Interpretive Practices in Law and Literary
Criticism: Lycidas and the Statute of Frauds
Arthur Glass
Introduction
he ambiguities facing the legal practitioner in deciding what the law
actually says seem to be similar to the difficulties facing the literary critic
who must explain what a given art work means. For in both practices a division
is made between a collection of primary and enduring works which are regarded
as having normative force, or at least as embodying values relevant for contem­
porary interpreters, and secondary timebound interpretations of these writings
which seek neither to add to nor replace these primary texts but solely to explicate
their meaning. Consider, if only briefly, the reception by history of two well
known works of the seventeenth century. First, Lycidas, Milton’s famous elegy
originally published in 1638 in a memorial volume for an acquaintance who was
drowned. This poem has attracted a bewildering amount of critical comment,
especially this century. This may have something to do with the poem’s
manageable length (in comparison with Milton’s long poems) but it is also a
work which appears to call for interpretation just to make it understandable to
most contemporary readers - because of its complicated structure and because
it refers to so much of our cultural tradition (classical, biblical and pagan, ancient
and modem).
16
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LAW AND LITERARY CRITICISM
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The poem is undeniably about death but apart from saying this it is impossible
to generalise about this mass of secondary writing. However a number of critical
approaches which have been taken towards the poem can be identified.1 First, there
is the view that it is a conventional pastoral elegy ending in Christian consolation in
which Milton expressed his grief for his friend, Edward King.2 For others the poem
is only nominally about King for the real subject is Milton himself, especially his
fear of premature death.3 A third approach sees it is a work which is so firmly within
a literary tradition that it is not at all personal (ie. neither about King nor Milton) but
is to be understood, rather, as a public exercise in poetic technique in which the
author denies, transforms or fails to realise the conventions of the pastoral elegy.
Alternatively, the poem has been attributed with an important symbolic or typolog­
ical meaning. So, for example, the structure of its images - the frequent allusions
to vegetation and water, the image of Orpheus, etc - can be taken as showing that
the poem is essentially about the pagan myths of death and rebirth. Finally, for other
critics, a consideration of the various parts of the poem shows these to be interrelated
in a certain way. Structured, for instance, so as to reflect the self education of the
speaker (or author or reader) who comes to learn and accept during the course of
the poem what is at first unacceptable - that death occurs, that it can come early and
that it takes the worthy as well as the unworthy.4
My second example is a well-known Imperial Statute of 1677, well-known at
least to lawyers, the Statute of Frauds. The most enduring effect of this Statute was
to pick out six types of contract and, as a way of preventing fraud by perjury, require
something more than oral evidence (ie. written or other evidence) if these contracts
were to be enforceable. In the eighteenth century the Statute received a mixed
reception5 but in the last two hundred years it has had few defenders. Its draftsman­
ship was criticised and it was condemned for outliving its original purpose6 and at
times for assisting rather than preventing fraud. Despite this criticism the Statute
was not repealed in NSW until 1969.7
1
2
3
4
5
6
7
The following is based on Abrams, Five Types ofLycidas in MILTON’S LYCIDAS (C. Patrides ed.
U. of Miss. Press 1983) and A.S.P. Woodhouseand D. Bush, A Variorum Commentary on
the Poems of John Milton, Vol. n. (Columbia U.P. 1972).
This was the prevailing view of the poem until the twentieth Century - that ‘Lycidas bears its
meaning plainly enough on its face*. Mason quoted in D.S. BERKELEY, INWROUGHT WITH
Figures Dim 210 (Moulton 1974). The poem clearly embodies many of the conventions of the
pastoral elegy - e.g. the questioning of the Nymphs, nature’s mourning for the Shepherd, the
reference to Orpheus, the processions of mourners, the catalogue of flowers and an ending in
which the poet addresses his own poem.
This approach can build on the first and last lines of the poem, the headnote and the passages
on fame and the corrupt clergy.
Abrams, supra note 1 at 344.
This reflected in part the different attitudes taken to it by the common law courts and the
Chancery court. SeeVJ. Holdswokth, History of English Law, Vol. 6. (O.U.P. 1935).
Once certain defects in the law of evidence had been cured (e.g., that parties could be competent
witnesses) and once more control could be exercised over jury decisions.
And some of its provisions, of course, live on in other statutory forms.
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Section 4 and 17 of the Statute, the two provisions which dealt with contracts,
attracted an enormous amount of interpretation from Courts in England and Aus­
tralia (and in other common law jurisdictions which adopted them, most notably
America).8 Every word in these sections became the subject of minute and diverse
exegesis in order to determine such questions as - which transactions came within
the specified types of contract? what sort of writing would satisfy the Statute? and
what were the effects of non-compliance?
Readers’ Expectations
he mobility of meaning which Lycidas and the Statute of Frauds disclose as
they were received by different generations of readers (and by different
readers within these generations) can be used to exemplify what has become a
commonplace of modem interpretive theory - viz., that the meaning of a literary or
other work is not simply a property of the work itself. For the reader has a productive
and not merely a reproductive role to play in establishing this meaning. A number
of points follow from this insight. If a work’s meaning is constituted by the
interaction of text and reader it can never be completed, as interpretation can never
exhaust the potential of the primary work. And a history of a work’s reception is
not a history of its misunderstanding but shows, rather, how being understood
differently by different readers is an integral part of the process of interpretation.
Further, and ofmore relevance for this paper, this interaction between text and reader
has an important public and social dimension for all reading occurs within a
particular context and the reader can only understand a work because he or she brings
to the text, either explicitly or implicitly, certain cultural expectations concerning
the nature of the particular discourse. Here then is my subject matter - the basic
cultural expectations and normative requirements which structure and help to give
meaning to legal interpretation9 and, by way of contrast, literary criticism. These
are the regulative principles, and cultural understandings which are brought to the
reading of legal and literary works by “competent” or “professional” readers.
T
By taking the viewpoint of professional readers for my analysis of reader’s
expectations I have clearly adopted a narrow focus, for literary works and even legal
texts are read by others, by non professionals. I cannot here justify this standpoint
but only state that in our legal tradition, interpretation is centered on the judicial
reading of legal texts for the purposes of adjudicating upon legal disputes. This
makes judges our most important legal readers and forces others, even other lawyers,
to be guided in their reading of a statute or a case report by the anticipated judicial
attitude. Literary criticism cannot be so easily connected up with any particular
8
See G. Cheshire and C. Fifoot, Law of Contract (Butterworths 1988) at 171 for some
9
estimate of just how much of the textbooks were taken up by Statute of Frauds case law.
As my example of the S tatute of Frauds shows, I have in mind legal interpretation in the Common
Law. But my remarks are sufficiently general to apply, with some modifications, to related legal
systems, especially those within the civilian legal tradition.
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LAW AND LITERARY CRITICISM
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social activity. And there is not here the same degree of institutional control over
inteipretation.10 However while such questions as - what is to be valued? and what
is to be accepted as an interpretation? - are matters of debate in which all can freely
participate the interpretation of literary texts is not in practice open equally to all. A
division is maintained here between professional interpreters and the uninitiated
laity who from the literary community’s point of view lack all competence and
against whom the professionals administer the effective sanction of ignoring them.
On Analysis of Four Normative Requirements
n this paper I shall describe four basic and interrelated normative require­
ments which impose themselves upon “competent” readers of law and which
circumscribe the way in which these readers ought to understand and apply
public legal texts.11 The most striking feature of a legal reading is that it is a
precondition of the understanding of a legal text that the reader presupposes the
normative validity, the bindingness, of the text. That is to say that the primary
interpretive value put upon these materials is that they are prescriptive, that they
stipulate rules and provide normative guidance for the question at hand. The
Statute of Frauds, for example, was binding in NSW simply because it satisfied
certain institutional criteria which determine the validity of our statutes and it
was binding even when it was not respected. Moreover, accepting the authority
of the Statute meant accepting the limited authority of the interpreter. Limited
for the reason that only one attitude should be taken to valid legal texts - a
deferential attitude which asks what in the circumstances do the words mean?
I
Literature also has works which have attributed to them a timeless validity in the
sense that they are thought able to transcend the historical circumstances and
prejudices of their time and remain contemporaneous for every age. These, of
course, are the books or other compositions which belong to the list of “classics”.
But such works are not thought of (or, at least, are not now thought of) as being
normatively valid - they are not thought of as being binding or exemplary for readers
in either a moral or an aesthetic sense. But, while a work like Lycidas is not regarded
as providing general guidance for everyday conduct or as being normative for the
activity of writing literature it is assumed to have a contemporary value or relevance.
And it is the role of literary critics to show what this relevance might be.12
10
11
12
Literary criticism has generated its share of sanctioning institutions - i.e., university departments,
professional organisations and publishing houses. Authority within the literary community is
well discussed by Kermode in institutional Control of Interpretation in his Essay ON FICTION
(Routledge & Keg an Paul 1983). However while literary practice may have its big names and
its influential schools, it has no court of last resort with final authority over questions of
interpretation and no doctrine of precedent.
I confine myself here to the interpretation of Statutes but this approach can be applied with
interesting results to the reading oi that other type of public legal text, viz. case reports.
Here I am speaking generally of the profession, not of each individual critic who comments on
Lycidas; but those critics who limit themselves to exegesis - to glossing and providing textual
notes for individual words and sentences - can do so only because they can assume that the work
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However, there is no consensus within the profession of literary criticism on what
makes art works valuable or significant for us and thus no agreement on what the
purposes of criticism might be.13 A successful literary interpretation may promote
the work’s originality, its tragic vision, its wit, its intensity of experience, its
metaphoric richness, its self-awareness or simply its basic complexity or indetermi­
nacy. There is even the scope to ignore the question of aesthetic value altogether
and to make some other use of the text - as an exemplification of some psychological
doctrine, for example, or as revealing (or unwittingly disclosing) some fundamental
facts about extra literary social reality. So while the legal interpreter must assume
the validity of a relevant Statute and is limited to asking what in the circumstances
do the words mean, the literary critic has the interpretive freedom to do much more.
And at least some critics must do much more if the contemporary value of the work
is to be established. That Lycidas has endured as a “classic” for over 350 years gives
to it a certain staying power but it will require further interpretation and reinterpre­
tation if succeeding generations are to continue to value it.
The second group of normative requirements in my analysis is concerned with
the kind of meaning legal and literary readers expect to find in their materials. A
legal text like the Statute of Frauds is assumed to have a clear and unambiguous
meaning and demands to be read in a plain or literal sense. This is not so with a
literary work. For it is expected that a poem like Lycidas may offer the possibility
of irony, ambiguity and paradox and a sense that is anything but manifest. Moreover,
the assumption here is that good criticism, criticism which enhances the value of a
literary work, will attempt to maximise the number of possible readings.14
Consider in this light the presupposition of coherence as a regulative principle
of interpretation. Both Lycidas and the Statute of Frauds are assumed to be
consistent within themselves but what this interpretive postulate means is differently
understood in the two disciplines. For example, when Milton says in the famous
line “Comes the blind fury with the abhorred shears” he is not thought of as confusing
the Fates with the Furies (the avengers of crime). It is assumed, rather, that he is
making a more subtle connection between the Fates (or, rather Atrapos) and the
character of the Furies.15 Further, when the speaker says in line 8 “For Lycidas is
dead, dead ere his prime” and then (to the Shepherds) inline 166 “For Lycidas your
sorrow is not dead”, this is not thought of as a logical contradiction. These
13
14
15
still has a literary value. Without this the poem would be consigned to the philologists and the
historians of ideas. Here I adopt a remark from Bergonzi, Criticism and the Milton Controversy
in The Living Milton 171 (F. Kermode ed. Routledge & Kegan Paul 1960).
While there is a projected and institutionally imposed consensus within the legal community
concerning the aim of legal interpretation.
As Paul Brest puts it, the legal interpreter seeks to resolve ambiguity while literary critics exalt
it. Brest, Interpretation ana Interest, 34 Stan. L. Rev. 720 (1982) at 765. And for Stanley Fish
it is a contrast Detween a practice which seeks to avoid crises by giving single answers and one
that expects its interpreters to multiply crises. See Fish, Fish v. Fiss, 36 STAN. L. Rev. 1325
(1984) at 1344.
See WOODHOUSE AND Bush, supra note 1 at 664. Or perhaps that Milton is deliberately
unsettling the reader’s expectations. See Cain, Lycidas and the Reader’s Response, 58
Dalhousie Rev. 272 (1978) at 277.
LAW AND LITERARY CRITICISM
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21
inconsistent assertions are explained away, usually as reflecting a change of view,
a development in the understanding of the speaker. And there are the lines which
end St. Peter’s speech, the most debated crux in Milton:16 “But that two-handed
engine at the door, stands ready to smite once, and smite no more”. The vagueness
of these lines and the difficulty in connecting them with what has come before can
be treated by the critic, not as a defect in the work or as an authorial slip but, rather,
as part of their potency.17
A stronger form of logical consistency is demanded of legal texts, for incoherence
clearly threatens the ability of these materials to provide good guidance, and if
internal inconsistencies appear the interpreter must always seek a more sober
solution to this problem. So, for example, the different consequences which were
stated to follow from non compliance with s4 and sl7 of the Statute of Frauds
(unenforceable18 as against not “to be allowed to be good”) could not be explained
as an intentional paradox or as disclosing a development in the understanding of the
author or as adding to the power of the language of the Statute.
The expectations associated with originality (or the lack of it) are a further
example of the different demands made with regard to meaning within the two
interpretive practices. Within the field of literature there is a body of tradition which
makes it both possible and appropriate to draw a distinction between works which
are original and works which are culturally devalued as “literature” because they
are merely imitation or pastiche or the work of epigones or plagiarists. The question
of the originality of Milton’s poem is highly relevant and much criticism is concerned
with showing how Lycidas newly realised the conventions of the pastoral elegy or
the Christian concepts19 or how Milton transformed the ideas and expressions which
he took up from earlier poets. This demand for novelty extends to the interpretation
of literary works as well. Even if an interpretation of Lycidas claims to do no more
than disclose the original or immanent meaning of the work it cannot be merely
repetitive of earlier interpretations. And even a gloss or commentary upon various
lines in the poem can only be justified if it is different from earlier interpretations.20
With regard to law, whether the primary material of the law is considered or the
interpretation of this material, originality is not in either case a cultural expectation.
New law can be introduced by legislative means but creativeness or originality are
16
See WOODHOUSE AND BUSH, supra note 1 at 686, whose summary of the interpretations run for
17
Id. at 706: so it can be said, for example, ‘the “two-handed engine” is a mystery and precise
over 20 pages.
18
19
20
understanding is vulgar. It is best regarded as a type and a symbol of the Last Judgment*.
Berkeley, supra note 2 at 79. More generally on the question of the unity of Lycidas as a whole,
see Fish, Lycidas: A Poem Finally Anonymous in Patrides, supra note 1. But as Abrams notes,
supra note 1 at 344, when Fish complains to those critics who misguidedly seek unity in the
poem, it is a particular sort of unity which he has in mind - the psychological unity of the lyric
speaker. Fish rejects this but his account of the poem merely offers another way of bringing
unity to what he sees as the disruptions and discontinuities of the poem.
Section 4 provides that: ‘no action shall be brought...unless...*
Abrams, supra note 1 at 235.
The Variorum Commentary commences its 98 pages of notes on Lycidas with the remark ‘only
variants of some critical interest are noticed*.
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not considered to be constitutive aspects of legislative enactments.21 The Statute of
Frauds was in fact novel but this was not how it established its validity. And because
this Statute, like any piece of legislation, had to be accommodated within the existing
law corpus22 this provided a context of meaning which worked to de-emphasise the
Statute’s originality.23 For example, the question of the effect of non-compliance
with the Statute had to be considered in the context of the principles of restitutionary
law and the doctrine of part performance and, more recently, the doctrines of
promissory estoppel and constructive trusts.
Just as legal readers do not look for novelty in their subject matter, innovation is
not demanded from the legal interpreter. Here interpretive work is not justified by
way of establishing its difference from earlier interpretations. The demand is the
other way. The interpreter of the Statute of Frauds must establish the absence of
novelty in the interpretation. Of course, new interpretations were given to the Statute
as innovative readings were both necessary and unavoidable. But while the creative
work of past interpreters may be inevitable, and while such interpretations may be
valued informally, the legal interpreter is obliged to justify his or her efforts by way
of finding an established and unoriginal meaning for the Statute. So an appellate
court overruling a lower court decision on the Statute would not say that it is
providing a novel interpretation but rather that it is replacing the earlier cases’ wrong
interpretation of the Statute with one that discloses its “real meaning”.
My third difference between the two disciplines takes up, very briefly, the issue
of the extent to which the notion of authorship can be used to help determine the
meaning of a literary or legal work. The canon of author’s meaning or author’s
intention is the interpretive principle which promotes the author’s standpoint as the
most appropriate context for understanding the meaning of a text. This canon, it
must be said, is a highly disputed principle of contemporary literary criticism.24 But
the extensive criticism which it has received would appear to have had little affect
upon its popularity, and the popularity of the biographical approach in general, as a
practical approach to understanding literary meaning. It remains an appropriate
interpretive strategy, for example, to explain the meaning of Lycidas by linking the
poem to Milton’s real life experiences or to his personality or to his motives for
producing this particular work (as far as these are recoverable).25
21
22
23
24
25
Some Acts, for example, merely declare or codify the common law and others consolidate
pre-existing but diverse statutory provisions.
The Statutes and judgments which are valid at any particular moment in time, taken as a whole.
Patrick Atiyah has discussed this aspect of statute law in Atiy ah, Common Law and Statute Law,
48 Modern L. Rev. 1 (1985).
See, for example, Foucault, What Is an Author, in Language, Counter-Memory, Practice
43 (D. Bouchard ed. Ithaca 1977). For other references and a good discussion of the topic see
Nehamas, The Postulated Author, Critical Inquiry 133 (1981).
P.M. Sacks, The English Elegy: Studies in the Genre from Spenser to Yeats (Johns
Hopkins U.P. 1985) is a recent example of this approach
LAW AND LITERARY CRITICISM
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23
The real authors of the Statute of Frauds were apparently Lord Nottingham and
the Chief Justice of Common Pleas, Sir Francis North.26 In working out the meaning
of the Statute their life experiences or personalities or their personal motives for
producing this particular Statute were, of course, treated as completely irrelevant.
So that in as much as the canon of author’s intention ties the meaning of a work to
the author’s personality this is simply not the meaning which legal works are posited
as having.
But despite the apparent unsuitability of the canon for the legal interpretation a
variant of it surprisingly plays a crucial role in the interpretation of statutes. For the
basic approach recommended here is that the interpreter should consider that
Parliament has fixed a meaning in its Act and that the job of interpretation is to
recover this meaning. Here, as is frequently pointed out, legislative intention is a
fiction - not only because it involves the reconstruction of a collective intention
which may not be that of any actual individual but because it limits the enquiry into
intentions to a few delimited sources. However despite its fictional character, the
notion of Parliamentary intention remains in place as the basic approach for reading
Statutes and its influence is real enough for it directs the search for statutory meaning
into an enquiry into what Parliament could have or is likely to have meant and it
makes any other approach here appear to be no more than an unwarranted exercise
of interpretive licence.
So while in literary criticism a consideration of the living and breathing person­
ality of the author can be seen as increasing our understanding of the work, this is
an inappropriate approach in law where public legal texts are taken as expressions
of a content which is intersubjectively or interpersonally valid. The principal role
of the canon of author’s intention in law, rather, is to assist in fostering the basic
attitude demanded of the legal interpreter which I mentioned first, namely, that die
interpreter acknowledges the audiority or normative validity of the law.
As a final comparison between the two interpretive practices I shall consider the
appropriate context of interpretation and the different way in which each discipline
maintains a boundary separating internal and relevant considerations from those
external and extraneous.27
I have noted how the conventions for establishing literary meaning allow the
interpreter to consider the life of the author if this can be made relevant. But there
are, of course, many other interpretive contexts available. The meaning of a literary
26
At least these two were its most important drafters. See HOLDSWORTH, supra note 5 at 380 et
27
It could be said that to draw any distinction between matters internal and matters external to law
is philosophically unsound. For the legal texts do not stand on their own and they clearly can
only be understood because they presuppose a great deal of ‘extrinsic* background material. So
that, for example, the omnipresent legal standard of ‘reasonableness’ can only be given a
determinate meaning because it is understood against a background of ‘extra legal’ communal
values. But the truth of this philosophical point does not alter the fact that the intrinsic/extrinsic
distinction belongs to the way in which legal practice is presently organised and that this is a
distinction which can be made successfully from within that practice.
seq.
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work can be recovered from a consideration of its form alone, from it insertion into
an oeuvre, from its intertextual relationship with earlier, contemporary or even later
texts or from its relationship to its historical or social background (a relationship
which itself may be explained in various ways). Lycidas, for example, has been
understood in the context of other works by Milton, previous drafts of the poem and
other poems published in the Obsequies of 1638.28 It has been connected with other
works of the same genre and style and with the Bible, especially the Book of
Revelation. It has been read from the viewpoint of Milton’s learned contemporaries
to whom the poem was first addressed and it has been considered against the
background of the state of the English Church in 1638.29 The interpreter of Lycidas
has the freedom to choose an appropriate intertextual context and there is even the
freedom to seek out a new context, comparative anthropology, or the literature of
myths and symbols, for example, or psychoanalysis.30
As law places a high value on certainty and predictability it has not the same
tolerance for pluralism and it is in much greater need for techniques and an
argumentation which delimit clearly the appropriate considerations. The terms of
reference must be narrowed here as an interpretation of the law cannot be a general
enquiry into all the possible moral and political considerations possibly relevant to
a particular case.31 Thus the Statute of Frauds and the relevant cases are presented
to the legal interpreter as the context of interpretation which is both necessary for
the interpreter to work within. And as the goal is valid interpretation the legal
interpreter is limited to an attitude which asks simply what in the circumstances do
the words of the statute mean?32 In giving an account of the law the legal interpreter
cannot look at biographical, social or cultural factors. No can he or she read the
texts merely as documents and “look through” them to something else - to some
social, historical or psychological explanation, for example, as to why a particular
28
29
30
31
32
See Woodhouse and Bush, supra note 1 at 546.
For a recent discussion of the political nature of the poem see D. Norbrook, Poetry and
Politics in the English Renaissance, Chap. 10 (Routledge & Kegan Paul 1984). ‘Lycidas’
has even been read in the context of numerology and, more surprisingly, connected with the
windows of King’s College Chapel. See J. Wittreich, Visionary Poetics 166 (San Marino
1979) and Berkeley, supra note 2 at 38 et seq. and 109 et seq.
For an example of this, an unconvincing example it must be said, see Jones, A Note on Milton's
Lycidas, 19 American Imago 141 (1962). See also Sacks, supra note 25, chap. 4. H.
Rapaport, Milton and the Postmodern (U. of Nebraska 1983) at chapter 4 provides an
analysis which emphasises the poem’s images of cutting and breaking - the plucking of the
berries, the decapitation of Orpheus, the shipwreck, the two-handed engine, the flower catalogue,
etc. - and places Lycidas in ‘the economy of the castration complex’ and models of power
developed m the works of Derrida and Lacan.
For some recent remarks on this point see MacCormick, Why Cases Have Rationes and What
These Are in PRECEDENT IN Law (L. Goldstein ed. Clarendon 1988) at 167 et seq.
The legal reader must accept that what the law prescribes is exhaustive and complete in the sense
that whatever is not a construction from these materials is legally irrelevant Or, to put this point
concerning law’s ‘otherness’ the other way around, there can only be a legal problem when it is
assumed that the answer can be found in the legal materials. Of course, these claims concerning
law’s self-sufficiency should not be thought of as descriptions about how our law works but,
rather, as demands which indicate how legal texts should be treated. The positivist premise quod
non in lege, nec in iure, whatever is not written in law has no force of law, must be taken as a
basic premise of our legal system - despite its inadequacies as a description of how in fact our
legal system works.
LAW AND LITERARY CRITICISM
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25
law came about.33 And in so far as the application of the law to new circumstances
involves a redefinition of past law this is a reinterpretation which is a reinterpretation
restricted to reading these internal sources with an eye for particular kinds of
meaning - for workable, predictable, consistent, manifest and familiar meanings.
So while it is possible for the legal interpreter to understand and describe the past
in categories which were not available to the “law makers”34 there is not the freedom
here of the literary critic to redescribe the texts by way of introducing a new, an
“extra legal”, vocabulary.
In this paper I have not discussed the interpretation of case law; so I have not
referred directly to one of the more obvious differences between law and literature,
viz., that law as a doctrine is far more flexible than first appears because it is for the
interpreting court to determine just what it is in the precedent case which is binding.
However one aspect of the system of stare decisis should perhaps be stated here as
this affects the distinction I noted at the beginning of the paper between primary
texts and secondary material. The meaning of the words of a statute is often
considered to be a question of law and judicial interpretation (by a superior court)
will be taken as the way to read these words. This means that subsequent legal
readers are obliged to take up not the original words of the Act but the statute as
construed and these constructions become an accretion upon and even to some extent
a replacement for the original statutory text. Now the distinction between primary
texts and exegesis is clearly blurred when the interpretation of law can itself become
valid law. Even the boldest literary critics would not claim that all subsequent
readers should take up not the original words of the literary work but the words as
interpreted and restated by them.
Conclusion
hat can a consideration of the different ways in which understanding is
achieved in law and literary criticism show? First, a number of influen­
tial theorists of interpretation have recently drawn analogies between literary
and legal interpretation. I have in mind such diverse accounts of interpretation
as those offered by Hans-George Gadamer, Stanley Fish and Ronald Dworkin.
A comparison between law and literary criticism which brings out the different
ways in which interpretation is accomplished in the two disciplines can show
how each of these theories is in need of supplementation, if not revision.35
W
33
34
35
See discussion of this point by White, Judicial Criticism, 20 GEORGIA L. Rev. 835 (1986).
For example, to understand the effect of the Statute of Frauds in the light of equitable doctrines
more recently devised.
R.A. Posner, Law and Literature: A Misunderstood Relation (Harvard U.P. 1988).
Chapter 5 also argues for the difference between literary and legal interpretation. But his account
does not focus on the different expectations of the two types of reader. He presents the
differences around the point that law (at least the interpretation of statutes) demands an
intentionalist attitude (i.e., the interpreter must find the legislature’s intentions) while a ‘New
Critic’ approach, one which treats the text as autonomous, is (according to Posner) appropriate
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More interestingly, an approach which seeks out the regulatory norms which help
to constitute and constrain legal interpretation would seem to be well placed to
contribute to that much debated topic of contemporary jurisprudence - the nature of
legal reasoning. For while I have only spoken of a number of basic regulatory norms
these can be connected up with the more traditional methods and procedures for
interpreting legal texts. And at a time when there would appear to be a great deal
of scepticism about the ability of legal methods to influence legal reasoning or legal
interpretation in any way at all here is an approach that can present the techniques,
standards and canons of legal argument as more than a pseudo-reasoning which is
used merely to justify whatever result is reached on other grounds (as the Realists
and Critical Legal Studies members would have it).36 For while it can be said of
these presuppositions, regulative principles, etc. that they are culturally specific to
the legal community and thus in this sense ungrounded, and while it must be
conceded that the application of these norms and methods in particular concrete
circumstances will always allow a “gap” or “leeway” through which “extra legal”
considerations will intrude into the interpretive process, nonetheless the interpretive
procedures associated with these regulatory norms and laws provide criteria which
structure and give meaning to this type of interpretation and thus help to make valid
and reliable legal interpretation possible. In short, here is an approach which can
identify interpretive criteria which operate above the level of personal values and
particular interests and which work to restrict the role which such “extra legal”
values and interests are able to play in legal interpretation.
36
for literature.
And for that matter as not just simply the shared beliefs of the legal profession, beliefs which
have become internalised as maxims for individual legal agents, as Karl Llewellyn or Stanley
Fish would have it.