top of page
  • Thomas E. Simmons

Jurisliterature In A Humanistic Nutshell

The title of the book in question, Advanced Introduction to Law and Literature, claims that it functions as an introduction. However, Peter Goodrich, its author, does not exactly introduce the field of law and literature studies. Rather, he gives it a special spin – he fashions a legal elegance which is ethically centered.


Goodrich announces his aim, thusly: “To bring imagination to the normative practices and decisional dictates of legal actors is not simply to beautify the edifice of legality, it is also to engage creatively in the performance of justice.”[i] This ambitious undertaking is commonly known as jurisliterature; an exercise which locates the performance of law, contextualizing it and its machineries within the expansive confines of legal humanism.


By jurisliterature, Goodrich means the concept of jurisliterature which has been worked out by the French scholar Anne Teissier-Ensminger, a legal historian. Tessier-Ensminger has, over the past quarter-century or so, mapped an aesthetics which can be applied to law’s practices, texts, and procedures.[ii] As suggested by Goodrich’s quote above, it is an imaginative, inventive aesthetics. It admires the handiwork and beauty of the law, whether in text, architecture, or custom. But it also insists on centering the imagination on the ethical consequences of legal dogma. Thus, while jurisliterature explores various mutations and spatial relations in the law, it does so within the context of humanism, insisting on a consideration of human needs, often in an erudite fashion.


Professor Goodrich’s playful prose is itself an exhibit of the erudite. It is consistently imaginative, occasionally playful, and often baroque. But it is always inventive. For example, he writes, in his critical assessment of the Chambers v. Director of Public Prosecutions[iii] opinion (also known as the “Twitter joke case”):


To say that terrorism is ineffective when syntactically incorrect is almost absurd unless one interprets the Judge symptomatically as deflecting from the key transgression which is that in the absence of law, in the incalculable moment of judgment, in the ‘High’ Court, polysemy intended, it is precisely the extra-juridical, the everyday of social media and internet relay, the strange world of post-law that takes the reins…[iv]


In the stronger sections of the book, Goodrich analyzes case law such as the Chambers case. In the weaker parts of his book, Goodrich trains his razor wit and bottomless vocabulary on an examination of what lies beneath the folds of Lady Justice’s robe and considers legal origins.


Goodrich is skeptical of the ancient claims of English common law’s origins – that the law stretches so back in time that its authority is rendered unchallengeable. Civil law is traced back to Roman law. But common law rests on a different foundation – a Judeo-Christian tradition. Goodrich quotes William Dugdale: “English laws are ‘founded upon the law of God, and extend themselves to the original Laws of Nature, and the universal Law of Nature…”[v] This is an origin far older than Romulus or Remus, nearly lost in the mists of time.


Goodrich scoffs at this idea. The too-ancient source materials for common law, he says, rely on “a site of disappearance, the figures of Hobbes’ decaying sense that evaporate into an image, a maxim, a dogma.”[vi] Common law’s creation myth, Goodrich claims, is just that – an unsubstantiated myth. The creation myth relates law to nature; ultimately, to dirt. It claims law is a divine writ which is inscribed by the nomos of English soil. From the dirt purportedly springs the common law which carries with it an aura of divinity “and from thence come all the grounds and maxims of the common law…”[vii]


Goodrich claims that if the earth’s skin is the source of the law then it is reserved “to juridical divination but not to common sense.”[viii] By this, he means that if the source of law is divine law, then only the pseudo-priestly caste of trained lawyers can claim to interpret it and any ethical objections can be disposed of as if by a bishop’s fiat. Goodrich rejects the very suggestion of natural law. In fact, he continues, the source of law thus construed is simply a vanishing point – a point of no return – a sinkhole – “the last bastion, beyond which lies only nothingness, pure void, mere faith.”[ix] Goodrich might concede that law is custom, but what is custom but custom?


Goodrich thereby succeeds in rhetorically dismantling the common law bastion. Where it once stood is simply a void; an empty space – or nothingness (which he equates with faith; faith, too is nothingness). But he locates nothing in its place. He reveals only nihilism. The weakness of the analysis is demonstrated both by the lack of any utility in its conclusions as well as by Goodrich’s unexplained insistence on characterizing the claimed contributions of religion and the divine to law’s origins as singularly unproductive and untrue.


He proceeds next to unearth common law maxims from the same soil. They, too, are found to be nothing but smoke and pretend divination. Even estoppel, contracts, and tort law are dismissed as tautologies, founded as they are upon principles located in the Bible’s New Testament.


These arguments prove too much, or at least to dismantle a smidgen too doggedly. How are we to locate an aesthetics in nothingness? Where is the law if even fingered writings in the dirt are erased by the critic?[x] Goodrich’s jovial prose bulldozes the facade of legal formulations and justifications until only a mirthless, unattractive, and uninteresting surface remains. This seems to defeat the very purpose of his jurisliterature. After all, the primary aim of jurisliterature is to perform an aesthetic assessment. If the aesthetic is bulldozed, to what end? There will be nothing left to admire.


By contrast, the stronger analyses in Goodrich’s book connect the act of judgment to an expanding juristic lens in contemporary court decisions. For example, Goodrich takes up the case of Sikhs for Justice v. Badal, a United States federal court of appeals decision.[xi] The decision was authored by Judge Richard Posner, himself one of the leading law and literature scholars, who incorporates visual images (two photographs) as part of the opinion.[xii]


The plaintiffs in Sikhs for Justice were several alleged torture victims and a U.S.-based human rights group who articulated a claim for injunctive relief against the Chief Minister of Punjab (in absentia) and sought an injunction under the Alien Torts Statue, alleging that the chief minister had committed crimes of torture and extrajudicial killings. The plaintiffs sought to complete personal service of process upon the defendant while he was visiting Milwaukee, Wisconsin, to attend a wedding. They sent their process server to a high school where the defendant was expected to make an appearance.


Carrying a photograph of Chief Minister Badal which revealed, in the words of the court, “a tall, thin, elderly man with a long white beard and a mustache, wearing a turban (mandatory for Sikh men) and eyeglasses” the process server entered the high school gymnasium and approached a man matching that image who was standing in the front of the room.[xiii] The process server “walked up to him, said, ‘Excuse me, Mr. Singh Badal,” handed him the summons and complaint, and hurried from the room without waiting for a response.”[xiv] As Judge Posner explained, “A process server doesn’t want to linger in the presence of the person served, lest that person tear up the papers in the process server’s face or even punch him in the nose.”[xv]


But it was a case of mistaken identity. The process server had served the wrong man. Accordingly, the district court dismissed the lawsuit.


In upholding the lower court’s dismissal of the complaint for lack of personal service on Chief Minister Badal, Judge Posner noted that the person served (Surinderpal Singh Kalra, a U.S. citizen) and the official intended to be served were physically distinguishable from one another: “They are not identical twins. Badal is 2 or 3 inches taller than Kalra, somewhat heavier looking, and about 15 years older than Kalra.”[xvi] But here is where the court’s opinion gets interesting: Judge Posner also attached, as part of the opinion, the photograph that the process server had been provided of Badal and another black and white photograph of Kalra.

Goodrich’s methodology excavates this technique, scoring several compelling points. His methodology succeeds where it identifies aesthetics and ethics which might otherwise go overlooked. It allows us to, as he says, to “hear, smell and feel law [as] we walk the line as images of bodies, as the materiality of spectres, as humans in a posthuman viral and virtual reality.”[xvii] It permits us to see the law from a fresh perspective.


In Goodrich’s examination of the Sikhs for Justice case, he first notes the temporal change of pace that the introduction of photographic evidence introduces. A different “avenue of apprehension” opens up; in contrast to how we read lines of text, when presented with a visual image, the eye wanders about in a non-linear fashion, changing focus, darting here and there, taking account of this detail and that one, “scotomizing, registering, glancing, [and] thinking in its own figurative form.”[xviii] The very apparatus of the decision has been upended. Both the sense and the sensibility of judicial decision-making have been altered.


Second, Goodrich accounts for Judge Posner’s use of the photographs. It is not that the two photographs are of strikingly different people. In fact, they appear quite similar, although mainly due to the fact that they are both white-haired bearded men with glasses and black turbans. The primary distinguishing feature is the length of their beards. The point is not that the two photographs plainly reveal that Badal and Kalra are two different persons. Rather, Goodrich explains, the point is “that the Judge is defining the images reproduced by reading texts into them…”[xix]


The court uses the pictures to tell a story – its story – in support of its findings. “The images allow an unguarded glimpse of the judicial imagination because the photographs are there, everyone can see them and in the mind of the Judge they show what he perceives, a unity, identities without significant differentiation – in the Augustinian analysis so foundational for the West – imago simillima rei – an image that is in all aspects similar to the thing seen.”[xx] But the viewer (the reader) herself conducts the unification and recognition upon processing the photographs internally.


Goodrich makes other interesting points regarding images and other concerns. His analysis of the architectural motifs in the Old Bailey is fascinating. His exegesis and criticism of case law like the Sikhs for Justice decision and the Chambers v. Director of Public Prosecutions case are at once devastating, perceptive, and convincing.


Advanced Introduction to Law and Literature represents an excellent book, though occasionally flawed and sporadically frustrating, principally on account of its overdone prose and its facile dismissal of natural law foundations. Although not recommended for the law and literature novice (Posner’s book serves that purpose much better), it is an engaging excursion. Goodrich’s erudite analysis is an aesthetics of its own which is not replicated as much as it ought to be.

 

[i] Peter Goodrich, Advanced Introduction to Law and Literature, 109 (Edward Elgar Publishing 2021).

[ii] See Anne Teissier-Ensminger, Fabuleuse juridicte Sur la litterarisation des genres juridiques (Garnier 2015).

[iii] Chambers v. Director of Public Prosecutions [2013] 1 All ER at 150. Chambers involved an individual prosecuted for an ill-timed tweet under the 2003 Communications Act which prohibits electronic communications of a menacing character.

[iv] Supra 1 at 57.

[v] Ibid at 29, quoting William Dugdale, Origines juridiciales or Historical Memorials of English Laws, Courts of Justice, Forms of Tryall 3b (Savoy 1666).

[vi] Supra 1 at 30.

[vii] Ibid at 30, quoting Henry Finch, Law, of a Discourse Thereof in Four Books Bk 1 at 74-75 (London 1627).

[viii] Supra 1 at 30.

[ix] Ibid at 31.

[x] See John 8:6-8 (KJV).

[xi] Sikhs for Justice, et al. v. Parkesh Singh Badal, 736 F.3d 743 (7th Cir. 2013).

[xii] See Richard Posner, Law and Literature (Harvard University Press 3rd ed. 2009).

[xiii] Supra 11 at 745.

[xiv] Ibid.

[xv] Ibid at 747.

[xvi] Ibid.

[xvii] Supra 1 at 112.

[xviii] Ibid at 83.

[xix] Ibid at 86.

[xx] Ibid at 88.

* Image taken from


This book review has been authored by Thomas E. Simmons, Professor at the Knudson School of Law (Vermillion, South Dakota, USA).

Commentaires


bottom of page