Vol. 11 No. 7 (July 2001) pp. 343-346.

LAW'S INTERIOR: LEGAL AND LITERARY CONSTRUCTIONS OF THE SELF by Kevin M. Crotty. Ithaca: Cornell University Press, 2001. 231 pp. Cloth $32.50. ISBN: 0-8014-3856-X.

Reviewed by Paul Lermack, Department of Political Science, Bradley University

In this cautionary note to Legal Realism, Crotty reminds us that law is not just something that governments do. Instead, it is a characteristic human activity and, as such, a part of the way that people think of themselves. It is too simple to say, as Legal Realists do, that law is an autonomous entity that resolves conflicts on neutral grounds, but doesn't take sides in moral disputes. Instead, law is best conceived as a process. At any given moment, its content has been determined by the ongoing struggle of individuals to clarify and express their own moral views.

Legal Realists generally assert that law in complex societies has its own methods and rules which stand apart from the moral views of the citizens, and that it develops according to its own logic with minimal political input. Crotty assumes that this way of defining law is a poor fit with empirical reality. Most readers, I suspect, will agree. In many areas of law, judges and politicians are observed to be struggling to define rights and rules in the face of conflicting demands based on conflicting moral views. Crotty argues that we can best reflect this empirical reality in theory by defining law as a process engaged in by committed combatants.

This is not a new idea. But Crotty's original contribution is to present a specific and complex model of the dynamic that drives the law: individuals must make choices in a world of "ethical complexity" (p. 29) such that their best efforts inevitably create guilt and remorse. They project these emotions outward, in the form of demands on law. Law accommodates but only partly, for it, too, must deal with ethical complexity. Law's response, inevitably disappointing, in turn affects the self-images of the individuals.

If we look at law in this way, we can explain many observations. For example, the persistence of litigious fanatics, anti-abortion and anti-death-penalty activists alike, who make claim after claim on the neutral forum in the face of loss after loss, becomes a well-understood psychological need for external validation of their moral choices. They have invested so much in these choices that they cannot tolerate the rejection by the system of choice.

This is my example, however, not Crotty's. Except for a brief discussion of legal rights, he does not apply his model to real-world observations. Instead, he develops some of its implications in three substantive chapters, in each of which a reading of a literary text is used to "inform" an aspect of Realist theory.

The first of these deals directly with law's autonomy. Crotty begins with a discussion of the development of the definition of law as an objective system of rules of various forms in the work of H. L. A. Hart, John Rawls and Ronald Dworkin. He then presents a reading of the ORESTEIA, the three plays about the legendary cursed lineage of Atreus, Agamemnon and Orestes written by Aeschylus about 458 B.C. The plays have often been regarded as an allegory about the origins of law. The various characters legitimately pursue vengeance but their moral conflicts are so intense, and their actions are so irreconcilable, that they find themselves frozen in a spiral in which each act of vengeance calls forth legitimate demands for further vengeance. Law is seen as a way to put an end to the spiral. It can thus be viewed as an autonomous system legitimate enough to "thin out" moral demands and impose order on otherwise uncontrollable individuals.

Crotty reads the plays somewhat differently to emphasize the irreconcilability of the moral conflicts within the various characters. As the characters twist in their own moral dilemmas, the demands that they make on law inevitably change. Therefore, law's autonomy cannot be permanently achieved. It is a goal, not the actuality. Since the moral struggle to shape law never ends, everyone will never accept law as fully legitimate. To Crotty, law is asked to do too much. It tries, impossibly, to be all things to all people. In consequence, it will never achieve the respect to which it aspires.

The conclusion is an interesting one, and the reading of the play is consistent with it. However, I'm not sure why the ORESTEIA occupies such a disproportionately large part of the chapter. A much briefer summary of the plays would be sufficient for them to serve as an example. Perhaps the play is the source of his insight that law is an unstable process. Even so, the insight stands on its own.

Perhaps Crotty felt uncomfortable critiquing such important living thinkers as Rawls and Dworkin, so he decided to let Aeschylus do it for him. If so, this is a mistake. The literary example proves nothing. It is not data that can be used to falsify Realism. We cannot conclude that real people feel ongoing moral conflicts and a need for law simply because the fictional Orestes felt these things, any more that we can assume that slaves were happy and sang a lot because characters in GONE WITH THE WIND are presented in this way. Crotty says that literature is valuable because writers are drawn to intense conflicts. However, we must never forget that a writer like Aeschylus-or Margaret Mitchell-can simply make it up. Literature may seem real. But, that is the art of the writer.

The reading of the trilogy has value on its own, as a contribution to literary studies. Crotty is, after all, a professor of classics (at Washington and Lee), and the subtitle of the book is LEGAL AND LITERARY CONSTRUCTIONS OF THE SELF. Perhaps the reading of the ORESTEIA is meant as a "literary construction." However, Crotty doesn't place Aeschylus on a team labeled "poets," in competition against "lawyers" to describe the self, as the subtitle might suggest. Instead, Aeschylus is contrasted with the Realists in a quest to describe law's autonomy.

To do its work, law needs some definition of the self, some model of what people are like inside. Crotty explores the Realist definition in the second substantive chapter, beginning with law's attitude toward confesions. He argues that MIRANDA v ARIZONA created contradictory doctrine when it described how easy it is for police to manipulate individuals psychologically, but nevertheless held that confessions are to be examined as the product of rational decision making. Writers like Foucault and St. Augustine present more complex, and more accurate, models of the self. Augustine, who describes the self as riven and conflicted, argued that law, far from achieving the rule of reason over passion, "reflects the very unruliness of the passions" (p. 129). Assuming that this is so, Crotty argues that the legitimacy of law depends, in part, on its mutability over time. It must change to accommodate these changing demands.

In literary scholarship, readings tell us more about readers than about texts. Crotty emphasizes the tendency of literature to emphasize complexity and conflict. However, empirical court cases are rarely that hard. Few litigants have selves as riven as Augustine's (or Orestes's), and in consequence few lawsuits present the complexities of, say, O. J. Simpson's. Looking at law through the lens of great literature overemphasizes the ambiguity characteristic of those works, and perhaps makes us think of law as more complex and internally inconsistent than it is. It is the reverse of the tendency of ideologues to look at law through the perspective of pulp crime novels and then argue that the empirical world is simpler than it seems.

The third substantive chapter focuses on the rationality of law. Much of law involves legal constructs of questionable reality. Habermas, who tried to find a middle ground between the Realist assumption that law is rational and the critical view that legal constructs are arbitrary fictions, placed the rationality of law in the deliberative process used to make it. Lawmaking, in other words, creates legal selves. Crotty reads Wallace Stevens to argue that, in an analogous process, poetry making creates poetic selves. (Indeed, Stevens's poetic thought is said, in one place, to parallel the jurisprudence of Oliver Wendell Holmes, p. 203.) If I understand him correctly, Crotty therefore assumes that what Stevens said about the nature of the self, and of evil, has some direct relevance to the way that these concepts are used in law. He draws on Stevens's notion of what a proper construct of the self would be like to argue that in law some concept of rights is necessary. Once again, Crotty seems to be using the literature as an authority for what law necessarily is, rather than as a source of insight for what law might be.

Crotty concludes that the definition of law as a quest for autonomy better reflects reality than the Realist definition of law as an autonomous and legitimate system. "Law is a practice, not a system" (p. 225). I think he is correct, but I want to stress that this is a definition or postulate, a part of legal theory that seems right to us, and which is "informed" by the literary examples, but which is not proved to be reality. It should be more useful than Realism both in organizing empirical findings and in generating new hypotheses.

He then suggests what most readers will have guessed: the interpretation of legal texts like the Constitution cannot be static. Because law itself is dynamic, and because our notions of such fundamentals as rights and rules are always changing, texts must be read, "[with] reference to the way the system inaugurated by the Constitution in fact functions, and the relations between people and Constitution implicit in such functioning" (p. 227). People, participating legitimately in politics, inevitably will change the scope of law. Supreme Court Justice William Brennan could have written this passage. It supports noninterpretivists against originalists. Crotty understands this because, at various points, he notes as inevitable the present struggle to redefine rights from something inherent in individuals to something affected by group, class, gender or race.

On the whole, I think this is a useful contribution to the effort now under way to move past Legal Realism in legal theory. However, it also illustrates the need for caution in using literature to comment on law.

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Copyright 2001 by the author, Paul Lermack.