The Literary Exception and the Rule of Law

Addressing the influential analysis of law and literature, this book offers a new perspective on their relationship. The law and literature movement that has gained global prominence in the course of last decades of the twentieth and the first decades of the twenty-first centuries has provided the research and teaching of law with a considerable body of new and valuable knowledge and understanding. Most of the knowledge and insights generated by the movement concern either a thematic overlap between legal and literary discourses - suggesting they deal with the same moral concerns - or a rhetorical, semiotic or general linguistic comparability or 'sameness' between them - imputing to both the same or very similar narrative structures. The Literary Exception and the Rule of Law recognises the wealth of knowledge generated by this approach to the relationship between law and literature, and acknowledges its debt to this genre of scholarship. It nevertheless also proposes, on the basis of a number of revealing phenomenological inquiries, a different approach to law and literary studies: one that emphasises the irreducible difference between law and literature. It does so with the firm believe that a regard for the very different and indeed opposite discursive trajectories of legal and literary language allows for a more profound understanding of the unique and indeed separate roles that the discourses of law and literature generally play in the sustenance of relatively stable legal cultures. This important rethinking of the relationship between law and literature will appeal to scholars and students of legal theory, jurisprudence, philosophy, politics and literary theory.

Johan van der Walt is Professor of the Philosophy of Law at the University of Luxembourg and Extraordinary Professor of Law, University of the Free State.

TABLE OF CONTENTS PREFACE * INTRODUCTION * 1 Current profiles of law and literary studies * 2 The law-literature divide * 3 Law, literature and liberal democracy * 4 The three pillars of time * 6 Phenomenology: a brief note on methodology * 7 Outline of key arguments * 1 Law, Literature and the Space of Appearance * 1 Appearance, reality, truth: the birth of history and the beginning of time * 2 Poverty, politics and poetry * 3 The literary exception and the rule of law * 4 Profound poetry and shallow law? * 5 The darkness of the human heart, the hiatus of time * 2 Law, Literature, Event * 1 Law and literature: a constellation of two trajectories * 2 From eutopia to utopia: the transformation of the utopian imagination * 3 U-topos and event * 4 The literary response to the event * 5 The law's response to the event * 6 The pillars of time * 3 REVOLUTIONARIES, RENEGADES AND REFUGEES * 1 When time gives * 2 The visible and the invisible Mandela * 3 The renegade moment * 4 Bram Fischer's madness * 5 Refugee status: when time breaks * 6 The destruction of the world * 7 The end of an era * 8 The poetic descent into the hiatus of time * 9 The refugee, the renegade and the revolutionary * 4 THE LITERAL EXCEPTION * 1 T.S. Eliot, Schmitt and Hamlet * 2 Schmitt, Gadamer and Hamlet * 3. Schmitt and Däubler * 4 Voßkuhle, Kohlhaas, Kleist * 5 Nussbaum, Posner, Holmes, Dickens * 5 THE RULE OF LAW * 1 The Example of Mens rea * 2 Legal hermeneutics * 3 Legal justice * 6 THE LITERARY EXCEPTION * 1 Léo Tolstoy: the lawless event of history * 2 Fyodor Dostoyevsky, Cormac McCarthy: poetry of lawlessness * 3 Faulkner: The convulsion of language and time * 4 Dostoyevsky's idiot and J.M. Coetzee's Dostoyevsky: the inhuman event of poetry * 7 LAW, LITERATURE, TIME * 1 The space of appearance and the crisis of language * 2 Utopia, eutopia and the two trajectories of language * 3 Revolutionaries, renegades and refugees * 4 The "tight spot" between the finite and the infinite * 5 The literal exception * 6 The literary exception * 7 The rule of law * 8 The pillars of time: law, literature, event * 9 Vertical and horizontal gifts of time * BIBLIOGRAPHY * INDEX *