an international and interdisciplinary journal of postmodern cultural sound, text and image
Volume 4, August-September 2007, ISSN 1552-5112
Historicizing
Law and the Text[1]
This paper is designed to draw attention
to some possible encounters between literary theory and a branch of legal studies called critical criminology. Some of these hitherto unexamined
points of contact might well contribute to the expanding debate between the two
disciplines. That debate canvasses issues including the possibility and
desirability of re-covering
an author's or a judge's intention, the role played by reconstructing historical circumstances
or the nature and scope of precedent in literary and legal interpretation,
and the channels through which interpretive bodies transmit and exercise
conditions governing interpretation
I shall first suggest connections between Anglo-American New Criticism
and the legal formalism propounded by
traditional criminologists. Next I shall indicate some parallel departures from this legal and literary
formalism, in particular the instrumental, the structural (or "capital-logic"),
and the relative autonomy positions in criminology and
their literary counterparts, vulgar
Marxist, structuralist, and post-structuralist literary theory. Finally, I
shall argue that the self-doubts besieging both professions arise from a
gathering consensus in each: that
every interpretive act comes already laden with guild and political interests and are more or less predetermined by
those interests. Just as this simultaneous awakening has sprung from seminal texts read in both disciplines, so too
from it have sprung a similar
spectrum of positions in both, ranging from those who concede no autonomy to
the interpretive act, to those who
contend that each such act redefines the interpretive group anew.
The splendid isolation enjoyed
by each discipline has, with the 1990's, passed. Literary scholars have infiltrated
the legal community and their articles command space in leading law reviews. Legal theorists have openly
seized literary critical methodologies and one group, calling itself the Critical Legal Studies movement, owes its
fundamental insights to
post-structuralist literary criticism. Acting from the best of motives, namely
the effort "to transform legal doctrine into one more arena
for continuing the fight" for social justice (Unger 1984: 579), the Critical Legal Studies
people enact their historicizing project in the full confidence that "everything will change" as soon as people see that the laws all are "formed by political interests" (Gordon 288-89). Mark Kelman's Stanford Law Review essay, "Trashing," and Roberto Unger's
later work deploy contextualist, anti-foundationalist, decontructive insight to "destabilize,"
"delegitimize," or simply
"trash" legal
scholarship and to undo the imposing closure that legists have traditionally
claimed for their field.
That confidence has, according
to neo-pragmatists, no basis at all. Stanley Fish, in his essay "Consequences" and Michaels and Knapp in theirs, "Against Theory," dismiss all such “anti-foundationalist
Theory Hope” as counterintuitive. Theory has no consequences even for practical
literary criticism, they argue, much less for political praxis. Kelman himself
has acknowledged latterly that rationally perceived contradictions between
social structure and theories including Jameson, Foucault, and Said offer ways
to get beyond this paralyzing conviction of impotence, I shall argue, and chart
the route to bring texts back into history. To understand the obstacles to
practically effective and politically committed scholarship it will be useful,
first of all, to review the recent developments linking legal and literary
theory.
Traditional or formalist
approaches in the analysis of law have
agreed on four major points: the
legal order is independent from the influences of any particular group; the
formal body of taws affects all
persons equally; precedent is the underlying foundation of legal thought; and,
fourth, laws, written in such a way that
all can understand them, guarantee predictability, calculability, and order. Together, these principles
add up to the "rule of law," or "formal Legalism"(Milovanovic 1983: 84). Each tenet serves to define more sharply than
the next a Legal system
distinguished by closure, asociality, and immunity to historical changes
occurring outside its own hermetic evolution.
Anglo-American New Criticism also
considers its object, literature, as an enclosure governed
by rules of development wholly independent of those directing the social matrix and its historical changes.[2] Every true literary work
floats free of interested motives or political determinants; it is a "verbal
icon," in Willim Wimsatt's phrase. The short poem becomes, in Cleanth Brooks's The Well-Wrought Urn, the epitome or self-enclosed and timeless art,
as well as the ensign of a criticism devoted
to the privileged singularity of literature.
Just as formalism locates the
laws in a neutral State designed to adjudicate conflicting claims, so too
the rhetorical bases of New Criticism—“irony," "paradox," "tension"—establish a
locus where embattled opposites can converge without
destroying each other. It is simply the
poem rather than the law. If law is sacrosanct and disinterested, to the
formalist, so is the poem to the New
Critic. Because it alone resolves conflict, the poem acquires theological
status. Walter Ong argues that "the
very texture of poetry itself," consisting in wit, irony, and paradox, stands at "the heart of Christian doctrine"(Ong 1962: 90). R.P. Blackmur
asserts that the poem as the site of
conflict-resolution partakes of divinity: "Only in analogy are the opposites identical . . . and it was a similar
perception which led
The New Critics themselves noted their affinity with
the doctrine of legal formalism. The poetic
text is "like the democratic state, so to speak, which realizes the ends of a state without
sacrificing the personal character of its citizens," observes John
Crow Ransom. The myth of even-handed
legality that enshrines democracy for he legal formalists carries over
(metaphorically, at least) to the poem for the New Critic. Radical
challenges to legal formalism have come from three positions: the instrumental
Marxist, the commodity-exchange (or
"capital-logic"), and the "interpellational" schools. Literary critical
positions have developed against New Criticism along remarkably similar lines.
Even the temporal sequence corresponds.
The instrumental Marxist
position developed earliest. Attacking the Formalist notion that law operates impartially,
instrumentalists argued that the ruling class determines the legal form. Endowed with "strategic consciousness," that class uses the law "to maintain and perpetuate
the existing social and economic order"(Quinney 228). Law and the state,
as mere superstructural reflexes of
the social and economic base, have no autonomy whatsoever.
In the first literary theory
claiming a Marxist orientation, imaginative literature has no autonomy, either.
Good literature is defined as such because it accurately reflects the real
social structure, which the economic
base dictates. Whether crude (Caudwell and Goldmann) or refined (Lukacs and Balzac), literary instrumentalism
pursues exact homologies that link literature to the mode of production.[3]
Both literary and legal
instrumentalists are vulnerable to roughly similar counterclaims. Chiefly, they
leave no room for mediating elements that interpose themselves between the base
(the mode of production) and its
superstructural effects. Thus, legal instrumentalism cannot account for all those laws that run afoul of the immediate interests of big capital. These laws, mandating
such things as safe working conditions, restricted zoning, and welfare
benefits, proliferate especially in
the countries where capitalism has reached its most advanced, monopoly phase.
Literary instrumentalism also falters as
soon as it faces modern and post-modernist literature. With its reflections aesthetic, literary
instrumentalism is compelled to see as merely degenerative any text more complexly mediated than
Stendhal's "mirror walking down a road"—the
perfect realist novel.
The second paradigm derives from
structuralism its critique of law under capitalism. The proponents of this model, the "capital-logicians,"
ascribe to legal forms Marx's theory of commodity
fetishism. The capital logicians remain convinced that law serves ruling class
interest, but reject the
instrumentalist idea that this effect results from strategic planning. Rather,
because both law and money regulate the
relation between commodity producers (Holloway and Picciotto 1978: 20), the legal subject emerges as
the juridic equivalent of that economic abstraction, money. Both are abstract forms masking real differences with
the phenomenal appearance of
identity. Circulation therefore reconstitutes the subject as a bearer of rights
and as an abstraction with political
and economic interests (Hunt 1978: 142; Sumner 1979:220-1; Habermas 1970: 97). Milovanovic has extended the
commodity exchange theory of law to courtroom procedure, in which the
lower-class defendant’s “socio-economic
guilt” can be read in his or her testimony
by means of the absence within it of the "premises that
embody . . .given ideological
structures" (Hall 1977). Such a defendant lacks the linguistic capital, so
to speak, that would "lead to a
qualitative, superior ability to present stories in
forms" that produce "believable story-telling
in the courtroom"(Milovanovic 1981: 365). In short the courtroom audience
will not buy what the lower-class defendant offers.
Milovanovic's strategy of
making visible the ideological absences in court testimony has methodological
affinities with contemporary Marxist literary theory. Every reader of Eagleton
and Macherey will have already heard that
discourse works to exclude that which threatens the dominant class or fraction, which becomes dominant precisely by
securing assent to its ideology. Therefore the
realities of exploitation and inequality must not and
cannot represent themselves, since it
is the very function of language to exclude them. The literary text has a
particular
structure with its own laws of development, however, that allows it to expose the unsaid. "Structure is that which dispossesses the work of
. . . its secret cause, revealing that
basic defect without which it would not
exist"(Macherey 1978: 155). Macherey clearly subscribes to the Marxist premise that ideology occludes some
"positive knowledge which is uniquely equipped
to define real relations"(154), a
knowledge that Althusser calls "science." Eagleton accepts both that premise of veiled positivity and the conviction that literary works
can deliver science to
consciousness. "In so putting ideology to work, the text begins to
illuminate the absences which are
the foundation of its articulate discourse," he contends," and in doing this, it helps to
'liberate' us from the ideology of which that discourse is the
product"(Eagleton 1976: 90). Ideology
constrains and excludes whereas science explains and liberates. Mediating
between the two, the literary text
has a "dense," "opaque," or
"obliquely translucent" quality that gives it an "immediate" relationship to the lived
experience of which it treats. Anyone can see why Macherey and Eagleton focus in their practical
criticism on nineteenth-century realist novels. Such a text most clearly "works that experience in ways that make
life accessible and visible to theory"(Eagleton 1976).
No one who has experienced the
oppressive effects of hegemonic ideology or has a sense of justice could
possibly object to the motives that actuate Milovanovic, Eagleton, and
Macherey. Theirs is a liberating,
demystifying project. Yet one has to doubt their methods. The commodity-exchange theorist rests his narrative
theory on the shaky basis of homologies. "The fetishism of
commodities . . . is homologous to the logic of legal fetishism"(Milovanovic 1983: 42) and in
turn, linguistic forms develop in "an homologous manner"(Rossi-Landi
1977:72; also see Jessup 1980: 340;
Balbus 1977: 584-5; Milovanovic 1984: 103). But this is to ignore the possibility that narrative forms have their
own specificity. Labov has demonstrated that oral narratives obey distinctive rules of formation, and his study
suggests that the best "natural narrators" often occupy marginal economic positions. In his study of oral epic,
Albert Lord has also shown that the
advent of literacy in ancient
Milovanovic, Eagleton, and
Macherey leave an even more important question unanswered. What gives them their privileged access to "the real"? Little in
their own writings suggests that they
have superseded ideological modes of signification. These legal and literary
theorists share a rhetoric that has shored up philosophy from its
beginnings, a rhetoric of unmasking, of darkness
coming to light, of the vertical ascent to knowledge, of writing that is always
a degenerate copy of true speech.
The "linguistic form . . . hides other levels of
signification--'preferred meanings'
of workers are masked or are not given recognition as 'meaningful'
sign systems"(Milovanovic 1984: 105) and so language
joins the commodity and legal forms in "'hiding' an underlying condition of exploitative
labor"(107). As for literature, "in yielding up to criticism the ideologically determined
conventionality of its modes of constructing sense, the text as the same time obliquely illuminates
the relation of that ideology to real history" (Eagleton 101). But in order
to "extract" a real knowledge of "real
history"(Macherey 21) criticism
would have to transcend its own rhetorical status and in that way "break with its ideological prehistory, situating itself outside
the space of the text on the alternative terrain
of scientific knowledge"(Eagleton 43). These critics never doubt their own
ability to make that break.
That anthropological
perspective outside ideology remains, however, beyond these critics'
reach. Their own language remains mortgaged to a now-refined but unmistakable
and omnipresent Marxist metaphor, the
division of society into a base and a superstructure with the former (mode of production) "determining" the
latter (state, family, schools, churches). In order to divorce himself from vulgar economism,
Milovanovic follows Raymond Williams in asserting that "determines" can mean "exerts
pressure, exercises an influence, sets limits to social phenomena"
rather than "controls, prefigures, predicts"(Williams
1973: 4,6; 1977: 83-89; quoted in Milovanovic 1984: III, footnote). Despite
their qualifications and caveats, these three structuralist radicals reveal in their own topographical
metaphors their continued allegiance to a critical practice thoroughly in the charge of traditional
philosophical, indeed Platonic antinomies: the critic is to peel away the mask, dispel the simulacrum, scour the surface encrusted with writing in order to reveal the original, naked
truth. Yet their claim to have escaped ideology arrives, cast in language that belongs to the ideological prehistory it
purportedly transcends. The
metaphors tend, therefore, to discredit the message.
It would be unfair to reduce the commodity exchange
theory of law to its system of homologies as
it would be unfair to dismiss the literary theorists for using a
"discourse fixated upon its own
formulations and unable to recognize their figurative nature"(Norris 1982: 89). Certainly they
ignore Nietzsche's warning not to pass too easily from image to concept
and seldom remark the tropes and
metaphors that compose their own work.[4] But an even more telling
similarity links the legal and literary theories resting on homologies: their
inability to engage the characteristic
legal and literary forms of twentieth-century monopoly capitalism. Eagleton confines his own studies to nineteenth-century
novelists and early modernists, while Macherey flatly declares, "the realist writer is most to be commended, for it
is he who goes furthest in the
enterprise of writing"(46). And Milovanovic candidly concludes that,
"whereas the commodity-exchange
theory of law seemed somewhat adequate to explain the legal form along with
the juridic subject in competitive
laissez-faire capitalism, it was unable to explain the forms of law,
ideology, and juridic subjects in state-regulated capitalism of the 20th
century" (Milovanovic 1984:
108). Whether this inadequacy is openly admitted or emerges quietly in Eagleton's and Macherey's own
silences, Marxist theory must evidently go further if it is to grasp twentieth-century legal and literary forms.
This leads us to poststructuralist theory.
Poststructuralist legal and literary thought look, on
one level, identical. Both positions reject binary
structures of opposition, regard disciplines and professionalism as productive (not merely repressive), and replace (as the
object of study) individual subjects with affiliative collectivities. Both take politically
conservative and politically radical forms. In one vital respect they differ. Legal theorists perceiving
themselves as free from the need to justify law on the basis of its intrinsic rationality have generally used that
freedom to avert crises, neutralize
contradictions, and sustain the "structure in dominance"--the capitalist status quo. Only
within the last decade has a school emerged that encourages oppositional legal
theory. On the other hand, a literary
criticism released from formalism has more readily abandoned teleological goals and the task of legitimating a
unified "tradition." If the new
substantive legal rationality has
effectively resolved legitimation crises, the new literary professionalism
has multiplied them.
First the conservative and recuperative legalism.
Until the late nineteenth century competitive laissez-faire capitalism
generated self-legitimating principles internally by assuring "justice . . . in the exchange of equivalents"(Habermas 1975: 22), by ruling out state intervention from above, and by establishing formal legal equality among
all subjects. The contract between
two commodity owners epitomized this “formal logical
rationality"(Weber 1968) and Anatole
The state sets ground rules for most economic transactions, directly
regulates many significant
industries, . . . manages the tempo of
business activity and economic growth, takes measures directly and
indirectly to maintain effective demand,
and itself participates in the market as a massive business actor and
employer. (Klare1979:125).
The new regulatory state "must take into account the limits of direct
manipulation" and coercion
(Esping-Anderson, Friedland, and Wright 1979: 143) and offers welfare and
medical services so as to "fashion
and articulate a legitimating ideology"(Klare 1978: 336). As for workers the "atomic
substitutional" relationships that once organized labor into "wholly competitive individual
units" now give place to "cluster cooperative relations" and "less competitive group units"(Gabel 19770: 619). All this hardly means that conflict between classes
has stopped, but only that it has diffused
itself into non-binary forms.
Post--structuralist literary
theory no less than
corporate capitalism has worked to eliminate binary oppositions. Using principles first developed by linguists,
Jacques Derrida and others have
shown that the binary couplets indispensable to most Western European
writing—those of light and darkness,
surface and depth, speech and writing, among others---also are "differences without positive
terms"(Saussure Course: 118). Deconstructive reading also shows the
unavailability of that
anthropological perspective outside ideology. Anyone using language, including
Macherey, Eagleton, and Milovanovic,
remains hostage to the ideological misprision that enables language to function. Although deconstructive
strategy renders impotent such traditionally virulent categories as "civilized or barbaric," in practice it has led away from history and toward a timeless textuality. "To call it 'freeplay' seems understated," Hartman asserts: "A 1001 nights of literary analysis lie before us "("Monsieur Texte": 162). There is "nothing outside the text" (Derrida 1977) that a deconstructive reader can credit. Whether this
strategy can form the basis for a
historically sensitive literary criticism or legal critique remains to be seen. Only the most vigilant of literary
critics--Jameson, Foucault, Said--have managed to historicize their work and yet protect it from
deconstructive assault.
The fact that late capitalism
has "deconstructed"
its earlier, laissez-faire forms should make committed critics loath to embrace deconstruction tout court. What
seem to be concessive measures,
hard-won rights, and significant gains over free-market capitalism often merely
serve to neutralize the forces that
might disrupt the "structure in dominance." Many examples arise. Balbus
(1973) has shown that the criminal justice system when faced with urban
rebellion in
Legal and literary theory
intersect here for a second time. Under the guise of disseminating a text, revealing
its endless, undecidable meanings and always denying its own status as a self-enclosed system of operative concepts (Norris
31), deconstructive reading actually installs the text in an ahistorical totality that Derrida
calls "logocentrism" or "Western metaphysics." Substantive rational law eschews universals:
legislators debating the 1971 Lockheed Loan Guarantee set aside "universalistic rule-oriented
formulae. But it does so only to reinforce the larger capitalist edifice. "Monopoly creates
conditions for particularistic law," Turkel concludes(1980-81: 51 ). The deconstructive dialectic
moves along a similar, twisted path. Through minute attention to particular details, the critic paradoxically
restores the text in question to the
encompassing totality of Western intellectual tradition. By eschewing formal
methods and universalistic rules, the
deconstructor manages to bypass historical contingencies and place the object of study within an atemporal,
transhistorical order of formal rhetorical attributes.
Yet the insistence on detail
and avoidance of universals can also lead in the other direction, back into the world
and the struggles that generate texts and laws. This is the third and most
encouraging conjuncture of post-structuralist legal and literary theory--the
moment of oppositional critique.
Having once conceded the relative autonomy
of superstructural "effects," from each
other and from the economic base, one can begin to imagine the legal and
literary forms exerting a leading
(rather than merely a reflexive and reinforcing) power.
Gramsci, Althusser, and others have
each in their fashion argued that ideological institutions or "apparatuses" reproduce the late capitalist
mode of production. Poulantzas has gone so far as to say that competition is itself an effect of
juridico-ideological practices (1978: 130-33; see also Althusser 1971: 132, 143;.Jessop 1980: 352;
Edelman 1979: 97; Hirst 1977: 57-58; and Boweles and Gintis 1976: 128-48, cited in Milovanovic 1984: 99). In hegemonic systems of domination superstructural
practices can assume a determining role.
Fredric Jameson's work has shown
how the relative autonomy of literature may nonetheless thrust
imaginative texts into the thick of history. Examining literary
"strategies of containment,"
the ways imaginative writing neutralize antinomies and challenge the horizons
of consciousness, Jameson argues
that literary figuration accomplishes what logical, "conceptual" writing can
never attempt. Literature can pursue a utopian vocation, push ideology to its
limits, infuse a newly-reified world
with color. Texts that appear to address imaginary problems, he asserts, actually engage in the crucial business
of materially
transforming the political
unconscious.
Jameson has striven to avoid
what some critics call Hegelian idealism and what neo-pragmatists would, after
Stanley Fish, call "anti-foundationalist Theory Hope"(Fish 1984).
Therefore Jameson will agree with
these critics, on occasion, that theory and texts have no consequences. This disavowal sets Jameson apart from Macherey
and Eagleton, for whom text and reality reciprocate each others' effects. Jameson also forgoes their anthropological
perspective and their confidence
that theoretical awakening can inspire social change. "Such antinomies" as appear in the
literary work "cannot be solved or resolved in their own terms,"
Jameson says, "rather, they are violently restructured by an infrastructural praxis which,
rendering the older oppositions meaningless,
now lays the preconditions for some new conceptual system or ideology which has
no immediate links with the
preceding one"(1977: 12). In the literary text, “surface
clicks and malfunctions betray”
those infrastructural social contradictions, but cannot resolve either them
or each other. Jameson's recourse to the
surface-depth metaphor displays the continuing force that the Marxist base-superstructure model, though he
denies it, holds for him. Yet ostensibly he disclaims, here at least, the power of critical self-consciousness to
inaugurate radical action. He stands
for the moment as far from traditional Marxist Theory Hope as do Fish, Walter
Michaels, and Richard Rorty, the
seminal new pragmatists.
But if theory really has no consequences (one is tempted to ask Jameson),
then why should a politically committed
intellectual bother to interpret texts at all? The answer Jameson gives—that history remains inaccessible except in textual form and through its prior
narrativizations--implies that
critical activity is a genuine act (albeit on a symbolic level)even though we "register" such acts as "merely symbolic" and as leaving "the real" untouched.
Jameson has to negotiate this
difficult pass and ends up with a position that cuts both ways. Challenging
the anti-foundationalist notion that there
is nothing outside the text, Jameson nevertheless acknowledges his own inescapable separateness
from "the real."
It is perhaps to Jameson that
the Critical Legal Studies movement bears closest resemblance. Unger, Kennedy,
Kelman, Tushnet, and the others all eventually explore legal "strategies of containment," the ways legal writing neutralizes contradictions and posit the limits
of consciousness. If literature for
Jameson pursues a utopian vocation, so too "every trasher
within CLS has at least tried
utopian specification"(Kelman 1984: 344). Unger, especially, wishes to
give legal critique a utopian vocation all its own. The heroic figure
throughout Unger's work. is "one who is able first to anticipate, then to recognize, but finally to
embrace perfect being in imperfect,
and fugitive, and earthly form"(Knowledge
and Politics 235). Unger's language captures, as does Jameson's, the difficulty of executing such a
movement. He too disallows any outside,
anthropological perspective: "we cannot replace the system of thought until we
have understood it, and we cannot
understand it until we have replaced it"(118). Unger's
"total criticism" in fact approximates Jameson's approving summary of
Foucault's: "a given episteme is not something that can be modified or developed or 'resolved'
or 'aufgehoben' . . . but rather that . . .
generates all of the logical possibilities and permutations implicit in its
structure and is then abandoned"(1977: 12). Foucault marks the point at which Jameson, dean of North
American Marxist criticism, and Unger, pope
of the CLS destabilizers and trashers, finally converge.
Michel Foucault's work has palpably shown the determining power
that superstructural or ideological effects can wield. He calls them "discourse":
I am supposing that in every society the production
of discourse is at once controlled, selected, organized and redistributed
according to a certain number of procedures, whose role is to avert its powers
and its dangers, to cope with chance events, to evade its ponderous, awesome
materiality. (Foucault 216)
Although
the passage might suggest that the
"procedures" that discourse enacts for the purpose of controlling its own troublesome tendency to
proliferate operates only to exclude
non-preferred meanings, that is not
Foucault's point. He goes on to insist that discursive rules generate further discourse. "Discourse," then, "is no mere verbalisation
of conflicts and systems of domination,
but . . . is the very object of man's
conflicts"(216). Whereas Eagleton, Macherey, and Milovanovic persistently look past the mask of the text and seek to verbalize
its silences, absences, and exclusions,
to "explain the ideological necessity
of those 'not-saids' (Eagleton 51), Foucault has traced the manifold ways in which discourse
transmutes itself into material practices
controlling human bodies. Although exclusion remains the obsessive theme of his
work (on prisons, madness,
sexuality), the texts he studies emerge from his work as possessing a decisive positivity. They both are and also produce "disciplines," a double-edged concept
implying both the body of knowledge
and the knowledge to control bodies.
Edward Said's career has
demonstrated how completely literary discourse both generates and embodies a
discipline that is at once productive and repressive. Moving freely between
literary criticism and political interventions,
Said's work on Swift, Conrad, Lukacs, and other writers interacts with his studies of Orientalism and the
struggles of the Palestinians. No one shows more persuasively that the distinctions engendered first of all in
academic disciplines can, and routinely
do, pass over into worldly, material practices. As he shows in
detail, the corporate phenomenon
called Orientalism "realized a very important component of the European
will to domination over the non-European
world, and made it possible to create not only an orderly discipline of study but a set of institutions, a latent
vocabulary (or a set of enunciative possibilities), subject matter, and finally—as it emerges in
Hobson's and Cromer's writing at the end
of the nineteenth century—subject
races"(Said 1983: 222). If Said's meticulous
dismantling of the founding, delusive
polarities in texts that he reads is on the one hand a deconstructive move, on
the other hand his criticism relentlessly
draws those texts back into the world and into realms that radical criminology also explores. Thus,
"the parallel between Foucault's carceral system
and Orientalism is striking"(1983: 222) because "Orientalism had the epistemological and ontological power virtually of life or death, or
presence and absence, over everything and everybody designated as 'Oriental "'(1983: 223). Far from the unbounded free-play of "a 1001 nights of
literary analysis" envisioned by Hartman, Said's criticism reconstructs
a nightmare landscape in which
philological distinctions take on body as vast colonial bureaucracies,
professorships, research facilities,
geographical societies, and exploration funds--all serving further to confine
and exploit subject races.
When Said looks
beyond the repressive geometry of discourse in order to investigate its productive and positive side, criticism enters
into a potentially revolutionary arena. Criticism begins, with Said, to cut a path that radical criminology has
also negotiated. Just as collectivities
have in some cases superseded "wholly competitive individual units"(Gabel 1977b: 619) as the
principal legal actors under state-regulated capitalism, so guilds of
intellectual workers have replaced
the inspired, solitary author. In his nuanced theory of affiliative groups,
Said presents disciplines, discourse, and
power as human and collective constructions. Although the guild standards "can be very harshly applied"(181), at the
same time those standards enable human
labor to develop knowledge persistently and cumulatively. Professionalism in
that way replaces "the lateral ties of earlier local communities" with its progressive "initiation, mastery and exercise of a profession"(Weber 1982: 72; cited in Robbins
75). In this sense the professional
guild protects the writer from the open market and provides him or her with the
use values required to accomplish
intellectual labor. Although the discipline restricts enunciative possibilities it also liberates the worker from provincialism,
and most of all it enmeshes each member
in the struggles that engage the guild at that particular historical moment.
Said's conception of the historically engaged
intellectual might remind us of the radical criminologists' most suggestive findings: that the criminal
justice system has proven, on occasion,
a disruptive or "contradictory reflection of class struggle"(Esping-Anderson, Friedland, and Wright 1979: 145) and has balanced contradictory imperatives in ways
"that might seem quite incompatible
with the interests of capital"(Milavanovic 1984: 102). Although the
intellectual guilds studied by Said
participate in sustaining the hegemonic bloc, they also confer on intellectual workers considerable power and autonomy.
Such "disciplined" workers have a
double status, for if their guild
membership ties them down to immediate and even parochial circumstances (in
Said's terms, to "the local"), then it also releases them into a kind of
cellular exile. This somewhat
contradictory standing enables a truly historical criticism----that is,
intellectual work arising from the
concrete circumstances of a precise time and place (and entangled with the
interests of an intellectual guild) yet at
the same time protected by the
guild and potentially critical even in the strong Marxist-Leninist sense
of engaged political work.
Said's work therefore
represents a breakthrough in literary theory that has strongly positive implications
for critical criminology as well. In Turkel's persuasive argument that (as evidenced
by the Lockheed Loan Guarantee) particularistic law has superseded
universalistic formal legal
rationality (1980-81: 51), one perceives that juridical discourse has also
begun to focus on "the local." If that is the case, then the new intellectual, "the 'specific' intellectual as
opposed to the 'universal' intellectual"(Foucault 228),
is strategically well placed to
engage struggle at the juridical level. Since the "organic intellectual" formed in the sphere of production bears primary responsibility for preparing the
material and ideological preconditions
for a new social system (as Gramsci has argued), such a person will struggle at
every point in the "ensemble of relationships" that are both the means and the reason for
establishing hegemony. Literature
and legal discourse surely represent two such points.
As literary criticism Said's
intervention marks a real break. The worldliness and local professional allegiances
that allow the text to be produced simply invalidate the quasireligious universality claimed for the text in many
quarters. One need only list some prominent titles (Said notes The Genesis of Secrecy, The
Great Code, Kabbalah and Criticism, Violence and the Sacred, and Deconstruction and
Theology) in order to suggest
the persistence of other-worldly claims.
On the other hand by grounding textuality in professional disciplines and local
entanglements, Said's project closes down pluralistic intertextual
dispersion and indeterminacy: historical
exigencies demand that a text say something and delimit what can be said. In
this , a reply to the deconstructive
"1001 nights of literary analysis," Said's work
recalls but does not exactly repeat
Foucault's. Again, the break is clear, and not just with Foucault but also
with radical criminologists who focus
principally on the confining and exclusionary aspect of discourse. Gramsci would reject (Said remarks)
Foucault's failure to allow for emergent movements’
counter-hegemony, and historical blocs:
In human history Gramsci says there is always
something beyond the reach of dominating systems, no matter how deeply they
saturate society, and this is obviously what makes change possible, limits
power in Foucault's sense, and hobbles the theory of that power. (1983: 247)
Said’s own active engagement in
Palestinian struggle makes good his claim that “the fascinated description of
exercised power” (he refers to Foucault’s) “is never a substitute for trying to
change power relationships within society.
To summarize, critical
criminology and literary theory have moved together toward self-critical awareness.
Formal logical rationality in Max Weber's sense has gone by the
wayside, just as Anglo-American New
Criticism (with its comparable claims to universality, internal coherence,
and self-enclosure) has dropped from view.
Both tend to reemerge in slightly altered form, however, whether as the commodity-exchange theory of law with its
circular homologies, mirrors, and
masks; or as literary structuralism founded on a submerged metaphor of
base-and-superstructure.
Universalistic and otherworldly pretensions have also resurfaced in a spate of
theories connecting literature and
the sacred. Finally, a post-structuralist movement has transformed each discipline. In its weaker forms, that
deconstructive movement has focused exclusively on the confining and repressive power exerted "from above"—that is, by superstructural effects. In its
stronger forms it has. demonstrated
in minute
detail how disciplines producing knowledge produce the material means to contain that knowledge and its human
subjects, but in the process also
create those capabilities and workers that will be able to overthrow the very
regularities that formed them.
We have also observed the
genesis of a discipline that remains to be developed. The relation among hegemonic
institutions, professionalism, the
intellectual's career, and oppositional theory and practice has only begun to be articulated.
Yet that relationship stands at the nexus of every
important theoretical
intervention we have seen, adjusting
the linkages between Gramsci's organic
and traditional intellectuals, defining Gouldner's
"New Class" with its "culture of critical discourse," offering inventive solutions to each new "legitimation crisis" (Habermas), giving Critical Legal Studies the cogency of a movement and of
"total criticism"(Unger). To advance this new discipline will mean to proceed philologically, showing
the same meticulous attention to
texts that has led to the most impressive projects studied in this paper. Such
a discipline will have to withstand
attacks mounted by so redoubtable an opponent as
Stanley Fish with his neo-pragmatic
argument that critical self-consciousness has no consequences at all. By demonstrating that thinkers acting through
hierarchically arranged schools, departments, missions, and professions continually reconstruct modern life at its
best, we may be able to live through this long 1001 nights of literary
analysis.
an international and interdisciplinary journal of postmodern cultural sound, text and image
Volume 4, August-September 2007,
ISSN 1552-5112