ability to determine the meanings of their deliberations and decisions. Yet, despite analogies drawn between the case and Othello, when Judge Ito warned jurors to stay away from bookstores, it is unlikely he had in mind Othello or literary versions of that American story of racial violence (Garber 30). The race card won over the gender card, the frame of the deliberations moved from the black woman as victim to the black man as victim. Bell hooks was made especially aware of this by her own experience--strikingly endorsed in James A. McPherson's sense of "cellulloid understanding" (48)-- in being invited to comment on television as an expert witness whose expertise had already been predisposed and predistributed in highly prejudicial ways that left male violence out of account (questioning was restricted to issues of race).
In the final section of my paper I want to consider the interdisciplinary study of law and literature as a version of cultural studies, a form of interdisciplining that is equally subject to disciplinary debate. No more a unified field than cultural studies, the law and literature is itself a field with a history--a history of a contest for authority and legitimacy in debates about the Law and Literature as an object of study, as a legitimate and productive area of research. If the law and literature have been conjoined since Plato, Corax, and Cicero, nineteenth-century professionalization weakened the ties and disciplinary interests have since continued to try to drive a wedge between the two.
The law and literature has been characterized as fearfully excessive, a threat to the world as we know it, to what "we hold in common," to Owen M. Fiss's sense that "Values are values." To think otherwise is tellingly, for Fiss, "simply a play on words" (Fiss, "Death" 2, 8-10). Or, elsewhere, the law and literature is futilely inconsequential, even haunted by the "specter of nihilism" (Fiss, "Objectivity" 740-42). When Judge Richard Posner enters the fray, you can be sure that his acts of discrimination are not as innocent as he'd like them to appear. For Posner there is to be no unsettling relation between the law and literature: most emphatically, he argues that the law has nothing to learn from literature (Misunderstood Relation 247-68, for example). This prominent figure in the law and economics movement (with its Benthamite stress on the wealth-maximizing and autonomy-producing role of judicial decision-making) "'reduces' literature to a 'privileged' position where it has no consequences except at the most abstract level of universality or the most disengaged level of psychological inwardness" (Robert Weisberg 29). Posner laments the passing of that great "period of relative calm and consensus in both English departments and law schools"--the fifties ( Misunderstood Relation 265). Some of us might recall McCarthy and the Cold War! Despite Posner's insistence on differences between the law and literature, literary interpretation clearly does have consequences in his own practice as it is the basis of his construction and reconstruction of his own power and authority--and this is no less true in the second edition of his Law and Literature.
While the history of the law and literature's place in the academy is one of progress, Elizabeth Gemmette's studies of law and literature courses in law schools over the last twenty or more years show that the majority of law schools in the States now offer such courses--but nowhere is it a core class. In other words, whether the emphasis is on the law as literature or on the law in literature (categories that are not entirely discrete), the class remains isolated within the institution. We need to consider what stereotypes underpin views of its marginality, the class as rest cure from the real work of properly legal seminars. Even when the course is defended (by Richard Weisberg, James Boyd White, and others in the U.S), there is often a persistent gendering of categories as when a student in my class represented it as a useful supplement to "the law," stable and authoritative still, as a means of refining the lawyer's "bedside manner." When uncritical boosterism promotes the law and literature as a source of heightened sensitivity that humanizes the law, it becomes only another way of feminizing the project rather than seeing it as rigorous and resistant (even regulatory) source of useful knowledge that can be put to work in the world. So I would not endorse Wayne Booth's reading of literature as a "relatively cost-free offer of trial runs" ( 485). Much more important models for me are Robin West and Patricia Williams (for whom "theoretical legal understanding and social transformation need not be oxymoronic" (8) . Williams writes to fill the gap between theory and practice, "between lived experience and social perception, and between an encompassing historicity and a jurisprudence of generosity" (8). They can help build the law and literature as a potential source of critique of dominant and naturalized forms of rationality, of the law's investment in its own due process (set aside only when it can be proven that no reasonable jury would have convicted) and reluctance to admit new evidence in the interests of the finality of justice. Critique too of the law's uneasy relation to the embodied subject--its desire to transcend the limits of embodiment in textual production and in the courtroom to ensure equality before the law, yet its persistent reliance on a visual economy in the politicized space in the courtroom, in the reliance on eye-witness accounts, and the insistence on the visibility of justice: justice must not only be done but must be seen to be done. In this context we might reflect on work always already done by culture in our understandings and the estrangements of literature as a means of denaturalizing those values we take for granted. "Fundamental doubt is the father of knowledge" (if we can forgive the gendered presumptions of Max Weber).
Thus Law and Literature might be one way of responding to the Arthurs report on Law and Learning (a 1983 SSHRCC study) which concluded that legal research needed to be expanded beyond traditional parameters that "could have been said to sharpen the mind by narrowing it" (Dunlop 77). Whereas Francis Allen would warn lawyers of the dangers of becoming "engaged in a wistful search for a subject matter" and losing their place in some disciplinary no-persons' land where "they are no longer lawyers but also not quite behavioral scientists" (qtd. in Dunlop 65), the Arthurs report sees real opportunities in interdisciplinary work to get beyond "recherches ponctuelles" to "recherches sublimes." That is, from research narrowly focused within current practices (e.g. technical categorization or explication of authoritative legal texts) to that research concerned with "higher levels of explanation and integration" and with understanding "law as a social phenomenon" (66,75).
In a 1998 Culliton lecture at the University of Saskatchewan College of Law, James Lockyer spoke about his own work to right wrongful convictions in a number of high-profile cases in the U.K. and Canada (the Birmingham six, David Milgaard, Guy Paul Morin, among others) and the power of the cultural context to stress the system and shape outcomes. Crime is a commodity on which the media depends and which attracts, as he argued, right-wing ad space. Lockyer focused on 6 major causes of wrongful conviction identified in studies in the U.K., the States, and Canada: 1) jailhouse informants (and 2 were used in the Morin case); 2) (mis)use of forensic science (example of the scientists' own sweater fibres in Morin case); 3) authorities' tunnel vision fostered by what an English police officer has termed "noble cause corruption"; 4) false confessions; 5) perjury by civilians; and 6) eye-witness identification evidence --and its relation to courtroom optics. Guy Paul Morin was constructed as guilty: "he failed to show a proper degree of concern," he was still living at home, did not have a lot of friends in the community, even his tight grip on hedge clippers became a significant indicator of guilt! Every gesture signalled a so-called "consciousness of guilt". On the theory that the killer would go to the funeral, the police had surveillance in place, but when Morin did not attend the funeral, his actions were read as another sign of guilt. Like the woman in Othello, Morin, it seems, had no way of proving his innocence. Such amateur psychologizing and the courtroom space made him look different, isolated and depersonalized as THE ACCUSED--although one result of the Morin inquiry has been to encourage personalizing of the accused. The Venetians similarly isolate Iago at the end of Othello and look to him as the sole embodiment of evil--the "viper (Lodovico), devil (Othello), "cursed slave (Lodovico) who is the scapegoat for society's ills--before justice redistributes property to the victors while concluding with the visible display of punishment.
Lockyer importantly alerted us to many sources of injustice and even the system's ability to assimilate new evidence to its purposes, as when DNA evidence is seen as just a fresh obstacle to proving guilt and is resisted in ways suggested by the phrase recently coined by Dr Edward Blake, "the unindicted co-ejaculator theory"! With his work on a network of "innocence projects" in law schools across Canada, Lockyer is also doing important, potentially transformative work. We can, I think, participate in that work in the context of the interdisciplinary study of the law and literature by unpacking some of the gender, class, race, religion, and nation implications of the priorities and privileges within legal discourse and process--and their connections to dominant cultural values and legal training. To argue for the independence of the judiciary, as the Morin inquiry does, for example, is to reinscribe an insufficiently interrogated presumption. As feminist legal scholars have pointed out, it is the dependency of the system that gives hope for change--the dependency of the courts on other agencies to effect decisions and on interpretation as intervention, for example (Heilbrun and Resnik 28-29). And, as Tony Bennett suggests, to intervene in texts' "existing modes of usage and consumption" is to "re-determine [their] connections with history" in readings that are forms of action (235). This we might achieve by way of the sort of "disciplinary interruption" that Gayatri Spivak speaks about.
Despite Owen Fiss's fears about the "death of the law" at the hands of new jurisprudential thinking, proponents of the interdisciplinary study of law and literature are not aligning themselves unproblematically with the Cade Rebellion in fifteenth-century England and its rebellion against the law and literacy. When Dick demands, "let's kill all the lawyers," Jack Cade reponds:
Cade privileges speech over writing in ordering the burning of "all the records of the realm, insisting his "mouth shall be the parliament of England" (4.7.14-15). While Cade's vision is not without problems, he does expose the ideological effects of education, the justice system, and, anachronistically, a literate print culture:
When Cade complains about the power of legal documents as the writing and sealing of the subsequent course of a man's life, his conclusion is unnecessarily fatalistic: "for I did but seal once to a thing, and I was never mine own man since." The determinism is vulnerable in at least two respects: first, he is as much an autonomous agent as anyone in these plays; and second, his notion of the irremediable loss of self-determination is based on an illusion of self-presence and stable selfhood. Yet, it is still important to concede that he has been constrained by the legal consequences of signature, but also that this experience has helped fashion his radical politics. There is no act of domination, in other words, without resistance; no subversion without complicity. He can never be his "own man," but his fate has not been sealed beyond all contestation. There are choices, opportunities as well as obstacles. Writing is neither more nor less binding than oaths, however formal they be, and their importance in the culture partakes of while it helps define the nature of power more generally. The very wax that Cade associates with the fixity of oppression is also associated with the "easy-melting King" (3HVI 2.1.171) he wishes to replace, that Henry who is supposed to be the ultimate legal authority in the land. But Shakespeare's history plays dramatically represent competing versions of causality variously located on heaven, on earth, in the bosoms and brains of human agents, in the infinitely contestable sites of social power. And that is why literary and legal texts need and are needed by just expression.
Works Cited
Althusser, Louis. "Ideology and Ideological State Apparatuses (Notes Toward an Investigation)." Lenin and Philosophy and Other Essays. Trans. Ben Brewster. New York: Monthly P, 1971. 127-86.
Bennett, Tony. "Text and History." In Re-Reading English. London: Methuen, 1982. 223-36.
Booth, Wayne. The Company We Keep: An Ethics of Fiction. Berkeley: U of California P, 1988.
D'Amico, Jack. The Moor in English Renaissance Drama. Tampa: U of S. Florida P, 1991.
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