European Dialogues Concerning Law, Death,
the Linguistic and the Literary

As its title suggests the collection of essays Figures of Law 1 expresses a general move away from confronting and challenging law with strictly speaking literary texts to regarding law as cultural and aesthetic phenomena. In this the volume recalls, for instance, Costas Douzinas’ and Lynda Neal’s Law and the Image (1999) and shows a debt to Peter Goodrich’s and Maria Aristodemou’s work on law’s unconscious. 2 A German and English language production, this collection concentrates primarily but not exclusively on Irish and German legal motifs and issues. Three essays are written in German, but include English abstracts. This mix speaks for a particularly interesting intra-European dialogue about law’s interaction with culture.

Most strikingly, the volume eschews a rigidly academic format or discourse. For instance, it does not begin with the de rigour introductory history of the Law-and-Literature movement and then continue on to a discussion of how the volume’s various essays further this movement’s development invaluably. Instead, two highly literary introductory essays preface the volume and are provided both in German and English versions. The first of these, »Dialogue on the Zero Point of Language: A Lawless Prelude«, is written in the form of a conversation: texts in plain print on the left margin philosophize about an existence in which language ceases to have meaning; these passages are followed by parts of a meditation on Antigone, a beloved figure in Law-and-Literature scholarship. This is written in italics and is oriented on the left-hand margin of the page:

[…] When language ceases to be a means of transport for social communication, a zero point has been reached. [...] Words are no longer at their appointed sites of meaning. Everything is in motion. Everything is flowing. Dizzily, you enter this torrent which has flooded over everything that is familiar. This is the cascade of thought.

This thought quickens and is embodied in Antigone. Antigone figures the ›zero point‹ in the speechlessness of an act of love. One gives up of one’s own form [...]. (p. 15)

This spacing of text on the page and the interplay between literary meditation and a philosophic musing about the freedom that would be caused by »placing myself at the behest of the lawless rules of linguistically powerless language« (p. 17) suggests poetry or highly poetic and dialogic philosophy such as Derrida’s early Glas (1974). Composed by the Germanist and literary author Gisela Dischner and by Gert Hofmann, coordinator of the Law and German program at University College Cork, the dialogue displays an interest less in the »interference of law and literature« (the subtitle of the book) than in the relationship between language and law. Here, a paradox opens up in the volume. Its alleged emphasis is on figuration, yet Figures of Law is almost exclusively concerned with linguistic questionings and figurations of the legal. Such questioning should proceed, the initial »Dialogue« tells us, by »expos[ing] law to literature over and over« (p. 20). Here, the reader understands the leitmotif of interference to be meant in the sense of irritation or interruption. Literature is then understood, with reference to Blanchot, Deleuze, and Derrida, as a site of linguistic freedom or lawlessness.

Gert Hofmann’s second introductory essay or Einleitung further mixes literary and philosophic musings by asking how »Rechtsprechung«, translated literally as the ›speaking of law‹ and meaning ›passing judgment‹, is to be understood. It also bespeaks the volume’s emphasis on European philosophy – Agamben, Blanchot, and Derrida foremost amongst the scholars it takes issue with – as a way of addressing the relation between literature and law as one of excess and boundary crossings:

Much of this book is devoted to such figures, configurations, constellations of law, and to their theoretical extrapolations. They reflect the nature of human powerlessness, weakness, and mortality, but they also manifest essential literary and rhetorical qualities of the phenomenon law (p. 40).

An awareness of law’s rhetoricity is sought through an awareness of death. Thus besides the arbitrariness of language, the conceptualization of death as a challenge to law as well as legal and political authority is the major theme of the volume (cf. essays by Hofmann, Thurschwell, and Hegarty). Beyond a preoccupation with death as the basis of the human condition, Figures of Law is also centrally concerned with questions of gender and law (essays by Künzel, O’Sullivan, Jürgens).

Adam Thurschwell’s
»Law and Literature and the Right to Death«

In the following I will concentrate, perhaps unfairly and arbitrarily, on a few of the essays. Adam Thurschwell’s »Law and Literature and the Right to Death« is amongst the most theoretically challenging ones. It reflects its author, an American lawyer’s profound knowledge of continental European philosophy and phenomenology as well as his preoccupation with the philosophy of Maurice Blanchot (1907–2003). Thurschwell leads his readers through Blanchot’s 1948 essay »Literature and the Right to Death«. He does so as part of what I regard as his larger project – to bring continental philosophy into the Anglo-American conversation about Law-and-Literature, where it has been largely neglected.

Unlike much Law-and-Literature work, including the volume Figures of Law as a whole, »Law and Literature and the Right to Death« does not depart from the grounds of the common linguistic basis of law and literature. Rather, Thurschwell begins his argument by pointing out their essential difference: law claims a provenance over its subjects’ lives which literature cannot. Law, according to Blanchot, distinguishes itself through its sovereign right over the lives of those who live under it. One is reminded here of – and Thurschwell makes reference to – Cover’s much quoted passage on law’s imposition of pain and death on its subjects. 3 Law claims the right to determine death (through capital punishment, through enforced military duty, and through prohibitions, for example, regarding suicide).

Literature, by contrast, is at once the demand for death which is enacted through the linguistic act of naming as well as the surplus of being which is exposed through this act. One is reminded of Saussure’s explication of the arbitrary assignment of the linguistic sign to the signified, on the one hand, and Heideggerian and post-Heideggerian (Sartre, Levinas, etc.) philosophic enquiries into the central meaning of death, on the other.

Blanchot, according to Thurschwell’s exegesis, defines literature as denying what it represents. The fundamental paradox of literary writing involves the writer’s seemingly deific ability to create worlds while simultaneously having no real effect on what is outside of the literary. Thus, following Blanchot’s argument, the writer feels attracted to revolutionary activity as a form of denying and counteracting her own meaning creating, yet pointless activity. Analogously, the revolutionary terrorist subverts the sovereign power’s right – and reference here is to the French revolution – to her death by claiming it as her own. However, the freedom she wins through her revolutionary actions is an abstraction devoid of the realities of concrete, everyday life. Thus, the central analogy which is to be drawn is between law’s presumed ability to negate life, which is shown to be mistaken, and literature’s paradoxical ability to name and deny what it names simultaneously.

According to Thurschwell’s reading of Blanchot, there is no clear differentiation between the negating effect of the use of literary and linguistic language: »In brief, he shows that even nonliterary language has an intimate relationship with ›death‹, understood as ›nonexistence‹« (p. 59). Naming brings to light, or in the pan-Heideggerian sense, brings into being that which it destroys through signification. Yet literary language is self-conscious about its simultaneous naming and negating of the fictional world. Moreover, literature exposes the impossibility of death or complete negation by showing that some surplus of being remains even after the act of naming. This excess, or remainder, undermines notions of sovereignty, citizenship, and law:

It is the lesson that it is literature’s distinctive task to undergo and expose – the discovery of ›death as the impossibility of dying‹. For if death – understood as the moment of non-being required to lift bare existence into the realm of (linguistic and political) meaning – is impossible, then neither the sovereign’s nor the citizen’s ›right to death‹ can be taken literally. (p. 61)

Literature’s exposure of the impossibility of negation then also leads to an undermining of notions of »sovereignty« and »citizenship« (p. 61) and ultimately of law itself. By foregrounding the impossibility of complete negation, literature demonstrates the ultimate impossibility of the sovereign’s or the revolutionary’s enacting death. A fundamental undermining of law and its threat of violence to the individual is thus striven after. This is the political moment of the essay which Thurschwell has been building up to, but whose pointe is unfortunately not stated with quite sufficient clarity.

After this preliminary conclusion, the essay turns its focus onto Blanchot’s later work and his subsequent turn to a Levinasian ethics of the Other. This occurs somewhat too abruptly after the long meditation on negation, death, and violence. Thus, while Thurschwell appears to dance through Blanchot’s hard-going prose, his work needed further editing and/or the forum of a monograph-length manuscript for the exploration of Blanchot’s various literary questionings of the law. Nonetheless, the essay is highly thought provoking.

Gender Studies Interventions in Questions of
Law, Literature, and Culture

Moving from the volume’s emphasis on death and the dying body to gender, I wish to particularly laud Christine Künzel’s excellent »›Aus einem Bett aufgestanden‹. Anmerkung zum ›Verhältnis‹ zwischen Recht und Literatur«. (The essay title can be roughly translated as »Out of One Bed: Remarks on the ›Relationship‹ between Law and Literature«). The author takes her title from the Germanist Jacob Grimm’s seminal essay from 1816 »Von der Poesie im Recht«. There, Grimm argues that poetry and law arose from out of a single bed and for the necessary recognition of old German laws and the poetic basis of both law and literature in contemporaneous arguments about legal codification.

Künzel traces the metaphorization of law as masculine and aggressive, and literature as feminine, passive, and ethical which has been a bastion of Law-and-Literature scholarship since its interdisciplinary infancy. She convincingly demonstrates that this gendering of literature as feminine and aesthetic and as a counter discourse to masculine, rational law has done it and Law-and-Literature a great disservice. She does so by playing with the very metaphor she renders problematic, that of an unhappy relationship between partners whose bed has become an uncomfortable place to lie in:

Wenn der Anspruch auf Interdisziplinarität ernst gemeint ist, dann müßten beide Disziplinen – Literatur und Recht – gleichberechtigt an der Debatte beteiligt sein. Jeder der Bereiche sollte das Recht und die Möglichkeit haben, die Grundlagen und Methoden des jeweils anderen grundsätzlich in Frage zu stellen. Auch die Abgrenzung der beiden Disziplinen gegeneinander müßte kritisch hinterfragt werden – zumal, wenn sie von Abgrenzungsmerkmalen getragen wird, die einer Dichotomie der Geschlechter folgt. (p. 130) 4

Künzel’s essay represents the most complete record of the slippage and generalizations of the two disciplines which occur through their being gendered, and I look forward to seeing her work being translated into English for a wider readership.

Continuing along the gender studies trajectory of the volume is the culturally critical essay by Catherine O’Sullivan, »Madonna and Whore: The Perplexing Media and Legal Response to a Female Child Molester«. The essay traces the fascinating medial and criminal career of Mary Kay LeTourneau, a 6th grade teacher who began a relationship with one of her students when he was twelve, was subsequently charged with second degree rape of a minor, and ultimately went on to marry her former student after serving out her sentence and having two children by him. LeTourneau was at first represented as predatory and evil. But with her slight build, blonde hair, and visual invocation of images of piety and maternity, she was reassigned in the media’s eyes to representing an icon of good motherhood rather than being perceived as a child rapist. O’Sullivan points out that such dichotomous visions of women offenders go back to nineteenth-century prejudices about women criminals displaying insufficient characteristics of femininity. She also discusses society’s and feminism’s unwillingness to address the reality of a small but statistically evident group of women paedophiles.

Cornelia Vismann’s Deconstruction of the Boundary
between Literature and Files

Finally, I wish to mention Cornelia Vismann’s excellent »Files not Literature«. Vismann is a leading German Law-and-Literature scholar who has worked at the Birkbeck School of Law in London and whose first monograph has recently been translated into English. 5 Her central argument here and in her book is that files are conceived of as a text genre quite different from literature, because of their claim to having a truth value and their being subject to a closed and protected system within archives. She focuses on files with the argument that only the institutional separation of the legal from the literary allows for the existence of the interdisciplinary venture at all: »This rather peculiar coda of file-literature as a literature based on one’s own file should give an end to my little tale about the separation of law and literature as a prerequisite for the movement by that name [...]« (p. 169). Yet her two claims – files are true, literature is poetic – are shown in good Derridean fashion to deconstruct themselves. Files are as fictional and as proto-narrative as anything that is considered to be strictly speaking literary. Recent German history offers a salient case in point. Files held by the East German Stasi, which are still subject to a number of controls, fictionalized the lives and served as agents of control over the persons about whom they were written. Moreover, working on files can also involve moments of poesis: »Files locked away in archives write their own poetry« (p. 171).

Articulations of European Law-and-Literature Scholarship

Figures of Law suffers slightly from some unevenness. Greater clarity about whether the volume’s central intention is to linguistically interrogate law, to explore law’s various aesthetic figurations, or to deconstruct the legal through the literary might have leant it greater force. Yet the volume is to be lauded for its creative, multi-lingual approach, and its consideration of various legal cultures. Like Jeanne Gaakeer’s and François Ost’s excellent and, unfortunately, as yet unrecognized Crossing Borders: Law, Language & Literature (2008), 6 Figures of Law represents the juxtaposition of European varieties of Law-and-Literature scholarship. The volume thus furthers a project which is to my mind increasingly taking shape, which is to articulate forms of European Law-and-Literature scholarship.