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]


Harold A. Veeser




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 Saint Augustine to say that in every poem there is some of the substance of God"(Blackmur 1967: 42-43). A theological glow enobles the law, "working itself pure" in formalist theory or, for the natural-law theorist Moore, endowed with a trans-historical rightness available to any judge who goes "in session with himself"(Moore 393).


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 Greece and modern Central Europe caused the art of oral performance to die out. To assume with capital logicians that the "cognitive and communicative skills" developed by workers in jobs that are low-skill oriented, unpredictable, and presumably without stringent literacy requirements "preclude . . . believable story-telling" (Milovanovic 1984: 365) may in fact be to err. It is certainly to beg important questions about the nature of oral narrative and linguistic forms generally and even to deny a priori to marginal economic actors a cultural modality in which they excel.


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 France captured its delusive aspect by noting that "the law in its majesty forbids rich and poor alike from sleeping under the bridges of the Seine." With the concentrating of capital that inaugurated the monopoly phase there came crisis tendencies and "steering problems"(Habermas 1975: 26). In consequence, class relationships that had formerly taken the "anonymous, unpolitical form of wage dependency"(Habermas 1975:26) now acquire a repoliticized character. Faced with contradictory system imperatives, the state undertakes a more active and even creative role:


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 Detroit, Chicago, and Los Angeles, carefully balanced the immediate interests of capital against due process and bureaucratic needs. Kelman cites other examples of this "legal form determinism" for which "the preservation of the faith in an orderly, non-arbitrary distribution of political and economic benefits is more central to dominant classes than . . . the result of any particular case"(1981: 671). Klare has shown that the Wagner Act of 1935—which gave workers the right to organize and bargain collectively—also curtailed more radical forms of political activity and secured the state's authority to set ground rules (1978: 336). Gabel (1977b) has shown that the change in contract law from principles that imposed absolute liability to those that imposed relative liability permitted the state to sidestep formal legal rationality and make decisions based instead on the need to avert crises. Here, rather than "formal logic, deducing result from law . . . an ideal social theme or 'end point' guides the construction of literally 'princi­pled decisions"(1977b: 613). Hall puts the case succinctly: legal concessions "displace the level of class relations and economic contradiction and represent them as non-antagonistic totalities"(Hall 1977: 337-8).


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

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[1] For discussions of the debate between traditional criminologists and "critical" criminologists, see R. Unger, Law in Modern Society:Toward a Criticism of Social Theory (1976); Hugh Collins, Marxism and Law (New York: Oxford University Press, 1982); and Trubek, "Complexity and Contradition in the Legal Order: Balbus and the Challenge of Critical Social thought About Law" in Law and Society Review 11 (1977).


[2] Succinct, critical histories of the New Criticism appear in Frank Lentricchia, After the New Criticism (Chicago: University of Chicago Press, 1980) and Terry Eagleton, Criticism and Ideology (1976).


[3] See, for example, Goldmann, Le Dieu cache (Paris: Gallimard, 1955); Georg Lukacs, Studies in European Realism (New York: Grosset & Dunlap, 1964); or an even earlier effort to avoid vulgar economism, Lenin's "Leo Tolstoy as the Mirror of the Russian Revolution," Collected Works, vol. 17: 49-53.


[4] For Nietzsche, “truth is a mobile marching army of metaphors, metonymies and anthropomorphisms . . . truths are illusions of which one has forgotten that they are illusions . . . coins which have their obverse effaced and which are no longer of value as coins but only as metal . . . “(quoted by Spivak, in Derrida, 1977, xxii).