The "Outsider" in "Law and Literature"
The methodological starting point of the "Law and Literature" movement is to insist on the literary nature of literary works, rather than treating them as case facts. Posner is often seen in contemporary legal theory as an opponent and skeptic of the "Law and Literature" movement, which deals with literary works in a completely unsubscriptive form (real case material). Through Camus's "The Outsider", the true meaning of the literary image of the "outsider" and the methodological fallacy of the Posnerian "law and literature" can be analyzed. In contrast to "law and literature", Posner was an "outsider" in camus's sense.
It is said that there are surprisingly many literary geniuses in the world who abandon the law and follow the literature, and a friend who specializes in the history of foreign literature has opened me a long list, which is surprising: Goethe, who received a doctorate in law from the University of Strasbourg, returned to his hometown frankfurt as a lawyer, and later focused on literary creation; Balzac studied law at the Law School in Paris in his early years, worked as a clerical in a law firm, worked as a lawyer before and after graduation, and later devoted himself to literature; Heine obtained a doctorate in law from the University of Copenhagen. He began to create literature at the age of 20; Tolstoy began to write literature at the age of 20; Tolstoy returned to his hometown after three years of school at the Faculty of Law of kazan University, and later served in the Caucasus and began to write literature; Kafka entered the University of Prague in 1910, first studied literature, and was forced by his father to change to law, obtained a doctorate in law, and began literary creation during his university years; Proust initially obeyed his parents' will, entered the law school, and later transferred to the University of Paris to study literature; Marquez entered Columbia University in his early years to study law. Later, he interrupted his studies because he was obsessed with literature...
Probably these great writers, the original endowment is different from ordinary people, but the way of thinking of the law is incompatible with the imagination of freedom. So they finally became overwhelmed and returned to their authenticity. But why did so many great writers initially escape from law schools and not other non-literary schools? Jurisprudence is the first choice (even higher than literature) of the highest proportion of great writers, which may show that jurisprudence is not a natural enemy of literature, but that jurisprudence and literature have some unusual isomorphism. This isomorphism is not an isomorphism of the vocabulary and way of thinking they use, but an isomorphism of the ultimate caring meaning—the search for the concrete dignity of the human person and the concrete justice of the human being. Perhaps, to the literary geniuses, the formal thinking and conformist operation of the law are destined to make it impossible for it to truly fulfill the concrete dignity and social justice of man on earth (at least, it is not the kind of fulfillment they want), but to present more of the suffering of human beings in their search for the ultimate path, so they turn around and walk towards another, more abundant and magnificent path, where they can see the aura of their hearts.
There are many great literary heroes in the world who abandon the law and follow the literature, but there are almost no great literary heroes who abandon the economy and follow the literature. Perhaps Posner is right, in modern society law and economics do have more superficial isomorphism than law and literature. The legal man cannot prove that law and literature have more superficial isomorphism, but whether it is a legal man, a literary man or an economic man, he can prove effortlessly that economics is the natural enemy of literature, and it is almost impossible to have any meaning of isomorphism with literature. Posner, who abandoned literature from law to economy, has cooked "law and literature" into a perverted dish, and by introducing the intermediary of economics and rational people, he has succeeded in turning "law and literature" into the "economics and literature" he wants. Through the text of "The Outsider" and Posner's absurd interpretation, it can be seen that in contrast to "law and literature", Posner is an out-and-out "outsider" in Camus's sense. If Camus had been alive, he would neither have liked nor disagreed with Posner's interpretation, but would have felt that it had nothing to do with him.
The vigorous "law and literature" movement is still continuing in China, and in the medium of different carriers, there are legal people's interpretations of various literary texts everywhere, and people are questioning: If Zhang Ailing knew a little law, her protagonist might not have been repeatedly trampled into the desolate scenery; if Jin Yong knew a little law, the stories he wrote would not end up in a mess of people and play together; if Kafka believed in the law, the farmer who guarded the door of the law could go through the bureaucratic castle to find the person he wanted to meet If Liang Zhusheng had been born today, their tragedy would not have become a tragedy at all, because the marriage law would not have allowed such an early marriage... These interpretations, without exception, are skillful in the Case Analysis of the Posner style, for it is the most familiar method for the legal person, and like Judge Posner, it is embellished with literary lyrical passages and occasionally recites verses, because only then can the title of "Law and Literature" be completed. They are crying out to the writers: your protagonists are too irrational, if they understood reason, they would not suffer at all, they are as happy as ordinary people.
It was a movement to turn magic into decay, and through this bizarre interpretation, kafka, Tostoevsky, and Camus would all go from being first-rate writers of philosophical fiction to second- and third-rate writers of court fiction and detective fiction, far less contributing to the law than Holmes, Stephen King, and Agatha Christie. Scott and Tolstoy will suffer the same fate, they will have to endure the judgment of the legal people on the authenticity of the details they describe, from first-class writers of historical fiction to law laymen. And The vivid literary figures of Raskernikov, Merso, Nekhlyudov, Anna Karenina, Liang Zhu, and so on, all of them must be revealed to themselves, they are some stubborn "irrational" people, their joys, sorrows, and laughter and cries are so disharmonious and insignificant relative to the overall narrative of the evolution of civilization, but the irrational struggle and helpless resistance in the iron law of evolution.
Amartya Sen is driving a revolution in contemporary economics, and if his revolution succeeds in changing the mainstream thinking of economics, perhaps there will be a great writer in the world who abandons the economy. Sen argues that the overriding rational man hypothesis in economics simply cannot generalize real social choices, because individual choices are inseparable from the constraints of identity and belonging, "the behavior of the individual will inevitably be affected by the sense of identity with others", "the kind of person who acts with complete consistency and predictability, but can never give a different answer to these different questions, we can call him a 'rational fool'" "For thousands of years, countless people have unswervingly searched for attribution in various irrational literary texts, and have reached recognition of various irrational literary images, which is itself an instinctive rejection of the assumptions of rational people and the best proof of their falsehood. Posner wanted to subvert these affiliations and identities, so he slyly withdrew the subtitle and created "Law and Literature" based on rational people, but this kind of smuggling is so unobtrusive that it is more exciting to write "Law and Economics" against "Law and Literature" or "Economics and Literature".
Perhaps he took Posner too seriously, because he did not really want to do "law and literature" in the first place. In his eyes, classical literary texts are just alternative "cases" used to implement pragmatic dogmas, which are beautifully packaged in elegant literature and must sell more lightly. Now that philosophy and truth are dead, knowledge is just a variety of different commodities, and people take what they need according to their own tastes. But after all, the product can not be mislabeled.
(This article is excerpted from The Controversy of the Gods in the Philosophy of Law)
Professor Ke Lan is one of the few female scholars in the legal field who has a thorough understanding of Chinese and Western jurisprudence and has both knowledge and ideas. Her research on contemporary Western method philosophy not only pays attention to the analysis and combing of first-hand literature, but also is good at discerning and exploring behind various ideological debates, with sharp and delicate thinking, fresh and fluent writing, and sometimes unique insights. The content of this book deals with many hot issues in contemporary Western methodological philosophy, which can represent the academic interests and stylistic characteristics of young scholars in contemporary jurisprudence.
——Gao Quanxi (Kaiyuan Chair Professor, Shanghai Jiao Tong University Law School, Doctoral Supervisor)
"The Controversy of the Gods in the Philosophy of Law" is Ke Lan's work of careful cultivation of the Western method philosophical school in recent years, its pen and ink span different eras and different characters, through the interval between Europe and Britain and the United States, and the theoretical field is not stuck in one learning and one vein, but looks at the various disciplines, the rope is hidden and hooked, vertical and horizontal, or dense or sparse, or urgent or slow, and each article has its own unique features, I believe that readers can appreciate the storms and clouds of the frontier trends of legal philosophy, feel Aquinas, Holmes, Radbruch, Unger, The profound insights of famous artists such as Kos.
——Shu Guoying (Qian Duansheng Chair Professor, China University of Political Science and Law, Doctoral Supervisor, Vice President of the Jurisprudence Research Society of the China Law Society)
This book aims to conduct a reflective discussion of hot issues in contemporary Western method philosophy, and the author is rigorous, has made a comprehensive study on the basis of a large number of first-hand literature, and can critically reflect on common concepts in Western method philosophy. This book can provide an incremental amount of knowledge for the study of the history of Western legal thought.
——Xu Aiguo (Professor, Doctoral Supervisor, Peking University Law School, Vice President of the Research Association of the History of Western Legal Thought of the Chinese Legal History Society)
About the Author
Ke Lan, Hubei Xiao touching. Professor of Law School of Huazhong University of Science and Technology, doctoral supervisor. He holds a Bachelor of Laws degree from China University of Political Science and Law, a Master of Laws degree from Peking University, and a Doctor of Laws degree from China University of Political Science and Law. He has taught at Northwest University of Political Science and Law and Northwest University Law School. His research interests include legal philosophy, the history of legal thought, and legal culture. Senior lecturer of the "Law Lecture Hall" column of the Social and Law Channel of the Central Radio and Television Corporation. He is also the executive director of the China Rule of Law Culture Research Association, the executive director of the Chinese Legal Thought History Research Association, and the member of the China Dream dream Society. In 2016, he began to lecture on the series "Iron Fist Yongzheng" (17 episodes), "The Mystery of the Dream of the Red Chamber" (12 episodes), and "The Legal Culture in the Dream of the Red Chamber" (40 episodes) on the CCTV Social and Law Channel .com. He is the author of "The Mystery of the Dream of the Red Chamber", the editor-in-chief of "Selected Legal and Political Documents in the Founding Period of the United States", and the compilation of "The American Crisis" (Thomas Paine).
Synopsis
This book aims to conduct a reflective discussion on hot issues in contemporary Western method philosophy, highlight the development of basic issues such as law and morality, legality, difficult cases, and legal arguments in contemporary legal philosophy through the debate between natural law-legal positivism and realism-formalism, and clarify the accurate meaning of natural law, positivism, classical natural law, new natural law, legal formalism, and legal realism in legal philosophy. Finally, it provides an overview of the three main schools of legal philosophy that have turned to "law and..." legal theory—critical jurisprudence, legal economics, law, and literature—and critically reflects on the main problems that exist in the methodologies of these three schools.
This book attempts to sort out the problem areas with jurisprudential implications from the vast and complex literature of Western method philosophy natural law, legal positivism, realism, formalism, critical jurisprudence, legal economics, law and literature, and connects with the existing knowledge system of Chinese jurisprudence, trying to provide a critical reflection horizon on Western method philosophy for the existing knowledge system of Chinese jurisprudence, and combine it with the cutting-edge experience of judicial practice in the world, so as to provide useful ideas for specific issues of international law, human rights law, criminal law, civil law and other departments.