The University of Texas at Austin

Law in Popular Culture collection

Oklahoma City University Law Review
Volume 24, Number 3 (1999)
reprinted by permission Oklahoma City University Law Review



       This Article provides an overview of the relevance of Pynchon's fiction to law from the perspective of a legal scholar. The Article begins by introducing the two accepted methodological approaches in Law & Literature scholarship--law-in-literature and law-as-literature--and then discusses how and why Pynchon's fiction might be used by each division. With respect to the law-in-literature analysis, the Author discusses the potential insight that Pynchon's Vineland can bring to contemporary gender issues in our legal system. With respect to the approach advanced by law-as-literature scholars, the Author explains how Pynchon's The Crying of Lot 49 is informed by parallel concerns with language and power. The Author further explains that The Crying of Lot 49 is instructive for law-as-literature scholars because it reveals the limited extent to which literary interpretive techniques can advance our understanding of the law. The final part of the Article discusses the distinction between reading fiction for purely aesthetic purposes and reading it as a form of moral edification, and why this is the ultimate barometer for determining the relevance of Pynchon's work (or any literature) for legal study.


     The domain of legal scholarship has certainly laid stake to unprecedented boundaries when topics such as "Pynchon and Law" draw the attention of entire symposia. Indeed, using this forum as an indicator, Thomas Pynchon's fiction is worthy of attention for its connection with liberalism, anarchy, the Bill of Rights, theories of land tenure, state law-


enforcement apparatus, the representation of law, and other equally varied legal themes that purportedly share an interesting, if not unorthodox, relationship with the author's work. Not that this catalogue is somehow unique to Pynchon because of his elevated position within the field of letters. Over the last two decades interdisciplinary study has increasingly come to permeate many levels of legal scholarship. Law and Literature, now an established body of continuing work in the legal academy, is just one prime example. Perhaps it is only natural, then, that we have reached a juncture of collective interest in joint discussions of Gravity's Rainbow and, for example, the Rule in Shelley's Case.
     Nevertheless, this trend belies the casual observer, and should at least  provoke one who is studied in either or both of literature and law. No doubt there is an inherent intellectual resonance toward combining sources as rich as Pynchon's fiction and American law. And for those who are specially trained and in fact get paid to carry on such exercises, the confluence is particularly tempting; but the appeal of interdisciplinary study here tends to overshadow the fact that connections claimed for Pynchon and law are less than obvious. After hearing "Pynchon and Law" a few dozen times, one can easily forget that Pynchon's fiction and Anglo-American jurisprudence are not academic siblings. Indeed, to a layperson the topic of this Symposium probably seems odd and to a legal scholar who is unfamiliar with Law and Literature, the topic is probably greeted with a certain degree of skepticism.
     This stance for second-guessing should not be dismissed as some unenlightened condition of the neophyte. On the contrary, an uncautious embrace of this Symposium's implicit message evades a question that should be basic to all of those who take seriously the Symposium's intellectual standing, a question that was immediately presented to me by a legal-academic friend to whom I initially mentioned my interest in the topic: "Why?" His question could just as effectively have been asked: "How is Thomas Pynchon related to the law?" I aim to provide an answer to this question.
     As an initial matter, however, it is necessary to underscore what my Article is not about. The contributions in this Symposium are written from a variety of perspectives. This panoply reflects the extension of Pynchon's appeal among not only a broad based demographic in general, but within the academy among scholars who are trained in such diverse disciplines as literature, science, history, sociology, and law, to name only a few. My interest in this Article is with the connection between Pynchon and the law 


from the standpoint of a legal scholar. This perspective is a relatively narrow one, and quite different from that of many of my fellow Symposium contributors. Indeed, my perspective necessarily eliminates a large array of interesting ways in which to investigate Pynchon's fiction. For example, as an object of aesthetic appeal, Pynchon's fiction provides a veritable treasure trove of possibilities ranging from meditation on conspiratorial imagination and apocalypse, as in Gravity's Rainbow,1 to the decadence of America's culture of consumption, as in Vineland,2 to Pynchon's preoccupation with using scientific-technological concepts as a metaphor for social phenomena, as in The Crying of Lot 493 and much of his other work. As a subject of literary criticism, moreover, Pynchon's work might prove interesting for its illumination of the relationship between language and text, or as an example of a postmodernist's playful reaction to the form of his literary predecessors. Mason & Dixon4 might be a fertile source for historians and the literature-minded alike to discuss what it means to write historical fiction. This is to say nothing more than that Pynchon--the elements of quest, alienation, clever narrative, paranoia, irony, historical paradox, stylistic difficulty, satire, and fantasy for which his fiction has become renowned--can be inspected using an assortment of different lenses. In short, Pynchon's fiction is worth writing about for as many reasons as readers have for reading it.
     But the question of Pynchon's relevance becomes more complicated when we move from a posture of aesthetic justification to one of ethical or political dimensions. Studying Gravity's Rainbow because it is meaningful as a work of art is entirely different from studying it as a form of moral edification. Yet it is easy to overlook this fact when we celebrate the interdisciplinary display of "Pynchon and Law." Pynchon (the aesthetic) and law (the ethical or moral) take on common identity. Scholarship that makes this leap and uses literature to support extra-aesthetic arguments is sloppy and often misleading when the nature of the disciplinary leap is ignored. In fact, from the point of view of the legal scholar, the transition itself is more interesting than Pynchon's treatment of the law because the transition involves, as I will explain, a significant statement about what law is or should be.


     With this backdrop in mind, I will proceed to examine a few claims for using Pynchon's fiction to make a statement about the law from the standpoint of a legal scholar. What follows is an examination of (1) Pynchon's fiction as a source capable of revealing some real human interplay attributes of our legal system, (2) Pynchon's postmodernist style of expression as a focal point for law and literature's textual bond and the conditions associated with this textuality, and (3) Pynchon's fiction as a source capable of producing better lawyers, lawmakers, and law governed. The first claim can be more generally stated as a perspective focusing on the depiction of law in literature, the second on law as literature, and the third as a claim that Pynchon's fiction is valuable for its moral edification.


A. Overview of Law-in-Literature

     In order to understand what is at stake when we look to Pynchon's fiction as a mirror of the law, it is necessary to briefly sketch the state of current overall discourse on the reflection of law in literature. Here, the Law and Literature movement's conventional division into law-in-literature and law-as- literature, while perhaps trite,5 remains helpful.
     The law-in-literature divide focuses on literature that depicts legal themes or subjects, such as Aeschylus' Oresteia, Dostoevski's Crime and Punishment, Melville's Billy Budd, Sailor, or Camus' The Stranger. Proponents claim that a reading of these works is necessary to humanize our legal system; these works enrich legal-decision makers with a better understanding of the motivations, biases, and sensibilities that various members of society have in relation to the law. As William Braithwaite has written, "Judges should study poetry for the same reason all of us should--because from it we can learn what it really means to be human."6 This perspective is frequently taken by scholars who are troubled with the 


technical, procedural, and formalistic aspects of our legal system and who view literature as a necessary stabilizer, one that helps us to keep sight of the human aspects of law--passion, empathy, intimidation, jealousy, love--that are otherwise overlooked. Implicit within this position is the belief that law and literature both operate as comparable cultural media based on communication through narrative. The difference, however, is that law has often excluded unpopular or ostensibly irrational voices from communicating, whereas literature has not.
     Opponents are less willing to treat literature as a valuable tool for training lawyers. To them the claim that literature equips lawyers with a more humanistic appreciation of the real world is a "sentimental" way of thinking about law.7 Richard Posner has been particularly critical in this regard. He believes that law-in-literature advocates invoke false literary ties as an attempt to "reclaim law as a humanity from economics and economics-minded lawyers, who view law as a social science," thus presenting an exaggerated, if not contrived, connection between legal scholarship on the one hand, and narrative on the other.8 Posner does not deny that literature can expand our emotional as well as our intellectual horizons,9 but to him great literature cannot be merely about law, as is the case with a legal treatise, or else it would not have universal appeal; rather, the problems facing Billy Budd or Meursault, for example, are created and enhanced through unrealistic dramatic invention, usually at the expense of representative legal analysis. This is to be expected, Posner asserts, because the legal topics in such works of literature are merely "adventitious."10 Thus he would agree that literature can aid our understanding of jurisprudence, or broader issues of legality and justice, but not the concrete legal problems with which lawyers are faced.11
     The celebrated disputation between Posner and Robin West regarding a reading of Kafka provides a nice illustration of these opposing law-in- literature attitudes. As is commonly known, many of Kafka's characters consent to conditions that most people would consider to be horrible, even nightmarish. For example, in A Hunger Artist the hunger artist moves from one community to another where he is voluntarily placed on display inside 


a cage so that others can view his atrophying body as he fasts for weeks at a time.12
     Robin West believes that Kafka's characters consent to authority because they think that this is what they want.13 Her claim is a jab at Posner's market efficiency theory of consent because Kafka poses ironically what Posnerians pose seriously--that voluntary consent is a moral trump to claims of injustice.14 Kafka's characters may act out of consent, West states, but they do so with an irrational hope for miracle and mysticism that is only superficially consensual, and ultimately their acts end in self-destruction.15 Thus, while Kafka's characters always hypothesize a wealth-maximizing excuse for giving in, their plight reveals that social and economic forces alone fail to deal with the true fear of authority that humans have.16 Kafka's fiction shows how our legal system can misinterpret consent as the exercise of choice when it is actually the evasion of choice.17
     Posner answers that West reads Kafka too literally. To him, Kafka is not  "really" about business transactions or capitalist alienation.18 It is not about the application of law to real legal problems. Rather, Kafka's fiction is about universal human problems such as our inability to make our aspirations fully understood and the dynamics of family relationships, problems projected by the hunger artist or by Gregor Kamsa in The Metamorphosis.19 To the extent that Kafka's fiction presents legal topics, these topics are just details. West, he claims, finds political meaning in Kafka's fiction and then uses "the mantle of Kafka's prestige" to elevate her political criticisms.20 As Posner would have it, West is preoccupied by a sense that our legal system is inadequate, but must look for extra-legal sources such as the imaginative literature of Franz Kafka in order to bolster her position.


B. Pynchon and Law-in-Literature

     Pynchon's fiction has not received the same attention for law-in-literature study. Whether Pynchon is less canonical than Kafka or others has probably less to do with this absence than does the fact that Pynchon's fiction is less devoted to depicting explicitly legal themes. There are no lengthy trial scenes in Pynchon. Nor is the reader apt to find a plot that emphasizes the relationship between conventional legal actors. Where one finds characteristics of law and justice carefully dramatized in Billy Budd, for example, one finds in Pynchon a parodic and peripheral treatment of our legal system.
     But this is not to say that Pynchon is immune from law-in-literature analysis. Vineland, for example, seems a plausible and engaging source, one that Molly Hite has labeled Pynchon's most "irreducibly political novel."21 Hite, a professor of English, highlights some interesting gender issues in Vineland that are currently a topic of study among legal scholars.
     Hite believes that Vineland is informed by a meditation on power and gender and that it reveals how the concepts of masculinity and femininity are social constructions.22 Pynchon's characters reveal that the masculine is by definition that which oppresses, symbolized by Brock's fantasy of holding a pistol to Frenesi's head and making her perform sexual acts.23 In Hite's words: "This account of the construction of masculinity in turn indicates how relations between men, and ultimately masculinity itself, are thereby dependent on ... femininity .... [T]he feminine here is necessary to the constructed masculine identity, which is threatened and may even disintegrate when the feminine eludes or exceeds its control."24 Dependence on this constructed vision of men and women is further revealed in Brock's dreams of being a security guard who is raped by a feminine persona. Hite states that Brock's security guard identity aligns him with the national state he serves and represents, an identity that is vulnerable because of its oppressive and repressive character.25 Each rape visited upon Brock is a source of "drastic diminution," underscoring his unconscious fears and 


eventually leading Brock (a Justice Department official) to separate Frenesi--the feminine subject he is able to recognize--from her own baby.26
     Hite views Frenesi as the most fully feminine character that Pynchon has created. Frenesi is a child of the sixties who has spent her life "snitching," or acting as an informant for the They-system, the omnipresent apparatus of government, capitalist enterprise, and media that controls society and marginalizes those who are not aligned with it. As Hite explains, Pynchon uses Frenesi to "force understanding of and even empathy" for the "conventionally inconceivable" act of snitching, "a violation defined in terms of susceptibility to the Other."27 This emphasis on "snitching" is given further treatment by Katherine Hayles, who defines a snitch system and kinship system as "two antagonistic force fields" that interact to organize Pynchon's novel.28 The snitch system is represented by the network of government agents who seek to gain information and control the population. To give in to the snitch system is to signal an "initiation into the exchange of money and information,"29 or trekking the idea of the constructed feminine introduced by Hite, to lose one's virginity. This view is supported at many levels in Pynchon's text. For example, when Hector insists that Zoyd give information to the government, he bargains, "Your child's well-bein against your own virginity as a snitch,"30 to which Zoyd later replies "Why this thing about popping my cherry, Hector, can't you see I have a kid to look after now?"31 This passage supports Hayles' interpretation of Zoyd (family provider; one who must lose virginity) as a feminine figure whose identity, like Frenesi's, the government desires to appropriate into the snitch (They) system.32
     While Hite and Hayles make no overt connections to our current legal system, it is easy to envision how such a connection could be extrapolated from their analyses. In fact, the idea of a constructed feminine figure being seduced into the white male They snitch system, and further, Pynchon's 


purported efforts to force us to understand and empathize with the "inconceivable act" of acquiescing to such seduction, provides a nice analogue to Robin West's treatment of consent in Kafka. Just as West's reading of Kafka provides an explanation for the motives behind consent that is alternative to the explanation posited by a Posnerian dominated legal system, so too perhaps Vineland reveals how and why certain marginalized members of our society give in to the male dominated Establishment.
     One need only look so far as current feminist discourse to find specific claims that are based on parallel visions of this ideologically induced surrender. For example, rape, which is given substantial metaphorical treatment in Vineland, is an area of the law that continues to be fought along gender lines, particularly with respect to the mens rea or state-of-mind/consent elements associated with rape. Another area of the law that seems to fit nicely into this analysis is sexual harassment. Do men and women have a different understanding of what it means to commit sexual harassment because men are so enveloped in the snitch system? Do women withhold their objection to sexual harassment, as many felt was the case in the Anita Hill-Clarence Thomas affair, because of the seductive initiating power exhibited by our system of money and information? Are issues of family law, such as palimony, family leave, abandonment, and adoption biased toward the beliefs of a snitch system and away from those of a kinship system? How far away are these questions from the kind of debate that Richard Posner and Robin West wage over law, consent, and the hunger artist?
     One difference is that Kafka and Pynchon are from different eras, and it is difficult to measure the extent of their respective interests in law. Here Kafka has received more recognition as the canonical writer of our century and chronicler of the human condition,33 although a strong case can be made that Pynchon's fiction, if not as aged, is equally informed by the author's social consciousness.34 Moreover, assuming a statementabout the 


law is intended through their writings, Kafka's and Pynchon's work must be critically considered within the context of the overall current of literature at the time that it was written. Neither writer can be taken for his verisimilitude. Kafka demonstrates the style of a surreal modernist, whereas Pynchon's craft evidences a preoccupation with text and language that is in keeping with the trend of his period. Is this an important distinction for purposes of law-in-literature analysis? Such difficulties must be considered when one looks to Pynchon and Kafka as comparable sources for legal study.
     What is common to my presentation of Pynchon and the aforementioned battle over Kafka is how we define law, what it means to us. Disagreement over Pynchon's fiction and its connection to the law is a disagreement over the relationship between the aesthetic on the one hand and the ethical-moral on the other. If we are going to look at Vineland because its voices show us how to lead our lives, or, more mildly, because Pynchon allows us to appreciate voices that are not represented in our legal system, we should be careful to articulate this act on aesthetic/ethical grounds.
     The use of literature as a form of moral edification has been addressed by a number of scholars, not just (and not even mainly) by those in the law. This is a broader issue than the specific use of law-in-literature analysis to make statements about our legal system, although the two are related. In Part III of this Article, I will address the topic of moralizing or didacticism with respect to literature and law in greater detail. First, however, I will examine how Pynchon's fiction fits in with current law-as-literature discourse because this discussion provides a further link to the moral edification subject presented in Part III.


     The law-as-literature enterprise draws attention to the similarities between reading literary texts and legal texts. Devotees claim that law is literature, and thus should be studied like literature. This stance can be broken down into two approaches: (1) an emphasis on the rhetorical value of literature for law, and (2) the hermeneutic35 approach. The first approach, championed perhaps most devotedly by James B. White, is an argument that law and literature are both products of rhetorical style: judge-made 


legal opinions contain metaphors and imagistic dicta that are just as reliant on rhetorical skill as are great literary works. To the extent that judges and advocates study literature, then, the better they understand how to frame legal issues and arguments in less abstract (and thus more helpful) ways.
     One difficulty with this approach is that it is not clear that rhetorical skill translates into better legal analysis. As Robert Weisburg points out, sometimes the "concrete can obfuscate and euphemize far better than the abstract, precisely because it does not appear to be doing so."36 Stated differently, if a judge immerses herself in too many particulars, it is possible that acts to which otherwise straightforward legal concepts apply will seem so overdetermined and complex due to local circumstance that the problem cannot be solved by the law.37
     The hermeneutic approach has attracted the most attention and controversy among Law and Literature scholars, and it is this approach that I want to explore more fully before drawing a connection to Pynchon. The idea here is that literary interpretive techniques can be applied to arrive at a more complete meaning of legal texts just as these same techniques have been used to examine the meaning of literary texts. During the 1970s and 1980s, when poststructuralism and the ideas of French intellectuals such as Derrida were at an apogee among literary circles, legal scholars began to appropriate these methods to make statements about the law. Specifically popular was the act of deconstruction, which refers to the critical operation of drawing attention to the representative or signifying sense of our language in order to undermine its "apparent" textual meaning. For example, a deconstructor will look at text containing a set of apparently logical opposites (or "binary oppositions," to use the practitioner's lexicon) such as boy/girl and then unsettle the foundation of this text by seizing a peripheral word and then working it through, from signifier to signifier, until the central boy/girl opposition becomes unstable.38 What deconstructors seek to do is show how a text is merely an endless play of signifiers that is not anchored by any foundational meaning.
     For legal scholars deconstruction has most often been invoked to decry that legal texts have no determinate meaning, or at least that the meaning we attribute to such texts is too simplistic. The implication is that the Constitution or a federal statute should be viewed differently than it has 


been viewed in the past because deconstruction reveals that past meanings are, like the very text comprising them, culturally constructed. This is another way of saying that the hallmark principles of law--freedom, truth, consent--do not have the foundational meaning that we often ascribe to them, but rather are socially contingent concepts that have been perpetuated by socially contingent hierarchies. Simply put, law is politics. This approach plays itself into the hands of leftist legal scholars by giving apparent legitimacy to their efforts at undermining established principles of our legal system, and of liberalism in general. That these leftists have chosen to attack the legal system with deconstruction is ironic: carried into effect, their own ideological arguments can be deconstructed back again. Hence, charges of nihilism have been difficult to shake, although some scholars have persisted to show that their approach can be put into practice.39
     Deconstruction and its post-structuralist mother have lost momentum among literary circles in the past decade. Legal scholars have been less quick to pass on, however. This pattern might be due to Richard Posner's observation that deconstruction has meant different things for those who use it as a method of philosophical theory, literary practice, or legal study. Even among legal scholars interpretive techniques have not been consistent or uniform. In fact, given the record of recent deconstruction treatment in legal scholarship, even a judicious reader may find it hard to avoid cynicism in the face of such difficult and inconsistently applied material.40


     Importantly, fiction has not been a fertile source for the exegesis of law-as-literature claims, and in this respect the methods of law-in- literature and law-as-literature oppose one another. Using literary depictions to illuminate weaknesses in the legal system is not clearly reconcilable with the deconstructive strategies employed by many law-as-literature advocates. As a result, it is not surprising that West and other law-in-literature interlopers have had to disavow deconstructive interpretation. Indeed, if text can be deconstructed ad infinitum so that any interpretation is as close to reality or to the author's intent as is another interpretation, a reading of Crime and Punishment or Billy Budd becomes entirely uninspiring. Rather than looking at Raskolnikov in order to reach some common understanding about the mind of the criminal, for example, or at Captain Vere in order to further understand the notion of justice in adjudicatory proceedings, a reading of these novels becomes an iterative exercise that is not useful in realizing a particular interpretation, but only in arguing that any interpretation can be deconstructed to the point of invalidation. When it comes to interpretation, legal deconstructors usually look at a statute or a legal opinion, rather than a novel, and then apply a Derridan or Foucaultian hermeneutic exercise41 to reach the conclusion that the text does not necessarily mean what we expected.


     Despite the problems summarized above which have kept law-as-literature scholars from focusing on fiction, Pynchon's work seems 


amenable to those who would use it to showcase their interpretive games. Pynchon's style is well known for being difficult. It forces the reader's eyes to linger awkwardly on particular phrases, and then rush over a series of words just when the reader expected something important. Pynchon--like many deconstructors--is trying to underscore that language is dangerous because it is incomplete, and if we are not careful we will overlook what our language does not capture.
     In The Crying of Lot 49, this idea is wonderfully presented through the trials and tribulations of Oedipa Maas.42 In the beginning of the novel, Oedipa is a comfortable, naive California suburbanite who is named executrix for her ex-lover Pierce Inverarity. As she begins uncovering information about Pierce's legacy, she thinks that she may have stumbled on to some kind of underground counter-organization called the Tristero. Yet she is never sure; she does not know if the "clues" that she finds are really clues or if she is just imagining it all:
Either you have stumbled indeed ... onto a network by which X number of Americans are truly communicating whilst reserving their lies, recitations of routine, arid betrayals of spiritual poverty, for the official government delivery system; maybe even onto a real alternative to the exitlessness, to the absence of surprise to life, that harrows the head of everybody American you know .... Or you are hallucinating it. Or a plot has been mounted against you .... Or you are fantasying some such plot, in which case you are a nut, Oedipa, out of your skull.43
     Oedipa's clues cast a pall on the ability of written language to accurately convey the truth. Pynchon is emphasizing that linguistic symbols can be a trap because of the limitations that these symbols have vis-a-vis reality. Oedipa's journey is supposed to foster our recognition that the world can only be partially revealed to us--and often in destructive ways--through language. Thus, "WASTE" is not the sign for a trash receptacle but W.A.S.T.E., an acronym marking the modus by which the disenfranchised communicate, and it stands for "We Await Silent Tristero's 


Empire."44 But to those outside the Tristero, the "WASTE" containers are merely depositories for the unnecessary by-products of a capitalistic society.45 On the back of a bus seat Oedipa discovers the etching "DEATH," which becomes "Don't Ever Antagonize the Horn,"46 and later she receives an invitation to join "AC-DC," the Alameda County Death Cult.47 Likewise, Oedipa's husband Mucho is depressed by a metal sign that reads "N.A.D.A.," the acronym for National Automobile Dealers' Association, but Mucho pronounces it in the Spanish "nada," which means "nothing."48 "CIA" is not the bureaucratic power center of the United States, but "Conjuracion de los Insurgentes Anarquistas," a clandestine Mexican outfit.49 All of these examples are parodic attempts by Pynchon to drive beyond language, to reveal a holistic world that has been infiltrated with temporal signifiers.50 Pynchon reacts resistingly to the "either/or" constructions which characterize much of classic scientific and literary theory. In Lot 49 the creative juxtaposition of signs and symbols is an indictment of language or, by way of extension, of an America that has warped the truth with overly constraining syntactic structures.51 In short, for Pynchon a betrayal has occurred in society, and written language is the conduit through which corporate enterprise and political power have reduced the individual to anonymity.52 Society has literally been inundated with this corrupt language, to the point where everything has been distorted. Pynchon comically makes this point when Oedipa is being interviewed on the radio by her husband, disc jockey Mucho Maas:
Mucho: "Thank you, Mrs. Edna Mosh," he wrapped up, "for your eyewitness account of this dramatic siege at Hilarious Psychiatric Clinic."
Oedipa: "Edna Mosh?"

Mucho: "It'll come out the right way ... I was allowing for the distortion on these rigs, and then when they put it on tape."53
What the Tristero promises, then, is an escape from disillusionment and a return to reality.
     Pynchon would appear to be about as close as one could get to representing the ideas of Derrida or Foucault in fiction. All of the elements are there: power, language, contingency. He demonstrates a marked skepticism toward the ability of language to convey reality; indeed, language for Pynchon is the conduit through which the Establishment misleads the average citizen into missing the truth. In much the same way that deconstructors wield binary oppositions, Pynchon cleverly juxtaposes linguistic symbols to emphasize alternative meanings. Why have law-as-literature folks not seized upon this source?
     The first explanation is that law-as-literature scholars, to reiterate, do not read for meaning. They employ a method of interpretation that is not designed to say "This Story Means X" but rather "You Think This Story Means X, But It Doesn't." What it does "mean" is unimportant. Their purpose is to undermine the text, and in so doing, to undermine the authority that stems from traditional readings of that text. This approach, as I have explained, is not particularly helpful because after shaking loose their opponent's foundations these critics find that they too are left with no deconstructive ground on which to stand.
     But what if these two approaches--law-as-literature and law-in-literature-- were to combine efforts? Why not accept that Pynchon empathizes with the word games and signifier struggles, and then read his fiction? Can we not export a lesson for the law from what he is saying? Does Oedipa's journey of political discovery not give rise to any statement about our legal system?
     The problem here is that the leftist scholars who typically employ deconstructive practices might not like the implication of Pynchon's message. Sure, language is imprecise, meaning can be ambiguous, but where does that lead us? How are we to proceed from there?
     In The Crying of Lot 49 Oedipa struggles with these same questions. Pierce's legacy reveals discrepancies that threaten Oedipa's system of understanding, until she can no longer trust the conventional ways of 


communication. Her response is to persist; she tries to make sense of it all--to take what she learns about the elusive Tristero and incorporate it into a more enlightened way of understanding. She cannot bear the possibility of an America without the Truth, without the unifying transcendence that the Tristero has come to represent. Yet her search becomes so obsessive that she develops a dangerously fragile state of mind. At the end of the novel she is completely uncertain whether her efforts are bringing her closer to the truth or if she is lost in her own solipsistic entrapment. Her totalizing quest becomes a process of uncontrollable paranoia, to the point where her paranoia sabotages any possibility of transcendent discovery:
For it was now like walking among matrices of a great digital computer, the zeroes and ones twinned above, hanging like balanced mobiles right and left, ahead, thick, maybe endless. Behind the hieroglyphic streets there would either be a transcendent meaning, or only the earth.... Another mode of meaning behind the obvious, or none. Either Oedipa in the orbiting ecstasy of a true paranoia, or a real Tristero. For there either was some Tristero beyond the appearance of the legacy America, or there was just America and if there was just America then it seemed the only way she could continue, and manage to be at all relevant to it, was as an alien, unfurrowed, assumed full circle into some paranoia.54
     The paradox for Oedipa, and indeed for Pynchon, is that her quest cannot succeed. The central dilemma for Pynchon is how to communicate from within a unified field without betraying it to the linear, fragmenting processes of human cognition.55 For Oedipa to be able to decode her clues and discover the symbolic Tristero, she must use the cognitive processes which caused the Tristero in the first place, and to use these processes is to deny the message that Tristero represents.56 Thus, at the end of Lot 49 Oedipa is saddled with paranoia, and, like that of the other characters whom she has met during her quest, Oedipa's own continued existence seems impossible.


     This dilemma is analogous to the deconstructive frailties which have impaired groups such as Critical Legal Studies with labels of nihilism and anarchy. That is, after destroying liberalism's objective pretense, legal deconstructors must face the fact that any alternative prescription will suffer from the same biases and culturally confined hegemony which they fight so ardently to disavow.57 The fallacy for them is that a postmodern philosophy cannot lead to a postmodern way of life.58
     The effect of Oedipa's struggle to drive beyond language is instructive because it illustrates how too much emphasis on literary theory is a distraction from useful legal analysis. Properly understood, the problems associated with legal interpretation are problems of ethical and political application, not epistemology.59 Legal interpretation is not philosophy. Nor is it a matter of literary theory. The rule of law does not lose its meaning solely upon a showing that language is indeterminate, or that certain words 


are the product of socially contingent circumstances.60 By claiming otherwise, this aspect of the law-as-literature program has taken an overzealous approach, one that is not true to the existence of real disciplinary differences.


     For the most part, deconstructors have been forthright in revealing their political bent,61 and ultimately, I hope, the foregoing discussion makes clear that the most important factor underlying a particular person's vision of the relationship between law and literature is why he or she is looking for one in the first place. At the beginning of this Article, I paraphrased my friend's question: "How is Pynchon Related to the Law?" An even more fundamental question is: "Why Do We Read Thomas Pynchon?"


     If we can reach some consensus on why we read Pynchon, we can come a lot closer to reaching common ground as to his significance for understanding the law. Is Pynchon creating art, or is he creating moral instruction? Does reading great literature, whether it be Pynchon or Shakespeare or Dickens or Kafka, make us better lawmakers, lawgivers, and law governed?
     Scholars such as Martha Nussbaum answer "yes." She believes that classic Greek literature is part of moral philosophy and that reading it "develops moral capacities without which citizens will not succeed in making reality out of the normative conclusions of any moral or political theory, however excellent."62 To her, the moral and the aesthetic are integrated, such that the morality of a work affects its final evaluation as literature.63 Similarly, Robin West believes that reading literature can enhance our ability to make better normative legal judgements.
A tremendous amount of canonical literature is highly critical of law, and of the arguments typically put forward to support its moral authority.... Literature helps us understand others. Literature helps us sympathize with their pain, it helps us share their sorrow, and it helps us celebrate their joy. It makes us more moral.64
     Not surprisingly, Richard Posner takes a less embracing view. He argues that these members of the "edifying school of legal scholarship"65 mischaracterize the relationship between aesthetic immersion and moral outlook. Among the examples he cites in his support are the cultural sophistication of Nazi Germany, the fact that professors and students of literature and philosophy do not appear to lead better lives than other people because they are well read, and the fact that classic literature is filled with moral atrocities that many authors apparently approved of.66 Moreover, he points out that there is little evidence that pornography makes its principal consumers behave worse--a clue that classic literature does not make 


people behave better.67 Posner also points out that many leftist scholars are unwilling to accept the claim that a work of literature should be judged by moral standards when the issue is censorship, but then turn around and support a moral reading when the issue is legal study. "If literature is to be valued for its moral content, then it is likewise to be condemned for its immoral content. The result is to deform the literary canon from two directions."68 Literature is not unimportant to Posner. Rather, he finds unconvincing the view that literature "provides a straighter path to knowledge about man and society than writings in other fields."69
     The eminent literary critic and Yale humanities professor, Harold Bloom, is also troubled by those who read literature as a basis for ideology rather than for purely aesthetic reasons. In his words: "If we read the Western Canon in order to form our social, political, or personal values, I firmly believe we will become monsters of selfishness and exploitation. To read in the service of ideology is not, in my judgment, to read at all.70
     It has been suggested that these disparate notions of literature's relevance for law stem from a continuing inability to frame "law" as other than either a humanistically or scientifically dominant tradition.71 Whether it be a struggle between systematic minded Roman thought and more humanistic ideals that have their origins with the Greeks, or between "scientific" and "literary" factions of a more contemporary persuasion, law is a messy current swirling with elements of each, and those scholars who choose to define law must eventually swim to one shore or the other. Using this explanation, perhaps it can be said that Posner, with his economics driven view of law as a social science, and West, with her preference for the literary and humanistic elements of law, are two scholars who have decided to part waters in the opposite direction.
     This explanation is perhaps most correct at the abstract ends of legal scholarship. The student who is simultaneously enrolled in courses in jurisprudence and federal taxation probably feels this tension directly. The 


questions "What is justice?" and "What type of activity does the statute permit?" trigger a different kind of mental exercise. In response to "what type of activity does the statute permit?" one would not expect esoteric references to the Western literary canon. As that same student of jurisprudence will come to understand, however, trying to define law becomes a broader exercise involving "rules" and "principles," where legal "systems" stand toe- to-toe with questions of a more philosophical stance. At some point the lines become blurred, and as the topic of study moves farther away from concrete legal problems, and so on is more apparent.
     Yet the willingness of scholars to bring literature to the less abstract aspects of law--to the interpretation of a federal statute, for example--points to something beyond a mere "humanistic" predisposition. Bringing Dickens (or more commonly, Derrida or de Man) to bear on the meaning of a statutory term reflects a motive apart from a belief in the moral value of the liberal arts. Perhaps a more likely explanation here is that many contemporary scholars feel asense of unease with the intellectual authority of our legal system. Indeed, by definition the judicial doctrine of stare decisis values institutional authority of established legal precedent over the intellectual authority of independent non-legal argumentation, which is another way of saying that bad reasoning can often make good law.72 Therefore, the citation of writers and literary theorists (and more frequently, philosophers) and their nonlegal ideas is an effort to import intellectual authority to an area of law that appears to lack or need it.73 In the same vein, legal scholars notice the broad latitude with which their contemporaries in other fields integrate an amalgam of sources in the humanities for purposes of supporting fresh and grand theoretical theses, thus presenting an apparent justification for interdisciplinary legal scholarship, or at least a strong pressure to pursue it.
     This compulsion has caused scholars to overlook some basic methodological and foundational problems associated with interdisciplinary work. The unfortunate result, particularly when the topic of debate is the interpretation of legal texts or adjudicatory doctrine, is that such scholarship frequently loses aim.



*  Attorney at law, Barcelona, Spain.





5. I am in agreement with Robert Weisberg's conclusion that the best works in law-in-literature and law-as-literature emphasize the tension between aesthetic and political-ethical visions of society. This dualism receives attention in all of the good scholarship; where critics disagree is in the extent to which the dualism is real or imagined, useful or misleading. See Robert Weisberg, The Law-Literature Enterprise, 1 YALE J.L. & HUMAN. 1, 5 (1988).

6. William T. Braithwaite, Why, and How, Judges Should Study Poetry, 19 LOY. U. CHI. L.J. 809, 825 (1988).

7. Weisberg, supra note 5, at 5.


9. See id. at 327.

10. Id.

11. See id. at 21.

12. See generally FRANZ KAFKA, The Hunger Artist, in THE COMPLETE STORIES.

13. See Robin West, Authority, Autonomy, and Choice: The Role of Consent in the Moral and Political Visions of Franz Kafka and Richard Posner, 99 HARV. L. REV. 384 (1985).

14. See Weisberg, supra note 5, at 27.

15. See id. at 27.

16. See id. at 28.

17. See id.

18. POSNER, supra note 8, at 188.

19. Id. at 184-88.

20. Id. at 188.

21. Molly Hite, Feminist Theory and the Politics of Vineland, in THE VINELAND PAPERS: CRITICAL TAKES ON PYNCHON'S NOVEL 135, 136 (Green, et al. eds., 1994).

22. See id. at 138-40.

23. See PYNCHON, supra note 2, at 273.

24. See Hite, supra note 21, at 138.

25. Id. at 139.

26. Id.

27. Id. at 140.

28. N. Katherine Hayles, Who was Saved?: Families, Snitches, and Recuperation in Pynchon's Vineland, in 15 THE VINELAND PAPERS: CRITICAL TAKES ON PYNCHON'S NOVEL (Green et al eds., 1994).

29. Id. at 16.

30. PYNCHON, supra note 2, at 295.

31. Id. at 305.

32. See Hayles, supra note 28, at 20.

33. See HAROLD BLOOM, THE WESTERN CANON: THE BOOKS AND SCHOOL OF THE AGES 424 (1994) ("We have adopted Kafka as the most canonical writer of our century because all of us epitomize the split between being and consciousness that is his true subject.").

34. See Thomas Pynchon, A Journey Into the Mind of Watts, N.Y. TIMES, June 12 1996, (Magazine), at 34, in which Pynchon criticizes "white" America for neglecting the plight of inner-city blacks and allowing the demise of an entire segment of our population.
  With respect to Pynchon's likely position with the canon of Western literature, see BLOOM, supra note 33, at 487 (referring to Pynchon as the most vital contemporary American Author of fiction).

35. Hermeneutics refers to the art or science of interpretation.

36. Weisberg, supra note 5, at 40.

37. See id.

38. See TERRY EAGLETON, LITERARY THEORY 116-17 (2d ed. 1996).

39. See, e.g., J.M. Balkin, Transcendental Deconstruction, Transcendent Justice, 92 MICH. L. REV. 1131 (1994). Balkin offers a "transcendental deconstruction" which purports to incorporate the usefulness of deconstructive strategies without succumbing to the shortcomings that were attached to former deconstruction literature. Id. at 1192.

40. For a sample of the treatment of deconstruction and post- structuralist ideas in legal literature, see, for example, Arthur Austin, Deconstructing Voice Scholarship, 30 HOUS. L. YALE L.J 1671 (1993); J.M. Balkin, Deconstructive Practice and Theory, 96 YALE L.J. 743 (1987); Vivian Grosswald Curran, Deconstruction, Structuralism, Antisemitism and the Law, 36 B.C. L. YALE L.J 1 (1994); Clare Dalton, An Essay in the Deconstruction of Contract Doctrine, 94 YALE L.J 997 (1985); Stephen M. Feldman, Diagnosing Power: Postmodernism in Legal Scholarship and Judicial Practice (With an Emphasis on the Teague Rule Against New Rules in Habeus Corpus Cases), 88 NW. U.L. YALE L.J. 1046 (1994); Mark Kelman, Interpretive Construction in the Substantive Criminal Law, 33 STAN. L. YALE L.J. 591 (1981); Cathy Lesser Mansfield, Deconstructing Reconstructive Poverty Law: Practice-based Critique of the Storytelling Aspects of the Theoretics of Practice Movement, 61 BROOK. L. YALE L.J. 889 (1995); Ramona L. Paetzold & Steven L. Willborn, Deconstructing Disparate Impact: A View of the Model Through New Lenses, 74 N.C. L. YALE L.J. 325 (1996); Gary Peller, The Metaphysics of American Law, 73 CAL. L. REV. 1151, 1174 (1985); Girardeau A. Spann, Deconstructing the Legislative Veto, 68 MINN. L. YALE L.J. 473 (1984); Henry J. Staten, The Deconstructing of Kantian Ethics and the Question of Pleasure, 16 CARDOZO L. YALE L.J. 1547 (1995); Mark Tushnet, Critical Legal Studies and Constitutional Law: An Essay in Deconstruction, 36 STAN. L. YALE L.J. 623 (1984); Francisco Valdes, Queers, Sissies, Dykes, and Tomboys: Deconstructing the Conflation of "Sex," "Gender," and "Sexual Orientation" in Euro-American Law and Society, 83 CAL. L. c 3 (1995).

41. See, e.g., ALAN HUNT & GARY WICKHAM, FOUCAULT AND LAW: TOWARDS A SOCIOLOGY OF LAW AS GOVERNANCE (1994); Anthony V. Alriere, Reconstructive Poverty Law Practice ("I attribute my analysis of power to Michel Foucault."); id. at 2120 n.46 ("Continental theory is represented here by Michel Foucault, Hans-Georg Gadamer, Jurgen Habermas, Paul Ricoeur, and Robert Unger. I also count Clifford Geertz and Wayne Bouth to be among this group."); Clare Dalton, supra note 40, at 1007-10 (introducing a connection to Derrida); Sheldon Nahmod, Section 1983 Discourse: The Move from Constitution to Tort, 77 GEO. L.J. 1719, 1734 (1989) ("Specifically relevant to my analysis of the Supremem Court's § 1983 jurisprudence are Jacques Derrida and Michel Foucault.").

42. For a more extensive treatment of The Crying of Lot 49 and law-as- literature scholarship, see Jay P. Moran, Postmodernism's Misguided Place in Legal Scholarship: Chaos Theory, Deconstruction, and Some Insights from Thomas Pynchon's Fiction, 6 S. CAL. INTERDISC. L.J. 155 (1997).

43. PYNCHON, supra note 3, at 170-71.

44. Id. at 169.

45. See Annette Kolodny & Daniel James Peters, Pynchon's The Crying of Lot 49: The Novel as Subversive Experience, 19 MOD. FICTION STU. 79, 81 (1973).

46. PYNCHON, supra note 3, at 121.

47. Id. at 122.

48. Id. at 144.

49. Id. at 119.

50. See N. Katherine Hayles, A Metaphor of God Knew How Many Parts: The Engine that Drives The Crying of Lot 49, in NEW ESSAYS ON THE CRYINGOF LOT 49, 97, 116 (Patrick O'Donnell ed., 1991).

51. See Kolodny & Peters, supra note 45, at 79-81.

52. See id. at 82.

53. Id. at 139.

54. PYNCHON, supra note 3, at 181-82.


56. See PYNCHON, supra note 3, at 179.

57. This criticism has been made on nearly every front. Raymond Belliotti provides a cogent summary:
    The argument supporting CLS' attack on liberal ideology ... seems to preclude CLS itself from establishing a normative justification for its own vision. CLS' vision of social organization--whether it be civic republicanism, participatory democracy, or Unger's perpetual innovation machine--seems merely to replace liberal ideology with CLS' ideology without demonstrating that CLS' vision is not equally illegitimate. CLS may be replacing what it takes to be one version of 'false consciousness' with its own version.
    ... But although normative skepticism, like its philosophical cousin epistemological skepticism, is a view that can be expressed and argued for plausibly (although I think unconvincingly), it cannot be lived. For those professing to fuse theory and practice it must seem odd to embrace value skepticism at the theoretical level and then act as if it were false at the practical level.
Raymond A. Belliotti, Is Law a Sham?, 38 PHIL. & PHEN. RES. 25, 38-9 (1987). See also Peter C. Schank, Understanding Postmodern thought and Its Implications for Statutory Interpretation, 65 S. CAL. L. REV. 2505 (1992). "What postmodernists cannot do and remain postmodernist is to claim the superiority of their own ideas because they are somehow not situated, while the ideas of others are." Id. at 2581.

58. See id. at 2560. Even leftist intellectuals have goals, values, beliefs, and ideology. It is impossible to separate individuals from this human situation, as if there were some type of nebulous state of uncertainty in which people could function. See id.

59. See Gerald Graff, "Keep off the Grass," "Drop Dead," and Other Indeterminacies: A Response to Sanford Levinson, 60 TEX. L. REV. 405, 412 (1982).

60. This is not to suggest that philosophy is unimportant for legal study. Several noted scholars have reminded us of the many ways that philosophy and legal education beneficially intersect. See, e.g., Martha C. Nussbaum, The Use and Abuse of Philosophy in Legal Education, 45 STAN. L. REV. 1627 (1993). The more precise point here is that "philosophy" as used by deconstructionists has been misused. Even worse, this misuse has given normative legal principles a bogus badge of illegitimacy. Professor Nussbaum argues this point persuasively: "[The large influence of recent continental literary theory on the philosophical part of the legal academy has been a disaster for the law, and for philosophy's role in the law." Id. at 1641. In a separate article, Nussbaum explains how the philosophical imperatives that deconstructionists wield are a crafty, but flawed, distraction from useful legal interpretation.]
    [The skeptic does not bring forward arguments that really are equally forceful on the contradictory sides of all questions. The movement from assertion and counter-assertion to alleged "equal force" is rigged, in the texts, by ignoring arguments with good, strong human credentials that really do help people choose one view as "against another."]
Martha C. Nussbaum, Commentary, Skepticism About Practical Reason in Literature and the Law, 107 HARV. L. REV. 714, 733 (1994).
  See Moran, supra note 42, at 192-95 for a fuller discussion of the indeterminacy argument in legal scholarship and how this argument mischaracterizes the nature of analyzing legal texts.

61. "Offended by the hierarchical structures of domination that characterize modern society," one scholar explains, "CLS people work toward a world that is more just and egalitarian .... For CLS, the Rule of Law is a mask that lends toexisting social structures the appearance of legitimacy and inevitability." ALLAN C. HUTCHINSON, CRITICAL LEGAL STUDIES 3 (Allan C. Hutchinson ed., 1989).


63. POSNER, supra note 8, at 308.

64. See ROBIN WEST, NARRATIVE, AUTHORITY, AND LAW 7, 13, 263  (1993) (footnote omitted).

65. POSNER, supra note 8, at 308.

66. See id. at 310-11.

67. See id. at 311. Posner agrees that literature is one path for enlarging awareness of injustice and of moral issues generally, but that scholars such as Nussbaum wrongly suppose that a better understanding of people makes a better person (demagogues can have a good understanding of people). See id. at 316.

68. Id. at 340.

69. Id. at 315.

70. BLOOM, supra note 33, at 32.

71. Michael Patazkos, Ad Humanitatem Pertinent: A Personal Reflection on the History and Purpose of the Law and Literature Movement, 7 CARDOZO J.L. & LIT. 31 (1995).

72. See id.

73. See id.