Back to Teaching

EN460: Law and Literature, 1689-1832
Greg Clingham

Spring 2003. Monday, 2-5 pm
Classroom: Taylor Hall 208


Vaughan Lit. 233
Taylor Hall 6
Tel: 577-1552
Office Hours: Mon: 11.00 am-12.00 pm
Tues and Thurs: 1.00-2.45 pm
And by appointment

General Aims

When O.J. Simpson was found not guilty in his murder trial, most people recognized that the outcome had been shaped not only by the financial resources of the accused, but also by the superior rhetorical skills of his legal team. While the prosecutors naively seemed to conduct their case as if the truth of events would spontaneously manifest itself, Cockrane, Bailey, Schiff and the others understood that the truth of events was uncertain, disputable, and capable of being associated with volatile social issues (e.g., racial profiling) that could be worked for specific ends. Most importantly, they knew that a trial has a kind of narrative coherence, and that the team that produces the most compelling story of the events under dispute, is likely to prevail with the jury. Justice and law are clearly not the same things.

A relationship between narrative coherence and legal efficacy is fundamental not only to criminal and trial law, but also to political law, constitutional law, and jurisprudence. Yet the idea that our legal institutions are based on forms of argumentation that resemble literary constructions – stories, narratives, rhetoric, metaphor, character development, and so forth – is disturbing to layperson and professional alike. This course aims to investigate some important intersections between law and literature in Britain during the eighteenth century, with references to contemporary America, in order to inflect and deepen our understanding of the origins in the Enlightenment of certain modern legal, cultural and literary institutions.

Working between two of the founding documents of modern American and British political society – Locke’s Two Treatises of Government and the Federalist Papers – we will use interdisciplinary methods and a broad range of texts, to investigate the constitutive ways in which law and literature impinge on each other. By examining (on the one hand) the fictive and rhetorical aspects of legal discourse, as well as the ideological nature of distributive justice in the eighteenth century; and (on the other hand) the interpretive interventions of works of literature in legal matters, I want to investigate what might be called the legal consciousness at various “originating” moments of our modern British-American culture. This will entail a consideration of questions of literary form and content, specific constitutional and legal matters, and social and psychic organization, as well as issues of national identity and nation formation, personal subjectivity, gender, and race.

Required Texts

1. Law’s Stories: Narrative and Rhetoric in the Law, ed. Peter Brooks and Paul Gewirtz (Yale University Press, 1996 and 1999)

2. Charlotte Lennox, The Female Quixote, ed. Elizabeth Dalziel, Intro. Margaret Doody

(Penguin, 1989)

3. Oliver Goldsmith, The Vicar of Wakefield, ed. Arthur Friedman (Oxford University Press, 1986)

4. William Godwin, Caleb Williams, ed. David McCracken (W.W. Norton, 1977)

5. Mary Wollstonecraft, Maria; or the Wrongs of Woman, ed. Gary Kelly (Oxford University Press, 1980)

Many of the texts of possible interest are not in print, so some our texts will be provided in xerox form, either in full, or in excerpts. Our reading will also be supplemented by critical and theoretical articles on reserve or on e-reserve. You should also expect additional materials to be added to the syllabus as it evolves from week to week.

Course Requirements

  1. Two papers of 12-15 pages in length. These papers should be both of a scholarly and critical nature, demonstrate initiative and independence, and show considerable reading in primary, secondary and theoretical works.
  1. An in-class presentation (done in pairs), considered and substantial, of at least 25-30 minutes in length that demonstrates initiative and command of the material.
  1. 1-2 typed pages of comment/analysis/reflection on some aspect of the reading for each class, and to be brought to class as a basis for discussion.
  1. Active and consistent willingness to enter discussion in an informed way.
  1. Attendance is compulsory.

Organization of Course

This is a new course and still evolving, especially in its attempt to bring together two general subject areas that are usually considered apart: eighteenth-century literature and modern legal experience and jurisprudential theory. The general subject of “law and literature” is also a new interdisciplinary field and there is as yet no settled canon of theoretical or practical texts, no uncontested paradigms or procedures, and no unquestioned list of priorities. This means that we have unusual freedom in determining the shape and content of our course, and I would like this to be done as collaboratively as possible.

There will be informal lectures from me, providing background and some ways of placing our texts historically and critically, but I expect everyone to play their part in exploring the subject under discussion. Considered participation is encouraged, and, indeed, necessary.

You will be required to come to each class with at least a page of comments and questions pertaining to some of the texts and issues under discussion that day. Class presentations – done in pairs – will form an important part of what we do, and the attentiveness and considered response of the whole class to the presentations are absolutely necessary for the presentations to be useful.

You will be encouraged to read critically in some of the books and articles on the attached bibliography.

You are encouraged to use web resources insofar as they are critically and historically useful for our purposes. See, for example:

  1. This provides information, images and bibliographies on 18th-century art, architecture, landscape gardening, religion and theology, science and mathematics, etc.
  1. From the Library home page you can access Project Muse (giving access to the journals Eighteenth-Century Studies and Eighteenth-Century Life), ABES (annotated bibliography of all aspects of English literature), the MLA Bibliography, and many other databases.

Work Schedule

Week 1: Jan. 20. Introduction: Language, Narrative, and the Structure of the English Law

Week 2. Jan. 27. Lawyers, Courts, and English Common Law

Week 3: Feb. 3. Crime, Trial, Evidence, Narration

Week 4. Feb. 10. Law, Justice, Sentiment, Prison

Week 5. Feb. 17. Execution and Spectacle

Week 6. Feb. 24. Inheritance, Primogeniture

Week 7. March 3. Trial, Fact, Drama

Ist Paper Due: March 3

Spring Break

Weeks 8-9. March 17, 24. Property, Gender, Fiction

Week 10. March 31. Society, Gender, Power

Weeks 11-13. April 7, 14, 21. Confession, Alibi, the Uncanny

2nd Paper Due: Tues. April 22

Week 14. April 28. Conclusions.

Select Bibliography

J. H. Baker, An Introduction to English Legal History, 2nd ed. (London: Butterworths, 1979; latest ed., 2000).

J. H. Baker, “The Changing Concept of a Court,” in The Legal Profession and the Common Law: Historical Essays (London: Hambleton Press, 1986), pp. 153-69.

James G. Basker, “Samuel Johnson and the African American Reader,” The New

Rambler, 1994/95, 47-57.

------, “Intimations of Abolitionism in 1759: Johnson, Hawkesworth, and Oroonoko,” Age of Johnson, 12 (2001), 47-66.

------, “‘The Next Insurrection’: Johnson, Race, and Rebellion,” Age of Johnson, 11 (2000), 37-51.

------, “Multicultural Perspectives: Johnson, Race, and Gender,” in Johnson Re-Visioned: Looking Before and After, ed. Philip Smallwood (Bucknell University Press, 2001), 64-79.

Walter Benjamin, “Critique of Violence,” in Reflections: Essays, Aphorisms, Autobiographical Writing, trans. Edmund Jephcott, ed. Peter Demetz (New York: Schocken Books, 1986), pp. 277-300.

Homi Bhabha, The Location of Culture (Routledge, 1994).

Guyora Binder and Robert Weisberg, Literary Criticisms of Law (Princeton University Press, 2000), esp. pp. 31-47, 201-31.

Peter Brooks, Troubling Confessions: Speaking Guilt in Law and Literature (University of Chicago Press, 2000).

Peter Brooks and Paul Gewirtz, eds., Law’s Stories: Narrative and Rhetoric in the Law (Yale University Press, 1996 and 1998).

Sir Robert Chambers, A Course of Lectures on the English Law 1767-1773, ed. Thomas M. Curley, 2 vols (University of Wisconsin Press, 1987).

Greg Clingham, Johnson, Writing, and Memory (Cambridge University Press, 2002).

Drucilla Cornell, Michael Rosenfeld, and David Gray Carlson, eds., Deconstruction and the Possibility of Justice (Routledge, 1992), esp. the essays by Jacques Derrida, “Force of Law: The ‘Mystical Foundations of Authority,’” and Michael Rosenfeld, “Deconstruction and Legal Interpretation: Conflict, Indeterminacy and the Temptations of the New Legal Formalism.”

Thomas M. Curley, Sir Robert Chambers: Law, Literature, and Empire in the Age of Johnson (University of Wisconsin Press, 1998), esp, ch. 3.

Jacques Derrida, Without Alibi (Stanford University Press, 2002).

-----, “Force of Law: The ‘Mystical Foundations of Authority,’” in Cornell, pp. 3-67.

Ronald Dworkin, A Matter of Principle (Harvard University Press, 1985).

Stanley Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (Duke University Press, 1989), esp. “Working on the Chain Gang: Interpretation in Law and Literature,” “Wrong Again,” and “Don’t Know Much about the Middle Ages: Posner on Law and Literature.”

Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (New York: Vintage, 1977).

-----, The Foucault Reader, ed. Paul Rabinow (New York: Pantheon Books, 1984).

Hal Gladfelder, Criminality and Narrative in Eighteenth-Century England: Beyond the Law (Johns Hopkins University Press, 2001), esp. chs. 4, 5, 9, 10.

Jonathan H. Grossman, The Art of Alibi: English Law Courts and the Novel (Johns Hopkins University Press, 2002), esp. chs. 1, 2.

David Lemmings, Gentlemen and Barristers: The Inns of Court and the English Bar 1680-1730 (Oxford: Clarendon Press, 1990).

Michael Meehan, “Authorship and Imagination in Blackstone’s Commentaries on the Laws of England,Eighteenth-Century Life, 16 (1992), 111-26.

Ruth Perry, “Colonizing the Breast: Sexuality and Maternity in Eighteenth-Century England,” in British Literature 1640-1789, ed. Robert DeMaria (Blackwell, 1999), pp. 302-32.

-----, “Women in Families: The Great Disinheritance,” in Women and Literature in Britain 1700-1800, ed. Vivien Jones (Cambridge University Press, 2000), pp. 111-133. 

Richard Posner, Law and Literature (Harvard University Press, 1998; rev. ed., 1998).

Barbara Shapiro, “The Concept ‘Fact’: Legal Origins and Cultural Diffusion,” Albion 26, No. 1 (Spring 1994).

Richard B. Sher, “’Something that put me in Mind of my Father:’ Boswell and Lord Kames,” in Boswell Citizen of the World, Man of Letters, ed. Irma S. Lustig (Lexington: University of Kentucky Press, 1995), pp. 64-86.

-----, Scottish Divines and Legal Lairds: Boswell’s Scots Presbyterian Identity,” in New Light on Boswell, ed. Greg Clingham (Cambridge University Press, 1991), pp. 28-55.

Gillian Skinner, “Women’s Status as Legal and Civic Subjects: ‘A Worse Condition than Slavery Itself,’” in Women and Literature in Britain 1700-1800, ed. Vivien Jones (Cambridge University Press, 2000), 91-110.

E.P. Thompson, The Essential E. P. Thompson, ed. Dorothy Thompson (New York: The New Press, 2001) [containing readings on the syllabus]

Gordon Turnbull, “Boswell and Sympathy: The Trial and Execution of John Reid,” in New Light on Boswell, ed. Greg Clingham (Cambridge UP, 1991), pp. 104-115.

Alexander Welsh, Strong Representations: Narrative and Circumstantial Evidence in England (Johns Hopkins, 1992), esp. ch. 1, “Stories of Things Not Seen.”

Robin West, Narrative, Authority, and Law (University of Michigan Press, 1993), esp. chs. 3, 4.

Hayden White, The Content of the Form: Narrative, Discourse and Historical Representation (Johns Hopkins UP, 1987).

James Boyd White, Heracles’ Bow: Essays on the Rhetoric and Poetics of Law (University of Wisconsin Press, 1985).

Slavoj Zizek, “The Obscene Object of Postmodernity,” in The Zizek Reader, ed. Elizabeth Wright and Edmond Wright (Blackwell, 1999), 37-52.

John Zomchick, Family and the Law in Eighteenth-Century Fiction (Cambridge University Press, 1993).

Back to Teaching