Too little work in the field of law literature and humanities scholarship in Australasia is subject to review. So let me begin with a brief notice of Bill (William P) MacNeilâ€™s Novel Judgements: Legal Theory as Fiction (2012). This book was published last year but it has not yet received anything like the attention it deserves. What follows is a brief introduction to the main themes of the text.
Despite all its good humour, bravura engagements with popular culture, film, and jurisprudence, Bill MacNeil ended his last book, Lex Populi (2007), with the phrase â€œI want to dieâ€. Novel Judgements ends â€“ or begins â€“ with a call to make law new again: a new law theorised fictively for a new era. Novel Judgements is a book about the love of legal theory and the importance of the â€˜juridical imaginaryâ€™. In it legal theory is returned to the realm and desires of the comic and the tragi-comic: of dreams thwarted and realised; of passions requited and unrequited; and of politics and revolution fought novelistically and juristically. Along with the drama that you might expect to find in a book about Victorian law and literature, this is also a book staged and peopled through dramatic encounters. In the first substantive chapter of the book Jane Austen and Mrs Bennett and her family meet John Austen, Jeremy Bentham and, mischievously, Jacques Lacan. Perhaps not surprisingly, once introduced, they talk about the topics of literature and law: the importance of sovereignty, dominion, and property; the mode and manner of representing the authority of law and literature; and, the importance of lawful relations. The book stages its encounters within the Victorian literary and legal canons: Scott, Shelley, Hawthorne, Dickens and Bentham, Austin, Mill, Fitzjames Stephens, and Holmes. The contemporary philosophers of law and critical theorists are also addressed, although it is Jacques Lacan who most frequently accompanies Bill MacNeil through the juridical imaginary. Novel Judgements takes seriously the view that fiction is central to legal theory.
Since this is not a full review, I will make four brief observations about the book.
1. The first is about the subject matter and genre of Novel Judgement. While the genres of legal theory and literature can be seen as belonging to the very old traditions, they are also historically located as specific genres of writing and ways of engaging human and other relations. Novel Judgements engages both literature and law and literary and legal theory in their Victorian and modern forms. For the most part Bill MacNeil does so with a desire to show the joined concerns and relations of nineteenth century literature and legal theory. While Novel Judgements is in part a historical reconstruction of the Victorian juridical imaginary, it also an analysis of our present since the affect of the Victorian juridical imaginary has not yet passed.
2. A second observation relates to the â€˜juridical imaginaryâ€™. The juridical imaginary that emerges in this book circles around the great themes of political and legal thought. In Novel Judgements, the Victorian legal imaginary is capacious, it . Novelists and legal theorists alike discuss sovereignty, property, trusts, and contract as well wealth, corruption, love, kinship, and the depredations of industrial capitalism and empire. In this company Karl Marx becomes again an eminent Victorian (despite the best endeavours of the ABC and BBC). Whilst historically informed, the concerns of this book are shaped around reading and analysing novels and reading jurisprudence. When Jeremy Bentham and Walter Scott are brought into relation in Ivanhoe, the reading that emerges is established by the different ways in which Bentham and Scott understand the common law, the trial, truth, and honour. Ivanhoe is read through Benthamâ€™s critique of the common law and Bentham is understood through Scottâ€™s analysis of the effects of the divorce of law and morality. In doing this Bill MacNeil joins Scott to the canon of legal theory and Bentham to that of literary criticism. When we come across Dickens in this book â€“ Great Expectations and A Tale of Two Cities get chapters of their own â€“ we come across Dickens as legal theorist along with Dickens as novelist, humanitarian, comic, social critic and so on. While it is possible to join these discussions directly to the concerns of critical philosophy, Bill MacNeil returns his readings to the contested quality of the â€˜deep structuresâ€™ of Victorian juridical imaginary. In this book it is the fiction of legal theory that is given centre stage (p.11).
3. This leads me to my third observation on the legal theory of Novel Judgements. Much the strength of Novel Judgements comes from its confident joining of the Victorian â€˜juridical imaginaryâ€™ to the topoi of legal theory. Dickens is read as a critic of nineteenth law and legal thought. He is also read critically as engaging with the Foucualtian analysis of ways in which power and knowledge are joined in the practices of the government of population. However Bill MacNeil also points out, with acuity, that Dickens’ famous attacks on Chancery and the pettyfoggers of law are posed in a revived language of trust. This too is brought into the domain of contemporary legal theory. I suspect that in Novel Judgements the model Victorian jurisprude is not John Austin, Karl Marx, or Charles Dickens but Boz of Bleak House. It is Dickens who gives Bill MacNeil the form of the novel judgement that moves beyond law in its criticism of the representational content of law but returns to law in its narrative form (p.155). However, it is Boz, who restores the trust necessary to maintain the reciprocal relations that keep the private ties of the house linked to the public whole. Boz insists on continuing to speak for law and a certain kind of worldly trust in law.
4. My last observation relates to the â€˜teachingâ€™ of Novel Judgments. In Novel Judgements, Bill MacNeil treats the task of making new worlds and of finding ways of being lawful as part of the role of the jurisprude (rather than that of the judge or legislator). The didactic task of educating readers in the significance of literary and legal theory is linked to the care for the conduct of law. While readers of Bill MacNeilâ€™s work expect (and find) prestigious rendering of the jurisprudential forms of law and literature, this book offers an incisive guide to reading law and literature well. In the closing part of the book Bill MacNeil also offers a lesson in character: the reader, the critic, and the student are being trained to articulate their understanding of the possibilities of another scene of law with precision and with good humour: â€˜a new law theorized, fictively, for a new eraâ€™ (p.208).