Monday, April 15, 2013

"A groom must expect matrimonial pandemonium / When his spouse finds he's given her cubic zirconium."

Kenji Yoshimo discusses the criticism of Justice J. Michael Eakin's use of the above couplet in his dissent in the case of Porreco v. Porreco.  In general, Yoshimo disapproves, but concedes that the distinction between law and poetry is not cut-and-dry:

But like every generalization, the idea that law is a serious business while literature is an ornamental pastime has some important exceptions.   Given a culture that seeks to drive a wedge between law and literature, we should not expect legal poems to declare themselves as such.   This is not, however, the same thing as saying such poems do not exist.  

The most famous poem in law is the Miranda warning.   More people can recite this quatrain than can recite the Gettysburg address, much less a quatrain from most poets who were intentionally writing quatrains, like the quite catchy Alexander Pope. The broad dissemination of the warning in our culture through television and film has not just given it force, but affected its Constitutional stature.

Three thoughts:

First, I'm saddened by Yoshimo's premise that literature is an "ornamental pastime."  I think he's right, if you substitute the word "poetry" for "literature," and not because I believe that poetry is by nature nothing more than decorative or aesthetic, but because that is probably a fairly accurate description of poetry as it functions in America today.  Novelists, I think, can still claim to be about something far more serious and socially valuable, but the poet is so marginalized it's hard to imagine one claiming a part in the broader political or social debate without laughing.  ("Say, did you hear what Louise Gluck said about immigration reform?")

Secondly, I really love Yoshimo's description of the Miranda warning as a poem.  Here's how I'd do the enjambment:

You have the right to
remain silent
anything you say
or do
may be used against you
in a court of law
Finally, Yoshimo quotes from Robert Cover's 1986 essay that differentiates literature and law because the latter "deal[s] pain and death."  The suggestion is that the stakes are simply too high to play literary games with.   I'd suggest that that is more or less the right distinction; that the problem blurring the line between literature and law is that literature relies too often on purposeful ambiguities and ironies that make interpretation difficult, while the purpose of law is to eliminate those ambiguities as much as possible.  Yet to think of them as obviously distinct is to ignore the way in which law necessitates interpretation, and the way in which interpreting a legal text is not so different from a literary one.  (Stanley Fish has made a career out of mining this overlap, and Justice Scalia's recent book makes this point right in the subtitle.)

Yet I think implicit in Yoshimo's critique, as well as Cover's, is the distinction between texts that do something--here, something as serious as "pain and death"--and texts that do not.  I'm suspicious of this attitude because, a.) I think it's false (all texts are meant to "do something"), b.) I think it neuters the power of literature, reducing it to being "ornamental" and not just describing it that way, and c.) ignoring the fact that law is explicitly textual and without force in and of itself does us no favors.  To put it another way, the great difference in the power of a legal poem and a literary one is that no one puts in you in handcuffs while they read the latter.

Yoshimo ends his discussion by noting that "The Greeks embodied law-like mores in poetry to ensure their broad dissemination in an oral culture."  Sure, but Yoshimo is still thinking of law and poetry as essentially separate activities in a way that might have been lost on an ancient Greek.  He does, however, remind us that there was once a time in which poetry did have the kind of illocutionary power that's lost to it now.

Can poetry deal "pain and death" today?  This might be a logical leap, but Yoshimo's article made me think of Robert Oppenheimer, who commented on successfully detonating an atomic bomb with a passage from the Bhagavad Gita, which is, of course, a poem: "Now I am become Death, the destroyer of worlds."

I assume that if Justice Eakin had said something like that, nobody would have batted an eye.  Maybe next time he should avoid the silly, three-syllable feminine rhyme.

P.S. I am not a lawyer, but some of you (Billy, Randy, Kunal...) are--what did you think about Yoshimo's piece?

2 comments:

R.M. Fiedler said...

I think Yoshimo misses two aspects of legal writing that make the distinction between poetry and legal writing less clear.

First, the most memorable legal writing is literary in its own way: a memorable line from an opinion summarizes an entire idea in a few words. These lines then get quoted extensively by attorneys and judges in lethal writing. Penning such lines cannot be by accident.

Second, Yoshimo does not discuss persuasive writing, which can use literary devices to be effective. Although persuasive writing would not look flagrantly literary, subtle use of such devices can work on the reader's perspective unawares. The same ambiguities and ironies that render literature open to multiple interpretations can also push a reader towards one interpretation.

R.M. Fiedler said...

I think Yoshimo misses two aspects of legal writing that make the distinction between poetry and legal writing less clear.

First, the most memorable legal writing is literary in its own way: a memorable line from an opinion summarizes an entire idea in a few words. These lines then get quoted extensively by attorneys and judges in lethal writing. Penning such lines cannot be by accident.

Second, Yoshimo does not discuss persuasive writing, which can use literary devices to be effective. Although persuasive writing would not look flagrantly literary, subtle use of such devices can work on the reader's perspective unawares. The same ambiguities and ironies that render literature open to multiple interpretations can also push a reader towards one interpretation.