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L AW AND L ITERATURE : A R ELATION T WICE M ISUNDERSTOOD ?
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Scholarship on Law and Literature remains focused primarily on two conjunctions between law and literature: law in literature, or fictional depictions of law and legal processes; and law as literature, or the manner in which law and legal processes themselves mirror literature or literary criticism.
3 The present essay explores a third, neglected meaning of “law and literature”: namely, law versus literature. These are cases where law has opposed itself, as plaintiff and prosecutor, to literature, and especially to the use of poetic devices in legal discourse. The existence of such an adversarial relationship between law and literature has received relatively little attention, with some exceptions duly noted below.
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1 -----------------------------------------------------. This paper was originally presented as a Faculty Seminar in February,
2004 at Osgoode Hall Law School, York University, Toronto. I would like to thank the participants in the seminar, and especially my host --------------, for their helpful suggestions and comments.
2 The subtitle here refers to the subtitle of Richard Posner’s book, Law and Literature: A Misunderstood Relation.
3 For the distinction between law in literature and law as literature, see CRB Dunlop, in 3 Cardozo J. Law & Lit.
(1991): 63-110: law in literature is “the study of representations of the legal order in fiction” and law as literature is the use of “insights from literary criticism and theory to assist in the reading and interpretation of legal texts, particularly judicial decisions.” Cf. Robert Weisberg, 1 Yale J. Law & Hum.; William Page, “The Place of Law and
Literature,” 39 Vanderbilt L. Rev. 391, 393 (1986); David Papke, 1985 Am. Bar Found. Res. J. 883, 885; Elizabeth
Villiers Gemmette, 23 Valparaiso L. Rev. 267, 267-68; Maria Aristodemou, Anglo-American L. Rev. (1993): 157;
Jane Baron, 108 Yale L. J. 1059..
4 As discussed below, Peter Goodrich has been one of the principal investigators of the law versus literature debate.
Richard Posner’s account of “The Regulation of Fiction by Law,” in Law and Literature , considers quite different, and more familiar, issues such as copyright and defamation.
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Law and literature scholars maintain that the understanding and, potentially, the practice of law can be bettered by attending to law’s literary dimensions. Literature may serve an edifying role, especially by making us aware of aspects of humanity ignored or repressed by the rigid categories of law.
5
The greater flexibility of literature, and of its canons of interpretation, may serve the constructive role of supplementing the narrowness and deficiencies of the law, and the deconstructive role of breaking the law when it refuses to bend to accommodate a wider humanity. These claims largely depend on the existence of a special relationship between law and literature that makes the study of their conjunction illuminating. Law and literature are sufficiently similar that they may usefully be compared, yet sufficiently different that this comparison will result in more than a restatement of what either already knows about itself. This thesis underpins especially the law as literature scholarship, which uses literary interpretation as a model for legal interpretation. Both law and (fictional) literature are “literature” in the generic sense of being written; and, more specifically, both are the focus of intense hermeneutical activity that often itself takes the form of narratives. The law in literature movement, on the other hand, occasionally appears to depend not so much on an analogy between law and literature as it does on a broader, and more questionable, claim that fictional literature provides special access to the truth or reality of whatever it depicts, whether that be law or some other dimension of human experience.
Opponents of the law-and-literature scholars, whom I shall refer to as “positivists” for the sake of convenience
6
, accordingly deny the existence of a special relationship between law and
5 For powerful versions of this thesis, see Robin West, Narrative, Authority, and Law (Ann Arbor: University of
Michigan Press); Martha Nussbaum, Poetic Justice.
6 Although positivists obviously have other concerns than the criticism of the law-and-literature scholarship, the criticisms of literature, addressed below, advanced by the positivisms of Jeremy Bentham and J. L. Austin justify the
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literature.
7
Literature is not, or not especially, illuminating as a source of understanding of law.
Positivists contend that law is separate from literature, as it is from morals, religion, and other categories.
8
This separation is what makes possible the knowledge of law, even in the absence of agreement over moral or literary interpretations; and accordingly is the foundation of the science of law as a discipline independent from other disciplines, including the study of literature. Part of what makes “law” is precisely its embodiment in a distinct set of commands promulgated under special conditions producing a particular coherence and authority. To call into question the distinctiveness of law, especially by treating it as a form of literature subject to widely varying interpretations, undermines the very function the law seeks to serve in society. Much of jurisprudence, whether or not specifically directed against the law and literature movement, is designed to alleviate doubt or concern over the perceived problem of unbounded or unprincipled interpretation. In literature, indeterminacy of meaning may inspire further conversation and interpretive ingenuity, which are themselves the “ends” of criticism. In law, where the “end” is the decision that concludes all interpretation, indeterminacy of meaning may precipitate a crisis.
Consequently, positivists are bound to deny, or severely circumscribe, the claim of a special relationship between law and literature.
Paradoxically, the attempt to relate law and literature presumes a separation between these two domains, and therefore appears to grant some of the claims of the positivists. Both those scholars who argue for, and those who argue against, an analogy between law and use of the term “positivists” to describe opponents of the law-and-literature scholars.
7 See esp. Posner, Law and Literature.
8 H L A Hart, “Positivism and the Separation of Law and Morals,” 71 Harv. L. Rev. 593 (1958).
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literature, accept that these two categories are normally understood to be distinct. The difference is that law and literature scholars regard this distinction as, to some degree, mistaken. They acknowledge the separation between law and literature as a fact of contemporary legal practice and theory, but reject it as the product of a regrettable and, potentially, reversible decision, as a failure of philosophy and empathy. In a better future, the breach will be healed, and law will lie down with literature.
I hope not to have misrepresented too badly, at this level of generality, the main positions of the law and literature scholars and the positivists. My purpose in this article is to intervene in this debate on the side of history. Both positivists and most scholars of law and literature have neglected what we might learn from history regarding the relationship between law and literature.
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Instead, they have taken their respective categories of “law” and “literature” as timeless, even though these categories are quite distinctively the products of modernity. This blindness to history is explained, though not excused, by the heavy emphasis of each group on reproducing textual coherence. The integrity of the literary or legal canon supposedly mirrors the integrity of its individual texts.
10
As Richard Weisberg states: “Locked in their hermetic caskets, law and literature studies have proceeded somewhat as though nothing outside themselves had occurred in this tumultuous and belief-destroying [twentieth] century.” 11 For positivists, in
9 Goodrich is, again, an important exception to this rule, as described below. Another exception is the tendency of several classically-oriented law and literature scholars, including Martha Nussbaum and James Boyd White, to turn to the ancient Greeks for perspective on the relations among law, literature, and philosophy.
10 Cf. Richard Weisberg’s defense of law and literature’s focus on the traditional literary canon (Poethics 117-23).
11 Poethics xiv. This statement is somewhat at odds with Weisberg’s emphasis on the traditional literary canon (see preceding note).
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particular, this oversight is exacerbated by an insistence on the autonomy of law, not only from literature, but also from all external, including historical, contingencies: it does not matter what law was, only that it is . However, if we presume, as both law and literature scholars and positivists tend to do, that there is at present a separation between law and literature, then our first questions should be when, where, how, and why this separation came about. Law-andliterature scholars, in particular, might wish to explain why categories that are actually related have come to be distinguished erroneously. Positivists’ neglect of history appears, at first glance, more excusable. A positivist may maintain with perfect logical consistency that law and literature are separate because they have always been separate. There was never any moment of
“separation” to be accounted for. However, this is not merely an a priori philosophical, but also an empirical, historical claim that can be resolved, if at all, only by consulting the archival record.
As that record shows, pre-modern law was often a form of poetry, being framed in various metrical devices.
12
In English and German law, poetic devices, including especially parallelisms based on rhyme or alliteration, contributed to the binding force of many vows, oaths, and declarations. An elaborate formula of ownership among the Anglo-Saxons, translated into modern English, runs: “So I hold it as he held it, who held it as saleable, and as I will own it—and never resign it—neither plot nor ploughland—nor turf nor tuft—nor furrow nor foot length—nor land nor leasow—nor fresh nor marsh—nor rough ground nor room—nor wold nor
12 In addition to the examples adduced here, I refer the reader to my earlier studies of poetic devices in early law in different cultures: Rhetorics of Law and Ritual and Poetic Justice.
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fold—land nor strand—wood nor water.”
13
The German linguist and folklorist Jacob Grimm
(dates), in his essay “On Poetry in Law,” ( Von der Poesie im Recht , 1816) catalogued numerous such forms in early German law (I have tried to preserve in translation the poetry of some of his examples): gut oder gelt haut und har lesset und leihet schuld und schaden bus und besserung goods or gold hide and hair lease and lend debt and damages penalty and payment 14
Esther Cohen has noted a similar use of rhyming parallelisms in medieval French law:
The use and preservation of exact formulae was aided by specific mnemonic devices.
Often, the words were couched in an alliterative or rhymed form. Thus, causing irreparable physical harm to someone was fere mort ou mehaing , and living together was living à pain et à pot . An accusation of deliberate murder claimed that the deed was done par son tret et par son fet et par son pourchas ...and common knowledge was defined as being
à la veue et à la seue du commun
. Standard pairs of synonymous terms, such as tenir et garder , pouvoir et devoir , estans et manans , served a similar function. The use of binomial expressions is common in legal language, both medieval and modern, and is intrinsic to the formulaic character of written legal language as well.
15
13 Sir Francis Palgrave, Rise and Progress, Part II, p.187. Cf. Liebermann 400; Grendon, 181. For additional examples, see Palgrave, Part II, pp.185-88; Part I, pp.10, 34. Palgrave is apparently the source of the examples quoted by Harold Berman, Faith and Order, 48; Law and Revolution, 58-59.
14
15
Esther Cohen, The Crossroads of Justice: Law and Culture in Late Medieval France (Leiden: E. J. Brill, 1993),
64. Cohen’s suggestion that such devices served a primarily mnemonic function is consistent with both Palgrave’s,
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By now, it should be clear that my intervention in the law-and-literature debate is not neutral. In my opinion, the law and literature scholars are more correct than they recognize: there is (was) not merely an analogy, but an identity between (some) law and (some) literature (namely poetry). This gives further content to the claim of an analogy between law and literature.
“Literature” can be a rather vague and open-ended category, although as used by law-andliterature scholars it generally refers to the most important form of modern literature: novels and other fictional narratives. “Poetry” is arguably a more precise term, because it refers to language characterized by the use of rhythm and other specific devices. The two categories often overlap, as in Roman Jakobson’s concept of the “literary.” Indeed, the poetic devices of early English law coincide precisely with Jakobson’s definition of the “poetic function,” one of the key manifestations of which is parallelism.
16
Moreover, the association between law and poetry was not merely adventitious, but went to the heart of law’s function as a form of effective speech or ritual performance. Several of these legal formulas appear in the Anglo-Saxon charms
17
, and, in general, they shared with magical formulas their poetic form, their pragmatic function, and the requirement that they be repeated precisely in order to be effective.
18
They were, as Francis
Palgrave said, “words of power,” with “binding force” and “efficacy in themselves.” 19
Havelock’s, Goody’s, and Berman’s suggestions, which are addressed below.
16 Jakobson, “Closing Statement: Linguistics and Poetics.” Some anthropologists have followed up on the crosscultural occurrence of parallelism. See esp. James Fox.
17 Grendon: 181, 222, 229.
18 Palgrave, Rise, Part I, 120.
19 Part II, 188. Cf. Grimm’s explanation of the poetry of these formulas:
Above all this poetical element of the law breaks forth in its most extreme form. Namely, it is completely natural and necessary for poetry that it often is not content with expressing a phrase once, but must instead
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Such devices largely disappeared from the law, although, as described below, a few vestiges or echoes remain. Legal language is now the epitome of dry prose, famous for its dullness; and it is hardly written in verse.
20
Obviously, something has happened. This presents us with an historical puzzle: How and why did law and poetry become separate? This is, I suggest, a crucial question for proponents of a special relationship between law and literature. If we can understand the nature of the connection that existed between law and poetry, and why this connection was severed or, at least, severely attenuated, then we should be in a better position to judge the current relationship between law and literature, both descriptively and normatively.
Without prejudice to the analysis presented below, I will suggest now that the evidence indicates that one of the causes of the demise of poetry in the law was the rise of writing, and the concomitant decline of oral culture. Although the main focus of my analysis is the poetry of
English law, I will first review an earlier phase in the decline of poetry, including the poetry of law: the debate between Plato and the Sophists. The reason for beginning at this point is that this debate has been the subject of numerous interpretations, and it has served as the prime case for proponents of what I shall call the “literacy hypothesis,” or the idea that writing had widespread ramifications within culture, including the decline of poetry and other oral genres, and the growth of skepticism and logic. The writings of the classicist Eric Havelock and the anthropologist Jack Goody will prove especially useful in this regard. Both argued that the repeat it again. It cannot, so to speak, stand on one foot, but requires, in order to gain peace and comfort, a second support, another phrase similar to the first. It appears to me that the principles of alliteration and rhyme rest precisely and essentially on this basis.
Zeitschrift für geschichtliche Rechtswissenschaft , Band II, Jahrgang 1816, Heft 1, 25-99 at 17 (my trans.); cf. 18, 20.
Reprint ed. Darmstadt: Hermann Gentner Verlag, 1957.
Grimm speculates that poetry has an internal need to “complete” itself through parallelism.
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discovery of alphabetic writing in ancient Greece worked a profound transformation on culture.
Writing presented opportunities for recording, storing, and communicating ideas that rendered obsolete the mnemonic function of poetic devices in oral culture. My argument will be that a similar development, the invention and widespread use of movable type, contributed to the demise of some poetic legal forms in sixteenth-century England. My main example is the marriage oath as published in the Book of Common Prayer (1549). This eliminated some of the more poetic local variants of the oath in favor of a uniform, more literal version.
However, there was more at stake in these developments than the replacement of one, less efficient medium of communication by another. The demise of poetry in English law represented the triumph not merely of print culture, but also of a particular understanding of language associated with Protestant biblical literalism. This view of language not only valorized the semantic or referential function of language, but prohibited certain uses of language, including repetitive prayers, as a form of idolatry associated with rhetoric and magic. This polemic, too, bears comparison with the ancient Greek case. In his Encomium of Helen , the
Sophist Gorgias of Leontini argued for the persuasive power of poetry in forensic debate. Plato’s attack on poetry and imitation ( mimesis ) in the Republic responded by granting most of what
Gorgias had claimed, including an analogy between poetry and magic, and then rejecting poetry as dangerously misleading for these very reasons.
This provides a very different perspective on the current law-and-literature debate. Law is not so much a form of literature as a mode of literalism . Literalism is more than an emphasis on
20 See, however, Law and Literature, recent issue.
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texts– a natural outcome of the growth of writing and literacy, and accompanying subsidence of oral culture. It also determines a particular mode of writing and reading texts. After all, poetry may be printed just as easily as prose. Nor is literalism confined to the medium of the text, as it dominates increasingly the domain of oral discourse, whether or not that discourse is reproducible as, or regarded as equivalent to, a text. On the other hand, literalism is clearly facilitated by a certain materiality of the text. The objective form of the text lends an appearance of immutability. This is, in part, what the lawyer means by “black letter law”: the simple statement of the law “as it is” that fills study aids for law students (and many judges).
21
Literalism is one dimension of what Michel Foucault termed “The Order of Discourse”:
In every society the production of discourse is at once controlled, selected, organised and redistributed by a certain number of procedures whose role is to ward off its powers and dangers, to gain mastery over its chance events, to evade its ponderous, formidable materiality.
22
Literalism is an attempt to fix both the meaning of language, and its connection to the world. It is therefore a mode of restriction or, to borrow Foucault’s term, an “imposed scarcity.”
23
Among the various possible meanings (and uses) of language, only one is permitted.
Other meanings (and uses) are correspondingly prohibited. This regimentation of language is an attempt to avoid the facticity of discourse– the possibility that the form of discourse might make
21 For a much more sophisticated insistence on the primacy of the text, see Charles Fried, “Sonnet LXV and the
‘Black Ink’ of the Framers’ Intentions,” pp. 45-51 in Levinson and Mailloux, Interpreting Law and Literature.
22 Foucault 1981: 52.
23 73.
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a difference. Of course this does not mean that the existence of discourse itself is denied, only that it might function other than as a transparent window on reality, or between minds. Discourse is supposed to behave simply as a medium of expression, a conduit for content, rather than as an independent power, obdurate structure, or site where meaning might slip away from us.
Literalism is not a goal in itself, but a response to, and in part a denial of, the very real problems of communication. This response takes the form of a legislation of language: a prescription for what will be permitted and prohibited in the substance and style of our discourse. This should not be confused with a neutral, “objective” formulation of the laws of language, which would be descriptive merely. As a mode of restriction, literalism constitutes a type of violence and asceticism, a manifestation of what Nietzsche called “the will to power” 24
, and Foucault called
“the will to truth.” Literalism is the imposition of this will on language itself.
The purpose of the following, then, is to place in historical context the separation of law from literature. The literalism of the law, within the modern Anglophone common law tradition, reflects both a transformation of the linguistic medium of law from orality to literacy, and a particular understanding of language that developed within the Protestant Reformation. The
Jewish and Christian prohibition against idolatry was applied to language by Protestants and especially radical, Puritan elements in such a way as to proscribe certain forms and uses of language that did not conform to the emerging biblical literalism or “plain style.” 25
Literalism was a corollary of the opposition of a scriptural canon to the “idolatrous” customs of the Catholic
Church, and may be appropriately redescribed as “linguistic monotheism” or “verbal
24 Genealogy of Morals.
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iconoclasm.” The domain of the “literal” was defined over against a domain of the “literary,” or more specifically the rhetorical, as an analogue of the opposition between canon and idolatry.
Whereas scholars of law and literature have argued for a closer relationship between these two genres, an historical approach reveals that the effective separation of these genres in modernity came about in part through a genealogical transformation of religious categories. Genealogy, in
Nietzsche’s understanding, is a mode of history that refutes the “faith in opposite values.” 26
For modern lawyers, the opposition of law to both literature and religion is an article of faith.
Genealogical analysis calls into question this posture of separation and exclusion.
T OWARD A G ENEALOGY OF L AW AND L ITERATURE
One of the founding figures of positivism exhibited more historical perspective than some of his descendants when he charged that law was a form of poetry.
27 Jeremy Bentham (1748-
1832), the English Utilitarian philosopher and legal reformer, was one of the foremost critics of legal rhetoric.
28
Much of his project for reform of the law consisted in an effort to reform its language, especially by purging certain pathologies he termed “fictions.” 29
In some of his early
25 Cf. Peter Auksi, Christian Plain Style.
26 On the Genealogy of Morals; Beyond Good and Evil.
27 Cf. Martha Nussbaum’s observation that certain influential philosophers in the past, including Bentham, acknowledged, more than their contemporary counterparts, the relation between form and content, while denying that literature was the proper form in which to express their truths. Love’s Knowledge 19.
28 “pushpin to poetry” line.
29 See Robert A. Yelle, “Bentham’s Fictions: Canon and Idolatry in the Genealogy of Law,” Yale J. Law &
Humanities.
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writings, he identified a certain kind of legal fiction with poetry and music. In a footnote to his
Introduction to the Principles of Morals and Legislation (1789), he argued:
Were the inquiry diligently made, it would be found that the goddess of harmony has exercised more influence, however latent, over the dispensations of Themis [the goddess of Justice], than her most diligent historiographers, or even her most passionate panegyrists, seem to have been aware of. Every one knows, how, by the ministry of
Orpheus [the musician], it was she who first collected the sons of men beneath the shadow of the sceptre: yet, in the midst of continual experience, men seem yet to learn, with what successful diligence she has laboured to guide it in its course. Every one knows, that measured numbers were the language of the infancy of law: none seem to have observed, with what imperious sway they have governed her maturer age. In
English jurisprudence in particular, the connexion betwixt law and music, however less perceived than in Spartan legislation, is not perhaps less real nor less close...Search indictments, pleadings, proceedings in chancery, conveyances: whatever trespasses you may find against truth or common sense, you will find none against the laws of harmony.
The English Liturgy, justly as this quality has been extolled in that sacred office, possesses not a greater measure of it, than is commonly to be found in an English Act of
Parliament. Dignity, simplicity, brevity, precision, intelligibility, possibility of being retained or so much as apprehended, every thing yields to Harmony. Volumes might be filled, shelves loaded, with the sacrifices that are made to this insatiate power. Expletives, her ministers in Grecian poetry are not less busy, though in different shape and bulk, in
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English legislation: in the former, they are monosyllables: in the latter they are whole lines.
30
Bentham affirmed the enslavement of law to the bewitching power of harmony, music, or poetry. He did not refer directly to the poetic parallelisms of early English law, and there is no way of knowing if he was aware that these had ever existed. He did refer to the poetry of early
Greek law, and this is a point at which we can test his knowledge. Bentham had a classical education. Some of the early Greek codes, including that of Solon (dates), were indeed written in verse (iambic hexameter).
31
This represents a point of connection with our first example addressed below: the debate between Plato and the Sophists in fourth-century Athens. However, the examples Bentham gave, earlier in this note, of the rhetoric of law were the two Latin maxims Delegatus non potest delegare and Servitus servitutis non datur , which translate, roughly and respectively, as “A delegate may not delegate” and “A tenant may not grant a tenancy.” He argued that, there being nothing in either reason or the law that supported these rules, they were supported by rhetoric alone. Although Bentham contended that the poetry of law is most evident in the survival of such traditional rules, he also suggested that the poetry of
English law, although less open or even hidden, was perhaps for that reason no less powerful.
Bentham addressed similar complaints against the target of the Fragment on Government
(1776), and of the unpublished Comment on the Commentaries , namely, the jurist William
Blackstone (dates), author of the famous Commentaries on the Common Law : “Poetry is what his
30 Cf. 1977: 419, where Bentham describes Jurisprudence as a game of “crambo,” or trading rhymes.
31 For this observation, I am indebted to Peter Jackson.
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oracles ought like those of the ancient sages to have been delivered in”
32 ; “The merit to which, as much perhaps as to any, the work stands indebted for its reputation, is the enchanting harmony of its numbers: a kind of merit that of itself is sufficient to give a certain degree of celebrity to a work devoid of every other. So much is man governed by the ear.” 33
On the other hand, the fact that Blackstone’s poetry is disguised as prose becomes additional grounds for complaint:
Why would not our author write in rhyme? The jingle of the words would then have been a warning bell to the young student to guard against deception. The reader not expecting the plain truth of things would neither be disappointed nor misled: the false colouring spread continually over every object touched upon would have had a continual apology: and the “King’s Majesty” and the like amplifications of College-Rhetoric would have stood excused by the necessities of metre.
34
In these passages, Bentham complains of rhetoric in the law, whether that rhetoric is revealed or concealed. The model for open rhetoric is poetry, music, or “metre.” Such devices persuade by operating upon the ear and from there, presumably, on the passions. Rhetoric that is concealed, by virtue of avoiding such devices as rhyme or versification, is even more pernicious, as it operates subliminally, without raising suspicions. Although Bentham does not explain precisely what such hidden poetry looks like, nor how to differentiate it from prose, he may have in mind the case where a word is made to rhyme with itself, rather than with another word it
32 1977: 296; Cf. 1977: 11: “Verse is what his oracles, like those of the ancient sages, would have appeared in to best advantage.”
33 1977: 413-14.
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merely resembles. (This is, indeed, not very different from the two Latin maxims he derides.)
Thus, when a Common Law precedent occurs in the form of a “holding”– a verbal formulation of the decision of the case– and subsequent applications of this precedent repeat the holding while applying it to a new fact scenario, this amounts to “rhyming” one fact scenario with another, preexisting one, while claiming that it is in fact “the same” as the other one. An example would be when we say, without further explanation, that killing a baby is “murder,” and aborting a fetus is “murder,” and these two actions should therefore be punished identically.
What sort of model does Bentham provide us for the understanding of the relation between law and literature? He acknowledges such a relation, indeed a continuing relation, between law and poetry. Yet this was for him the basis for condemning law as a mode of rhetoric or persuasion. Bentham sought to extirpate all such influences of linguistic form upon content or meaning. His goal was to eliminate all instances of the gap between language and reality by instituting a complete and perfectly lucid code of laws. The force of laws was to come, not from poetry and other such subterfuges, but rather from explicit commands and equally explicit sanctions attendant upon their violation.
35
Even more interesting for our purposes is that
Bentham presented an historical claim regarding the decline of poetry in the law. The open use of poetic or rhythmical language in the law belonged to a phase of primitive culture, now partly outmoded. Yet the poetry of law perdured in hidden form. Bentham does not explain what has caused the decline of poetry, yet from the tenor of his polemic, we can infer that it was just such
34 1977: 121.
35 In this regard, he was the direct ancestor of legal positivists including John Austin, H. L. A. Hart, and Hart’s colleague J. L. (John Langshaw) Austin, a philosopher whose theory of the “performative utterance” owed much to
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criticisms of poetry as illogical and illicit persuasion that inspired it to “go underground,” as it were. The mode of history presented here closely resembles other evolutionary theories that grew in popularity throughout the nineteenth century, especially anthropologist E. B. Tylor’s account of the continuance of “survivals” from “primitive” into modern culture. Like Tylor, Bentham glossed over a crucial question regarding the source of the force of tradition: is it the weight of tradition itself, or is it the rhetoric of such traditional forms that leads to their survival? Is the diachronic (historical) or synchronic (structural) dimension of language to blame? Despite his failure to resolve such questions, Bentham clearly underlines, here and elsewhere, the persuasive power of poetry, as against its other potential functions, such as the mnemonic.
Further considerations come not from what Bentham says regarding poetry, but rather from an analysis of his place in the history of law and culture. Although he mentions the poetry of ancient Greek law and appears in general to follow the Platonic critique of poetry and rhetoric,
Bentham also borrowed heavily from the Judeo-Christian prohibition against idolatry, which he directed especially against the personification of language, or the habit of “taking words for things.” 36
He directed such criticisms against the “Common Law,” which, being nowhere written down, was only an empty phrase. Such criticisms begin to appear along with his first attacks on
Blackstone’s “poetry.” The remedy for such defects of language was the embodiment of law in a written code. In his valorization of the literal interpretation of a code, and his critique of customary laws as idolatrous fictions, Bentham reflected both Protestant biblical literalism and the further ascendancy of writing over oral culture.
Hart and legal positivism generally. J. L. Austin is addressed below.
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Bentham, although a better historian than most of his direct heirs, did not, as we see, provide an explanation for the disappearance of poetry in English law. Apart from suggesting that his attitude is symptomatic of a broader disdain for such devices that led to their repression, how can we explain their disappearance? A first answer has already been indicated: these poetic forms were part of an oral tradition in which they served a primarily mnemonic function. When this function was replaced by writing, the poetry of law disappeared. This is the opinion of the eminent scholar of Anglo-Saxon culture, Sir Francis Palgrave:
When they first settled in England, their [the Anglo-Saxons’] law...was entirely oral and traditionary. It was a common law, existing as the common law of England still exists, in customs...It cannot be ascertained that any of the Teutonic nations reduced their customs to writing, until the influence of increasing civilization rendered it expedient to depart from their primeval usages; but an aid to the recollection was often afforded...by poetry, or by the condensation of the maxim or principle in proverbial or antithetical sentences...The marked alliteration of the Anglo-Saxon laws is to be referred to this cause....” 37
Harold Berman echoes this opinion
38
; and Esther Cohen presents the same explanation for the parallelisms in medieval French law.
39 Yet Berman also presents another explanation for the decline of such poetic devices:
36 See Yelle, “Bentham’s Fictions.”
37 Rise and Progress, v.6, pt.1, pp.33-34. Cf. id, 120; pt.2, 187; idem, The History of the Anglo-Saxons, vol.5, pp.91, 101.
38 Faith and Order 48; Law and Revolution 58-59.
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Because life was much less compartmentalized than it later became, much more a matter of total involvement, poetic and symbolic speech, which is closely associated with the whole being and with the unconscious, was more appropriate than prosaic and literal language, especially on solemn occasions involving the law.
40
What Berman means by “compartmentalization” is further illuminated in the following passage:
[T]here is the same potentiality for abuse of ritual, tradition, and authority in law as in religion. Here the chief danger is that the symbols needed to reflect and induce commitment to higher values may become objects of reverence for their own sake, ends in themselves, rather than “outward and visible signs of an inward invisible grace.” In religion this is called magic and idolatry. In law it is called procedural formalism—as in trial by ordeal or by battle or by ritual oaths. The whole history of Western law from the twelfth century on has been marked by efforts, by no means always successful, to break away from the domination of such formalism. The secularists and the rationalists would have us escape from magic and idolatry and formalism by entirely rejecting emotional commitment to legal values, together with the ritual, tradition, and authority which reflect and induce them.
41
“Compartmentalization” includes the separation of law from religion, as well as from poetry. Thus, legal literalism was connected with secularization. Berman argues that law has
39 See note [x].
40 Faith and Order 48; Law and Revolution 59.
19

come to be viewed restrictively as a mere instrument for the achievement of material ends, without regard for its symbolic function and the manner in which this reinforces its other functions in society. One can endorse his general complaint while still finding his explanation for the disappearance of such poetic forms less than wholly satisfying. He appeals to a standard trope of “secularization”: the idea that, with the onward progression of society, religion declines and withdraws, becoming separate from other domains of culture, such as law, with which it was previously interconnected. At the end point of this withdrawal, religion either becomes an entirely private matter—or it disappears. The manner in which this trope governs United States law concerning religion is too well known to bear repeating here. Yet the form it assumes in
Berman’s analysis is curious, and worthy of note. He attributes the complaint against idolatry to the “secularists and rationalists.” However, the prohibition against idolatry is a central tenet of the Jewish, Christian, and Islamic traditions. It follows immediately after the command to worship the one God, at the beginning of the Ten Commandments in Exodus 20. What is secular about—what could possibly be more religious than—the prohibition against idolatry?
This contradiction or Freudian slip in Berman’s analysis brings us to Peter Goodrich’s argument that the English common law tradition in the sixteenth and seventeenth centuries was founded through an “antirrhetic,” or polemic against images, including verbal images or painted words. This polemic was influenced by religious iconoclasm and the rise of print culture.
42
Following the triumph of this polemic, law has successfully–at least, to all appearances–
41 Faith and Order 13.
42
20

excluded images from its domain, and disguised its nature as a mode of rhetoric. Consequently, one must examine the history of law to discover its true, but repressed, identity:
It is a question of genealogy when criticism uses history, and pragmatically that means that a method should be developed that is cognizant of a poetics repressed within institutional prose, of an affectivity harbored in its science, a power in its reason, an image in its logic, a justice in its law.
43
The suggestion here is that law continues to function as a form of poetry or rhetoric, yet hides or disguises its nature as such. The special rhetoric of law is to exclude visible forms of rhetoric, to banish poetry beyond the margins of its discourse, as a means of denying or repressing its own, fundamentally rhetorical nature. Goodrich invokes the Nietzschean or
Foucauldian method of genealogy as the means of stripping off the mask of prose and logic that law wears to disguise its true persuasion. Crucial to this method is the use of history to expose the separation between law and poetry as an event , as something that happened, indeed in some sense the crucial happening in the history of law, the founding, traumatic moment when law separated itself from poetry. Note how similar this is to Bentham’s charge against the poetry hidden in law, but with the crucial difference that Goodrich offers no hope of a law purified of such rhetoric. In my view, Goodrich’s account offers an exciting version of the law as literature thesis, and we shall explore the implications of this thesis in the remainder of the present essay.
It should be pointed out, however, that Goodrich’s exclusive focus on deconstructing the polemical structure of the common law tradition leads him to ignore the question of whether law
431995: 30.
21

was actually poetic (in the sense of employing rhythm), rather than merely charged with being so, prior to the institution of the antirrhetic. Nietzsche’s own account of how “truth” is a form of disguised poetry– a mode of metaphor that represses its own metaphoricity– is consistent with the discovery of the use of actual poetic devices in early law.
44
L
ITERACY AND
L
ITERALISM IN
A
NCIENT
G
REECE
As we have seen, several scholars contend that it was the advent of writing that precipitated the decline of poetry in English law.
45
Through his association with the codification movement, Bentham provides additional, indirect evidence for the role of writing in the repression of the poetry of law. To interrogate the “literacy hypothesis” as applied to English law, it will be necessary to revisit the primary example for proponents of this hypothesis, namely that of fourth-century Athens. Both the classicist Eric Havelock and the anthropologist Jack
Goody have advanced the hypothesis that Plato represented the ascension of a more skeptical culture made possible by the advent, within the few centuries prior, of alphabetic writing.
Havelock argued that the conflict between Plato and the Sophists represented the transformation of ancient Greek culture, especially in the domain of pedagogy, from a system based on orality to one based on literacy. A shift in the modes of production and transmission of knowledge
44 What is truth? A mobile army of metaphors, metonyms, anthropomorphisms, in short, a sum of human relations which were poetically and rhetorically heightened, transferred, and adorned, and after long use seem solid, canonical, and binding to a nation. Truths are illusions about which it has been forgotten that they are illusions. . . .”
Friedrich Nietzsche, “On Truth and Lying in an Extra-Moral Sense,” in Friedrich Nietzsche on Rhetoric and
Language , ed. and trans. Sander Gilman, Carole Blair, and David Parent (New York: Oxford University Press,
1989), 246-57 at 250.
45 Another is Bernard Jackson’s explanation of the decline in Hebrew Biblical law of poetic or, as he calls them,
“narrative” devices, and their replacement by non-poetic, “semantic” language. He contends that this decline is a
22

underlay the critique of rhetoric and poetry as oral genres. The advent of the technology of alphabetic writing, which occurred in the few centuries before Plato, gradually rendered obsolete the function of poetry as a storehouse of cultural knowledge, or what Havelock referred to as the
“Homeric encyclopedia.” Poetry employs repetition, which contributes to the memorability of oral texts, as well as to their performance: “[Poetry] was selected for this role because, in the absence of the written record, its rhythms and formulas provided the sole mechanism of recall and of re-use.” 46 This function of poetry became less important with the introduction of writing, and the new possibilities this afforded for recording, storing, and communicating ideas.
Havelock’s description of the association of poetry with law and politics is both exemplary of his entire argument and, for our purposes, of particular relevance:
[S]uch a society also had constant need to frame short-term directives and legal formulas which, though designed to suit specific occasions, were nevertheless required to have a life of their own in the memories of the parties concerned for varying periods of time, or else the directive failed through lack of fixity in transmission, or the legal formula became unenforceable because the parties concerned had forgotten what it was or were in dispute because of variant versions. Such directives could therefore remain effective only as they were themselves framed in rhythmic speech of which the metrical shape and formulaic style gave some guarantee that the words would be both transmitted and remembered without distortion. The colloquial word-of-mouth which in our own culture is able to serve the uses of even important human transactions remains effective only consequence of the transition from orality to literacy.
46 Havelock 100.
23

because there exists in the background, often unacknowledged, some written frame of reference or court of appeal, a memorandum or document or book. The memoranda of a culture of wholly oral communication are inscribed in the rhythms and formulas imprinted on the living memory.
47
Havelock’s account is persuasive, and certainly appears to describe part of what transpired in the Platonic moment. Oral cultures and genres often employ repetition, and imitation, to promote memorability. However, there was more at stake here than the obsolescence of such poetic forms, and their dismissal by a new mode of pedagogy. Although he acknowledged the rhetorical function of poetry
48
, he ultimately subordinated this to its mnemonic function, thereby obscuring what was at stake in the debate between Plato and the
Sophists. Plato did not attack poetry because of its contribution to memorability. Indeed, on other occasions he attacked writing precisely because it could lead to the deterioration of memory.
49
Instead, as we shall see, he attacked poetry because of its power of persuasion, its rhetorical function, a function that was not rendered obsolete with the advent of writing.
The problem of accounting for this “skepticism” concerning poetry has been addressed more forthrightly by Jack Goody, who has further developed, refined, and generalized the literacy hypothesis in a series of publications since the 1960’s. From an early article addressing the ramifications of literacy in ancient Greece
50 , Goody’s argument has remained consistent on certain key points. The development of alphabetic writing had important ramifications not only
47 Havelock 106-07.
48 See, for example. 109 and Chapter IX, “The Psychology of the Poetic Performance.”
49 Ong, The Presence of the Word , 34, 55; idem, Interfaces of the Word (Ithaca: Cornell University Press, 1977),
285; Plato, Phaedrus, Seventh Letter.
24

for culture, but also for human cognition. Literate cultures think differently from oral cultures.
This difference is associated in some way with the development of logic and the critique of certain modes of thought, including magic, that anthropologists used to call “primitive.” Goody emphasizes that this development represents not some difference in cognitive capacities, but rather the superior opportunities for reflection made possible by writing. Writing enables the comparison between oral and written modes, to the detriment of the former; as well as the accumulation of a certain critical mass of skepticism that would otherwise dissipate in the absence of its storage and dissemination through writing: “By making it possible to scan the communications of mankind over a much wider time span, literacy encouraged, at the very same time, criticism and commentary on the one hand and the orthodoxy of the book on the other.” 51
More recently, Goody has examined the phenomenon of skepticism and iconoclasm directed against various cultural forms, including the pictorial, plastic, and dramatic arts, from a crosscultural perspective, including some oral cultures.
52
Goody’s thesis presents some complications for any simplistic idea that the birth of writing caused the death of poetry. He claims that writing, in its earlier stages, actually increased the poetry of language, and may have been responsible for the formulaic epithets that have
50
51 Goody 1963/1968; 1977: 37; cf. 1977: 15, 50; idem, The Logic of Writing and the Organization of Society
(Cambridge: Cambridge University Press, 1986), 37; idem, The Interface between the Written and the Oral
(Cambridge: Cambridge University Press, 1987), 300; idem, Representations and Contradictions (Oxford:
Blackwell, 1997), 15, 155-56; idem, The Power of the Written Tradition (Washington and London: Smithsonian
Institution Press, 2000), 46.
52 Representations and Contradictions.
25

otherwise been cited as evidence for Homer’s status as an oral poet.
53
Although oral cultures employ poetry as a mnemonic device, more rigid poetic formulas or structures of versification and the practice of verbatim repetition appear to be associated with written culture, which tends to fix texts in a particular form.
54
Writing may therefore have contributed to an increase in formulaic rituals, including repeated prayers.
55
These caveats are well-taken. Yet they highlight a fundamental problem with the literacy hypothesis, which associates poetry with “orality,” and prose with “literacy.” There is a basic, almost insurmountable difficulty with this association: all of the remains we have of an oral culture in ancient Greece are, after all, written. Absent anthropological data (which, being itself written down, reintroduces the possibility of bias), we simply cannot know what a purely oral culture looks like. However, the coexistence of written and oral genres, and the interaction of poetic and literal modes of discourse, are readily observable in a variety of types in different cultures. If, in cultures with writing, poetry was no longer required as a mnemonic device, then why did it perdure, and even increase, in certain genres or domains of culture, such as literature?
And why did it die out in others, such as law? At this point, the hypothesis that poetry serves a mnemonic function ceases to be of much use. Literacy may be a necessary condition of literalism, but it is not a sufficient condition thereof. We must presume that poetry serves some
53 “The domination or tyrannie de la formule may resemble the tyranny of rhyme in later poetry, or of alliteration in early English verse. Might it be suggested that all these three, in their elaborated forms, were written developments of features found in oral works but not in the extent and consistency with which they are later used. . . . It might . . . be possible to explain all these features in terms of the early influence of writing in formalizing and elaborating poetic utterance . . . .” (Goody 1987: 99) “Many of the techniques we think of as oral, such as the assonance of
Beowulf (or of Gerald [sic] Manley Hopkins), the mnemonic structure of the Rig Veda, the formulaic composition of the Greeks, and even the very pervasive use of rhyme, seem to be rare in cultures without writing.” (Goody 2000:
26)
54 Goody 2000: 43; Goody 1987: 294.
55 Goody 2000: 61-62.
26

other function– such as persuasion, or aesthetic pleasure– in order to account for its continued use in certain (oral and written) genres. And, I suggest, the converse holds true: where poetry disappears, this cannot be presumed to be merely a consequence of the fact that there are other means of preserving cultural memory. In these cases as well, one must examine the functions allowed to discourse within the genre in question. This is what I now propose to do for my two legal examples.
From this perspective, one may well ask why, in particular, vows, oaths, and legally binding declarations employed such poetic devices? After all, in an oral culture, every datum of information would require the same versification or risk being forgotten. The proponent of the literacy hypothesis will say that such verbal legal acts–like the brilliant deeds of the Achaeans at
Troy–were of more than ordinary importance, and were metricalized so as to rescue them from the oblivion that might otherwise befall them. Less significant scraps of information could stand to be lost; and the mundane is also the quotidian, which is supported well-enough by short-term memory and rote experience. In response, one might say that the truly significant events are less likely to be forgotten: we all know the saying “If it’s important, you’ll remember it.” In any case, it would be more effective simply to have more witnesses on hand. This would reduce the risk that everyone will forget, and alone would seem sufficient for this purpose. Poetry may help an individual remember a private vow, but if noone else in the community knew that such a vow was made, it would be vain to ask the community to enforce it. The claim that the same devices that make a vow more memorable for an individual, make it more memorable for each member of a group, confounds those who repeat the vow with those in the audience who merely hear it (if they do).
27

Moreover, what sort of memory is it, precisely, that we are talking about here? Is it memory of the traditional form of the vow, so that this may be followed as closely as possible on all occasions on which such a vow is taken? Or is it memory that a vow was taken on a particular occasion, so that the fact of its having been taken may be invoked at some later date? Or is it memory of each and every provision in a vow, so that these are more likely to be observed? The literacy hypothesis commonly emphasizes the preservation and transmission of cultural forms, the first alternative enumerated above, as the primary meaning of memory. The other types of memory are often confounded with this one, although they are arguably quite different. The failure of the literacy hypothesis to address such distinctions is a serious omission.
However, the most important criticism of the literacy hypothesis may be that it emphasizes the mnemonic function of poetry at the expense of its persuasive function. Poetry is impressive not only on the memory, but also in the moment. The most obvious explanation for the use of poetry in early English oaths and other operative legal utterances is that the poetry contributed in some way to the binding force of such formulas. This reinforces the proposition established earlier: poetry is precisely coextensive with neither “oral culture” nor the “mnemonic function.” We still have to ask why, in any particular case, poetry disappeared. That is what I now propose to do, beginning with an example drawn from the very milieu addressed by
Havelock and Goody: Plato’s Athens.
R AVISHING W ORDS : T HE S PELL OF M ETRE IN G ORGIAS
’
S E NCOMIUM OF H ELEN
Gorgias of Leontini (ca. 480-375 BCE) is frequently regarded as the first systematic rhetorician in ancient Greece. He authored a well known Encomium of Helen in which he
28

defended Helen of Troy against the charge of abandoning her husband Menelaus and going to
Troy with Paris. Gorgias argued that she was blameless because “by Fate’s will and gods’ wishes and Necessity’s decrees she did what she did, or by force reduced, or by words seduced, or by love induced.” (The translators have, in this line and elsewhere in the speech, attempted to replicate Gorgias’s pervasive use of rhyming endings or homoioteleuton .) His defense, as we can see, proceeded by the exhaustive enumeration of alternatives: Helen was either 1) compelled by the gods, 2) forced by human violence, i.e. abducted and raped, 3) persuaded by words, or 4) seduced by the power of erotic love. Gorgias addressed each of these alternatives, and concluded in every case that Helen was blameless. There being no other alternatives, one must admit her innocence.
At a literal level, the Helen is a simple courtroom argument, an example of the type of forensic rhetoric or oratory that was central to the practice of rhetoric in ancient Greece. Closer examination suggests, however, that Gorgias’s real argument was in defense of rhetoric itself.
56
One of the four alternatives addressed was that Helen was persuaded by speech. This afforded an occasion for describing the power of language, and especially of a certain kind of rhetoric:
Speech is a powerful lord that with the smallest and most invisible body accomplishes most god-like works . . . I shall show how this is so . . . All poetry I regard and name as speech having metre . . . Thus by entering into the opinion of the soul the force of incantation is wont to beguile and persuade and alter it by witchcraft, and the two arts of witchcraft and magic are errors of the soul and deceivers of opinion . . . What is there to
56 Cf. Robert Wardy. The Birth of Rhetoric: Plato, Gorgias, and Their Successors.
29

prevent the conclusion that Helen, too, when still young, was carried off by speech just as if constrained by force?
Gorgias’s definition of poetry as “speech having metre” appears to be self-referential. As previously noted, he employed extensive rhyme and alliteration in his own rhetoric: e.g., “I shall show how this is so”; “reduced . . . seduced . . . induced.” This was the “force of incantation” mentioned in the Helen . One suspects that, among the four alternative defenses of Helen, the defense that she was persuaded by (poetic) speech was the one that really mattered. The others served to establish analogies for the persuasive power of speech: it was like the irresistible commands of Fate or the gods; it was like physical violence; it was like the attractive pull of erotic love. Gorgias added the further analogies that speech was like magic and an intoxicating drug. There were no corresponding defenses that Helen was drugged or bewitched– unless if by speech itself.
Reinforcement for this interpretation comes from a consideration of the audience and context for Gorgias’s speech. This was a set piece, a prepared example of oratory given in order to convince students to sign up with Gorgias for a course of training in rhetoric– for a suitable tuition, of course. The Helen is the equivalent of a commercial advertisement, complete with jingles. The choice of Helen as defendant had the advantage that everyone was familiar with the facts of her case, the recital of which could therefore be dispensed with. Gorgias’s “commercial” had to convince its listeners not only of Helen’s innocence, but above all of the power of rhetoric . Of course, they could hardly be convinced of the latter without being convinced of the former. But the latter was more important.
Surely it was this defense of rhetoric, not the defense of Helen, that raised a controversy.
30

As Jacqueline de Romilly showed, Gorgias’s identification of his rhetoric as a form of magic was subsequently taken up by others and used as a basis for condemning that rhetoric.
57 This may be described as a two-step process: first, the legitimacy of employing “speech having metre” within the genre of forensic rhetoric was denied; then, as is well known, poetry as a form of imitation
( mimesis
), was excluded altogether from “authorized” discourse: at least, this was Plato’s intent.
Both he and Aristotle agreed with Gorgias that the primary forms of imitation in poetry were rhythm and metre.
58 However, in his dialogue named after Gorgias, Plato characterized rhetoric as poetry without music, rhythm, and metre: namely, divested of these mimetic properties.
59
Aristotle noted Gorgias’s use of poetic devices in his rhetoric, but regarded the language of prose, including that of rhetoric, as distinct from that of poetry.
60
Famously, Plato sought to exclude poetry, as a form of imitation, from the ideal Republic. He embraced Gorgias’s analogy between poetry and magic, but found in this analogy another reason to suspect the deceptive power of poetry.
61
There was, indeed, some precedent for regarding “metre” as not a characteristic of rhetoric, properly speaking. Gorgias’s use of repetitive sound as a technique of forensic rhetoric was relatively novel, at least to the degree, and degree of self-consciousness, with which he used it. This made this usage more obvious, and a clearer target. Such devices were understood to belong to the domain of poetry and magical incantation. When they intruded into the realm of public discourse, especially in the assertive manner illustrated by Gorgias’s Helen , they crossed
57 Magic and Rhetoric in Ancient Greece .
58 Republic 601; Aristotle, Poetics, chapter 1 (1447a-b).
59 Gorgias 502c.
60 Rhetoric, Book 3.
61 Republic 598d, 601b, 602d, 607c, 608a.
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the threshold of propriety, and needed to be outlawed. The result is well known: “efficacious discourse, ritual discourse, discourse loaded with powers and perils, gradually came to conform to a division between true and false discourse.” We might note especially that it was “ritual discourse” of a certain form and function– an imitative or repetitive form, and a magical function– that was labeled false and distinguished from the true discourse of philosophers, whose speech was supposed, at least ideally, to conform to reality rather than to cause its hearers (and, in the case of magic, reality itself) to conform to it. In his own trial, Socrates disavowed any such power to persuade; the inefficaciousness of his speech was converted into a sign of its truthfulness. At least, this was his defense.
We have to be the judges in this case. It seems to me that Gorgias’s defense of rhetoric, or at least of the persuasive power of “speech having metre,” has never been refuted successfully. Instead, this power has been cordoned off, compartmentalized, and controlled, above all in such a way as to prevent it from spilling over into truly important matters, such as the life-and-death conflicts adjudicated by the law. Given this repression, the reemergence of such forms, when it does occur, can occasion a minor scandal. Johnnie Cochran’s famous line from the O. J. Simpson case, referring to the murderer’s glove– “If it does not fit, you must acquit”– strikes us as either savvy rhetoric, shameless manipulation, or both. Like the formula “If you do the crime, you do the time,” this line displaces the question of justice into the realm of poetry, and answers this question with a rhyme. Everyone already seems to get the point of such formulas. They reinforce, poetically, the substantive conclusion they seek, whether acquittal or conviction. Such courtroom equivalents of Madison Avenue jingles seem positively simple, even naïve. As these modern examples indicate, far from such poetic devices having died out in
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forensic rhetoric or courtroom oratory, they continue to be part of the lawyer’s repertoire: albeit a part that is rarely exercised, and with discretion, due to its obvious appeal to “passion” over
“reason.” The demotion of legal rhetoric to mere word-jugglery is one dimension of the repression of rhetoric. Rhetoric excluded from more authoritative legal discourse reappears in courtroom arguments, as a permitted if inferior supplement.
“V
AIN
R
EPETITIONS
”:
THE
M
ARRIAGE
O
ATH IN
T
HE
B
OOK OF
C
OMMON
P
RAYER
The “coming of the book” did not happen only once.
62
As is well known, fifteenthcentury Europe witnessed a further ascendance of a culture of writing made possible by the technological advance of movable type. The inauguration of printing on a large scale prompted changes that were arguably more pervasive and fundamental than the ones that came with alphabetic writing.
63 We may call this “print culture” to distinguish it from a culture of manuscript writing. Peter Goodrich has advanced the thesis that “The discourse against images, technically the antirrhetic . . . became in the aftermath of print culture a discourse against textual figures, painted words, and imaginary signs.” 64
The Reformation directed the critique of idolatry against language itself, imposing a more fervent and exclusive literalism, one that in some cases vented its anger against poetry and rhetoric. Walter Ong has argued for a relationship between the new print culture, an orientation toward space rather than time, and Pierre Ramus’ reduction
62 This is taken from the title of Lucien Febvre’s famous book.
63 Walter Ong, The Presence of the Word (Minneapolis: University of Minnesota Press, 1981), 274; Jack Goody,
The Domestication of the Savage Mind (Cambridge: Cambridge University Press, 1977), 51.
64 11; cf. 44, 65, 103 n.146.
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of rhetoric in favor of logic, in which “the perfect rhetoric would be to have no rhetoric at all.” 65
Goodrich has traced the influence of Ramism on the failure of the law in sixteenth-century
England to develop into a rhetorical discipline.
66
We are now in a better position to evaluate the disappearance of poetic devices from
English law.
67
Although it is difficult to trace this disappearance, one example stands out both for its importance in the new print culture, and its importance to the modern, positivist notion of legal commands, due to its having been taken up as J. L. Austin’s prime example of a
“performative utterance.” 68
This is the marriage oath as given in the Book of Common Prayer
(“BCP”) authored by Archbishop Thomas Cranmer and published in 1549. The status of marriage as a sacrament was called into question during the Reformation, but Cranmer retained the ceremony, together with an oath derived from earlier liturgical uses. The full formula of this oath, which has become so much a part of our common culture, runs (in the bride’s version; the version for the groom omits the oath of obedience):
I N. take thee N. to my wedded husband, to have and to hold from this day forward, for better for worse, for richer for poorer, in sickness and in health, to love, cherish, and to obey, till death us do part, according to God’s holy ordinance; and thereto I give thee my troth.
65 Ramus: Method, and the Decay of Dialogue (Cambridge: Harvard University Press, 1958), 291, 307ff.
66 Languages of Law.
67 Although there is no room to treat of the German examples here, it is clear that the Sachsenspiegel and similar texts from which Grimm drew many of his examples represented a codification of oral tradition.
68 How to Do Things with Words . See discussion below.
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“To have and to hold” is an ancient legal performative that predates even the separation of English and German cultures. Numerous versions of this phrase appear among Grimm’s examples of the poetry of German law.
69
In England, versions of this phrase have been traced back to Beowulf, the Battle of Maldon, and the Blickling Homilies.
70
It appears also in the eleventh-century manuscript that contains the so-called Anglo-Saxon charms.
71
Accordingly,
Palgrave rightly noted the marriage vow as an echo or vestige of poetic parallelisms otherwise common in early English law.
72 He pointed to the disappearance from the marriage oath of several, more poetic local variants in use at the time of institution of the BCP.
73
In some varying older versions of the marriage rite, the phrase “for fairer for fouler” was added or substituted in the first part of the oath.
74
The wife’s promise “to love, cherish, and to obey” replaced an earlier promise, in some versions, “to be bonour and buxom at bed and at board.” 75
Although these oaths were not themselves older than the fourteenth or fifteenth century 76 , they obviously reflected very ancient patterns, and some of their precise phrasings were ancient. The BCP
69 39, 41-42.
70 Stevenson, Nuptial Blessing , 80 n.52; idem, Cranmer’s Marriage Vow 193.
71 Grendon 180-81: “find ðæt feoh and fere ðæt feoh, and hafa ðæt feoh and heald ðæt feoh” (“Find those kine (or cattle) and fetch those kine, And have those kine and hold those kine....”)
72 Rise and Progress, Pt. II, p.187.
73 Id., note b.
74 Wheatly (434) suggests that this phrase referred to the physical appearance of the spouse.
75 The phrase “bonour and buxom” originally meant “gentle and obedient.” The Annotated Book of Common
Prayer, ed. John Henry Blunt, second ed. (London, Oxford, and Cambridge: Rivingtons, 1876).266-67; Francis
Proctor and Walter Howard Frere, A New History of the Book of Common Prayer (London: Macmillan, 1961), 614.
See also Mark Searle and Kenneth Stevenson, Documents of the Marriage Liturgy.
76 Kenneth Stevenson, Nuptial Blessing 79; idem, “Cranmer’s Marriage Vow: Its Place in the Tradition,” in
35

replaced some of the most obvious poetic parallelisms in the marriage oath with their literal
“translations” into more modern English. The meaning or content of the promise was retained, while the form was changed in a direction that reduced its poetry to a minimum. One explanation for why Cranmer retained “to have and to hold” while abandoning these other forms, is that this formula constituted the heart of the oath, the declaration of ownership and possession known as the “habendum et tenendum,” which is simply “have and hold” in Latin.
77
Another explanation that has been advanced, is that Cranmer sought to exclude a formula like “bonour and buxom,” which had, or was on the point of acquiring, sexual connotations.
78
It seems crucial, however, that these developments were associated with an increasing institutionalization of print culture. Catholics retained older formulas of the marriage oath, while with the establishment of the Church of England and the BCP as the solely authorized liturgy of that Church, the marriage oath was made “official” in the form previously described. The enactment of a uniform, authoritative liturgy was a necessary development in the construction of a single, authoritative Church.
79
This, in turn, coordinated with the well known Protestant dictum of sola scriptura
, or “scripture alone” as the exclusive authority on matters religious. With the emphasis on a textual canon replacing the authority of the customs and traditions of the Roman
Catholic Church, it was natural for this emphasis to manifest itself also in a uniform book of
Thomas Cranmer: Churchman and Scholar, ed. Paul Ayris and David Selwyn (Boydell Press), 189-98 at 190.
77 For an analysis of the marriage vow, including this crucial declaration, in terms of contract law, see Charles
Wheatly, A Rational Illustration of the Book of Common Prayer of the Church of England (London, 1728) 433.
78 Diarmaid MacCulloch, Thomas Cranmer: A Life, 420-21.Stevenson, Cranmer’s Marriage Vow 193, 196; idem,
Nuptial Blessing 136. Wheatly’s explanation (at 434-35) contradicts this: “...whatever meaning those words [bonair and buxum] have been perverted to since, they originally signified no more than to be meek and obedient .”
79 On these points, and for a broader account of the BCP, see Ramie Targoff, Common Prayer.
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liturgy. Of course there were inconsistencies in this development. As more radical groups such as the Puritans pointed out, much of the BCP was not authorized by scripture. Moreover, the emphasis on a textual canon could lead to schism rather than uniformity. Despite numerous assertions that all could be resolved by examining the literal meaning of the Bible, the fact remains that no text is self-interpreting. For an authoritative interpretation to exist, that authority must vest in some community of interpreters. But the BCP, like the Bible, provided an illusory guarantee of literal truth, an apparently solid, textual basis for religion. In order for this guarantee to have any plausibility, of course, it was necessary that the authoritative texts be translated into the vernacular, so that in theory anyone, or at least anyone who could read, could look and see for him- or herself what was written there.
The institution and distribution of the BCP, and of vernacular Bibles, together with the insistence that these be read literally, followed the rise in the fifteenth century of a culture of printing and literacy based on the invention and widespread use of movable type. If these developments did not precisely “cause” the Reformation, they were certainly necessary contributing factors. Printing facilitated the dissemination of knowledge, prosecution of public debates, dislocation of authority from the Catholic Church, and relocation of that authority in a canon of scripture.
80 The older, more poetic forms of the marriage vow represented an oral culture that was displaced by this new culture of the book. With the fixing of such texts in printed form, there was no longer any need for poetic forms as a mnemonic device or “aidememoire.” The “translation” of such poetic forms into plain prose in order to render their literal meaning more clearly was a corollary of an emphasis on the vernacular, and on the importance
37

of understanding the liturgy.
So far, the literacy hypothesis appears to hold. Yet there is, once again, reason to doubt the adequacy of this hypothesis as an explanation of the “total phenomenon.” The Reformation was more than a printing press. It also applied the prohibition against idolatry to language, thereby contributing to a more fervent literalism.
81
Walter Ong said something similar when he associated the Catholic sacraments with oral culture, and the Protestant critique of these sacraments with print culture and “the typographic state of mind, which takes the word to be quite different from things.” 82
He recognized also that “the well-known Protestant stress on literacy has deeper psychological roots than those allowed for when this stress is taken to be due simply to the desire to have as many as possible read the Bible for themselves.” 83
Ramie Targoff argues concerning the BCP that
When the Protestant Reformation introduced a vernacular Prayer Book into the Church of
England, the mutually dependent relationship between poetic and devotional production was permanently unsettled. . . . These new vernacular texts were written entirely in prose and not verse, a decision that no dount reflected both the practical exigencies of individual [poetic] limitations...and more abstract prejudices against rhyme as
80 See Febvre.
81 I have elsewhere traced one tradition of English linguistic empiricism that applied the prohibition against idolatry to the habit of taking words for things; and shown the influence of this tradition on Jeremy Bentham’s proposal for a legal code and critique of fictions. See “Bentham’s Fictions: Canon and Idolatry in the Genealogy of Law,” Yale J.
Law & Humanities.
82 Presence 280.
83 Id.
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symptomatic of an idolatrous relationship to language.
84
Although she does not provide citations for this provocative thesis, I believe that we can make out a case for its accuracy.
The connection of idolatry with certain types of language is not apparent, and requires some explanation. Exodus 20:3-5 prohibits the worship of gods other than the one God of Israel; and the making and worship of images of any god, or indeed of “anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth.” 85 What does this have to do with language? Certainly language has its images. One thinks immediately of poetic metaphor and its capacity to produce vibrant visualizations. In addition, any language, even nonpoetic, once written down, becomes visible, and thus, to this extent, imagistic. Attraction to this image can lead to the accusation that one is a bibliophile, or even a bibliolater. The equivalence between plastic and verbal images, once the latter are written, may be signaled already in
Exodus .
86
There it is particularly the making of “graven” images that is prohibited; and the Ten
Commandments that contain this prohibition are similarly “graven,” though by God himself. The possibility that there might be an idolatry of the text was acknowledged during the Reformation as well.
87
There was another way that words could become idols. Protestant criticisms of repetitive
84 Common Prayer 57.
85 Exodus 20:5 (Revised Standard Version).
86 See Arthur Jacobson, “The Idolatry of Rules: Writing Law According to Moses, with Reference to Other
Jurisprudences,” 11 Cardozo L. Rev. 1079 (1990).
87 See Goodrich 65.
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prayers, such as the Catholic rosary, as a form of idolatry often focused on the interpretation of a particular verse in the gospels, Matthew 6:7.
88 The Revised Standard Version of this verse reads:
“And in praying do not heap up empty phrases as the Gentiles do; for they think that they will be heard for their many words.” Coming immediately before the Lord’s Prayer, which prescribes a model for how to pray, this verse tells one how not to pray. The Greek word translated here as
“heaping up empty phrases” is battologein , a hapax legomenon which may be an onomatopoetic term similar to “murmuring” or “babbling.” However, the same word is translated “vain repetitions” both in the popular Breeches Bible, the English version of the Geneva Bible, the first edition of which was published in 1560; and in the Authorized Version or King James Bible of
1611. These translations were influenced by Calvinism and Puritanism.
The debate between
Archbishop John Whitgift (dates) and the Puritan Thomas Cartwright (dates) over the proper translation, interpretation and application of this verse shows the points of agreement and disagreement.
Cartwright defended the translation “vain repetitions,” and sought to prohibit not only repetitive prayers, but even any prescribed form of prayer, including the Lord’s Prayer, which he regarded as merely a non-binding example of how to pray. Whitgift, on the other hand, preferred the translation “babbling,” and claimed that it excluded only prayers made in “many words, without faith and the inward affection of the mind.” He quoted Erasmus’s gloss that “yet
88 Manton; Conway 1929; Carty and Rumble 1976.
89 Some trace the etymology of the term to the Latin poet Battus, who employed repetition or tautology; others, to the mythic King Battus of Cyrene, who supposedly stuttered. For the legend of the latter, see Plutarch, The Oracles at Delphi No Longer Given in Verse, in Plutarch’s Moralia, volume 5, p.405: “...Battus had a lisp and a shrill thin voice....”
90 See Kenneth Stevenson, “Richard Hooker and the Lord’s Prayer: A Chapter in Reformation Controversy,” 57
Scottish J. of Theology 39 at 40-42.
91 John Whitgift, “The Defence of the Answer to the Admonition, against the Reply of Thomas Cartwright,” in The
Works of John Whitgift, ed. John Ayre, 3 vols. (Cambridge: Cambridge University Press, 1853), 3:513-17. See also
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are not long prayers here condemned, but those that are vain, fond, and superstitious.” This did not apply, in his opinion, to the Lord’s Prayer and other prayers based on scripture, even if repeated.
What was supposed to be the problem with “vain repetitions”? They were often seen as a form of “superstition,” “magic,” or “rhetoric,” designed to persuade if not compel God.
This association was made already by Jean Calvin (dates), who argued that Jesus “does not forbid us to pray long or frequently, or with great fervour of affection; but he forbids us to confide in our ability to extort any thing from God by stunning his ears with garrulous loquacity, as though he were to be influenced by the arts of human persuasion.”
The Rhemists argued that “Long prayer is not forbidden...but idle and voluntary babbling, either of Heathens to their gods, or of heretickes, that by long Rhetoricall prayers think to perswade God....” Against this interpretation,
Cartwright argued that rhetorical prayers were not prohibited, only repetitive prayers similar to those of the heathens. Although God could not be moved by prayer, petitioners might through rhetorical prayers “endeavour to perswade their own consciences.” 94
This did not do much to defeat the association between rhetoric and idolatry. Some later commentators, including
Thomas Manton (1620-1677) and Matthew Henry (1662-1714), applied the prohibition against
Richard Hooker, 2 Of the Laws of Ecclesiastical Polity 132, 139 (5.32, 5.35).
92 Conway says that battologein “refer[s] to the wordy eloquence, whereby the pagans endeavored to make the gods do their bidding.” One website says that Christ “is really denouncing the belief held by the pagans that repetition of words has some magical power. . . . [P]agans made a deeper association between god and idol. They often believed that the idol ‘embodied’ the deity, and that by possessing the idol they ‘possessed’ the deity and could manipulate him or her by magic rituals involving the idol. This is another reason why God forbade the Israelites to make an idol of Him; He did not want them to conclude that He could be ‘controlled.’”
(http://home.nyc.rr.com/mysticalrose/marian13.html)
93 Institutes of the Christian Religion, Chapter XX, Section 29; trans. John Allen, seventh edition, 2 vols.
(Philadelphia: Presbyterian Board of Christian Education, [1947]), 138. Cf. Calvin. Op. Amst. 1667-71, Comm. In
Harm. Evang. Matt. Vi.7.Tom.VI.p.77, quoted in Whitgift.
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“tautologies,” by which they meant the habit of repeating the same word or statement.
95
(For obvious reasons, Grimm employed this term to describe the poetry of early German law.)
Manton traced the practice to the worshippers of Baal and of Diana of the Ephesians mentioned in the Bible.
96
He identified this practice with the erroneous belief that God could be persuaded like a man:
[T]he original mistake of the heathens, and that which compriseth all the rest, was this, a transformation or changing of God into the likeness of man . . . Because man is wrought upon by much speaking, and carried away with a flood of words, therefore they thought so it would be with God. This transformation of the divine nature into an idol of our own shaping and picturing, the turning of God into the form of a corruptible man, this hath been the ground of all the miscarriage in the world. . . . As if the prayer were more grateful to God, and he were moved by words and strains of rhetoric. . . .
Such practices ran afoul of not only the Second Commandment against idolatry, but also the Third Commandment against taking the name of the lord “in vain,” which was regularly extended to incorporate swearing by false gods, i.e. idols, or using the true God’s name for
“cursing, enchanting, or conjuring.” 97
94 Thomas Cartwright, A Confutation of the Rhemists Translation 1971 [1618].
95 Lanham defines “tautologia” as “Repetition of the same idea in different words.” See Richard A. Lanham, A
Handlist of Rhetorical Terms , second ed. (Berkeley: University of California Press, 1991), s.v. “tautologia.”
96 At 1 Kings 18:26 and Acts 19, respectively. Matthew Henry glossed the phrase “as the heathen do” as follows:
“This is the way of the heathen, as the heathen do ; and it ill becomes Christians to worship their God as the Gentiles worship theirs. . . . Thus Baal’s priests were hard at it from morning till almost night with their vain repetitions; O
Baal, hear us; O Baal, hear us ; and vain petitions they were. . . .”
97 Richard Greenham, The Works of the Reverend and Faithfull Servant of Jesus Christ M. Richard Greenham
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The theological controversy over “vain repetitions” touched the BCP as well. As Keith
Thomas notes: “The Puritans would have liked . . . to have reformed or abolished the Litany, whose numerous petitions they regarded as ‘nothing but an impure mass of conjuring and charming battologies.’” 98
In his Introduction to the BCP, Cranmer explained that the reason for instituting this book was that, with the passage of time, the purity of the ancient rites had been corrupted by “uncertain Stories, and Legends, with multitude of Responds, Verses, vain
Repetitions, Commemorations, and Synodals,” with the result that insufficient time and attention were given to communicating the entire Bible, and its meaning, to the people. Moreover, the use of Latin in the old liturgy meant that people “have heard with their ears only.” Accordingly, the
BCP’s translation of the liturgy into the vernacular was accompanied by a streamlining or reduction that eliminated things, whereof some are untrue, some uncertain, some vain and superstitious; and nothing is ordained to be read, but the very pure Word of God, the holy Scriptures, or that which is agreeable to the same; and that in a language and order as is most plain for the understanding both of the readers and hearers . . . And whereas heretofore there hath been great diversity in saying and singing in Churches within this Realm; some following
Salisbury Use, some Hereford Use, and some the Use of Bangor, some of York, some of
Lincoln; now from henceforth all the whole Realm shall have but one Use.
These various older uses, meaning local ritual forms administered by Bishops, were the ones that had incorporated more poetic versions of the marriage vow. Although the BCP did not go far
(1599): 411.
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enough, in the view of some Puritans, to eliminate vain repetitions, it did, as we have seen, eliminate most of the poetry in the marriage vow. The institution of the BCP was followed by an edict banning other liturgical practices. Edward VI’s
An act for the abolishing and putting away of divers books and images (1549) proscribed these physical manifestations of the Sarum and
York rites, and even called for them to be “deface[d]” to prevent their further use. The fusion between idolatry and older modes of verbal worship was complete.
99
Cranmer echoed many of these associations between idolatry and various abuses of language, including rhetorical and magical uses. He associated the decline of the vernacular in the primitive Church with “juggling” and “sorcery,” and with the oral/aural fixation of “talkers” and “lip-gospellers,” meaning those who only hear and do not obey God’s word.
100
In his catechism of the Ten Commandments, he also identified several forms of verbal idolatry. One was the use of “painted words,” rather than painted images, to support a merely verbal distinction between latria (worship, as in “idolatry”), which was properly given only to God; and dulia (reverence of a lesser sort), which according to Catholics might be given to the image of a saint or of Jesus Christ.
101
Another was giving the name “God” to things which are not God, such as the sun, moon, and stars.
102
Another was abusing the literal meaning of scripture.
103
98 1971: 62.
99 This fusion occurred also in John Knox’s (1550) labeling of the Catholic Mass as “idolatry,” although, strictly speaking, idolatry consisted of the making or worship of plastic images.
100 Preface, A Confutation of Unwritten Verities, in The Works of Thomas Cranmer, ed. John Edmund Cox (1846).
101 Writings of the Rev. Dr. Thomas Cranmer (London: The Religious Tract Society), 113.
102 122, cf. 80.
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It is tempting to read such views as the direct cause of the decline of the poetry in the marriage vow. Several caveats are necessary here. First, such oaths as the marriage vow were not, strictly speaking, prayers, although the marriage vow did occur in a sacramental context.
The complaint against “vain repetitions” had not been levelled directly against the earlier versions of this vow.
Indeed, Cranmer’s use of the phrase “vain repetitions” in 1549 preceded even the publication of the Breeches Bible in 1560 which, as previously mentioned, was the first
English Bible to use this phrase to translate Matthew 6:7. His source of this phrase is therefore uncertain. Despite these qualifications, it is clear that the Puritan complaint against “vain repetitions” distilled a new ideal of literalism in which the combined emphases on translation into vernacular prose, on the goal of understanding the liturgy, and on uniformity contributed to the disappearance of much of the poetry of the marriage oath. Puritanism actually constituted a literalism in at least two dimensions: a “literalism squared.” First, the injunctions of the Bible, including Jesus’s command not to pray repetitively, were taken at face value. Second, the particular injunction in question mandated literalism in prayer through the exclusion of its magical and rhetorical functions. This literalism was more than an emphasis on texts, as it was not necessitated by the medium of writing, nor was it limited to the written word. Significantly, it was also not simply an invention of Protestants, but was to some extent already encoded in the
Gospel.
Such views of prayer have continued to dominate long after the Reformation, and have often become merged with Romantic views of literature. A good example is Friedrich Heiler’s
103 123.
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Prayer
, which defined its subject as “a spontaneous emotional discharge, a free outpouring of the heart” 105 , which over time degenerates into a fixed formula, especially one designed to influence the deity.
106
Heiler singles out for criticism the Romans’ legalistic understanding of prayer: “Man stands to God in a legal relation in which every act performed and every service in return are precisely measured.” 107
The one saving grace of this “legal formalism” is that it does not regard the prayer as absolutely binding on the deity:
The prayer formula completely loses its character as prayer and is degraded to become a magic spell when there is ascribed to the words of the prayer an unfailing , immanent, and magical power which, either by an absolute compulsion exercised on higher beings, or by excluding entirely all activity on their part, directly and automatically realizes the wish of the reciter of the prayer.
108
As we can see, views of prayer that originated in the Reformation continued until well into the twentieth century to be presented as scholarly fact.
109
All of the elements of the
Protestant attack on Catholic prayer as idolatry are recited: the original nature of prayer as spontaneous; its corruption into formalism (“The prayers are recited either with ceremonial
104 The Puritans instead had objected that the declaration “With my body I thee worship” was a form of idolatry. See
Hooker, Laws of Ecclesiastical Polity 5.73.7
105 Prayer: A Study in the History and Psychology of Religion, trans. Samuel McComb (Oxford UP), 65.
106 71.
107 72.
108 72.
109 As an aside, I am told that this book remained on the reading lists in the Department of History of Religions at the University of Chicago Divinity School, where I received my Ph.D., until the 1980's.
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stiffness and frigid officialism or they are gabbled in a purely mechanical manner”
110
) and magic, defined as the belief that the deity can be coerced. The possibility– even probability– that such prejudices still govern our views of prayer and similar linguistic acts, makes it all the more crucial to understand their origin.
To conclude this historical analysis: it was not the mnemonic but rather the persuasive function of poetry that its opponents in ancient Greece and in the English Reformation emphasized. As a form of both rhetoric and magic, poetry threatened the new regimes of literalism. Together, the Greek and Reformation examples show that what was at stake in these polemics against poetry was not a mere abandonment of mnemonic devices rendered obsolete by writing, but a debate over the proper use of language: a debate that remains relevant long after these moments, and what they represented, have been forgotten.
C ONCLUSIONS
Costas Douzinas and Ronnie Warrington argue that
The discourse of law asserts the ability to organise in its own grammar and lexicon other dialects and idioms, not least ordinary speech. Like philosophy and religion, law strives for a certain meta-linguistic status. The ability to perform this grandiose function is predicated upon a self-proclaimed total presence. In order to carry out its task, the law must establish the difference between itself and the other discourses and practices that it
110 71.
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is asked to police.
111
By juxtaposing two key moments in the genealogy of legal literalism, and of culture more generally, we have illuminated more of what was—and is—at stake in the repression of poetry in the text of law. As a form of persuasion and violence, identified with both rhetoric and magic, poetry is believed to exert an illegitimate influence. This power represents a challenge to the authority of legitimate discourse, which is grounded in the unity and self-presence of the logos , or even of the one God. The “duplicity” of poetry—which rhythmically doubles itself, even as it establishes a second regime outside the bounds of the kingdom of reason—inspires an ever more fervent attempt to reconstitute discourse as a monologue. This fixation on, and of, language appears to have been facilitated, in certain key moments of its development, by advances in the technologies of writing. However, these advances in literacy were not the sufficient, and possibly not even the necessary conditions of the phenomenon of literalism that has taken over the text of law.
Goody notes the connection of literacy with a certain restrictiveness or intolerance manifested at the levels of both politics and discourse:
Intolerance is connected with universalism. Not all literate religions are necessarily universalistic, but they have tendencies in that direction, if only because their commandments tend to get phrased in somewhat decontextualized, that is, universalistic, ways. The establishment of the universal church necessarily excludes other views, for religion is no longer defined politically [by group membership] . . . but theologically, in
111 Postmodern Jurisprudence (1991): 161.
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fact scripturally, by writing. It can spread independently of political institutions, although political support, however temporary, often helps. And it emerges in opposition (“Thou shalt have no other gods but me”), hence giving birth to a boundary between Jew and
Gentile, but more strongly between Christian and pagan . . . .
Sanford Levinson (quoting M. Robertson) describes the crisis of legitimacy facing both law and literature: “There is less of a gap between contemporary legal theory and literature than we might suppose, for many practitioners of each are united by a pervasive anxiety generated by what has been well described as ‘the loss of the sense of doing or speaking in the name of someone or something recognizable and unquestionably valid.” 113
This crisis, as we see, also bridged the gap between law and religion. Indeed, several crises of authority and valid representation in early modern English law were directly related to the religious crisis of the
Reformation. In Protestantism, the “someone” was God, and the “something” was God’s word as embodied in the Bible. In each case, the validity of these touchstones depended on their uniqueness, on the exclusion of polyvalence and multiple potential meanings. In the case of God, this meant the assertion of monotheism and the prohibition against idolatry. In the case of the
Bible, this meant an insistence on univocity or literal meaning. If we can appreciate that monotheism and literalism were two different sides of the same coin– the same phenomenon of iconoclasm in two different registers, referring respectively to the Speaker and the Message– then we can understand the otherwise apparently inexplicable labeling of certain linguistic practices as “idolatry.” Long after law has ceased to recall its roots in religion, the problems of
112 Goody 2000: 106.
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communication that motivated such deep controversies, and the ultimate triumph of literalism, remain with us.
We are all People of the Book now, although what this means is invisible to us. Too much focusing on the text causes myopia; too much reliance on the text leads to memory loss. As bad as it is for the eyes, so much silent reading can also cause the sense of hearing to atrophy.
Our culture of the book resembles, in the end, nothing so much as a state of senescence. Perhaps history, as cultural memory, can provide a remedy for our old age. Modernity is a stage of forgetfulness, which represents itself as a new innocence, a freedom from history. Yet if history means anything, it means that we are in the grip of forces of which we are presently unaware. To demonstrate the reality of these forces, the spell they hold over us, in one and the same moment dispels the illusion of our freedom from the past, and creates the possibility of envisioning a different future.
113 “Law as Literature,” in Levinson and Mailloux 158.
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