1 At iv. See West, R., “Authority, Autonomy, and Choice: The Role of Consent in the Moral and Political Visions of Kafka, Franz and Posner, Richard,” 99 Harv. L. Rev. 384 (1985); West, “Submission, Choice, and Ethics: A Rejoinder to Judge Posner,” 99 Harv. L. Rev. 1449 (1986).Google Scholar

2 At 137–38, 140–46, 149–50, 152–55, 203–04, 216 n.6, 249, 252, 312 n. 74. Posner's reference to the “Apollonian” and “Dionysian” recalls Nietzsche's distinction between two complementary principles of artistic expression. Apollo represented order, restraint, form, individuation, and repose, while Dionysus represented energy without boundaries, powerful emotional experience, including both ecstasy and terror, and abandonment of the self to the greater unity of the life force. Nietzsche saw both elements as equally necessary to human existence. See Nietzsche, F., “The Birth of Tragedy from the Spirit of Music,”reprinted in The Basic Writings of Nietzsche (Kaufmann, W., trans. 1968).Google Scholar

3 At 307. See also id. at 155 (“Law, a bastion of Apollonian values, is problematic for anyone whose outlook is Dionysian”).Google Scholar

4 Conversely, it downplays the possibility that the thing opposed to law, politics, could be in the service of enlightened goals.Google Scholar

5 See, e. g., Torres and Brewster, “Judges and Juries: Separate Moments in the Same Phenomenon,” 4 Law & Inequality 171, 181–85 (1986), in which the authors contend that traditional characterizations of the jury as emotional, nonrational, and unreliable serve to suppress recognition of the prejudices and attitudes of judges in the law of judges and juries.Google Scholar

6 At 215–16. Consistent with this tendency, Posner also views critical legal studies theorists who have adopted deconstructive techniques as espousing a form of Romanticism: “[Slince the critical legal studies movement wants to shock, it too flaunts the banner of deconstruction.”Id. at 215. This is one example of the metaphor of the unruly, rebellious child (symbolic of the dangerous side of Romanticism, which must be suppressed or subordinated) that appears in Posner's discussions of critical legal studies. See also id. at 358 (“Although many law professors find the critical legal studies movement appalling in its political radicalism and childish incivilities, it looms too large on the contemporary horizon to be ignored.”) (footnote omitted).Google Scholar

7 The legal process school is most often associated with professors Henry Hart and Herbert Wechsler. The legal process scholars accepted the legal realist view that adjudication could not be mechanical and apolitical-that it inevitably raised substantive choices of public policy. However, they argued that the legitimacy of law and its autonomy from politics could be preserved by ensuring that substantive choices were made by the appropriate institutional decision-makers following appropriate procedures of decision. For example, constitutional adjudication by judges should involve reasoned elaboration of neutral principles of decision, see Wechsler, “Towards Neutral Principles of Constitutional Law,” 73 Harv. L. Rev. 1 (1959); Hart, “The Supreme Court, 1958 Term-Foreword: The Time Chart of the Justices,” 73 Harv. L. Rev. 84 (1959), and lawyers should apply nonpolitical craft values in making and evaluating legal arguments. Critics of the legal process school noted that process based arguments were often substantive in disguise, that there were few truly neutral principles of judicial decision, and that legal reasoning and argument could not be understood in isolation from social science and political and cultural practices. For a discussion of the governing ideology of the legal process school, and reactions to it, see Amar, “Law Story,” 102 Harv. L. Rev. 688 (1989); Peller, “Neutral Principles in the 1950s;’ 21 Mich. J. L Reform 561 (1988); White, G., Patterns of American Legal Thought, 137–53 (1978).Google Scholar

8 Posner, “The Decline of Law as an Autonomous Discipline 1962–1987,” 100 Harv. L. Rev. 761 (1987).Google Scholar

9 Id. at 766–67 (footnote omitted).Google Scholar

10 See Horwitz, “Law and Economics: Science or Politics?” 8 Hofstra L. Rev. 905 (1980).Google Scholar

11 Posner, 100 Harv. L. Rev. at 767–68 (footnotes omitted).Google Scholar

12 At 218–23. Posner rightly points out the existence of many different positions among the persons who today are referred to collectively as New Critics.Google Scholar

13 Id. at 223. Posner's version of New Criticism, which he refers to as Eclectic New Criticism, “means simply the close reading of a work of literature conceived of as an aesthetic rather than a didactic discourse, using whatever aids to such reading lie to hand.”Google Scholar

14 For example, in Hazard Adams's and Leroy Searle's collection of works of contemporary critical theory, Critical Theory Since 1965 (H. Adams & L. Searle, eds. 1986), no space is given at all to what might be called New Critical scholarship-and when New Criticism is mentioned, it is only as a foil to what are considered to be the dominant trends and movements in critical theory-reception theory, reader-response theory, deconstruction, (both by Derrida and other members of the Yale School), myth criticism, Foucauldian criticism, psychoanalytic criticism, feminist criticism, and Marxist aesthetics. New Critical works did play a prominent role in Adams's anthology of earlier critical theory, Critical Theory Since Plato (H. Adams, ed. 1971). But this simply demonstrates all the more that Posner is somewhat behind the times.Google Scholar

For a view of post-1957 criticism as an attempt to come to terms with the “imposing and repressive father figure” of New Criticism, See Lentricchia, F., After the New Criticism (1980).Google Scholar

15 See Culler, J., The Pursuit of Signs: Semiotics, Literature, Deconstruction 4–5 (1980).Google Scholar

16 See Tompkins, , “The Reader in History,” in Tompkins, J., ed., Reader Response Critcism: From Formalism to Post-Structuralism 219–23 (1980).Google Scholar

17 Culler, J., On Deconstruction 8 (1982).Google Scholar

18 Said, E., Orientalism (1978).Google Scholar

19 Foucault, “What Is an Author?”reprinted in Foucault, M., Language, Counter Memory, Practice 113 (1977).Google Scholar

20 For an excellent discussion and application of Foucault's essay, see Boyle, “The Search for an Author: Shakespeare and the Framers,” 37 Am. U. L. Rev. (1988).Google Scholar

21 Foucault, M., The History of Sexuality (1978).Google Scholar

22 Posner mentions structuralism in passing but does not discuss it: See Posner, R., Law and Literature, at 220 n. 16 and cf. id. at 19 n. 30 (mentioning Northrop Frye's classifactory criticism).Google Scholar

23 E. g., Barthes, R., Elements of Semiology (1967); Barthes, R., Writing Degree Zero (1967); Griemas, A. J., Semantique Structurale (1966); Propp, V., The Morphology of the Folktale (1968). For general introductions, see Culler, J., Structuralist Poetics (1975); Hawkes, T., Structuralism and Semiotics (1977); Lodge, D., Working with Structuralism (1981); Scholes, R., Structuralism in Literature: An Introduction (1974).Google Scholar

Posner's omission of structuralism is especially significant because structuralist criticism is completely at odds with the New Critical paradigm of why one reads literature. For the structuralist the interpretation of literary works is only tangentially related to the understanding of literature. To engage in the study of literature is not to produce yet another interpretation of King Lear but to advance one's understanding of the conventions and operations of an institution, a mode of discourse.Google Scholar

Culler, J., The Pursuit of Signs: Semiotics, Literature, Deconstruction 5 (1981).Google Scholar

24 One of the seminal articles of the CLS movement, Kennedy, “Form and Substance in Private Law Adjudication,” 89 Harv. L. Rev. 1685 (1976), is clearly influenced by structuralism. Indeed, several of Duncan Kennedy's writings up to 1984 can be viewed as applications of structuralist methodology to legal problems. See Kennedy, “The Structure of Blackstone's Commentaries,” 28 Buff. L. Rev. 205 (1979); Kennedy, “Distributive and Paternalist Motives in Contract and Tort Law, with Special Reference to Compulsory Terms and Unequal Bargaining Power,” 41 Md. L. Rev. 563 (1981). It is especially remarkable that Posner did not consider the influence of structuralist methodology on legal theory, given Kennedy's prominence in the critical legal studies movement. Other structuralist or semiotically influenced works include Balkin, “The Crystalline Structure of Legal Thought,” 39 Rutgers L. Rev. 1 (1986); Balkin, “Taking Ideology Seriously, Ronald Dworkin and the CLS Critique,”55 UMKC L. Rev. 392 (1987); Boyle, “The Politics of Reason: Critical Legal Studies and Local Social Thought,” 133 U. Pa. L. Rev. 684 (1985); Heller, “Structuralism and Critique,” 36 Stan. L. Rev. 127 (1984); Katz, “Studies in Boundary Theory: Three Essays in Adjudication and Politics,” 28 Buff. L. Rev. 383 (1979); Kelman, “Interpretive Construction in the Substantive Criminal Law,” 35 Stan. L. Rev. 591 (1981). Structuralist methodology also informs the present article, which interprets the ideology underlying Posner's book in terms of interrelated sets of opposed ideas.Google Scholar

25 See Barthes, R., supra, note 23; Hawkes, T., supra, note 23; Silverman, K., The Subject of Semiotics (1983); U. Eco, A Theory of Semiotics (1979). The classic application of semiotic theory to cultural criticism is R. Barthes, Mythologies (1972). Semiotic analyses have been applied to such diverse cultural artifacts as television shows, kitchen appliances, and architecture, see, e. g., Preziosi, D., The Semiotics of the Built Environment: An Introduction to Architectonic Analysis (1979).Google Scholar

26 For non-CLS adaptations of semiotics, see Jackson, B., Semiotics and Legal Theory (1985); Kevelson, R., The Law as a System of Signs (1988).Google Scholar

27 Again, Posner might make the same objection as before–that to the extent that one applies structuralist and semiotic insights to law, one is no longer doing literary theory, but instead is doing philosophy, or anthropology, or the sociology of knowledge. The answers to this objection should by now be familiar: First, this objection does not confront the substance of the contributions of literary theory, but merely attempts to define them out of existence, Second, structuralist and semiotic literary theory is concerned with the sociology of knowledge–this is just another example of how literary theory and other disciplines have moved closer together in the post–World War II era. Finally, this objection overlooks the fact that adaptation of a literary methodology to legal problems will require that the resulting application will almost by definition be performed on legal problems. Structuralist analyses of law cannot avoid becoming analyses of legal, social, and political concepts. Indeed, what else could one expect to occur if one applied a methodology from one discipline to the subject matter of another?Google Scholar

28 The idea of “speaking prose” is a reference to the Moliere character Jourdain, M., who, after being told the difference between prose and poetry, remarked that he had been speaking prose his whole life without realizing it.Google Scholar

29 Of course, to be perfectly consistent with deconstructive theory, I should hasten to add that deconstructionists would not claim that deconstructive techniques are always exactly the same when applied at different times to different disciplines. The claim of similarity of two instances of a practice must simultaneously carry with it an acknowledgment of variation and metamorphosis caused by the iterability of a practice.Google Scholar

30 Derrida, J., Of Grammatology (1976).Google Scholar

31 Derrida, J., Positions 41–42 (1981) (emphasis in original).Google Scholar

32 Balkin, , “Deconstructive Practice and Legal Theory,” 96 Yale L. J. 743, 761–64 (1987).Google Scholar

33 Dalton, “An Essay in the Deconstruction of Contract Law,” 94 Yale L. J. 997 (1985); Spann, “A Critical Legal Studies Perspective on Contract Law and Practice,” 1988 Annual Survey of Am. Law 223; Feinman, “A Case Study in Critical Contract Law,” 1988 Annual Survey of Am. Law 273.Google Scholar

34 Frug, “The Ideology of American Bureaucracy,” 97 Harv. L. Rev. 1276 (1984).Google Scholar

35 Kramer, “The Rule of Misrecognition in the Hart of Jurisprudence,” 8 Oxford J. Leg. Stud. 401 (1988); Balkin, “Taking Ideology Seriously: Ronald Dworkin and the CLS Critique,” 55 UMKC L. Rev. 392 (1987).Google Scholar

36 Peller, “The Metaphysics of American Law,” 73 Calif. L. Rev. 1152 (1985).Google Scholar

37 Schlag, “An Appreciative Comment on Coase's ‘The Problem of Social Cost’: A View from the Left,” 1986 Wis. L. Rev. 919; Schlag, “Cannibal Moves: An Essay on the Metamorphoses of the Legal Distinction,” 40 Stan. L. Rev. 929, 967–60 (1988) (appendix 3); Schlag, “The Problem of Transaction Costs” 62 So. Cal. L. Rev. – (forthcoming 1989).Google Scholar

38 Despite Posner's arguments to the contrary, deconstruction or deconstructive techniques can help us understand our practices of reading the Constitution; using deconstruction in this way does not require us to deny the possibility of intersubjective understanding in interpreting the Constitution. See Balkin, 96 Yale L. J. at 772–85; Balkin, “Constitutional Interpretation and the Problem of History,” 63 N. Y. U. L. Rev. 911 (1988). But my point here is that deconstruction offers even greater possibilities in its other intersections with legal theory, which Posner does not even consider.Google Scholar

39 See Fish, S., Is There a Text in This Class? (1980); Fish, S., Doing What Comes Naturallyi Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (1989).Google Scholar

40 Indeed, one might be suspicious of Posner's glib announcement that Fish's work is warmed-over Wittgenstein, since Posner does not accurately describe Fish's contributions. He argues that Fish uses the concept of interpretive communities not to interpret legal or literary texts but merely to state what is obvious–that there is, as a matter of empirical fact, some agreement about the meaning of each legal as of each literary text. (At 264).Google Scholar

But the point of a theory of interpretive communities is not that people agree on the meanings of texts. It is how they agree. Moreover, it is not that they agree on the meanings of texts, but how they agree on the relevant considerations to take into account when reading a text. That is why it is possible for there to be disagreement among members of the same interpretive community, a point that Fish's critics sometimes overlook. See, e. g., S. Fish, Is There a Text in This Class? 342 (“Thus, while there is no core of agreement in the text, there is a core of agreement (although one subject to change) concerning the ways of producing the text”). (Emphasis in original).Google Scholar

Moreover, Fish's point is not that people just happen to agree about how to approach particular texts, It is that these ways are systematically related to the ways they approach other texts, and also to previous ways in which people have previously approached texts. Interpretive communities are not a mere interesting happenstance–they are the result of systematic and historically understandable processes. Thus one important difference between Wittgenstein and Fish is that Wittgenstein did not propose a structuralist, or even a poststructuralist, view of how interpretive communities are constituted.Google Scholar

41 See, e. g., Posner, R., The Economics of Justice (1981), in which the author dabbles in anthropology and sociology, in addition to political philosophy and moral theory.Google Scholar

42 This is why I believe that, despite the erudition that generally informs her work, Robin West went in the wrong direction when she tried to use Kafka to critique Posner's economic theories by showing how Kafka's characters do not act as rational self-seeking wealth maximizers. It does no good to try to use Kafka to show Judge Posner the error of his ways. Rather than explaining how different Kafka's view of choice and consent is from Posner's, she would have better spent her efforts demonstrating how much Posner's work in law and economics reminds one of Kafka. One of Kafka's most distinctive stylistic features is his matter-of-fact descriptions of the most extraordinary and dreadful events. The poignancy in Kafka's work often comes from the deliberate repression of emotional affect in his prose, so that the reader is made to feel uneasy by the oppressive deadpan of the narrative. This is less surrealism than rationalism gone rampant. It is the sort of privileging of reason over passion that gives reason a bad name. In this respect it is quite fitting that Ernst Pawel entitled his biography of Kafka The Nightmare of Reason. Pawel, E., The Nightmare of Reason: A Life of Franz Kafka (1984).Google Scholar

Kafka's world is “Kafkaesque” because although terrible and bizarre things happen, no one acknowledges them as such, or expresses much emotional concern. The world Posner describes, where poor people don't really value what they don't have the money to buy, Posner, R., Economic Analysis of Law, 11–12 (3d ed. 1986), where women apparently earn higher wages in the workplace than they would otherwise receive in order to compensate them for the “unpleasantness” of sexual harassment, R. Posner, Law and Literature, at 190–91, and where battered wives stay with their husbands because it is more efficient to do so, id. at 194–95, is Kafkaesque in this sense of the word. The only difference is that Judge Posner is not attempting to make an artistic statement through indirection. He really believes what he is saying. Of course, if the New Critics are right, his actual intentions in writing might be irrelevant and even detract from the real meaning of his work. If Judge Posner gets his way and New Critical values do make a comeback, perhaps one hundred years from now someone will stumble across his writings, and, reading his work in its most charitable light, declare him to be the greatest unconscious satirist of capitalism of the late twentieth century.Google Scholar

43 This is because for Posner, literature is defined as those works that have survived a process of competition in the literary marketplace. Although Posner states at the beginning of his book that he will omit any extended discussion of the literary canon, (at 20), the issue of what is in the canon and how it is formed dominates the entire book. In Posner's view [i]t is no accident that literature tends to deal with basic, timeless features of literary existence. The surest, maybe the only, test of literary distinction is survival over time, a process of competitive selection in the literary marketplace. The process favors works of generality, of universality. Works that are essentially local, as most works seriously about law in the lawyer's sense are bound to be, do not fare well in this competition. (At 15).Google Scholar

The metaphor of competition is deliberate, for it ties in nicely with Posner's general preference for marketplace solutions to social issues. As he says, a “survival” theory of literature is “[a] theory that itself reflects an economic outlook, for economics and evolutionary biology are closely related.”Id. at 357 n. 2. This survival theory allows Posner to conclude that the generality of literary works (and hence their irrelevance to contemporary political and social issues) is a property of the works themselves, and not a property of the way in which successive generations of elites who determine the content of the canon have viewed these works. Thus, the construction of the canon is the result of a natural competitive process of elimination based upon what is really in the works themselves, as opposed to a reflection of cultural and political factors. So conceived, this theory of the canon seems at odds with Posner's later lament that [m]ost law students today, even at the best law schools, have little acquaintance with the classics of Western literature…. partly because television and the movies have drained considerable interest away from literature; and partly because professors of literature have lost confidence in their authority to prescribe a fixed canon of classical works in the face of demands by women and members of minority groups for admission of works by members of their groups to the canon (at 360).Google Scholar

These developments, if anything, would seem to be evidence of the marketplace at work.Google Scholar

44 Weisberg, “The Law-Literature Enterprise,” 1 Yale J. L. & Humanities 1, 25 (1988).Google Scholar

45 Id. at 28.Google Scholar

46 Frye, N., Anatomy of Criticism (1957).Google Scholar

47 Salusinszky, I., Criticism in Society 1 (1987). Salusinszky gives as examples essays by Matthew Arnold “The Function of Criticism at the Present Time,”in Super, R. H., ed., M. Arnold, Lectures and Essays in Criticism (1962); T. S. Eliot's “The Function of Criticism at the Present Time,”in Kermode, F., ed., Selected Prose of T. S. Eliot (1975); Northrop Frye's “The Function of Criticism at the Present Time,” 19 U. Toronto Q. 1 (1949), and Terry Eagleton's The Function of Criticism (1984).Google Scholar

48 Eagleton, T., The Function of Criticism 18–19 (1984). For a similar analysis, see Hohendahl, P., The Institution of Criticism 52–53 (1982).Google Scholar

49 Tompkins, “The Reader in History” (cited in note 16).Google Scholar

50 Id. at 211 (footnotes omitted).Google Scholar

51 A deconstructionist would argue that this does not follow from literature's nature as literature, but simply from its textuality, because a text must be iterable (and capable of serving an indefinite number of functions) in order to function as a text. But one need not be a deconstructionist to accept the less general point that historical experience has demonstrated that what the canon decrees as “literature” can serve many different uses.Google Scholar

52 In comparing West's assessment of human nature to that of the Grand Inquisitor, Posner claims that “[t]he Grand Inquisitor's argument [that it is sometimes better for people to entrust decision making to others] can be transposed into economic terms-indeed, there is more than a hint of such a transposition in his diatribe” (at 201). If Posner thinks that the reason why he disagrees with the Grand Inquisitor's view of human nature is the same reason Dostoevsky did (to the extent that he did), he has misunderstood Dostoevsky. By the time Dostoevsky wrote The Brothers Karamazov, he was a sworn foe of Western Enlightenment values, which were at that point in history virtually the same as the classical liberalism that Posner believes to be vindicated by his interpretation of “The Grand Inquisitor.” To be sure, Dostoevsky's criticisms were aimed not only at liberalism and Catholicism, but also at socialism. Yet it is important to understand that Dostoevsky despised socialism not because he was an economic libertarian convinced of socialism's inefficiencies, but because of socialism's pretensions to improve mankind through reason and science-in other words, he hated socialism for its attempted furtherance of the basic Enlightenment project. He distrusted its utilitarianism, its secularism, and its unswerving faith in science. Doestoevsky's vision of freedom is thus not the freedom of the economic libertarian, rationally calculating what is in her (or in humanity's) best interests. It is a vision of freedom posed against reason and towards unreasoned faith in Christ. See generally K. Mochulsky, Dostoevsky: His Life and Work (M. Minihan trans. 1967). Certainly if Posner is miffed about West wrapping herself in Kafka's mantle, one might be equally miffed at Posner's donning Dostoevsky's dressing gown.Google Scholar

53 One might begin this counterinterpretation by noting that in the Grand Inquisitor's ideal world, people give up their individual freedoms in exchange for the promise of bread (read here material comfort), so that ultimately even the decision whether “to have or not to have children” is made for them by the government. Posner, R., Law and Literature, at 202 (quoting F. Dostoevsky, The Brothers Karamazov 240 (Constance Garnett & Ralph E. Matlaw trans., Matlaw ed. 1976)). I can see it now: Ronald Reagan as the Grand Inquisitor, Ivan Boesky as Ivan Karamazov… well, you get the general picture.Google Scholar

54 See Eagleton, T., Literary Criticism, An Introduction 50–51 (1983).Google Scholar

55 Here one can hardly avoid noticing in Posner's descriptions of economics and law the “male” metaphor of “convergent thrust,” to which law and literature is opposed. The recurring association of literature with the stereotypical characteristics of the feminine (and finally, in the above passage, with those of the immature child) is one of the most illuminating and disturbing aspects of this book, which would no doubt provide ample opportunity for a feminist analysis. Such an analysis is beyond the scope of the present article. Suffice it to say that Posner's use of stereotypical male and female metaphors to depict the oppositions of reason and passion, economics and literature, or law and literature, is simply another device by which he attempts to allocate and deny authority.Google Scholar