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i

New Directions in Law and Literature

ii
iii

New Directions
in Law and Literature

Edited by
Elizabeth S. Anker

and
Bernadette Meyler

1
iv

1
Oxford University Press is a department of the University of Oxford. It furthers
the University’s objective of excellence in research, scholarship, and education
by publishing worldwide. Oxford is a registered trade mark of Oxford University
Press in the UK and certain other countries.

Published in the United States of America by Oxford University Press

198 Madison Avenue, New York, NY 10016, United States of America.

© Oxford University Press 2017

All rights reserved. No part of this publication may be reproduced, stored in

a retrieval system, or transmitted, in any form or by any means, without the
prior permission in writing of Oxford University Press, or as expressly permitted
by law, by license, or under terms agreed with the appropriate reproduction
rights organization. Inquiries concerning reproduction outside the scope of the
above should be sent to the Rights Department, Oxford University Press, at the
address above.

You must not circulate this work in any other form

and you must impose this same condition on any acquirer.

CIP data is on file at the Library of Congress

ISBN 978–0–19–045636–8 (hbk.); 978–0–19–045637–5 (pbk.)

9 8 7 6 5 4 3 2 1
Paperback printed by WebCom, Inc., Canada
Hardback printed by Bridgeport National Bindery, Inc., United States of America
v

CONTENTS

Introduction   1
Elizabeth S. Anker and Bernadette Meyler

PART 1: Genealogies and Futures

1. Minding Previous Steps Taken   33
Brook Thomas
2. Who Wouldn’t Want to Be a Person? Histories of the Present in Law
and Literature   46
Caleb Smith
3. From Charisma to Routinization and Beyond: Speculations on the
Future of the Study of Law and Literature   59
Austin Sarat

PART 2: Methods
4. There’s No Such Thing as Interpreting a Text   69
Martin Jay Stone
5. Retrospective Prophecies: Legal Narrative Constructions   92
Peter Brooks
6. Law’s Affective Thickets   109
Ravit Reichman
7. Paranoia, Feminism, Law: Reflections on the Possibilities for Queer
Legal Studies   123
Janet Halley
8. Proof and Probability: Law, Imagination, and the Forms
of Things Unknown   144
Lorna Hutson
9. Law, Literature, and History: The Love Triangle   160
Bernadette Meyler
vi

10. Pictures as Precedents: The Visual Turn and the Status

of Figures in Judgments   176
Peter Goodrich
11. Law as Performance: Historical Interpretation, Objects, Lexicons, and
Other Methodological Problems   193
Julie Stone Peters
12. Globalizing Law and Literature   210
Elizabeth S. Anker

PART 3: Cases
13. Ornament and Law   229
Anne Anlin Cheng
14. The Flowers Are Vexed: Gender Justice, Black Literature, and the
Passionate Utterance   252
Imani Perry
15. Genocide by Other Means: US Federal Indian Law and Violence
against Native Women in Louise Erdrich’s The Round House  264
Eric Cheyfitz and Shari M. Huhndorf
16. Pluralism, Religion, and Democratic Culture: Nadeem Aslam’s Maps for
Lost Lovers  279
Elliott Visconsi
17. Regulatory Fictions: On Marriage and Countermarriage   294
Elizabeth F. Emens
18. Legal and Literary Fictions   313
Simon Stern
19. Copyright and Intellectual Property   327
Paul K. Saint-​Amour
20. Replicant Being: Law and Strange Life in the
Age of Biotechnology   344
Priscilla Wald
21. Weak Reparation: Law and Literature Networked   359
Wai Chee Dimock

Acknowledgments  379
Bibliography  381
Contributors  415
Index  423

[ vi ] Contents
1

Introduction
ELIZABET H S. ANKER AND BERNADET T E MEYLER

T he university today is abuzz with talk of interdisciplinarity, including

discussion of its virtues and its limits. Law and literature represents
one of the most enduring of the many interdisciplines that are now com-
monplace within the university. It claims a long and storied history, trace-
able at least to the work of John Wigmore, longtime dean of Northwestern
Law School, at the beginning of the twentieth century.1 In the approxi-
mately 100 years since, it has been taken up by some of the academy’s most
prominent literary critics as well as influential legal scholars and judges.
Developments like the legal storytelling movement have shaped received
views about both legal interpretation and the everyday operations of law,
just as the status of legality and the juridical have frequently been at the
forefront of questions within literary theory and criticism. For almost a
century, the separate disciplines of law and literature have, in various ways,
conspired, sparred, and joined forces.
By many accounts, the 1970s and ’80s marked the heyday of law and
literature, the era during which it evolved into a full-​fledged movement
engaging both law and literature faculties. Since law and literature’s emer-
gence, scholars have recurrently debated how best to explain and justify
the interdisciplinary traffic between the two fields. Especially in its early
guises, law and literature was often credited with endowing the study of lit-
erary texts with a much-​needed real-​world, practical focus, especially in the
wake of the formalism that characterized the New Criticism. Conversely,
the interdiscipline was seen as humanizing law, returning overly utilitarian
2

or legal realist modes of legal study to their humanistic, ethically minded

origins. Yet virtually since its institutional founding, law and literature has
inspired contention and dissent. The discipline’s death knell has often been
sounded; indeed, almost as soon as it was born in its institutional form, law
and literature was diagnosed as dead or dying.2
But the reality is far different, as this volume demonstrates: law and liter-
ature is currently thriving. In the past decade, the interdiscipline has expe-
rienced something of a renaissance. Despite cries of its lagging fortunes,
new methodological questions, inquiries, and approaches proliferate. The
field is expanding in new geographical and temporal directions, whether
to previously understudied regions of the world or to the futuristic scene
of science fiction. Just as climate change and spiraling geopolitical conflict
tied to the war on terror have introduced unprecedented juridico-​political
challenges, the internationalization of law and literature has opened up an
array of evolving issues, controversies, and debates. And while some critics
gaze into the horizon of looming socio-​environmental threats, historical
approaches to law and literature have also flourished, demonstrating the
deep connections among law, sovereignty, and early modern drama, as well
as the imbrication of the Victorian novel with nineteenth-​century legal cul-
ture and writing.
Meanwhile, innovations in literary criticism and theory have engen-
dered fresh methodological grounds for conjoining literature with law.
With those new methodologies have come new rationales for interdis-
ciplinarity, as well as new accounts of the law and literature nexus. The
time is therefore ripe for a reevaluation both of the nature of the inter-
disciplinary encounter and of what scholars and students alike can gain
from it.
It is in the midst of an abundantly fertile, generative episode in the
story of law and literature, then, that this Introduction and volume set out
to assess recent developments within the field. We aim to make sense of
where law and literature has been; where it is now; where it might be head-
ing; and what we consider its most urgent challenges and questions, ques-
tions that the chapters in this volume take up.

THE INSTITUTIONAL SETTING

One might be tempted to cynically attribute recent enthusiasm for law and
literature to troubling institutional, professional, and other factors. It is
increasingly hard to dispute the view that the golden age of the modern
university is ending, if not already over. Shrinking job markets, budget

[2] New Directions in Law and Literature

3

cuts, and other forms of belt tightening have placed heightened pressures
on many academic fields, including practice-​oriented disciplines like law.
While the long-​term consequences of these changes are impossible to pre-
dict, by some accounts they have rendered interdisciplinary expertise and
other forms of “credential inflation” newly attractive, whether to hiring
committees or exacting administrators. In this climate, there is further-
more little doubt that the humanities face the greatest threat, and human-
ists have not surprisingly voiced some of the loudest and most embittered
complaints about what is often deemed the “corporate” or “neoliberal” uni-
versity. As skeptics argue, calls for interdisciplinarity risk becoming instru-
mentalizing moves that forebode the obsolescence or marginalization of
specialized knowledge and disciplinary autonomy.3 Doomsaying over the
future of the university has thus fanned mistrust of the very kinds of inter-
disciplinarity embodied in law and literature.
This volume, however, adopts a very different attitude toward the recent
flowering of interdisciplinary activity. Regardless of the current institu-
tional crisis, the present moment can also be characterized as a time of
widespread methodological rethinking and rejuvenation. Precisely such a
burgeoning of innovative ideas, theories, and approaches within law and
literature is what this volume aims to tackle.
Within literary studies, established ways of “doing theory” and inter-
preting texts have come under reexamination in recent years. Many core
intellectual positions and premises—​whether the antinormativity bias,
constructivist theses about the subject, the overriding value of negative
critique, or the linguistic turn—​are increasingly being displaced. As critics
newly evaluate those orthodoxies, some have devised emergent theoretical
paradigms and alternate frameworks for interpreting texts.4 Those novel
approaches—​including, among others, actor-​network theory, performance
studies, affect theory, distant reading, and attention to the reparative
aspects of theory—​inform a number of the chapters in this volume. It is
not accidental that many of those inventive perspectives within literary
studies were catalyzed by interdisciplinary encounters, whether involving
Bruno Latour’s work on the history of science, theater and the visual arts,
or anthropologies of law in the postcolony and global South. If anything,
the current fashion of relatively new conjunctions like “science and litera-
ture” and “the digital humanities” risks eclipsing the longer, more com-
plex history and influence of a longstanding interdiscipline like law and
literature. Yet most importantly, what some decry as a mounting backlash
against critical theory in language and literature departments not only has
inspired pioneering new insights and analytics but also has been produc-
tively incited by interdisciplinarity from the beginning.

Introduction [3]
4

Meanwhile, the legal academy has experienced a rising tide of professors

hired with joint degrees, which reached a highwater mark with 68 percent
of entry-​level hires at top schools from 2013 to 2015 holding JDs/PhDs.
This trend heralds more than the prestige or influence of interdisciplinarity
within law; it also marks a growing disciplinary specialization within legal
scholarship, which had previously tended to conceive itself in more gener-
alist terms.5 In view of the contracting market for both academic and prac-
tice-​based jobs in law, this narrowing of expertise might appear ironic. In
addition, it stands in contrast to the increasing emphasis by the American
Bar Association, state bars, and law schools themselves on experiential
learning delivered through vehicles like law school clinics and externships
with legal organizations.6 In a saturated legal market, progressive job scar-
city has also motivated repeated media attacks on the structure as well as
the goals of legal education, with visible calls for law schools to justify the
debt their students incur and to explain away aspects of their curricula that
might appear tangentially related to actual legal practice.7 Here, too, pri-
oritizing multidisciplinary expertise in both hiring and scholarship might
appear to contradict those demands.
Although this increasing specialization of the legal professoriate might
suggest fertile ground for law and literature scholarship, very few of the
PhDs hired in recent years hold degrees in fields related to literature.8
For legal scholars working within the humanities, degrees in history and
philosophy instead dominate, and the vast majority of JDs/PhDs enter-
ing the legal academy have been trained in the empirical social sciences.9
Meanwhile, pressures within legal education have further sidelined law and
literature, on both the pedagogical and scholarly fronts. While the growing
onus of demonstrating the practical relevance of legal education has jeop-
ardized the existence of law and literature courses, many law and literature
scholars seem to have internalized the perceived need to devise skill-​based
rationales for that intellectual focus. Justifications for law and literature
that foreground legal storytelling, rhetoric, or the value of literary analy-
sis to legal writing and argumentation have consequently gained currency,
arguably overshadowing and, by extension, demoting other bases for the
interdiscipline.
The status of critical theory and continental thought within law schools
has often been intertwined with that of law and literature, and that story,
too, has largely been one of progressive marginalization. The critical legal
studies (CLS) movement, one of law and literature’s initial fellow travelers,
had largely dissipated by the early 1990s, leaving behind more disparate
strands of critical thought pursued by splinter groups or individual legal
academics.10 Although CLS fragmented into a range of subfields including

[4] New Directions in Law and Literature

5

critical race studies, feminist legal studies, and more recently work on
settler colonialism, the influence of those approaches has likewise been
circumscribed. But if CLS and its offspring receded into the background
of legal education and scholarship, recent events promise to newly galva-
nize leftist, humanities-​based forms of critique and to revitalize their role
within the study of law. For instance, the rise of the Black Lives Matter
movement and corresponding law students’ activism have led to renewed
calls to offer courses on critical theory and to include critical race studies
across law school curricula.11
What the foregoing has at times meant is that those scholars with back-
grounds in literary study have tended to mask or downplay their reliance
on the tools of literary and theoretical analysis, even while they actively
employ them. Hence, Jeannie Suk’s book At Home in the Law reads the fig-
ure of the home as a trope to illuminate a range of Supreme Court cases, yet
never mentions law and literature.12 Likewise, Elizabeth Emens has drawn
from literary, anthropological, and philosophical sources to envision alter-
natives to contemporary family arrangements but rarely explicitly invokes
law and literature as informing her methodological approach.13 Others, like
Simon Stern, have enlisted varieties of historical analysis derived from lit-
erary studies in order to wrestle with the genesis and derivation of spe-
cifically legal concepts like copyright.14 In this way, literary criticism and
theory have entered the mainstream of legal scholarship, even though the
magnitude and scope of their formative influence can be hard to detect.
While often unannounced, the debt to law and literature held by many legal
scholars and within multiple areas of legal scholarship is a profound one—​
a debt that the chapters included in this volume consider.

TAXONOMIES OF LAW AND LITERATURE

In the decades since its inception, law and literature has, with remarkable
frequency, prompted two noteworthy and interrelated impulses. First, it
has spawned an unusual number of taxonomies: efforts to devise concep-
tual frameworks for identifying, differentiating, and classifying the various
kinds of scholarship that make up the interdiscipline. Critics have asked: Is
law and literature scholarship united by shared questions, interests, or
commitments? What are the key features that distinguish one basis for
analyzing literature alongside law from the next? As an enterprise, is law
and literature composed of different variants or genres, and how do those
categories meaningfully diverge from and/​or intersect with one another?
What assumptions about law and literature alike do alternate types of

Introduction [5]
6

scholarship implicitly marshal? Second, law and literature has met with an
exceptional volume of internal objections and critique—​critique that has
often forecasted the field’s obsolescence or even its demise.
These dual impulses tell us a lot about the preoccupations, concerns,
and points of friction that have driven the field—​as well as the hopes and
uncertainties that have colored it. Classification, no doubt, can serve an
authorizing or justificatory function; it can shore up bodies of knowledge
with legitimacy, intelligibility, and verifiability. One story of the origins of
law and literature cites to a sense of mutual lack: to anxieties about the per-
ceived deficiencies and insularities of the two disciplines. The classificatory
impulse might seem perfectly geared to quell those anxieties, although it
has simultaneously instilled law and literature with a proclivity for often​
reflexive self-examination. Nonetheless, the sheer profusion of attempts to
categorize law and literature over the past two decades invites its own scru-
tiny—​the need to dissect and examine (or, we might say, to taxonomize)
the taxonomic impulse. Of multiple delineations of law and literature, four
have prevailed, and it is one item of this Introduction’s agenda to evaluate
them.
One frequent approach to mapping the variants of law and literature
has been historical; critics have developed genealogies of law and litera-
ture over the years following James Boyd White’s landmark 1973 The Legal
Imagination in order to understand the interdiscipline. A second common
angle has been to furnish a typology of the relationship between literary
and legal objects, relating literary forms, genres, and structures to partic-
ular legal constructs, practices, or innovations. A third approach instead
moves between the poles of “similarity” and “difference”; here, scholarship
focuses on the extent to which law is viewed as symmetrical or comple-
mentary to literature and culture or instead should be contrasted with and
opposed to those domains. And finally, a fourth approach emphasizes audi-
ence, asking about the relevant audience for and intended benefit from the
interdisciplinary encounter. Each approach boasts some merits but also
carries with it considerable drawbacks.
Jane Baron (addressing a largely legal audience from the pages of the
Yale Law Journal) and Julie Stone Peters (speaking primarily to literary
scholars in PMLA’s section on the profession) both described the early
trajectory of the law and literature movement or enterprise as consisting
of three principal strands.15 The first was “humanist” and, in Julie Peters’s
words, expressed a “commitment to the human as an ethical corrective to
the scientific and technocratic visions of law that had dominated most of
the twentieth century.”16 Exemplified by the work of Richard Weisberg and
James Boyd White, humanist law and literature scholarship often sought

[6] New Directions in Law and Literature

7

to shed light on the imaginative, cultural, and ethical dimensions of law

and legal process. Martha Nussbaum’s many interventions in the field, with
their emphasis on empathy, compassion, and the significance of emotional
life to the law, have similarly embodied the investments of humanistic vari-
ants of law and literature.17 The recent turn to human rights within liter-
ary study might also be seen as a manifestation of this focus. Nonetheless,
for many language and literature scholars working during the prime of
postmodern and poststructuralist thought, “humanism” has carried more
complicated associations, often signaling what theory foremost sets out to
denaturalize and interrogate.
The second, “hermeneutic,” strand drew on the interpretive turn within
the humanities to study the techniques for meaning making within law.18
While Ronald Dworkin analogized the common law to a chain novel in which
each successive judgment and judge responds to and modifies the course of
the plot, others considered the commonalities and distinctions between
literary and constitutional interpretation.19 Finally, what Peters and Baron
describe as the third, or “narrative,” strand of law and literature emerged in
part out of feminist legal studies and critical race theory’s efforts to expose
the historical subject of Anglo-​American law as white, male, straight, and
economically entitled. Storytelling by individuals and groups structurally
excluded from those privileged categories, it was believed, could remedy
the biases and resultant injustices inscribed within the law, expanding the
protections of rights and citizenship.20
Historicizing accounts of law and literature like Baron’s and Peters’s,
however, tend to leave off around the turn of the millennium, neglecting
subsequent developments within law and literature. In addition, these
ways of subdividing the interdiscipline, while they capture much, tend to
offer a rather partial portrait of the wide spectrum of eclectic methods that
have characterized law and literature. Rarely does a given instance of law
and literature scholarship fall neatly or tidily into only a single one of the
foregoing categories, as they risk muting or discounting the variety, nov-
elty, and excitement of the interdiscipline in its many incarnations.
Another common basis for categorizing the varieties of law and litera-
ture scholarship eschews this historical genealogy and instead considers
the primary focus of the research—​namely, whether its principal object of
study involves legal or instead literary texts. For Guyora Binder and Robert
Weisberg, there are two principal approaches, “law in” and “law as”:

The Law and Literature movement embraces two distinct forms of scholarship.
What is often called Law in Literature scholarship is a species of conventional
literary history and criticism that treats works of imaginative literature that

Introduction [7]
8

contain legal themes or depict legal practice. … Law as Literature … employs

the techniques and principles of literary criticism, theory, and interpretation to
better understand the writing, thought, and social practice that constitute legal
systems and offer these techniques and principles as tools for reforming those
legal systems.21

In addition to this dichotomy between “law in” and “law as,”22 some include
a third classification, “law of.” “Law of” scholarship typically investigates
the dynamics of laws that regulate the production and circulation of litera-
ture, whether obscenity laws or copyright restrictions.23 Work in this vein
demonstrates how legal rules both mold and constrain literary creation,
just as those rules positively and negatively impact societal views about
literature and culture.24
Such a classificatory framework helpfully highlights important features
of law and literature scholarship that might otherwise go unremarked,
asking about a scholar’s priorities and the ramifications of that focus.
However, these conceptual schemes can tend to circumscribe the complex,
multifarious traffic between literature and law, imagining the route con-
necting the two disciplines to be something of a one-​or two-​way street.
They can likewise presume that any given piece of scholarship will claim a
primary audience, whereas much work in law and literature instead strives
to intervene equally within both legal and literary studies.
To such ends, others have sought to categorize work in law and lit-
erature by asking how the ultimate relationship between the two disci-
plines is configured. In particular, scholars draw a distinction between
assimilating law and literature, understanding those domains to be inte-
grated or overlapping, and holding them apart, emphasizing their differ-
ences; indeed, assertions of and disputes about similarity and difference
between law and literature as discrete modes of reasoning, thought, and
discourse proliferate in law and literature scholarship.25 This tendency
may be connected to what Kenji Yoshino identifies as a divide between
particularizing and generalizing conceptions of literature. Drawing
on Timothy Reiss’s historical account of the term “literature,” Yoshino
contrasts a “generalizing” view that literature “encompasses all texts of
scholarly value or, in its fullest ambit, all texts” with the “particularizing”
one that arose in the late seventeenth century and “held that literature
was a belletristic discourse, containing ‘works having formal beauty and
emotional effect.’ ”26 Whereas a generalizing perspective might incline a
critic to emphasize the resemblances between law and literature, atten-
tion to the particularity or singularity of literature would amplify their
divergences.

[8] New Directions in Law and Literature

9

Other competing orientations within literary and especially critical the-

ory over the decades since the emergence of the law and literature move-
ment can help us further grasp such tensions. On the one hand, certain
schools of theory have, in varying ways, contended with the larger politi-
cal, social, and institutional structures—​like law—​that enable or constrict
literary-​cultural production and are themselves in turn shaped by cultural
artifacts. For some critics, Michel Foucault’s mode of genealogy has pro-
vided a model for demonstrating how legal and literary developments were
forged under the same historical conditions, rendering their dual evolu-
tions enmeshed.27 Hence Foucault’s classic 1975 Discipline and Punish: The
Birth of the Prison, which charts the evolution of modern philosophies
of criminal punishment and their role in the production of disciplinary
knowledge, proved formative for innumerable law and literature scholars.28
Along other lines, Marxist theorists have long insisted on the invariably
economic or materialist and hence political or legal aspects of art, litera-
ture, and aesthetics. Whereas Walter Benjamin famously called for the
Marxist politicization of art in response to both its commercialization and
the rise of fascism in mid-​century Europe in his 1936 essay “The Work of
Art in the Age of Mechanical Reproduction,” Fredric Jameson’s analysis of
the commodification of culture in his seminal Postmodernism: The Cultural
Logic of Late Capitalism begins with the caution that “as throughout class
history, the underside of culture is blood, torture, death, and terror.”29
On the other hand, alternate schools of theory including poststructural-
ist thought have often asserted literature’s difference or separation from
the spheres of politics and law. For example, some deconstructive accounts
of ethics have celebrated the singularity or Otherness of literature and “jus-
tice” in ways that segregate or oppose them to legal and other institutions.
Such variants of thought have reinforced the common view that law and
literature not only furnish radically different versions of truth but also rep-
resent competing discourses and registers of thought. In fact, literature
and art are frequently understood to acquire ethical value through their
capacity to disrupt legal regimes—​rules, norms, and the status quo—​and
thereby disclose what those systems of thought exclude or repress.30 Such
accounts of the ethics of literature thus valorize (rather than lament) its
opposition to law as precisely what endows aesthetic experience with bear-
ing upon and relevance to social justice. Literature’s alterity to law and poli-
tics is what allows it to generate insight into law’s constitutive failures and
negative limits. Theorists have employed various terminologies to elucidate
this difference—​at times drawing on (and occasionally misappropriating)
Jacques Derrida’s language of impossibility, incalculability, untranslat-
ability, and aporia.31 Such a conceptual grammar, for example, is central

Introduction [9]
01

to both Judith Butler’s and Gayatri Spivak’s highly influential thought.32

Within the legal storytelling movement, deconstructive variants of ethics
similarly offered one important model for explaining how encounters with
narrative literature can expose law’s historical crimes and omissions, laying
bare those offenses while creating an ethical awareness of law’s excluded
Others.
The similarity/​difference dyad for categorizing law and literature thus
concentrates attention on what can seem like important fault lines within
law and literature scholarship. And indeed, those contrasting views about
the relationship between literature and law are often mirrored not only
in conflicting justifications for the interdisciplinary encounter—​or argu-
ments about what is gained by bringing literature and law into conversa-
tion, whether in research for scholars or pedagogy for students—​but also
in defenses of the humanities. During an era witnessing increasingly dire
threats to most humanities fields, one response has understandably been
to buttress conventional arguments for the merits of humanistic inquiry.
However, many literary and critical theorists have simultaneously been
reluctant to resort to instrumental justifications, framed in strategic,
pragmatic, or utilitarian terms.33 To be sure, this reluctance importantly
safeguards the crucial experimental, imaginative, reflective, and cre-
ative elements of critical inquiry and humanistic thought, qualities that
do meaningfully distinguish the humanities from the sciences and other
applied disciplines like law. But there is growing pressure to reassess those
common explanations for the value of the humanities, asking whether
they have somehow sanctioned or accelerated the humanities’ institutional
marginalization and diminishing relevance. It is within appraisals of inter-
disciplinarity, then, that such tensions come into especially high relief. By
defining literature as separate or different from law, do we inadvertently
enfeeble its ability to serve as an agent of resistance, change, and reform?
Or instead, must art and aesthetics remain outside and dissenting from law
in order to preserve their oppositional and visionary capacities?
By no means last, law and literature scholarship has also, although less
explicitly, been classified according to the audience or audiences it aims
to address, as well as its goals for those audiences. These goals have often
involved forms of consciousness raising. From the movement’s beginnings,
one ambition of law and literature has been to reform the souls of legal
practitioners, whether by rendering judges and lawyers aware of the emo-
tions that law occludes or by revealing its hidden and disavowed subjects.34
Such an ambition frequently unites what might otherwise appear to be
divergent approaches, aligning, for example, what Peters and Baron differ-
entiate as humanist versus narrative strands of law and literature.

[ 10 ] New Directions in Law and Literature

1

Analogously, some such scholarship sets out to raise questions of justice

in a manner salient for not only academics but also students, and accord-
ingly it has proven especially influential in law-​and-​literature pedagogy. As
Ian Ward has noted, law and literature has maintained an educative func-
tion since its institutional inception, one that he suggests should become
the focus of the field.35 A central project of many law and literature courses
involves cultivating student awareness of the dark undersides and contra-
dictions that haunt certain legal rules and procedures, whether to drama-
tize the problematically gendered dimensions of witnessing and testimony
or how the institution of slavery fashioned the legal constructs of both
property and citizenship.
Whereas certain law and literature scholarship tries to affect the attitudes
of students, practitioners, or scholars, other research instead presents itself
as explicitly engaged in programs of institutional reform, whether those
programs are understood to complement or to supersede the goal of indi-
vidual improvement. For some critics, the very genesis and evolution of cer-
tain literary forms and genres—​like the novel—​demand to be historicized
as involving both reformist and consciousness-​raising objectives. Hence,
intellectual historians have recently connected the eighteenth-​century rise
of the novel and the modes of sympathy novel reading fosters to advanc-
ing awareness of legal and political principles tied to liberty, freedom, and
equality.36 Contemporary literature scholars have similarly documented how
twentieth-​and twenty-​first-​century cultural texts can fulfill the function of
promoting public sympathy for issues such as human rights or the plight of
refugees. For instance, Kay Schaffer and Sidonie Smith’s Human Rights and
Narrated Lives: The Ethics of Recognition studies a series of concrete scenarios
in which human rights activism succeeded due to the public circulation and
reception of first-​hand stories of victimhood and abuse.37
Frequently scholars working in this vein have derived concrete inspi-
ration directly from literature to suggest how law and legal norms might
be altered.38 Henry Turner’s The Corporate Commonwealth: Pluralism and
Political Fictions in England, 1516–​1651 provides one recent example of such
an approach; Turner investigates the roots of the fiction of the corporation
in early modern England in order to devise socially progressive alternatives
to dominant legal definitions of the corporate form today.39 This kind of
work inherits many emphases of critical legal history, including awareness
of the mutually constitutive relation of law and its sociopolitical contexts
as well as how legal and cultural spheres collaborate in their joint evolu-
tions.40 While demonstrating law’s alliance with politics and society in
generating an array of core legal principles, such as sovereignty, contract,
and intention, projects in this vein often leverage historical analysis to

Introduction [ 11 ]
21

simultaneously render normative prescriptions aimed at unseating estab-

lished understandings of law and exposing them as myths. As Brook
Thomas explains, works of literature “can help us identify stories about
national membership and national values that are only implied by citizen-
ship laws,” thereby enabling us to recognize the “civic myths” that underlie
our legal cultures.41 The hope often is that, once the contingent underpin-
nings of legal doctrines are revealed, better alternatives will become appar-
ent and thus available as resources for institutional reform.

THE CRITIQUES

Over the years, the law and literature enterprise has met with a number of
objections, often articulated in the same breath as its various strands are
taxonomized. Hence, Jane Baron laments that much scholarship in law and
literature takes as a given what law is, endowing law with a stable ontology
to which literature can be either connected or juxtaposed.42 In other words,
there has been a tendency to define law in terms of a finite, unchanging,
clearly identifiable set of institutions and doctrines, imagining law as a
foil or antithesis to the indeterminacy, multiplicity, and heterogeneity of
literary expression and experience. Yet as critics like Baron argue, such
frameworks not only lead to simplistic, falsified ideas about law but also
encourage overly celebratory, idealized portraits of literature.
A related complaint is that law and literature scholarship has often glo-
rified narrative and storytelling as inherently ethical or salvific, failing to
attend sufficiently to the potentially distortive effects of narrative within
law. Yoshino, for instance, points to the deployment of victim impact state-
ments in criminal sentencing to illustrate such a concern.43 As these objec-
tions suggest, law and literature scholarship has at times imagined that law
disproportionately benefits from the interdisciplinary encounter, or that
it needs the superior insights of literature as a corrective to its errors and
failings—​hence, more than literature needs law.
Another way to construe the foregoing concerns is to say that law and
literature scholarship as practiced in its first several decades has too often
vacillated between the dual poles of what Binder and Weisberg refer to
as sentimentalism and skepticism. As discussed above, law and literature
scholars have often insisted on the inherently ennobling effects of litera-
ture for legal subjects, treating literature as a natural antidote to the many
liabilities of law. On the one hand, one might thus be tempted to censure
work predicated on notions about the radical Otherness of literature for
beholdenness to such sentimentalizing tendencies. On the other hand,

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purified ideas about literature have often been partner to problematically

skeptical, suspicious understandings of law and legality. Either law comes
to be construed as inherently biased and corrupt or its negative limits are
seen to overshadow its virtues and accomplishments. This instinct to vil-
ify law is manifest in a range of contemporary theory, wherein a frequent
premise is that legality and the juridical are effectively synonymous with
injustice.44 But as Binder and Weisberg argue, such expectations can betray
“a facile sophistication that mistakes skepticism for criticism and dishonors
good causes with bad arguments.”45
This claim that law and literature scholarship suffers from a surfeit of
skepticism echoes recent debates within literary and critical theory about
the limits of what Rita Felski labels “critique” and what Eve Sedgwick
famously termed “paranoid” styles of reading.46 Indeed, one might say that
law and literature has been regulated by its own hermeneutics of suspi-
cion, a phrase coined by Paul Ricoeur. For Ricoeur, suspicious hermeneutics
are governed by the onus to demystify, or to reduce “illusions and lies of
consciousness.”47 Whereas Ricoeur identified Marx, Freud, and Nietzsche
as the three primary architects of this style of analysis, suspicion of law
has become—​perhaps ironically—​a hallmark of much law and literature
criticism, leading to the overwhelming presumption that virtually all laws
and legalities are invariably constituted through a series of distortions or
fabrications of reality that become the critic’s responsibility to unmask and
denaturalize. This pervasive skepticism about law is, with great frequency,
also internally self-​directed, or targeted back at the law-​and-​literature critic
through autocritique, a phenomenon Caleb Smith considers in ­chapter 2 of
this volume. But even more centrally, it has generated the presumption
that law and its procedures should, first and foremost, be objects of nega-
tive misgiving and even condemnation. Conversely, it has created the cor-
responding (if tacit) suggestion that to avow faith, hope, or belief in the
normative or world-​making capacities of law is to be somehow naïve or
misguided—​to be either oneself deluded by law’s mystifications or, even
worse, an apologist for law’s historical crimes. As both Janet Halley and
Wai Chee Dimock suggest in their contributions (­chapters 7 and 21, respec-
tively), that dominance of suspicion in humanities-​based legal scholarship
has resulted in what Dimock characterizes as overly “muscular theories”
and Halley diagnoses as a tendency to read power and other struggles in
terms of Manichean dualisms that elide the nuances and complexities of
many legal and social practices. As Sedgwick herself put it, overemphasis
on suspicion can have “unintentionally stultifying side effect[s]‌” that turn
paranoid styles of reading into “a mandatory injunction rather than a pos-
sibility among other possibilities.”48

Introduction [ 13 ]
41

Another problem with much existing law and literature scholarship has
been what critics have described as its resolutely Anglo-​American compass.
As Greta Olson, writing as an American expatriate in Germany, explains,
many American law and literature scholars have tended to extrapolate
from the particularities of their own legal experiences as though they were
universal. At the same time, many European critics have relied too nar-
rowly on the groundwork established within an Anglo-​American context.49
A number of the interdiscipline’s core debates, critics thus complain, have
been generated with reference to the peculiarities of the Anglo-​American
legal scene. As such, it is not just a matter of expanding law and literature
scholarship to other geographies or to comparative work on the legal sys-
tems of the global South. Rather, there is a need to provincialize the field’s
basic assumptions within a globalized frame.50 The turn to international-
ize law and literature thus promises not only to enlarge the field’s ambit
but also to challenge some of its entrenched priorities and preconceptions
about the scope and nature of law, literature, and their intersections, as
Elizabeth Anker argues in ­chapter 12 of this volume.
Finally, one of the most frequent and trenchant objections to existing
configurations of law and literature has questioned the exclusivity of that
pairing. For instance, both Austin Sarat and Julie Peters have argued that
the field’s difficulties stem not from an excess of interdisciplinarity but
rather from the fact that it has not been interdisciplinary enough.51 Hence,
Peters concludes her influential essay “The Vanishing Real” by gesturing
toward the idea of “law, culture, and the humanities”—​the name of a now-​
prominent conference and association—​as having the potential to rescue
law and literature alike from their respective errors, which for Peters derive
from unproductive efforts to locate the “real” within the contrasting dis-
cipline’s purview.52 In a similar vein, Binder and Weisberg have advocated
for the need to situate law and literature within a broader conception of
culture.53

REIMAGINING LAW AND LITERATURE

These critiques, taken in conjunction with the wealth of recent and emerg-
ing scholarship in law and literature, suggest that extant taxonomies are
insufficient to describe the state of the field today. There are, however, sev-
eral criteria that any new account of the field must meet. First, it must
be capable of registering the vast diversity of excellent scholarship being
produced under the rubric of law and literature. Second, such a framework
must capture the ever-​shifting, mutating, dynamic operations of literature

[ 14 ] New Directions in Law and Literature

51

and law alike, both independently and as those fields interact with one
another in evolving ways. Third, it must keep in sight the variegated range
of methods and techniques that make up the interdiscipline’s toolkit. And,
by extension, there is a need to pluralize the rationales that have conven-
tionally justified law and literature as an enterprise. Those are the over-
arching goals that have also informed the organization and content of this
volume.
As considered above, established typologies of the interdiscipline tend
to produce rather limiting portraits of it, implicitly sidelining, overlooking,
or minimizing important scholarship that fails either to display specific
attributes or, by extension, to conform to their corresponding classifica-
tions. One frequent worry that has been voiced about law and literature
over the years is that of lagging or lukewarm interest, as the movement has
seemed to proceed in merely episodic, temperamental fits and starts. We
might blame the very impulse to taxonomize for, ironically, creating this
syndrome that can deplete law and literature of energy—​in other words,
for causing the field to look far more uniform and prosaic than it actu-
ally is. The reigning diagrams for making sense out of the interdiscipline
have often seemed to pigeonhole scholarship into exaggerated categories,
as different variants of law and literature are imagined to exist in binary or
opposing relationships to one another: a critic posits either similarity or
difference but not both; approaches law either narratively or hermeneuti-
cally; and so on and so forth. But in practice, law and literature criticism is
far more ecumenical and heterogeneous than these frameworks conceive.
Most law and literature scholars sample from a catholic mix of theories
and approaches, merging perspectives and analytics that the field’s domi-
nant taxonomies have insisted must be held apart. In consequence, those
rigid categories not only will be of minimal use for deciphering the actual
tenor and texture of the scholarship they purport to diagnose but also have
worked to dampen enthusiasm for law and literature in the very ways their
proponents decry. To be sure, simplification might be explained as an inevi-
table byproduct of the basic effort to taxonomize. New Directions in Law
and Literature, however, aims to reconceive law and literature in terms that
do better justice to its motley, miscellaneous, creative assortment.
The second challenge facing any attempt to craft a typology of current
law and literature scholarship is to resist the urge to impose what Baron
referred to as a “stable ontology” on either discipline. That is, both law and
literature must separately be recognized as the mobile, fertile, fluid, restless
phenomena that they are. Yet at times, scholars have defined law, in par-
ticular, in terms that deceptively flatten, arrest, or curtail its actual opera-
tions. In practice, law and literature alike are active sites of innovation,

Introduction [ 15 ]
61

transformation, and generation, and their boundaries are neither static

nor finite nor readily discernable. In fact, the scope and parameters of law
as well as literature and culture are perpetually under negotiation. Nor can
the dynamism of law and literature easily be separated out from other dis-
ciplines and spheres of influence. The lives of literature as well as those of
law depend on the capacity to be responsive: to move, to bend, to accom-
modate, to perceive, to react. Their synergies cannot possibly be compre-
hensively summed up in a single dyadic or triadic scheme, yet they are the
essence of what has rendered law, literature, and their cross-​pollinations
fruitful, vibrant, and energetic.
In Forms: Whole, Rhythm, Hierarchy, Network, Caroline Levine describes
the “iterability” of both literary and political forms in terms that can fur-
ther elucidate these dynamics of law and literature.54 In the book, Levine
questions the tendency of some critics to define literary structures in overly
totalizing, monolithic, and unyielding ways. To the contrary, Levine argues,
literary and other forms are inherently aleatory, unstable, and composed of
internal tensions, even while they endure and are portable in meaningful
ways. For Levine, it also makes little sense to think of forms—​whether
juridico-​political or aesthetic—​as singular or unitary. Rather, in any given
time or context, a multiplicity of forms coexist and vie with one another
for authority, entering into collision and contestation. Those collisions are
what enable institutional and other forms and structures to mutate, evolve,
and undergo transformation over time, a process that Levine explains in
terms of their inherent “affordances.” Importantly, Levine’s description
of these mobile interactions constitutive of forms contains within it a
model of sociopolitical—​and, for our purposes, legal—​change, suggesting
how the individual can intervene with agency in such processes. Jacques
Rancière’s insistence on the aesthetic dimensions of politics is here impor-
tant to Levine, allowing her to examine how “aesthetic and political forms
may be nested inside one another, and … each is capable of disturbing the
other’s organizing power.”55 Levine’s description of the multiple and het-
erogeneous forms and formal migrations that together propel literary his-
tory and analysis as well as the operations of politics and law thus offers an
analytic lens through which to refract the spectrum of working paradigms
that have comprised law and literature. Beyond how law and literature alike
resist stabilization or pinning down, Forms suggests why their multiform
interactions will continually mutate and travel. Taking inspiration from
Levine’s analysis, it makes little sense to speak of a single or comprehensive
basis for categorizing law and literature.
Third, it is crucial to recognize that the sporadic, fluctuating liaisons that
comprise the interdiscipline are not constant or invariable across either

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71

geography or history, as a number of this volume’s chapters likewise sug-

gest. It is a truism that law is a situational, problem-​solving, practice-​based
discipline that answers to the specific conflicts that enter its jurisdictional
arena. While also forward-​looking, its practitioners ultimately employ and
perfect the law’s rules, techniques, and precedents with reference to the
particularity and happenstance of circumstance. It goes without saying
that a legal scholar or judge will enlist different precedents and methods
of analysis depending on the issue or question at hand, and no single deci-
sion, rule, procedure, or mode of reasoning and jurisprudence could pos-
sibly tackle or resolve even a small percentage of the full gamut of legal
problems and cases. Something similar is true of literary study: it would
make little sense to apply the conventions of lyric poetry, for instance, to
explicate contemporary science fiction, at least without substantially rear-
ranging one’s hermeneutic expectations. So the techniques of literary anal-
ysis are also, to a great degree, contingent on the peculiarities of text, form,
genre, history, and location.
Fourth, what this all means is that our rationales for combining litera-
ture with law must be equally reactive and receptive; they must equally
adjust to the accidents they chance to encounter. Insofar as any tax-
onomy will marshal implicit justifications for law and literature, those
reasons must also be attuned to the vagaries of time, place, and context.
No single basis or explanation for the interdisciplinary encounter will
capture every, or even most, examples of scholarship within the field.
This is also to say that method can be a tactical choice, or a strategy
for approaching the unique problems, issues, and concerns that present
themselves.

THE NEW DIRECTIONS

With these guiding principles in view, it becomes possible to describe a

number of new directions that have recently engaged law and literature
scholars, as each chapter in this volume traverses one or more of those
paths. These new directions are not discrete or capable of being partitioned
off from one another but rather include several itineraries tracing inter-
secting routes. The numerous critiques of the law and literature enterprise
have motivated some adjustments of course, requiring critics to shift
their goals and expectations for literature as well as law. Perhaps most
notably, the pathways forged within the interdiscipline have branched
and extended beyond narrow conceptions of either law or literature.
Nevertheless, the old roads long shaping law and literature scholarship

Introduction [ 17 ]
81

remain visible and influential, even as they continue to be recharted and

reworked.
New Directions falls into three sections. The first, “Genealogies and
Futures,” accounts for the past, present, and future of law and literature,
asking about its histories, its current formations, and its ongoing possibili-
ties. It highlights the continuities but also the breaks characterizing these
different stages or episodes within the interdiscipline. The next, “Methods,”
focuses on the diversity of methodological approaches to law and literature
over the years, and it explores both established and more recently devel-
oped frameworks. The final section, “Cases,” investigates specific questions
or sites of analysis to which the methods of law and literature have been
applied. Overall, many of the ensuing chapters follow similar paths, just
as their inquiries require them to pursue more than one of the new direc-
tions this Introduction maps. Among those many avenues traveled by law
and literature, five emergent directions have become particularly visible
and salient. Those directions include work that is shaped by history and
political theory, that questions either the textual basis of law and literature
or the hermeneutics of legal texts, that globalizes the field or considers it
from a comparative perspective, that seeks to transcend a hermeneutics of
suspicion, and that revisits and reinvents the role of the imagination in law
and literature.
In recent years, law and literature scholars have often adopted historical
approaches, drawing on developments in New Historicism and post–​New
Historicism within literary studies, as well as the ascendancy of legal his-
tory in research about law. Early modern and Victorian studies have been
perhaps most heavily influenced by these historiographical developments,
as Bernadette Meyler’s “Law, Literature, and History: The Love Triangle”
(­chapter 9) discusses. Scholarship that adopts a historical frame often
delves deeply into the mechanisms of the relation between legal and liter-
ary institutions, in a sense fulfilling Brook Thomas’s call to cross-​examine
literature and law. For example, Lorna Hutson’s The Invention of Suspicion
both investigates the role of forensic rhetoric in the development of early
English drama and situates developments in English neoclassical plotting
within the fertile institutional context of the Inns of Court, whose members
were simultaneously adapting Latin plays, studying law, and participating
in parliamentary politics.56 Here the relation between law and literature is
concretized into particular episodes where techniques from one field are
drawn into the other and the intersection of personnel between institu-
tions produces complicated and fascinating results. In c­ hapter 8 of this
volume, “Proof and Probability: Law, Imagination, and the Form of Things
Unknown,” Hutson traces the movement of legal conceptions of human

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91

motive or causa to the imaginative world of sixteenth-​century drama and,

ultimately, Shakespeare’s plays, which themselves in turn engendered new
cultural understandings of human inwardness.
A longer overview of this historical orientation within law and litera­
ture is offered by Brook Thomas in ­chapter 1, “Minding Previous Steps
Taken.” Revisiting the 1980s, Thomas describes how growing interest in
legal rhetoric and continental theory merged with a larger shift in literary
studies from formalism toward history to help precipitate the law and liter-
ature movement. Turning to contemporary law and literature scholarship
in “Who Wouldn’t Want to Be a Person? Histories of the Present in Law
and Literature” (­chapter 2), Caleb Smith relatedly emphasizes the various
modes of historicism that inform law and literature. In so doing, Smith in
particular demonstrates how historicist work has called into question the
category of legal personhood; as he submits, “[L]aw and literature make
persons who are neither masterfully self-​possessed (autonomous subjects)
nor stripped of all agency (socially or civilly dead).”
The histories that gave rise to the interrelated legal constructs of the
person, subject, and citizen also feature prominently in several of the other
chapters that follow. In “Ornament and Law” (­chapter 13), Anne Anlin
Cheng investigates the strange role played by bodily adornments and sar-
torial choices in generating an understanding of legal personhood through
examination of the nineteenth-​century habeas corpus and immigration
case of Chy Lung v. Freeman (1875). Focusing instead on the present, Imani
Perry’s “The Flowers are Vexed: Gender Justice, Black Literature, and the
Passionate Utterance” (­chapter 14) draws on Colin Dayan’s The Law Is
a White Dog to suggest that “[r]‌ecognition [as a person] disciplines as it
excludes” and “demands a capitulation to the order of the society”; Perry
asserts by contrast the need to develop “the alternative grammars and
reordering that emerges from embodied truths.”
As these explorations of personhood illustrate, political theory has
exerted a powerful influence over recent work in law and literature. Among
other developments in political theory, the concepts of biopower and
sovereignty have commanded increased interest since the publication of
Michel Foucault’s late seminars and Giorgio Agamben’s writings, from
his 1995 Homo Sacer to the 2005 State of Exception and beyond.57 Debates
about biopolitics are central to the two chapters in this volume that address
intellectual property law. Paul Saint-​Amour’s “Copyright and Intellectual
Property” (­chapter 19) illuminates how “copyright has enacted, over the
course of its history … the biologization of property” and suggests that
scholarship in copyright should enlarge its focus on the individual author
to consider the study of populations proposed by Foucault’s late work.

Introduction [ 19 ]
02

Adopting quantitative methods, for Saint-​ Amour, might further dis-

play the mechanisms through which intellectual property establishes the
parameters of legal formulations of life. Looking instead to the issues sur-
rounding the patentability of living organisms, Priscilla Wald’s ­chapter 20,
“Replicant Being: Law and Strange Life in the Age of Biotechnology,” draws
on science and technology studies to chart how the 1982 film Blade Runner
critiques the law’s response to scientific advances that altered legal defini-
tions of and ideas about the human.
Wald’s attention to the genre of science fiction highlights another char-
acteristic of recent work in law and literature, which has inquired in more
detail into the specificity of disparate literary genres while also broadening
the range of work conventionally characterized as law and literature. This
scholarship has responded to the critiques of law and literature that insist,
on the one hand, that it takes the object of law for granted and, on the
other, that it conflates a particularizing with a generalizing understanding
of literature. One such approach has involved expanding the reference of
“literature” beyond the novel or poem to include studies of law and perfor-
mance or law and the image. These efforts to enlarge the purview of litera-
ture likewise challenge conceptions of what law is, showing that examining
law through its appearance or performance can alter our understanding of
its nature.
Along these lines, in “Law as Performance: Historical Interpretation,
Objects, Lexicons, and Other Methodological Problems” (­chapter 11), Julie
Stone Peters asks what we might learn about law from investigating it not
simply through legal texts or literary performances but instead the course
of legal events as they have unfolded. While the attempt to reconstruct dis-
tant legal occurrences can pose difficulties from a historical vantage point,
Peters demonstrates how studying law as performance can enable both his-
torically situated and transhistorical insights into law.
Attending to the visual dimensions of law, Peter Goodrich argues
in “Pictures as Precedents: The Visual Turn and the Status of Figures in
Judgments” (­chapter 10) that courts’ increasing reliance on imagery has
ushered in new habits of legal reasoning that have not been reckoned
with fully. In particular, for Goodrich, the precedential value of pictures
and other images should be recognized and understood in a manner that
respects the uniqueness of the visual. As both Peters and Goodrich demon-
strate, the object called “law” is constituted differently when examined in
light of either its scopic or its performance-​based aspects, as opposed to its
strictly doctrinal and textual elements.
Legal hermeneutics, a methodological approach that typically concen-
trates on legal texts, has displayed interest in recent years both in the

[ 20 ] New Directions in Law and Literature

21

distinctiveness of legal as opposed to other styles of interpretation and

in the variety of techniques for analyzing law. Martin Jay Stone’s “There’s
No Such Thing as Interpreting a Text” (­chapter 4) hence resists the pros-
pect that a single thing called “interpretation” can elucidate the operations
of both literature and law. He argues instead that “one always interprets
for a reason,” and that different reasons distinguish not only literary and
legal analysis but also varying types of legal interpretation. Hence, autho-
rial intention might be irrelevant in some legal contexts but matter for
analyzing legislation, since the legitimacy of statutes’ applications is pred-
icated on the notion that the appropriate body intentionally passed the
relevant laws.
Seizing more on parallels connecting literary with legal texts, Peter
Brooks’s “Retrospective Prophecies: Legal Narrative Constructions”
(­chapter 5) evaluates the various techniques that literary criticism brings
to law and legal scholarship. Brooks wrestles in particular with the role of
narrative in legal decision making, as well as its frequent disavowal by legal
practitioners. For Brooks, the law therefore needs a narratology, and his
chapter demonstrates how such a narratology can illuminate the narra-
tive structure of the Fourth Amendment doctrine of “inevitable discovery,”
which “involve[s]‌a ‘retrospective prophecy,’ a construction of the story of
the past by way of its outcome.”58
Another related basis for conceiving the often unacknowledged literary
or fictional components of law and legal texts can be found in recent work
on legal fictions, which for Annelise Riles “bring to light … the techni-
cal source of law’s agentive power.”59 In his “Legal and Literary Fictions”
(­chapter 18), Simon Stern analyzes the resemblances between legal fictions
and literary fictions. Whereas some scholars locate the power of legal fic-
tions like corporate personhood and civil death in their narrative structure,
for Stern legal fictions instead should be explained by their peculiar ability
to engross and maintain attention.
Taking another new direction, much recent law and literature schol-
arship has expanded to a global or international arena. Whereas some
such work enlists a comparative perspective to analyze the laws of differ-
ent domestic nations or regions alongside one another, other critics have
contended with the role of law in the intertwined institutions of slavery,
empire, and settler colonialism—​both from a historical viewpoint and
with reference to neo-​imperial practices continuing into the present. Much
scholarship within this vein employs literature as a mechanism for critiqu-
ing the racialized, gendered, and other violence that underwrites different
legal institutions and practices, as in Caleb Smith’s discussion of legal per-
sonhood in American law and literature and Imani Perry’s examination of

Introduction [ 21 ]
2

the passionate utterance. In “Genocide by Other Means” (­chapter 15), Eric

Cheyfitz and Shari M. Huhndorf likewise confront the ways that federal
Indian law has historically served as an instrument of both oppression
and colonial expansion. Their chapter understands Louise Erdrich’s award-​
winning novel The Round House as both an attempt to reckon with the legal
and political disempowerment of Native American tribes and a defense of
tribal law as the sole path to justice in a settler colonial context.60
Just as Cheyfitz and Huhndorf demonstrate why federal Indian law
is a product of settler colonialism in the Americas, other law and litera-
ture scholars have shed light on the imperial or colonial designs of other
legal institutions and constructs, whether in local or global settings. For
instance, scholars of international human rights have shown how rights
discourses and principles remain haunted by the long history of empire.61
Importantly, scholarship on law, literature, and religion has ventured anal-
ogous critiques of secularism as a legal regime. Just as recent work reani-
mates questions that critical legal studies scholars earlier raised about the
nature, scope, and desirability of rights, debates about the status of the veil
contemplate the extent to which rights principles should protect individ-
ual choices tied to self-​presentation or attire.62 As Cheng’s chapter about
immigration suggests, scholarly disputes over the veil erode many of the
clear-​cut distinctions on which law often relies, whether between surface
and depth or public and private. In “Pluralism, Religion, and Democratic
Culture” (­chapter 16), Elliott Visconsi extends these debates through a
reading of British-​Pakistani novelist Nadeem Aslam’s Maps for Lost Lovers,
a novel that grapples with shifting legal protections for religious free
expression in Europe under the jurisprudence of the European Court of
Human Rights. As Visconsi maintains, Aslam’s novel addresses the failures
of democratic pluralism within an incompletely secularized polity, even
while it imagines viable alternative routes to sociopolitical change.
Some law and literature critics have lately responded to Binder and
Weisberg’s charge of an excessive skepticism about law, while simultane-
ously taking cues from efforts to move beyond or rethink the influence of
negative critique and hermeneutic suspicion under way in literary circles.
Elizabeth Anker’s “Globalizing Law and Literature” (­chapter 12) appraises
the growing orientation toward the global South within law and literature
from such an angle, asking why law and literature critics working within
postcolonial studies have frequently envisioned law as the oppressing
force and literature as the liberator. As Anker argues, through a reading of
Nuruddin Farah’s novel Gifts, the multiple and crosscutting sovereignties
and legalities that comprise “law” within the postcolony “suggest an alter-
nate framework for explaining the law-​and-​literature nexus in the midst

[ 22 ] New Directions in Law and Literature

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symbols of Time and Distance are also symbols of maternity. Care is
the root-feeling of future, and all care is motherly. It expresses itself
in the formation and the idea of Family and State and in the principle
of Inheritance which underlies both. Care may be either affirmed or
denied—one can live care-filled or care-free. Similarly, Time may be
looked at in the light of eternity or in the light of the instant, and the
drama of begetting and bearing or the drama of the nursing mother
with her child may be chosen as the symbol of Life to be made
apprehensible by all the means of art. India and the Classical took
the first alternative, Egypt and the West the second.[338] There is
something of pure unrelated present in the Phallus and the Lingam,
and in the phenomenon of the Doric column and the Attic statue as
well. But the nursing Mother points into the future, and she is just the
figure that is entirely missing in the Classical art. She could not
possibly be rendered in the style of Phidias. One feels that this form
is opposed to the sense of the phenomenon.
But in the religious art of the West, the representation of
Motherhood is the noblest of all tasks. As Gothic dawns, the
Theotokos of the Byzantine changes into the Mater Dolorosa, the
Mother of God. In German mythology she appears (doubtless from
Carolingian times only) as Frigga and Frau Holle. The same feeling
comes out in beautiful Minnesinger fancies like Lady Sun, Lady
World, Lady Love. The whole panorama of early Gothic mankind is
pervaded by something maternal, something caring and patient, and
Germanic-Catholic Christianity—when it had ripened into full
consciousness of itself and in one impulse settled its sacraments
and created its Gothic Style—placed not the suffering Redeemer but
the suffering Mother in the centre of its world-picture. About 1250, in
the great epic of statuary of Reims Cathedral, the principal place in
the centre of the main porch, which in the cathedrals of Paris and
Amiens was still that of Christ, was assigned to the Madonna; and it
was about this time, too, that the Tuscan school at Arezzo and Siena
(Guido da Siena) began to infuse a suggestion of mother-love into
the conventional Byzantine Theotokos. And after that the Madonnas
of Raphael led the way to the purely human type of the Baroque, the
mother in the sweetheart—Ophelia, Gretchen—whose secret reveals
itself in the glorious close of Faust II and in its fusion with the early
Gothic Mary.
As against these types, the imagination of the Greeks conceived
goddesses who are either Amazons like Athene or hetæræ like
Aphrodite. In the root-feeling which produced the Classical type of
womanhood, fruitfulness has a vegetal character—in this connexion
as in others the word σῶμα exhaustively expresses the meaning of
the phenomenon. Think of the masterpieces of this art, the three
mighty female bodies of the East Pediment of the Parthenon,[339] and
compare with them that noblest image of a mother, Raphael’s Sistine
Madonna. In the latter, all bodiliness has disappeared. She is all
distance and space. The Helen of the “Iliad,” compared with
Kriemhild, the motherly comrade of Siegfried, is a courtesan, while
Antigone and Clytæmnestra are Amazons. How strangely even
Æschylus passes over in silence the mother-tragic in Clytæmnestra!
The figure of Medea is nothing less than the mythic inverse of the
Faustian “Mater Dolorosa”; her tragic is not one of future or children,
it is with her lover, the symbol of wholly-present life, that her universe
collapses. Kriemhild revenges her unborn children—it is this future
that has been murdered in her—but Medea revenges only a past
happiness. When the Classical sculpture, late art that it is,[340] arrives
at secularizing[341] the pictures of the god, it creates the antique ideal
of female form in a Cnidian Aphrodite—merely a very beautiful
object, not a character or an ego but a piece of Nature. And in the
end Praxiteles finds the hardihood to represent a goddess entirely
naked. This innovation met with severe criticism, for it was felt to be
a sign of the decline of the Classical world-feeling; suitable as it was
to erotic symbolism, it was in sharp contradiction with the dignity of
the older Greek religion. But exactly then, too, a portrait-art ventured
to show itself, simultaneously with the invention of a form that has
never since been forgotten, the bust. Unfortunately (here as
elsewhere) art-research has made the mistake of discovering in this
the “beginnings” of “the” portrait. In reality, whereas a Gothic visage
speaks of an individual destiny, and even an Egyptian—in spite of
the rigid formalism of the figure—has the recognizable traits of the
individual person (since otherwise it could not serve as dwelling for
the higher soul of the dead, his Ka), the Greeks developed a taste
for typical representations just as the contemporary comedy
produced standard men and situations, to which any names
whatever could be affixed. The “portrait” is distinguishable not by
personal traits but by the label only. This is the general custom
amongst children and primitive men, and it is connected with name-
magic. The name serves to capture some essence of what is named
and to bind it as an object which thereupon becomes specific for
every beholder. The statues of the Tyrannicides,[342] the (Etruscan)
statues of Kings in the Capitol and the “iconic” portraits of victors at
Olympia must have been portraits of this sort, viz., not likenesses but
figures with names. But now, in the later phase, there was an
additional factor—the tendency of the time towards genre and
applied art, which produced also the Corinthian column. What the
sculptors worked out was the types of life’s stage, the ἦθος which we
mistranslate by character but which is really the kinds and modes of
public behaviour and attitude; thus there is “the” grave Commander,
“the” tragic poet, “the” passion-torn actor, “the” absorbed
philosopher. Here is the real key to the understanding of the
celebrated Hellenistic portraiture, for which the quite unjustifiable
claim has been set up that its products are expressions of a deep
spiritual life. It is not of much moment whether the work bears the
name of someone long dead—the Sophocles[343] was sculptured
about 340—or of a living man like the Pericles of Cresilas.[344] It was
only in the 4th Century that Demetrius of Alopeke began to
emphasize individual traits in the external build of the man and
Lysistratus the brother of Lysippus to copy (as Pliny tells us) a
plaster-of-paris cast of the subject’s face without much subsequent
modification. And how little such portraiture is portraiture in
Rembrandt’s sense should surely have been obvious to anyone. The
soul is missing. The brilliant fidelity of Roman busts especially has
been mistaken for physiognomic depth. But what really distinguishes
the higher work from this craftsman’s and virtuoso’s work is an
intention that is the precise opposite of the artistic intention of a
Marées or a Leibl. That is, in such work the important and significant
is not brought out, it is put in. An example of this is seen in the
Demosthenes statue,[345] the artist of which possibly saw the orator in
life. Here the particulars of the body-surface are emphasized,
perhaps over-emphasized (“true to Nature,” they called this then),
but into the disposition so conceived he works the character-type of
the Serious Orator which we meet again on different bases in the
portraits of Æschines and Lysias at Naples. That is truth to life,
undoubtedly, but it is truth to life as Classical man felt it, typical and
impersonal. We have contemplated the result with our eyes, and
have accordingly misunderstood it.
sp 2

III

In the oil-painting age that followed the end of the Renaissance,

the depth of an artist can be accurately measured by the content of
his portraits. To this rule there is hardly an exception. All forms in the
picture (whether single, or in scenes, groups or masses)[346] are
fundamentally felt as portraits; whether they are meant to be so or
not is immaterial, for the individual painter has no choice in the
matter. Nothing is more instructive than to observe how under the
hands of a real Faustian man even the Act transforms itself into a
portrait-study.[347] Take two German masters like Lucas Cranach and
Tilmann Riemenschneider who were untouched by any theory and
(in contrast to Dürer, whose inclination to æsthetic subtlety made him
pliant before alien tendencies) worked in unqualified naïveté. They
seldom depict the Act, and when they do so, they show themselves
entirely unable to concentrate their expression on the immediately-
present plane-specified bodiliness. The meaning of the human
phenomenon, and therefore of the representation of it, remains
entirely in the head, and is consistently physiognomical rather than
anatomical. And the same may be said of Dürer’s Lucrezia,
notwithstanding his Italian studies and the quite opposite intention. A
Faustian act is a contradiction in itself—hence the character-heads
that we so often see on feeble act-representations (as far back as
the Job of old French cathedral-sculpture) and hence also the
laborious, forced, equivocal character that arouses our dislike in too
manifest efforts to placate the Classical ideal—sacrifices offered up
not by the soul but by the cultivated understanding. In the whole of
painting after Leonardo there is not one important or distinctive work
that derives its meaning from the Euclidean being of the nude body.
It is mere incomprehension to quote Rubens here, and to compare
his unbridled dynamism of swelling bodies in any respect whatever
with the art of Praxiteles and even Scopas. It is owing precisely to
his splendid sensuality that he is so far from the static of Signorelli’s
bodies. If there ever was an artist who could put a maximum of
“becoming” into the beauty of naked bodies, who could treat bodily
floridness historically and convey the (utterly un-Hellenic) idea of an
inexhaustible outflowing from within, it was Rubens. Compare the
horse’s head from the Parthenon pediment[348] with his horses’ heads
in the Battle of the Amazons,[349] and the deep metaphysical contrast
between the two conceptions of the same phenomenal element is
felt at once. In Rubens (recalling once more the characteristic
opposition of Apollinian and Faustian mathematics) the body is not
magnitude but relation. What matters is not the regimen of its
external structure but the fullness of life that streams out of it and the
stride of its life along the road from youth to age, where the Last
Judgment that turns bodies into flames takes up the motive and
intertwines it in the quivering web of active space. Such a synthesis
is entirely un-Classical; but even nymphs, when it is Corot who
paints them, are likewise shapes ready to dissolve into colour-
patches reflecting endless space. Such was not the intention of the
Classical artist when he depicted the Act.
At the same time, the Greek form-ideal—the self-contained unit of
being expressed in sculpture—has equally to be distinguished from
that of the merely beautiful bodies on which painters from Giorgione
to Boucher were always exercising their cleverness, which are
fleshly still-life, genre-work expressing merely a certain gay
sensuousness (e.g., “Rubens’s wife in a fur cloak.”[350]) and in
contrast with the high ethical significance of the Classical Act have
almost no symbolic force.[351] Magnificent as these men’s painting is,
therefore, they have not succeeded in reaching the highest levels
either of portraiture or of space-representation in landscape. Their
brown and their green and their perspective lack “religiousness,”
future, Destiny. They are masters only in the domain of elementary
form, and when it has actualized this their art is exhausted. It is they
who constitute the substance-element in the development-history of
a great art. But when a great artist pressed on beyond them to a
form that was to be capable of embracing the whole meaning of the
world, he had necessarily to push to perfection the treatment of the
nude body if his world was the Classical, and not to do so if it was
our North. Rembrandt never once painted an Act, in this foreground
sense, and if Leonardo, Titian, Velasquez (and, among moderns,
Menzel, Leibl, Marées and Manet) did so at all, it was very rarely;
and even then, so to say, they painted bodies as landscapes. The
portrait is ever the touchstone.[352]
But no one would ever judge masters like Signorelli, Mantegna,
Botticelli or even Verrocchio, by the quality of their portraits. The
equestrian statue of Can Grande[353] of 1330 is in a far higher sense
a portrait than the Bartolommeo Colleoni is; and Raphael’s portraits
(the best of which e.g., Pope Julius II were done under the influence
of the Venetian Sebastian del Piombo), could be ignored altogether
in an appreciation of his creative work. It is only with Leonardo that
the portrait begins to count seriously. Between fresco-technique and
oil-painting there is a subtle opposition. In fact, Giovanni Bellini’s
“Doge” (Loredano)[354] is the first great oil-portrait. Here too the
character of the Renaissance as a protest against the Faustian spirit
of the West betrays itself. The episode of Florence amounts to an
attempt to replace the Portrait of the Gothic style (as distinct from the
“ideal” portrait of late-Classical art, which was well known through
the Cæsar-busts) by the Act as human symbol. Logically, therefore,
the entire art of the Renaissance should be wanting in the
physiognomic traits. And yet the strong undercurrent of Faustian art-
will kept alive, not only in the smaller towns and schools of middle
Italy, but also in the instincts of the great masters themselves, a
Gothic tradition that was never interrupted. Nay, the physiognomic of
Gothic art even made itself master of the Southern nude body, alien
as this element was. Its creations are not bodies that speak to us
through static definition of their bounding surfaces. What we see is a
dumb-show that spreads from the face over all parts of the body, and
the appreciative eye detects in this very nudity of Tuscany a deep
identity with the drapery of the Gothic. Both are envelopes, neither a
limitation. The reclining nude figures of Michelangelo in the Medici
chapel are wholly and entirely the visage and the utterance of a soul.
But, above all, every head, painted or modelled, became of itself a
portrait, even when the heads were of gods or saints. The whole of
the portrait-work of A. Rossellino, Donatello, Benedetto de Maiano,
Mino da Fiesole, stands so near in spirit to that of Van Eyck, Memlinc
and the Early Rhenish masters as to be often indistinguishable from
theirs. There is not and there cannot be, I maintain, any genuine
Renaissance portraiture, that is, a portraiture in which just that
artistic sentiment which differentiates the Court of the Palazzo
Strozzi from the Loggia dei Lanzi and Perugino from Cimabue
applies itself to the rendering of a visage. In architecture, little as the
new work was Apollinian in spirit, it was possible to create anti-
Gothically, but in portraiture—no. It was too specifically Faustian a
symbol. Michelangelo declined the task: passionately devoted as he
was to his pursuit of a plastic ideal, he would have considered it an
abdication to busy himself with portraiture. His Brutus bust is as little
of a portrait as his de’ Medici, whereas Botticelli’s portrait of the latter
is actual, and frankly Gothic to boot. Michelangelo’s heads are
allegories in the style of dawning Baroque, and their resemblance
even to Hellenistic work is only superficial. And however highly we
may value the Uzzano bust of Donatello[355]—which is perhaps the
most important achievement of that age and that circle—it will be
admitted that by the side of the portraits of the Venetians it hardly
counts.
It is well worth noting that this overcoming of, or at least this desire
to overcome, the Gothic portrait with the Classical Act—the deeply
historical and biographical form by the completely ahistoric—appears
simultaneously with, and in association with, a decline in the capacity
for self-examination and artistic confession in the Goethian sense.
The true Renaissance man did not know what spiritual development
meant. He managed to live entirely outwardly, and this was the great
good fortune and success of the Quattrocento. Between Dante’s
“Vita Nuova” and Michelangelo’s sonnets there is no poetic
confession, no self-portrait of the high order. The Renaissance artist
and humanist is the one single type of Western man for whom the
word “loneliness” remained unmeaning. His life accomplished its
course in the light of a courtly existence. His feelings and
impressions were all public, and he had neither secret discontents
nor reserves, while the life of the great contemporary Netherlanders,
on the contrary, moved on in the shadow of their works. Is it perhaps
permissible to add that it was because of this that that other symbol
of historic distance, duration, care and ponderation, the State, also
disappeared from the purview of the Renaissance, between Dante
and Michelangelo? In “fickle Florence”—whose great men one and
all were cruelly maltreated and whose incapacity for political creation
seems, by the side of other Western state-forms, to border on sheer
bizarrerie—and, more generally, wherever the anti-Gothic (which in
this connexion means anti-dynastic) spirit displayed itself vigorously
in art and public life, the State made way for a truly Hellenic
sorriness of Medicis, Sforzas, Borgias, Malatestas, and waste
republics. Only that city where sculpture gained no foothold, where
the Southern music was at home, where Gothic and Baroque joined
hands in Giovanni Bellini and the Renaissance remained an affair of
occasional dilettantism, had an art of portraiture and therewith a
subtle diplomacy and a will to political duration—Venice.

IV

The Renaissance was born of defiance, and therefore it lacked

depth, width and sureness of creative instinct. It is the one and only
epoch which was more consistent in theory than in performance and
—in sharp contrast to Gothic and Baroque—the only one in which
theoretically-formulated intention preceded (often enough
surpassed) the ability to perform. But the fact that the individual arts
were forced to become satellites of a Classicist sculpture could not in
the last analysis alter the essence of them, and could only
impoverish their store of inward possibilities. For natures of medium
size, the Renaissance theme was not too big; it was attractive
indeed from its very plainness, and we miss consequently that
Gothic wrestling with overpowering imprecise problems which
distinguishes the Rhenish and Flemish schools. The seductive ease
and clarity of the Renaissance rests very largely upon evasion—the
evasion of deeper reluctances by the aid of speciously simple rule.
To men of the inwardness of Memlinc or the power of Grünewald
such conditions as those of the Tuscan form-world would have been
fatal. They could not have developed their strength in and through it,
but only against it. Seeing as we do no weakness in the form of the
Renaissance masters, we are very prone to overrate their humanity.
In Gothic, and again in Baroque, an entirely great artist was fulfilling
his art in deepening and completing its language, but in Renaissance
he was necessarily only destroying it. “ So it was in the cases of
Leonardo, Raphael and Michelangelo, the only really great men of
Italy after Dante. Is it not curious that between the masters of the
Gothic—who were nothing but silent workers in their art and yet
achieved the very highest that could be achieved within its
convention and its field—and the Venetians and Dutch of 1600—who
again were purely workers—there should be these three men who
were not “sculptors” or "painters” but thinkers, and thinkers who of
necessity busied themselves not merely with all the available means
of artistic expression but with a thousand other things besides, ever
restless and dissatisfied, in their effort to get at the real essence and
aim of their being? Does it not mean—that in the Renaissance they
could not “find themselves”? Each in his own fashion, each under his
own tragic illusion, these three giants strove to be “Classical” in the
Medicean sense; and yet it was they themselves who in one and
another way—Raphael in respect of the line, Leonardo in respect of
the surface, Michelangelo in respect of the body—shattered the
dream. In them the misguided soul is finding its way back to its
Faustian starting-points. What they intended was to substitute
proportion for relation, drawing for light-and-air effect, Euclidean
body for pure space. But neither they nor others of their time
produced a Euclidean-static sculpture—for that was possible once
only, in Athens. In all their work one feels a secret music, in all their
forms the movement-quality and the tending into distances and
depths. They are on the way, not to Phidias but to Palestrina, and
they have come thither not from Roman ruins but from the still music
of the cathedral. Raphael thawed the Florentine fresco, and
Michelangelo the statue, and Leonardo dreamed already of
Rembrandt and Bach. The higher and more conscientious the effort
to actualize the ideas of the age, the more intangible it became.
Gothic and Baroque, however, are something that is, while
Renaissance is only an ideal, unattainable like all ideals, that floats
over the will of a period. Giotto is a Gothic, and Titian is a Baroque,
artist. Michelangelo would be a Renaissance artist, but fails. Visibly,
the plastic in him, for all its ambitiousness, is overpowered by the
pictorial spirit—and a pictorial spirit, too, in which the Northern
space-perspective is implicit. Even as soon as 1520 the beautiful
proportion, the pure rule—that is, the conscious Classical—are felt
as frigid and formal. The cornice which he put on to Sangallo’s
purely “Classical” façade of the Palazzo Farnese was no doubt, from
the strictly Renaissance standpoint, a disfigurement, but he himself
and many with him felt it to be far superior to the achievements of
Greeks and Romans.
As Petrarch was the first, so Michelangelo was the last Florentine
who gave himself up passionately to the Antique. But it was no
longer an entire devotion. The Franciscan Christianity of Fra
Angelico, with its subtle gentleness and its quiet, reflective piety—to
which the Southern refinement of ripe Renaissance work owes far
more than has been supposed[356]—came now to its end. The
majestic spirit of the Counter-Reformation, massive, animated,
gorgeous, lives already in Michelangelo. There is something in
Renaissance work which at the time passed for being “Classical” but
is really only a deliberately noble dress for the Christian-German
world-feeling; as we have already mentioned, the combination of
round-arch and pillar, that favourite Florentine motive, was of Syrian
origin. But compare the pseudo-Corinthian column of the 15th
Century with the columns of a real Roman ruin—remembering that
these ruins were known and on the spot! Michelangelo alone would
tolerate no half-and-half. Clarity he wanted and he would have. The
question of form was for him a religious matter; for him (and only for
him) it was all or nothing. And this is the explanation of the lonely
fearful wrestlings of this man, surely the unhappiest figure in our art;
of the fragmentary, the tortured, the unsatisfied, the terribile in his
forms that frightened his contemporaries. The one half of his nature
drew him towards the Classical and therefore to sculpture—we all
know the effect produced upon him by the recently-discovered
Laocoön. No man ever made a more honest effort than he did to find
a way with the chisel into a buried world. Everything that he created
he meant sculpturally—sculpturally, that is, in a sense of the word
that he and he alone stood for. “The world, presented in the great
Pan,” the element which Goethe meant to render when he brought
Helena into the Second Part of Faust, the Apollinian world in all its
powerful sensuous corporal presence—that was what Michelangelo
was striving with all his might to capture and to fix in artistic being
when he was painting the Sistine ceiling. Every resource of fresco—
the big contours, the vast surfaces, the immense nearness of naked
shapes, the materiality of colour—was here for the last time strained
to the utmost to liberate the paganism, the high-Renaissance
paganism, that was in him. But his second soul, the soul of Gothic-
Christian Dante and of the music of great expanses, is pulling in the
opposite sense; his scheme for the ensemble is manifestly
metaphysical in spirit.
His was the last effort, repeated again and again, to put the
entirety of the artist-personality into the language of stone. But the
Euclidean material failed him. His attitude to it was not that of the
Greek. In the very character of its being the chiselled statue
contradicts the world-feeling that tries to find something by, and not
to possess something in, its art-works. For Phidias, marble is the
cosmic stuff that is crying for form. The story of Pygmalion and
Galatea expresses the very essence of that art. But for Michelangelo
marble was the foe to be subdued, the prison out of which he must
deliver his idea as Siegfried delivered Brunhilde. Everyone knows his
way of setting to work. He did not approach the rough block coolly
from every aspect of the intended form, but attacked it with a
passionate frontal attack, hewing into it as though into space, cutting
away the material layer by layer and driving deeper and deeper until
his form emerged, while the members slowly developed themselves
out of the quarry. Never perhaps has there been a more open
expression of world-dread in the presence of the become—Death—
of the will to overpower and capture it in vibrant form. There is no
other artist of the West whose relation to the stone has been that of
Michelangelo—at once so intimate and so violently masterful. It is his
symbol of Death. In it dwells the hostile principle that his daemonic
nature is always striving to overpower, whether he is cutting statues
or piling great buildings out of it.[357] He is the one sculptor of his age
who dealt only with marble. Bronze, as cast, allows the modeller to
compromise with pictorial tendencies, and it appealed therefore to
other Renaissance artists and to the softer Greeks. The Giant stood
aloof from it.
The instantaneous bodily posture was what the Classical sculptor
created, and of this Faustian man was incapable. It is here just as it
is in the matter of love, in which Faustian man discovers, not
primarily the act of union between man and woman, but the great
love of Dante and beyond that the caring Mother. Michelangelo’s
erotic—which is that of Beethoven also—is as un-Classical as it is
possible to be. It stands sub specie æternitatis and not under that of
sense and the moment. He produced acts—a sacrifice to the
Hellenic idol—but the soul in them denies or overmasters the visible
form. He wills infinity as the Greek willed proportion and rule, he
embraces past and future as the Greek embraced present. The
Classical eye absorbs plastic form into itself, but Michelangelo saw
with the spiritual eye and broke through the foreground-language of
immediate sensuousness. And inevitably, in the long run, he
destroyed the conditions for this art. Marble became too trivial for his
will-to-form. He ceased to be sculptor and turned architect. In full old
age, when he was producing only wild fragments like the Rondanini
Madonna and hardly cutting his figures out of the rough at all, the
musical tendency of his artistry broke through. In the end the impulse
towards contrapuntal form was no longer to be repressed and,
dissatisfied through and through with the art upon which he had
spent his life, yet dominated still by the unquenchable will to self-
expression, he shattered the canon of Renaissance architecture and
created the Roman Baroque. For relations of material and form he
substituted the contest of force and mass. He grouped the columns
in sheaves or else pushed them away into niches. He broke up the
storeys with huge pilasters and gave the façade a sort of surging and
thrusting quality. Measure yielded to melody, the static to the
dynamic. And thus Faustian music enlisted in its service the chief of
all the other arts.
With Michelangelo the history of Western sculpture is at an end.
What of it there was after him was mere misunderstandings or
reminiscences. His real heir was Palestrina.
 Leonardo speaks another language. In essentials his spirit
reached forward into the following century, and he was in nowise
bound, as Michelangelo was bound by every tie of heart, to the
Tuscan ideal. He alone had neither the ambition to be sculptor nor
the ambition to be architect. It was a strange illusion of the
Renaissance that the Hellenic feeling and the Hellenic cult of the
exterior structure could be got at by way of anatomical studies. But
when Leonardo studied anatomy it was not, as in Michelangelo’s
case, foreground anatomy, the topography of human surfaces,
studied for the sake of plastic, but physiology studied for the inward
secrets. While Michelangelo tried to force the whole meaning of
human existence into the language of the living body, Leonardo’s
studies show the exact opposite. His much-admired sfumato is the
first sign of the repudiation of corporeal bounds, in the name of
space, and as such it is the starting-point of Impressionism.
Leonardo begins with the inside, the spiritual space within us, and
not with the considered definition-line, and when he ends (that is, if
he ends at all and does not leave the picture unfinished), the
substance of colour lies like a mere breathing over the real structure
of the picture, which is something incorporeal and indescribable.
Raphael’s paintings fall into planes in which he disposes his well-
ordered groups, and he closes off the whole with a well-proportioned
background. But Leonardo knows only one space, wide and eternal,
and his figures, as it were, float therein. The one puts inside a frame
a sum of individual near things, the other a portion cut out of the
infinite.
Leonardo discovered the circulation of the blood. It was no
Renaissance spirit that brought him to that—on the contrary, the
whole course of his thought took him right outside the conceptions of
his age. Neither Michelangelo nor Raphael could have done it, for
their painter’s anatomy looks only at the form and position, not the
function, of the parts. In mathematical language, it is stereometry as
against analysis. Did not the Renaissance find it quite sufficient
preparation for great painted scenes to study corpses, suppressing
the becoming in favour of the become and calling on the dead to
make Classical ἀταραξία accessible to Northern creative energy?
But Leonardo investigated the life in the body as Rubens did, and
not the body-in-itself as Signorelli did. His discovery was
contemporary with that of Columbus, and the two have a deep
affinity, for they signify the victory of the infinite over the material
limitedness of the tangibly present. Would a Greek ever have
concerned himself with questions like theirs? The Greeks inquired as
little into the interior of their own organization as they sought for the
sources of the Nile; these were problems that might have
jeopardized the Euclidean constitution of their being. The Baroque,
on the other hand, is truly the period of the great discoveries. The
very word “discovery” has something bluntly un-Classical in it.
Classical man took good care not to take the cover, the material
wrapping, off anything cosmic, but to do just this is the most
characteristic impulse of a Faustian nature. The discoveries of the
New World, the circulation of the blood, and the Copernican universe
were achieved almost simultaneously and, at bottom, are completely
equivalent; and the discovery of gunpowder (that is, the long-range
weapon[358]) and of printing (the long-range script) were little earlier.
Leonardo was a discoverer through-and-through, and discovery
was the sum in one word of his whole nature. Brush, chisel,
dissecting-knife, pencil for calculating and compasses for drawing—
all were for him of equal importance. They were for him what the
Mariner’s Compass was for Columbus. When Raphael completes
with colour the sharp-drawn outline he asserts the corporeal
phenomenon in every brush-stroke, but Leonardo, in his red-chalk
sketches and his backgrounds reveals aerial secrets with every line.
He was the first, too, who set his mind to work on aviation. To fly, to
free one’s self from earth, to lose one’s self in the expanse of the
universe—is not this ambition Faustian in the highest degree? Is it
not in fact the fulfilment of our dreams? Has it never been observed
how the Christian legend became in Western painting a glorious
transfiguration of this motive? All the pictured ascents into heaven
and falls into hell, the divine figures floating above the clouds, the
blissful detachment of angels and saints, the insistent emphasis
upon freedom from earth’s heaviness, are emblems of soul-flight,
peculiar to the art of the Faustian, utterly remote from that of the
Byzantine.
 V

The transformation of Renaissance fresco-painting into Venetian

oil-painting is a matter of spiritual history. We have to appreciate
very delicate and subtle traits to discern the process of change. In
almost every picture from Masaccio’s “Peter and the Tribute Money”
in the Brancacci Chapel, through the soaring background that Piero
della Francesca gave to the figures of Federigo and Battista of
Urbino,[359] to Perugino’s “Christ Giving the Keys,”[360] the fresco
manner is contending with the invasive new form, though Raphael’s
artistic development in the course of his work on the Vatican “stanze”
is almost the only case in which we can see comprehensively the
change that is going on. The Florentine fresco aims at actuality in
individual things and produces a sum of such things in an
architectonic setting. Oil-painting, on the other hand, sees and
handles with ever-growing sureness extension as a whole, and
treats all objects only as representatives thereof. The Faustian
world-feeling created the new technique that it wanted. It rejected the
drawing style, as, from Oresme’s time, co-ordinate geometry
rejected it. It transformed the linear perspective associated with the
architectural motive into a purely aerial perspective rendered by
imponderable gradations of tone. But the condition of Renaissance
art generally—its inability either to understand its own deeper
tendencies or to make good its anti-Gothic principle—made the
transition an obscure and difficult process. Each artist followed the
trend in a way of his own. One painted in oils on the bare wall, and
thereby condemned his work to perish (Leonardo’s “Last Supper”).
Another painted pictures as if they were wall-frescoes
(Michelangelo). Some ventured, some guessed, some fell by the
way, some shied. It was, as always, the struggle between hand and
soul, between eye and instrument, between the form willed by the
artist and the form willed by time—the struggle between Plastic and
Music.
In the light of this, we can at last understand that gigantic effort of
Leonardo, the cartoon of the “Adoration of the Magi” in the Uffizi. It is
the grandest piece of artistic daring in the Renaissance. Nothing like
it was even imagined till Rembrandt. Transcending all optical
measures, everything then called drawing, outline, composition and
grouping, he pushes fearlessly on to challenge eternal space;
everything bodily floats like the planets in the Copernican system
and the tones of a Bach organ-fugue in the dimness of old churches.
In the technical possibilities of the time, so dynamic an image of
distance could only remain a torso.
In the Sistine Madonna, which is the very summation of the
Renaissance, Raphael causes the outline to draw into itself the
entire content of the work. It is the last grand line of Western art.
Already (and it is this that makes Raphael the least intelligible of
Renaissance artists) convention is strained almost to breaking-point
by the intensity of inward feeling. He did not indeed wrestle with
problems. He had not even an inkling of them. But he brought art to
the brink where it could no longer shirk the plunge, and he lived to
achieve the utmost possibilities within its form-world. The ordinary
person who thinks him flat simply fails to realize what is going on in
his scheme. Look again, reader, at the hackneyed Madonna. Have
you ever noticed the little dawn-cloudlets, transforming themselves
into baby heads, that surround the soaring central figure?—these are
the multitudes of the unborn that the Madonna is drawing into Life.
We meet these light clouds again, with the same meaning, in the
wondrous finale of Faust II.[361] It is just that which does not charm in
Raphael, his sublime unpopularity, that betrays the inner victory over
the Renaissance-feeling in him. We do understand Perugino at a
glance, we merely think we understand Raphael. His very line—that
drawing-character that at first sight seems so Classical—is
something that floats in space, supernal, Beethoven-like. In this work
Raphael is the least obvious of all artists, less obvious even than
Michelangelo, whose intention is manifest through all the
fragmentariness of his works. In Fra Bartolommeo the material
bounding-line is still entirely dominant. It is all foreground, and the
whole sense of the work is exhaustively rendered by the definition of
bodies. But in Raphael line has become silent, expectant, veiled,
waiting in an extremity of tension for dissolution into the infinite, into
space and music.
Leonardo is already over the frontier. The Adoration of the Magi is
already music. It is not a casual but a deeply significant
circumstance that in this work, as also in his St. Jerome,[362] he did
not go beyond the brown underpainting, the “Rembrandt” stage, the
atmospheric brown of the following century. For him, entire fullness
and clearness of intention was attained with the work in that state,
and one step into the domain of colour (for that domain was still
under the metaphysical limitations of the fresco style) would have
destroyed the soul of what he had created. Feeling, in all its depth,
the symbolism of which oil-painting was later to be the vehicle, he
was afraid of the fresco “slickness” (Fertigkeit) that must have ruined
his idea. His studies for this painting show how close was his relation
to the Rembrandt etching—an art whose home was also that of the
art (unknown to Florence) of counterpoint. Only it was reserved for
the Venetians, who stood outside the Florentine conventions, to
achieve what he strove for here, to fashion a colour-world subserving
space instead of things.
For this reason, too, Leonardo (after innumerable attempts)
decided to leave the Christ-head in the “Last Supper” unfinished.
The men of his time were not even ripe for portraiture as Rembrandt
understood the word, the magistral building-up of a soul-history out
of dynamic brush-strokes and lights and tones. But only Leonardo
was great enough to experience this limitation as a Destiny. Others
merely set themselves to paint heads (in the modes prescribed by
their respective schools) but Leonardo—the first, here, to make the
hands also speak, and that with a physiognomic maestria—had an
infinitely wider purpose. His soul was lost afar in the future, though
his mortal part, his eye and hand, obeyed the spirit of the age.
Assuredly he was the freest of the three great ones. From much of
that which Michelangelo’s powerful nature vainly wrestled with, he
was already remote. Problems of chemistry, geometrical analysis,
physiology (Goethe’s “living Nature” was also Leonardo’s), the
technique of fire-arms—all were familiar to him. Deeper than Dürer,
bolder than Titian, more comprehensive than any single man of his
time, he was essentially the artist of torsos.[363] Michelangelo the
belated sculptor was so, too, but in another sense, while in Goethe’s
day that which had been unattainable for the painter of the Last
Supper had already been reached and overpassed. Michelangelo
strove to force life once more into a dead form-world, Leonardo felt a
new form-world in the future, Goethe divined that there could be no
new form-worlds more. Between the first and the last of these men
lie the ripe centuries of the Faustian Culture.

VI

It remains now to deal with the major characters of Western art

during the phase of accomplishment. In this we may observe the
deep necessity of all history at work. We have learned to understand
arts as prime phenomena. We no longer look to the operations of
cause and effect to give unity to the story of development. Instead,
we have set up the idea of the Destiny of an art, and admitted arts to
be organisms of the Culture, organisms which are born, ripen, age
and for ever die.
When the Renaissance—its last illusion—closes, the Western soul
has come to the ripe consciousness of its own strength and
possibilities. It has chosen its arts. As a “late” period, the Baroque
knows, just as the Ionic had known, what the form-language of its
arts has to mean. From being a philosophical religion, art has to be a
religious philosophy. Great masters come forward in the place of
anonymous schools. At the culmination of every Culture we have the
spectacle of a splendid group of great arts, well-ordered and linked
as a unit by the unity of the prime symbol underlying them all. The
Apollinian group, to which belong vase-painting, fresco relief, the
architecture of ranked columns, the Attic drama and the dance,
centres upon the naked statue. The Faustian group forms itself
round the ideal of pure spatial infinity and its centre of gravity is
instrumental music. From this centre, fine threads radiate out into all
spiritual form-languages and weave our infinitesimal mathematic, our
dynamic physics, the propaganda of Jesuits and the power of our
famous slogan of “progress,” the modern machine-technique, credit
economics and the dynastic-diplomatic State—all into one immense
totality of spiritual expression. Beginning with the inward rhythm of
the cathedral and ending with Wagner’s “Tristan” and “Parsifal,” the
artistic conquest of endless space deploys its full forces from about
1550. Plastic is dying with Michelangelo in Rome just when
planimetry, dominant hitherto, is becoming the least important
branch of our mathematic. At the same time, Venice is producing
Zarlino’s theories of harmony and counterpoint (1558) and the
practical method of the basso continuo—a perspective and an
analysis of the world of sound—and this music’s sister, the Northern
mathematic of the Calculus, is beginning to mount.
Oil-painting and instrumental music, the arts of space, are now
entering into their kingdom. So also—consequently, we say—the two
essentially material and Euclidean arts of the Classical Culture, viz.,
the all-round statue and the strictly planar fresco, attain to their
primacy at the corresponding date of c. 600 B.C. And further, in the
one and in the other case, it is the painting that ripens first. For in
either kind painting on the plane is a less ambitious and more
accessible art than modelling in solid or composing in immaterial
extension. The period 1550-1650 belongs as completely to oil-
painting as fresco and vase-painting belong to the 6th Century B.C.
The symbolism of space and of body, expressed in the one case by
perspective and in the other by proportion, are only indicated and not
immediately displayed by pictorial arts. These arts, which can only in
each case produce their respective prime-symbols (i.e., their
possibilities in the extended) as illusions on a painted surface, are
capable indeed of denoting and evoking the ideal—Classical or
Western, as the case may be—but they are not capable of fulfilling it;
they appear therefore in the path of the “late” Culture as the ledges
before the last summit. The nearer the grand style comes to its point
of fulfilment, the more decisive the tendency to an ornamental
language of inexorable clarity of symbolism. The group of great arts
is further simplified. About 1670, just when Newton and Leibniz were
discovering the Differential Calculus, oil-painting had reached the
limit of its possibilities. Its last great masters were dead or dying—
Velasquez 1660, Poussin 1665, Franz Hals 1666, Rembrandt 1669,
Vermeer 1675, Murillo, Ruysdael and Claude Lorrain 1682—and one
has only to name the few successors of any importance (Watteau,
Hogarth, Tiepolo) to feel at once the descent, the end, of an art. In
this time also, the great forms of pictorial music expired. Heinrich
Schütz died in 1672, Carissimi in 1674, and Purcell in 1695—the last
great masters of the Cantata, who had played around image-themes
with infinite variety of vocal and instrumental colour and had painted
veritable pictures of fine landscape and grand legend-scene. With
Lully (1687) the heart of the heroic Baroque opera of Monteverde
ceased to beat. It was the same with the old “classical” sonata for
orchestra, organ and string trio, which was a development of image-
themes in the fugal style. Thereafter, the forms become those of final
maturity, the concerto grosso, the suite, and the three-part sonata for
solo instruments. Music frees itself from the relics of bodiliness
inherent in the human voice and becomes absolute. The theme is no
longer an image but a pregnant function, existent only in and by its
own evolution, for the fugal style as Bach practised it can only be
regarded as a ceaseless process of differentiation and integration.
The victory of pure music over painting stands recorded in the
Passions which Heinrich Schütz composed in his old age—the
visible dawn of the new form-language—in the sonatas of Dall’Abaco
and Corelli, the oratorios of Händel and the Baroque polyphony of
Bach. Henceforth this music is the Faustian art, and Watteau may
fairly be described as a painter-Couperin, Tiepolo as a painter-
Händel.
In the Classical world the corresponding change occurred about
460, when Polygnotus, the last of the great fresco-painters, ceded
the inheritance of the grand style to Polycletus and free sculpture in
the round. Till then—as late even as Polygnotus’s contemporaries
Myron and the masters of the Olympia pediment—the form-language
of a purely planar art had dominated that of statuary also; for, just as
painting had developed its form more and more towards the ideal of
the silhouette of colour with internal drawing superposed—to such
an extent that at last there was almost no difference between the
painted relief and the flat picture—so also the sculptor had regarded
the frontal outline as it presented itself to the beholder as the true
symbol of the Ethos, the cultural type, that he meant his figure to
represent. The field of the temple-pediment constitutes a picture;
seen from the proper distance, it makes exactly the same impression
as its contemporary the red-figure vase-painting. In Polycletus’s
generation the monumental wall-painting gives place to the board-
picture, the “picture” proper, in tempera or wax—a clear indication
that the great style has gone to reside elsewhere. The ambition of