Law and Literary Criticism

An essay – Gone Fishing – by Scott McLemee appeared in the online version of Inside Higher Education last week. The title plays on the name and status of Stanley Fish, celebrity public intellectual.
The essay and the Wikipedia entry both mention Fish’s ideas about reader-response theory and the interpretive community, and the ambiguity of Fish’s relationship to literary and social theories of deconstruction.
Some of Fish’s ideas are almost self-evidently true. Literary works are complex sets of words organized to communicate meaning through complex symbols. A literary text contains a narrative description of real or realistic events as imagined by the writer, presenting meaning within a story of people in conflict, the imagined psychology of the characters, and layers of imagery and metaphor. The reader’s response to the story depends on the reader’s way of unpacking the story. Readers will differ with one another and with the writer over the meaning of words and events, partly because language is a cultural endeavor, inherently imprecise across place and time.
Fish’s suggestion that judges, or judges and lawyers are a privileged community seems to describe part of the legal process very well. The law of a place or a people is made up of words pronounced by authoritative persons – rulemakers accepted within the prevailing culture as sovereign authorities. Lawyers and judges spend a great deal of time and energy quarrelling about the words used in Constitutions, statutes, contracts and judicial opinions, in a theoretical effort to reach a principled, rational understanding. In common practice actual cases are decided by the instinctive or intuitive sense of justice of the judges hearing the case, as conditioned by the values of their interpretive community.

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