NOVEL JUDGMENTS: LEGAL THEORY AS FICTION by William P. MacNeil, Reviewed by Jane Lee

By William P. MacNeil
(Routledge, 2012) 208 pp.
Reviewed by Jane Lee on 2012-05-16.

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According to William P. MacNeil, studies in law and literature need to pay more attention to the law. While saluting the work done by prominent law-and-literature scholars such as Meredith McGill, Lisa Rodensky, Brook Thomas, and Alexander Welsh, MacNeil finds their interests primarily socio-legal, focused on theorizing the relationship between society and the law through literary representations of the latter (2). Instead, MacNeil urges us to read literature jurisprudentially, to see how novels critique foundational theories and philosophies of the law. Doing so, he argues, will show how novels helped to construct the "juridical imaginary" of the nineteenth century by proposing legal theories of their own (9).

Rather than approaching his subject by way of sociology or cultural studies, MacNeil aims to establish jurisprudential reading as a new hermeneutic. Having already applied jurisprudence to the study of popular culture in his previous study, Lex Populi (2007), he now aims to guide both lawyers and literary critics by showing how motifs or patterns can link legal documents to literary texts, by reading novelistic devices--such as setting-- through specific legal philosophies, and finally, by explaining how these novels might rearticulate legal theory (14-15). Novels, MacNeil argues, judge the law, find it lacking, and then offer instead what he calls "a reimagined socio-Symbolic," an altered vision of the law's workings and its effects (12).

Applying this method to a number of canonical nineteenth-century novels, MacNeil pairs each with a key legal theory. Each chapter is a complete model of MacNeil's jurisprudential reading in itself--almost to the detriment of the overarching flow of the argument. Deliberately shunning the broader historical and textual ranges of other scholars of jurisprudence, MacNeil shows how the nineteenth-century novel treated Anglo-American law. But Anglo should be italicized. While every novel examined here is linked to common law, MacNeil gives just one chapter to the work of an American novelist (Hawthorne), one chapter each to the work of Austen, Scott, Mary Shelley, and the last three chapters to novels by Dickens. The unevenness of these choices makes the chapters seem disconnected. Why is Hawthorne the only American novelist discussed? What connects American and English jurisprudence in the nineteenth century? And besides the law, what connects the various novels that MacNeil examines? Some effort to tackle these questions would have strengthened his overall argument.

Putting this grievance aside, MacNeil does a worthy job following through with his approach, although his chapters often tackle so many aspects of jurisprudence that it is sometimes difficult to pinpoint the relationships between his chief textual pairings. However, once teased out, his arguments are nearly always refreshing takes on frequently-read novels. Proceeding more or less chronologically, he begins with Austen, reading Pride and Prejudice in light of John Austin's reflections on common law. Though Pride and Prejudice lacks overtly legal characters and proceedings, MacNeil argues that it theorizes law, especially Bentham's concept of utility. In this respect it is said to anticipate the philosophy of Austin, who--though heavily influenced by Bentham--critiques his utilitarianism on the grounds that happiness is always subject to excess desire. In The Province of Jurisprudence Determined (1832), Austin sets the foundations for legal positivism: the theory that law is independent of morality, and is instead sanctioned by other social forces. In Austin's case, that force was a sovereign, who could "calculate felicity" more effectively than individual desire could (27). In Pride and Prejudice, MacNeil suggests, Austen anticipates Austin's solutions to the problems of Benthamic utility, for Darcy's marriage to Elizabeth reinforces the authority that Austin grants to utilitarian sovereignty. But while Austin entrusts the law to his sovereign, MacNeil notes, Austen does not. As evidenced by the lack of Elizabeth's direct voice after Darcy's second proposal, their marriage co-opts her critical inquiries into the obedience that sovereignty demands. This act of censoring, MacNeil writes, exposes the "neutral" house of law as one which is actually inhabited by a "white, male, ruling class body" (46). Austen's novel thus opens up possibilities of revolt and rebellion that Austin's treatise on the law does not. Though MacNeil might have said more about the novel's vision of an alternative juridical imaginary, this chapter nicely exemplifies his method.

Turning from Austen to Scott, MacNeil reads Ivanhoe in light of contemporary debates over Bentham's efforts to separate the law from morality. In portraying Richard the Lionheart's sovereign restoration of legal order, Scott's novel seems to dramatize Bentham's arguments in favor of legal positivism. According to MacNeil, however, it critiques the potentially flawed theory of utility. Richard's seemingly utilitarian wisdom not only serves to disguise and then legitimate self-interest; even more egregiously, this faulty Benthamism actually displaces a much better model of ethical utility in Rebecca, who "does good for others as her own 'greatest happiness,'" and who is forced to flee England upon Richard's return (73). Ivanhoe shows, then, that divorcing law from morality eliminates the potential good that comes from ethical accountability.

Having read Ivanhoe as a response to Bentham, MacNeil reads Mary Shelley's Frankenstein as a response to her mother's A Vindication of the Rights of Women. While Mary Wollstonecraft argued that women's exclusion from the law was monstrous, and demanded their subsequent inclusion, Shelley's monster represents "the liberal subject of rights, who will replace the status society with the social contract," thereby critiquing "the liberal jurist [who] controls or thinks he controls his ex nihilo creation, the rights-bearer" (92-93). In depicting a creature who essentially takes control of his creator, MacNeil contends, Shelley renders everyone figured within rights discourse as monstrous. Rather than contraposing the monstrosity of exclusion to the monstrosity of rights discourse, however, MacNeil reads them together as a feminist indictment of the law, which fails to effectively guarantee universal rights. But does this jurisprudential approach to Frankenstein and the Vindication tell us anything we have not already seen in scholarship that reads them through the lenses of rights discourse, bourgeois-liberalism, body politics, capitalism, and feminism? MacNeil does not fully explain what he owes to these studies and how his perspective moves beyond them.

Turning from England to America and American law, MacNeil finds Hawthorne's The House of the Seven Gables representing an America haunted by the past and fettered by the extant rules and principles of classical legal thought but not yet ready to create its own new theoretical law. Hawthorne depicts the consequences of a law that insists on its dissociation from morality and politics, relying instead upon the tried and tested rules of common law. Consequently, MacNeil writes, his distrust of and "categorical rejection of the hitherto dominant legal formalist conception of the law as a letter" calls for a more active, functional application of the law, anticipating the American legal realism that would be endorsed by jurists like Oliver Wendell Holmes, Jr. (103). Specifically, his novel foreshadows legal realism's critique of classical legal thought and its claims to the neutrality of the law in a laissez-faire market. Historically poised on the brink of an industrialism that would require a more theoretically flexible approach to the market than the rules of "black-letter law," The House of the Seven Gables presciently re-envisions the law as an activity that would adjust to change (102). More than any other, then, this chapter seems to fulfill MacNeil's introductory promise, which is that his nineteenth-century inquiry holds significant implications for the study and critique of law today (19). But his treatment of today's law is disappointingly brief, ranging from the effects of legal realism in the later 1900s to a quick bash of the current American legal system.

The final three chapters show how Dickens strives to rehabilitate the law in three of his novels. While Bleak House is typically read as a severe condemnation of the law, MacNeil argues that in order to represent the violation of trust--legal and otherwise--that occurs throughout the text, its narrative form solicits trust from the reader. To critique the failure of the law while also modeling an ideal fiduciary relationship between lawyer and client, Dickens pairs the affidavit-like testimony of Esther Summerson with the "barristerial voice" of the omniscient narrator (134). In A Tale of Two Cities, MacNeil argues, Dickens endorses a common law that succeeds precisely because it fails to execute Charles Darnay--a testament to the necessary workings of law, which involve listening to, judging, and sometimes failing to convict its subjects. While imperfect, MacNeil writes, Dickens prefers the common law to revolutionary justice, which is characterized by a "regime of truth" that works too eagerly, brutally taking everyone to task by suspending all forms of the juridical imaginary, such as rights, and destroying everyone in the process (158). Lastly, MacNeil contends, Great Expectations suggests an alternative to the Foucauldian principles of governance expressed by Victorian jurisprudence. Since these principles "trivializ[ed] the law as a mere tactic of power" by reducing it to primarily retributive or distributive functions, legal theory could not truly address issues of justice (182). But in Joe Gargery, who tries to teach Pip right from wrong through kindness and forgiveness, MacNeil sees a new ethical legality that seeks not so much to discipline the orphan as to give him a moral education.

In his postscript MacNeil disavows a historical as well as historicist purpose. Reading jurisprudentially, MacNeil stresses, can show how legal critiques antedate the twentieth century, arising even as the law was being formulated in the nineteenth century (206-207). The book does indeed consider those critiques in admirable detail, with concrete examples. But MacNeil's method may limit the value of his findings. In choosing only canonical texts, he ignores what non-canonical texts may have to say about the law. Even if jurisprudential reading stresses the "Rule of Law" over identity politics, no study of legal critiques can ignore the imbrications of the law and subjectivity, as MacNeil's own reading of feminism (in chapter four) admits. But identity politics might well be subordinated--if not wholly sacrificed--in a book whose vast range is dedicated to establishing and then practicing a method. MacNeil's book largely succeeds in showing what we can learn about legal critiques by reading certain works of fiction with a jurisprudential eye.

Jane J. Lee is a post-doctoral instructor at the University of Washington. Her dissertation is Reading Matters: Liberal Discourse and the Democratization of Reading in Victorian Literary Culture (2011).

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