Article Title

Law, Therapy, Culture


Peter Brooks


Is a cultural study of the law possible? Of course it is: Law is part of culture, and its discourse and social rituals can be studied in the manner of any other social practice. Cultural studies need to include the law, since law is a prime site in the creation of social enactments and rituals. As Guyora Binder and Robert Weisberg recently have claimed, "law is both the means by which we continuously refashion society and one of the media in which we represent and critique what we have fashioned." But questions remain: What will be the status of this cultural study of the law? Will there be any reciprocal relation of cultural study to legal study? If Paul Kahn worries that cultural critique of the law tends to be recuperated to a reformist project within the law, I think there is equal cause to fear that study of the law as cultural discourse and project will stand outside the law - and outside legal education and training - as something, no doubt full of interest for itself, that nonetheless impinges very little on the law. Thus far, there is little indication that the movement generally known as "law and literature" has made any difference to the practice of the law. While it may provide law students with some interesting truffles in their education, it remains marginal, an exotic specialty of the academy rather than anything the litigator or the opinion-writer has to think about.

There are good reasons for this. The law is resolutely hermetic, by which I do not mean simply that its procedures and its language are arcane and effectively policed against intrusions from the vulgar and the language of daily life - though they are that. I mean that it is premised on the understanding that it can get on with its task only by a gesture of exclusion, which is at once a gesture of formalization: As Ferdinand de Saussure constituted modern linguistics by excluding anything other than the internal relations of the system, language, so the law as system excludes - must exclude - that which does not meet its internal criteria of the legal. Furthermore, the gesture of exclusion is matched by one of domestication: What it takes from other discourses it tames and subdues, so that concepts, motives, words from the world outside become legal terms of art, obediently defined by their internal reference within the legal arena.