The Ethics of Reading and Writing

posted by Carrie Menkel-Meadow

In a recent issue of the Chronicle of HIgher Education (February 8, 2008), Yale Professor of Comparative Literature, Peter Brooks, has written an interesting article on “The Ethics of Reading:, http://chronicle.com/weekly/v54/i22/22b00501.htm, in which he suggests that the now infamous Bybee Torture Memo can be blamed, at least in part, on post-modern, deconstructionist teaching and literary criticism. He talks about the implicit attributions made by novelist J.M. Coetzee’s novel, Diary of a Bad Year, in which four young American Muslims are indicted for terrorism based on a vague and amateur videotape they made, which, their prosecutor suggests, proves their relationship to Al Qaeda because, as they have been taught in American literature classes, “nothing is as it seems.” Brooks suggests that Coetzee blames “a set of analytical instruments which they obscurely sensed could be useful outside the classroom” for the rootless, meaningless use of words (and then their defense by twisted turns of phrases (or ordinary words if you want to count what the meaning of “is” is…) or the contrary (as every deconstructionist knows, words have meaning from what they say and what they don’t say –the contradiction of meaning is what gives literary and legal deconstruction their particular power).

But is it literary deconstruction or ordinary legal interpretation that is really the culprit for facilitating the elasticiity of meaning that can justify the most horrific of acts (and more mundane ones too)?

Brooks has been “obsessing” about this question of the plurality of meanings in the so-called torture memos for years, he says. The memo cites many dictionary definitions of “torture,” “severe” and “pain and suffering,” as well as other important legal terms, to conclude that many practices do not meet the statutory or treaty level of unlawful torture. He calls the convoluted treatment of ordinary words in a variety of different (including medical, rather than ordinary) usages as a “kind of parody of literary interpretative deconstruction at its worst.” This use of deconstructionist methods “in the wrong hands” has led to “facile untetherings of meaning.”

I am intrigued by this essay because although I agree with the diagnosed pathology, I am not sure I can sign on to the attributed cause. As a new law student I remember arguing with one of my more traditional law professors (this is over 30 years ago, before the “interpretative turn” in legal analysis, though not in literary criticism), that reading a case or statute felt to me like the deconstructionist readings I was asked to do of Ezra Pound and T.S. Eliot in my college English department. I thought my skills at literary analysis would serve me well in this “war of words” and interpretation that seemed to be what legal analysis called for. Oh No, my then law professor said. Law is real, poetry is fiction –the rules of interpretation and the consequences of wrong readings are quite different (see Robert Cover, among others for similar points). Yet despite what my professor then said, I never stopped thinking that legal reading and ‘riting and reasoning was as much of a game, with skill of course, of interpretation as rigorous literary analysis. I generally prefer to read poetry and novels than law, but alas, I became a lawyer (and only later someone who could teach literary criticism in both law and interdisciplinary undergraduate classes), who had to use interpretation to make words mean what I wanted them to in advocacy (in my case, mostly in civil rights and poverty law cases). So, we of the period of large scale law reform argued for “our” interpretations of Constitutional provisions, statutes, regulations and the “underlying meanings” of legislative intent or judicial interpretation. And so, sadly, what was good for the goose is now used by the gander??? (Sorry, that metaphor really doesn’t work).

With our literary “penumbras and emanations” and with the elaborate and wordy standards of equal protection jurisprudence, “fundamental interests” “suspect classes” (where are these phrases written in the Constitution?), the progressive good guys have used felicitious phrases and ambiguous words for decades, if not centuries. I do not mean here to equate the tortured (yes!) use of language by the Bybee Memo authors with the creative arguments and use of words by the heroes of the good ole days (Constitutional and civil rights “victories” for social justice in the 1960’s and 1970’s), but I do think that whatever is wrong with multiple levels of meaning in legal memos comes from our own discipline –law and legal interpretation — more than we can blame it on po-mo deconstructionists.

Legal reasoning in a common law system has always been about interpretation and we have always both demanded clarity of interpretation (in rules of statutory construction, for example) and also “fudged” it by using words to create the most creative of arguments to create new understandings of legal rights, duties and entitlements. Remember Charles Reich’s conception of welfare as a property right, The New Property, 73 Yale L. J. 733 (1964) and Joseph Sax’ public trust for environmental duties,The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471 (1970) (and his conception of slumlordism as a tort)? These creative uses of language are a part of our stock in trade (both practical lawyering and scholarly writing). My colleague David Cole has also argued that a little “misinterpretation” went a long way in First Amendment jurisprudence (see Agon at Agora: Creative Misreadings in the First Amendment Tradition, 95 Yale L.J. 857 (1986).

So, I don’t think we can blame literary or humanist deconstruction for the bad readings or interpretations or worse, bad writings, of lawyers. Interpretation and use of words is just as much ours (lawyers) as theirs (English professors and novelists) (and thanks to James Boyd White, Richard Posner, and others we have been taking both the correspondences and differences in our disciplines seriously for decades now).

Where I do agree with Peter Brooks is that how we read, write, and interpret does matter. There is an ethics of meaning –what we say something means in law affects people’s lives. And while I am an enthusiastic member of the law and literature group that believes that good reading can lead to empathic responses to our fellow human beings (thanks to Martha Nussbaum, Robin West, Toni Massaro, Susan Bandes, and others), I also believe about law, as I did about poetry so many years ago,,,, that there are “better readings” than others. Some interpretations are wrong and some are reasonable, while others are just better, or worse. In legal matters where words pack a punch (quite literarily) this is even more true than in literary readings. So, I join in the need for an “ethics of reading,” but in law we also need an “ethics of writing.” When we write laws and say what they mean, we are doing something different (and potentially more harmful) than what fiction writers, poets, and literary critics do.

And when we do so (write laws, with meanings and interpretations, that is), it is “our” fault, our field and our “ethics” that are on the line –not those of our college teachers or inspirational authors.

 February 12, 2008 at 7:02 pm   Posted in: Law and Humanities    Print This Post

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