Andrew Kau on The Oxford Handbook of English Law and Literature, 1500-1700

In a 2014 interview with The Harvard Gazette Stephen Greenblatt recounted his near-miss with the practice of law. The future eminent Shakespearean, then an uncertain twenty-one-year-old, stood on the Galata Bridge in Istanbul clutching two acceptance letters: one from a graduate program in English Literature, the other from the Yale Law School. Giving up his fascination with literature to become a lawyer like his father would be the safer path, but Greenblatt couldn’t do it: “for reasons I still cannot fully explain,” he recalled, “I impulsively tore up the letter from Yale [and] threw it into the Bosporus.” The ritual drowning of the golden ticket to New Haven was clearly performed not for an audience of befuddled Turks but for posterity. Greenblatt’s renunciation placed him in a line of writers, beginning with Ovid and continuing through Petrarch, Milton, and Dickens, who resolved on their literary careers in the face of the real or imagined hostility of law.

The presence in American law schools of regretful humanists who made the opposite choice may inform the peculiar mixture of defiance and wistfulness that characterized the Law and Literature movement of the 1970s: as J. Allen Smith, a professor of property law, complained in 1979, lawyers had become “alienated from the humanistic tradition,” but by immersion in the imaginative richness of great works of literature and attentive reading of finely written legal opinions the coming generation of law students would close up the current disciplinary “schism” and “restore law and letters to a more harmonious” relationship.

Though the grand Law and Literature project of a wholesale reformation of legal study never occurred, the historical claim of a past disciplinary closeness remains a central preoccupation of recent scholarship. The Oxford Handbook of English Law and Literature, 1500-1700 takes as its main premise the historical claim that, in the words of the late Christopher Brooks, “law and literature . . . is a subject . . . uniquely appropriate to the late sixteenth and seventeenth centuries.” Brooks was one of several historians who demonstrated the radical transformations in English legal doctrine, institutions, and personnel over the sixteenth century, such as the so-called “Reformation by statute” in the 1530s, the founding of numerous courts, a massive growth in both civil litigation and criminal prosecutions, and a huge spike in the number of lawyers. These transformations are so profound that some have plausibly anointed them a “Tudor Legal Revolution.”

Brooks’s assertion was originally made at the Centre for Medieval and Early Modern Literature, founded by the volume’s editor, Lorna Hutson, at the University of St Andrews. Hutson is perhaps the most eminent of a group of literary scholars – they might be called the Early Modern Law and Literature movement – who consider why revolutionary literary developments coincided with the early modern Legal Revolution. Historical “rapprochments” identified by this movement include the way “forensic modes of inquiry” spurred “the creation of imaginative fiction” and how imaginative “[w]riters of the period” ranging from More to Milton and Spenser to Shakespeare “creatively engaged with the technicalities of legal language and procedure.” In early modern England, law freely confronted its literariness, while literary figures enjoyed social and intellectual access to the law.

Not every contributor to the Handbook would embrace this narrative: “[L]aw and poetry are seen as oppositional by legal authority,” as one chapter puts it, quoting a 1588 play by seven lawyers that asserts that Astraea, the goddess of law, holds “Poesie … in most disdaine.” The master-theme of the volume is nonetheless compatibility, its ambition to achieve a “cross-disciplinary intelligibility” by bringing together “law, literature, and history” in a “ménage à trois.” Like most examples of that Gallic configuration, however, the introduction of a third party creates more problems than it solves.

Tensions emerge because literary study deploys a methodology indifferent to truth claims, even as the literary scholars in the Handbook must rely on the truth of history to justify the closeness between early modern law and literature. The legal scholar Ian Williams, for example, who examines how the sources of legal scholarship in the sixteenth and seventeenth centuries interacted with changing media of circulation, wants to achieve a better understanding of what counted as “[t]he substance of the law,” and thus dismisses the relevance of literature to his study because common lawyers did not use “poets as an authoritative source of law.” By contrast, the historian Tim Stretton, discussing “new developments in economic relations and marriage practice,” illustrates legal instruments relevant to marriage litigation using dramatic texts, but nonetheless cautions that cases over disputed contracts in the church courts became “very rare” right when “they became an increasingly common device in drama.” For the historian and legal historian, literature seems at best to exemplify, and at worst to obscure, the demographic and social changes that are the main topic of study.

A good example of the divergent methodology of the literary scholar occurs in Frances Dolan’s chapter on the figure of the “witch wife,” a married woman charged with witchcraft who “condenses and expresses concerns about what all wives want and what kind of bargains wives would make if they could.” Dolan’s conflation of literary and non-literary texts (witchcraft prosecution pamphlets and plays) in pursuit of the cultural structures they both reveal owes a clear debt to New Historicism, as does her surprising identification of a seemingly marginal phenomenon – one that Dolan admits is not representative in any statistical sense – as illustrative of the central concerns of a society. What Dolan is not interested in are questions that might preoccupy the historian, such as whether the anxieties provoked by the “witch wife” grew or subsided over time. This is not always the case: for example, Martin Butler borrows the norms and methodology of historical research when he demonstrates that masques produced by the Inns of Court, often associated with Francis Bacon, reached a highpoint in the 1610s – “a time of relative constitutional consensus” – before “the previously vibrant festival culture hosted by the Inns” contracted in the more politically tumultuous 1620s. Unlike the historian, however, the literary scholar is not obliged to collect and marshal evidence in service of a preexisting historical reality.

The dependence of Early Modern Law and Literature on history is nonetheless clear from the almost universal citation of historical scholarship or even primary archival sources by the literary contributors to the Handbook, who make up more than half of the 38 contributors. (It should be said, however, that manuscript citations are not always accurate, in addition to an unfortunate number of other proofreading errors and inconsistencies.) Specifically, the Handbook endorses the historical claim that in early modern England law, rhetoric, and poetics were deeply interwoven: its first chapter, by Kathy Eden, seeks to demonstrate the “debt of early modern English literary studies to legal rhetoric,” in particular that “[t]he early modern classroom . . . retains from its direct and indirect reliance on a number of favorite ancient rhetorical manuals deep traces of the Roman forum.” Elsewhere, the intellectual historian Barbara Shapiro discusses the “rhetorical terminology” for evaluating witness credibility that appeared in several Tudor and Stuart manuals designed for the lay magistrates known as justices of the peace. Hutson’s major work, The Invention of Suspicion, builds on these two claims: its thesis, as summarized here, is that the rhetorical “techniques that enable us to imagine offstage fictional worlds and characters’ interior lives” were the same ones “widely adapted to the uses of English participatory justice.” If this argument is right, the vast disciplinary “schism” so bemoaned by modern Law and Literature did not exist in early modern England because creative writers and legal actors drew on similar if not identical modes of reasoning and interpretation.

But law and rhetoric were not the same in the classical world, as Eden implies when she refers to the classical manuals as texts of “legal dispute” or to Cicero as a “lawyer.” Nor did the English legal system significantly incorporate rhetoric. With the exception of state trials, English criminal trials left little room for oratory: they consisted of a short, sharp exchange or “altercation,” per Sir Thomas Smith, between the prosecution and the unrepresented defendant. And while manuals of pre-trial procedure intended for the lay justices of the peace did draw on fairly stereotypical categories that originated in the rhetorical tradition for “evaluating individuals,” the justices were informal prosecutors who would have used the rhetorical categories as indices of criminality. The province of the prosecutors, rhetorical categories did not play a skeptical role in the English legal system akin to their function in enabling imaginative literature.

The closeness between law and rhetoric informs those arguments for the social overlap between early modern law and literature said to have reached its acme at the Inns of Court. Paul Raffield, for example, suggests that “foundational … forensic skills” acquired at the Inns of Court forged a cadre of “poet-lawmakers” such as the dramatist Thomas Norton, co-author of Gorboduc, who demonstrated “the centrality of poetry to the institutional life of the Inns.” Yet elsewhere in the Handbook James McBain, after a persuasive review of Sir Thomas Elyot’s Book Named the Governor and other humanist sources typically advanced to show the rhetorical culture of the Inns, says that in fact “classical rhetoric was [n]ever formally taught” there. Casting doubt on the existence of troops of “poet-lawmakers,” McBain also points out that only 38 of the more than the ten thousand matriculants up to 1642 “can positively be identified as playwrights.” With surprisingly little fanfare, the Handbook explodes one of the venerable planks providing a historical basis for Early Modern Law and Literature.

These difficulties with the historical claim that early modern law and literature “pertain[ed] to a single order and practice of imaginative thought” suggest that the insistence on the closeness between law and literature may be as much theoretical as historical. A likely candidate is the Habermasian theory of law in which “discourses … play a constitutive role for the production (and application) of legal norms.” This theory is well illustrated by the Handbook’s central claim that rhetoric – the classical art of communal persuasion – exercised a shaping influence on law. In some chapters, such as Nigel Smith’s discussion of the “vigorous literary activity” of Leveller legal pamphleteering, literature explicitly becomes synonymous with particular extra-legal discourses. The appeal of this theory is that law is no longer a repressive force controlled by central authority, but a popular possession open to lay and legal actors alike.

The closeness between law and literature is something of a mirage, however, when these subjects are not defined in their familiar sense as a set of doctrines or genres. Thus Smith focuses on radicals who unfavorably compared the actual workings of the English legal system to principles rooted in natural law, while also bypassing what he calls “conventionally defined literature.” An opposite but related risk is on display in Virginia Lee Strain’s chapter arguing that Shakespeare’s 2 Henry IV depicts “law and legal reform as the principal mediators of the sovereign’s relationship to the commonwealth.” As a “blueprint” for political action, Shakespeare’s play becomes a particularly privileged form of discourse, perhaps, but one still akin to, say, the Homily Against Disobedience. Both approaches tend to find common ground between what they call law and literature at the cost of flattening the verbal density or fictive power that substantiates literature in the first place as a thing apart.

The most encouraging aspects of the Handbook – aspects that may make the Early Modern Law and Literature movement more successful than its modern counterpart – are when the volume delivers on its promise to offer historically specific accounts that maintain the distinctiveness of each discipline. Luke Wilson, for example, shows that “contract is especially a feature of early modern comedy,” going so far as to claim that the genre may be “described as contractual.” Even if this comparison is a bit overstated since generic conventions are not backed by the force of law, Wilson’s argument reveals literature adapting law to its own ends rather than simply reflecting external reality. Similarly, Henry Turner argues that early modern corporate law “found a distinctively literary expression” in authors such as Spenser, Shakespeare, and Jonson. Turner’s account may give too much weight to authors’ actual familiarity with particular doctrinal discussions, but it usefully reveals how early modern theories of the corporation brought to the fore an analogy between law and poetry as secular, human creations.

The analogy between law and poetry in fact defines the Renaissance, when the state is seen, in Jakob Burckhardt’s phrase, as a work of art. The Handbook may thus be fundamentally right that law and literature enjoyed a special relationship during the Legal Revolution of early modern England. Nonetheless, there are problems with seeing this relationship as one of compatibility rather than contest: to do so risks projecting onto a past golden age the desire for literature to have the real-world potency of law. The hostility between a legal and literary career that Stephen Greenblatt experienced as a young man was already perceptible to those lawyers who said in 1588 that the goddess of law Astraea holds “Poesie … in most disdaine.” Instead of claiming early modern England as a disciplinary “paradise lost,” therefore, it might be better to retort with Milton’s Satan that “we know no time when we were not as now.”

Andrew Kau holds a joint J.D.-Ph.D. from Yale. He is currently a law clerk on the Massachusetts Supreme Judicial Court.