Mikhail Bakhtin and the Field of Law and Literature

I. Time, reality, and the dialogic imagination

Bakhtin sharply distinguished the novel from other and earlier literary forms, such as the epic or indeed poetry. Although the argument is no doubt overstated and shows in particular a rather narrow appreciation of poetry, it nonetheless clarifies what Bakhtin saw as the unique genius of the novel. In terms of their temporal orientation, the genres are strongly contrasted. The epic is never set in a continuous present, but in a distanced and mythic past in which event and meaning have already and forever been determined. Troy has always already fallen. But from the constitutive examples of Rabelais and Cervantes on, the novel engages a real world of uncertainty, becoming, and flux. Whether set in the past, present or future of its author or reader, the novel seems still to be unfolding as we read it, in a context in which its significance and evaluation have not yet been settled. The novel appears in a zone ‘‘of proximity and contact,’’ ¹¹ fragmented and incomplete. Indeed, at the very birth of the novel, Don Quixote depicts precisely the collision between epic forms and social reality and shows with comic force the incurable impoverishment of the former. ¹² This engagement with the world becomes even more recursively layered in Part II, wherein the fictional Don Quixote keeps meeting, for example, other fictional characters who have read about him after the (non-fictional) publication of Part I. The world of the text and the text of the world thus intersect and confront one another. This is what Bakhtin means by emphasizing, by way of contrast, the epic’s utter isolation from ‘‘personal experience, from any new insights, from any personal initiative in understanding and interpreting, from new points of view.’’ ¹³

As Bakhtin sees it, the novel grew out of the humor and tragedy implicit in the contrast between authorized myth and reality. That is of course the whole significance of Don Quixote. In Rabelais too, a refusal to be seduced by the narratives of the powerful is crucial to the novel’s style and method. He relentlessly purges the genres which surrounded him of any trace of transcendence, both through his absorption in the world of the common people and his empiricism. To the mythic legitimization of romance, Rabelais, the ‘‘doktor of physick,’’ juxtaposes sex and farting. To the mythic legitimization of religion, Rabelais juxtaposes gluttonous friars. To the mythic legitimization of war, Rabelais juxtaposes detailed descriptions of death, pain, and mutilation. At each point, be the subject sexual, culinary, or military, Rabelais’ scatological humor and forensic irony systematically replace false idealizations with real connections between bodies and substitutes genuine description for the fake and fanciful legitimations of feudalism. ¹⁴ Many a chivalrous epic might include the lines ‘‘And I deliver thee, said the monk, to all the devils in hell; then at one stroke he cut off his head.’’ Only Rabelais would think to offer us further particulars.

[c]utting his cranium above the petrous bone, removing both the bones of the sinciput as well as the sagittal suture, together with the greater part of the coronal bone; by doing so he sliced through both meninges and opened up deeply the two posterior ventricle-cavities of the brain: and so his cranium remained hanging down over his shoulders at the back from the membranes of the pericranium in the form of a doctoral bonnet, black above, red within. ¹⁵

This is indeed, as Max Weber put it, the disenchantment of the world, a task to which the novel has consistently applied itself with pitiless zeal.

The distinction between epic and novel is similarly marked in its approach to language. Bakhtin’s work, building on his encyclopedic knowledge of the European novel from Rabelais onwards, highlights the historical emergence within the tradition of the novel of what he termed at various times ‘‘polyphony,’’ ‘‘polyglossia,’’ or ‘‘doubleness.’’ For Bakhtin, it is not just that the novel should not be made to stand for a particular proposition. It cannot. The ideal-type of the epic, and even the ideal-type of the poem, speaks in a coherent and ‘‘normatively shared’’ language, a voice of authority and instruction. The characters within it do not have voices of their own but are mediums through which established authority is ventriloquized. On the contrary, the novel gives distinctive voices to each of its participants and sets these voices against one another. The novel is inherently fragmentary and double-voiced. ¹⁶

This is what is meant by ‘‘the dialogic imagination.’’ As Bakhtin shows, the novel’s capacity for polyglossia is to be found not just because it realizes the distinct voices of different characters, nor even the novel’s dialogue between them. The play of multiple discursive (and social and philosophical) levels is intrinsic to the genre in a unique way. In addition to the distinctive voice of a character in, say, a novel by Dickens or Dostoevsky, there is the voice of the narrator behind all such voices, and behind the narrator the voice of the author, and innumerable ways of speaking behind and interlaced with each of these: the voices and languages of the society of the time, the discourses of memory, of social context, of conventional wisdom, of proper and improper speech, and even the voice of the literary tradition itself.

One might say, in legal terms, that the novel is always hearsay: the discourse of the author reporting on the discourse of the narrator reporting on the discourse of various characters reporting on the discourse of one another. In each and every sentence of the novel we hear not one but multiple voices playing off of each other, being appropriated, quoted, and reflected back by the character, the narrator, the author, and so forth. Thus the novel is always and inevitably ‘‘double-voiced:’’ at every single moment different registers within it cite and play and battle one another, sometimes intentionally and sometimes not, all of which take place ‘‘in concealed form, that is, without any of the formal markers usually accompanying such speech, whether direct or indirect.’’ ¹⁷

Bakhtin thus draws our attention to a singularly thick form of dialogism. He emphasizes not only how the voices of characters or participants in a novel (or a world) differ one from another, but how they evince an internal instability, transformed and acted upon by the contexts in which speech takes place and the audience and perspective to which speech is always already addressed. ‘‘The dialogic imagination’’ presents not just a mosaic of voices, multiple but authentically distinct. Without denying this distinctiveness, Bakhtin insists at the same time upon their transformation under the communicative pressure of their contexts of utterance. For Bakhtin, the hybridity of utterances and registers is a feature of communication itself. Because what we say is always directed towards another, language always attempts to accommodate, appropriate, or transform ‘‘the alien conceptual system of the understanding receiver.’’ So in speech – the parallels with Levinas are striking – ‘‘one always anticipates an answer, one always speaks in another’s language.’’ ¹⁸ The novel accentuates the layered and multiplied ‘‘heteroglossia’’ of dialogue and turns this hybridity into the grounds of its own style and structure. This is so even in work as enigmatic as that of Kafka (indeed, Bakhtin’s sense of language as an infinite vortex of nested citations lies at the heart of Derrida’s reading of ‘‘Before the Law’’ ¹⁹ ) let alone in Virginia Woolf or James Joyce where the problem of multiple voices and perspectives becomes central.

Yet it seems to me that plenty of work in our field falls foul of just this critique. In Martha Nussbaum’s Poetic Justice, for example, the realist novel is treated as an unproblematic vehicle for information about people’s lives, and for the truth of their particular perspective. Nussbaum is quite explicit about this, describing the novel as a means of eliciting ‘‘value laden human facts.’’ ‘‘Story-telling’’ encourages us to make judgments, she argues, ‘‘about the industrial revolution, about utilitarianism, about divorce law, about the education of children.’’ ²⁰ A more substantive and evidential approach to literature could hardly be imagined. Although Nussbaum writes of this as ‘‘literary judging’’ every element of the literary, and of the instability of perspective inherent to it, seems absent. The claim here and elsewhere that ‘‘novels are windows onto the world of criminal justice’’ ²¹ seems to say both too much and too little. Too much in that the mimetic authority of the novel to describe truthfully the world is assumed. And too little in that the focus on plots and outcomes misses, at the level of form and language, the very tension between social power and autonomous character which Bakhtin sees as the decisive feature of the history of the novel.

II. The Ethics of Heteroglossia

Indeed our common assumptions about what literature brings to law are I think more deeply flawed. The essence and value of the novel lies not in its complete identification with the inner lives of others but in the incompleteness of that identification. Bakhtin distinguishes between the author, whose voice we hear, and the ‘‘hero,’’ of whom the voice speaks. The ‘‘hero’’ is given meaning by being observed from beyond the horizon of his own consciousness, as it were. This distance, this inter-subjectivity, far from being an ethical flaw, is an ethical imperative.

One must come to understand that it is the other, as an other capable of being justifiably consummated, who constitutes the hero of all the positively valuable determinations of the world as a given. … It is about the other that all the stories have been composed, all the books have been written, all the tears have been shed; it is to him that all the monuments have been erected; it is only with others that all the cemeteries are filled; it is only others who are known, remembered, and recreated by productive memory. ²²

In the sense that we are all authors it is our responsibility to help give meaning and form to the lives of others. This exercise is by no means accomplished by the mere fusing of our consciousness or perspective with theirs. For Bakhtin the soul is not merely revealed by the novel (or the narrative function which we continually exhibit in relation to others in our daily lives) but created by it. ‘‘What the other rightfully negates in himself, I rightfully affirm and preserve in him, and in so doing, I give birth to his soul.’’ ²³ So narrative is ethical not because we see what the hero sees but because we see what the hero, within the spatial and temporal limits of his own consciousness, cannot.

Having merged with Oedipus, having lost my own place outside him, I cease to enrich the event of his life by providing a new, creative standpoint, a standpoint inaccessible to Oedipus himself. … Within the bounds of a consistently prosecuted ‘‘expressive’’ theory, co-experiencing with or empathizing into a life is simply another experience or a repetition of that life without its having been enriched by any values transgradient to it. ²⁴

From Bakhtin’s perspective, the somewhat orthodox expressive theory of the novel as a kind of transparent window onto the interior lives of others, together with the ‘‘value-laden human facts’’ ²⁵ about the world it gives us, sells its ethical responsibility scandalously short. The novel does not provide us with information but rather ‘‘something like an excitation, a phenomenon of commitment, judgment.’’ ²⁶ Its importance lies in its capacity to produce and extend a desire to act, not by the facts it imparts but by the energy, vitality, and interpretative openness it conveys.

Of course much recent work in law and literature does indeed attempt to move beyond the ‘‘expressive’’ or ‘‘informational’’ theory of literature of which Bakhtin is so critical. Wai Chee Dimock’s Residues of Justice, for example, builds a persuasive argument for literature not as the completion of justice but rather as its incompletion. For Dimock, literature not only critiques justice, but points towards our fundamental inability to realize it. As opposed to a tendency in the field to treat literature as the repository of justice and therefore as the salvation of law, Dimock suggests that what it really points to is the hubris of that faith. Literature itself confesses and demonstrates this inadequacy not only in its subject-matter but through its excesses of signification and its interpretive openness. Dimock draws our attention to how often the novel multiplies and antagonizes perspectives, interrogates and casts doubt on its own judgments. ²⁷ While the dream of justice, and of Kant, is to ‘‘knit together’’ guilt and pain,

what the novel achieves, fitfully but also quite faithfully, is the obverse of that phenomenon: a sundering of that fated couple, guilt and pain. … Unreflexive of guilt, unpunitive of guilt, and most troubling of all, unexhausted by guilt, pain will henceforth occupy a special place in the novel. ²⁸

On such a view, while literature may well interrogate law and justice, it is nonetheless ruthlessly unassimilable to it. ²⁹ This seems much closer to the twentieth-century’s experience of literature – a literature of fragmentation and indeterminacy, of voice and singularity, in which a kind of justice is achieved not by unification or redemption but by the sundering of a specious unity. ‘‘It is precisely the diversity of speech, and not the unity of a normative shared language, that is the ground of style’’ in literature. ³⁰ This is why Bakhtin was so interested in what he famously called the ‘‘carnivalesque,’’ ³¹ in which is to be found a multiverse, a legal pluralism irreducible to any single scheme of justice.

What is notable about Bakhtin, then, is the way in which dialogism undermines a simple theory of narrative or story-telling and then transforms the complexity and ambiguity which he finds in the novelistic tradition into the basis of a comprehensive social and ethical theory. The novel for Bakhtin becomes a performance of ethical responsibility for others. ³² Bakhtin was by no means the first or only person to see the history of the novel as the history of the emergence of a particular form of self-consciousness in the West. But unlike Hegel and Lukacs, for example, in Bakhtin the emergence of self in the novel points not to its stability and singularity but to its instability and multiplicity. The novel does not ‘‘mark the self’s discovery of itself but … manifests the self’s discovery of the other.’’ ³³

The power of language as a site of both instability and responsibility, as opposed to a site of social construction and determinism, sets Bakhtin apart not only from many other theorists of the novel but many other twentieth-century theorists of language too. Bakhtin in this respect seems strikingly close to another Eastern European philosopher of language and ethics active at about the same time. I mean, of course Emmanuel Levinas. Levinas’ themes are compellingly similar and emphasize in like ways how the unknowability of others and the polymorphousness of language is not the death of ethics but the ground of its possibility. It casts upon us a responsibility for which we are unequipped but cannot avoid. ³⁴ Some have seen in the emotive, moral, and spiritual dimensions Bakhtin grants to discourse important traces of the mystical and corporeal elements to be found in his Russian Orthodox faith. The notion that discourse could be the agent of a communion with others without ever merging with them can likewise be seen to draw on important theological influences from that tradition. ³⁵ One might equally connect Levinas’ similar ideas of our relationship with others through language, to his own mystical Judaism, and see in the Levinasian project a like-minded effort to translate theology into the secular realm. ³⁶ No doubt such arguments do much to explain the origin and distinct character of these lines of inquiry. But so too do they point to a bigger story. The story of modernism was marked exactly by these efforts to find a new accommodation between apparently opposed tendencies. Bakhtin and Levinas are two thinkers who in the early years of the twentieth century sought to supplement the rationalist tradition of Western philosophy without abandoning it entirely. Bakhtin’s Russian Orthodoxy was the lens through which he found in discourse, in language, something more than an objective meaning-content, and informed the vocabulary in which he expressed the possibility of relatedness, the possibility of change. Levinas’ Talmud was the lens through which he found and the vocabulary in which he expressed something very similar. Bakhtin is Russiangreek or Greekrussian just as Levinas is ‘Jewgreek’ or ‘Greekjew’ and in each, the effort at translation across philosophic-religious borders discovers ‘‘the dialogical mode that is never complete and preserves dissent.’’ ³⁷ But they were not alone; in the first part of the twentieth century the dissatisfaction with the tools of modernity was intense and many other writers were making similar arguments, each drawing in their own way on the spiritual, emotional and aesthetic heritage in whose shadow they had grown to intellectual maturity. D.H. Lawrence and the Dissenting tradition was another.

III. Generality and singularity

D.H. Lawrence, writing like Bakhtin in the aftermath of the First World War, saw in the form and experience of the novel a powerful counterpoise to modernity, to politics, and to their shared tendency to instrumentalize. Lawrence paid considerable attention to this question, both in non-fiction essays with titles like ‘‘The Morality of the Novel’’ and ‘‘Surgery for the Novel – or a Bomb’ and in novels like Kangaroo, written in 1922 in the midst of his most intense reflections on the nature and value of literature. He insisted on the novel as an exploration of human relations and experiences irreducible to principles, rules, or generalizations.

It seems to me it was the greatest pity in the world when philosophy and fiction got split. They used to be one, right from the days of myth. Then they went and parted … So the novel went sloppy, and philosophy went abstract-dry. The two should come together again – in the novel. You’ve got to find a new impulse for new things in mankind, and it’s really fatal to find it through abstraction. No, no; philosophy and religion, they’ve both gone too far on the algebraical tack. ³⁸

For Lawrence then, the novel attends to the relativity of human relations and acts as a necessary counterpoise to the ‘‘algebraical tack’’ in politics or of course in law. ‘‘The novel is the highest example of subtle inter-relatedness that man has discovered. Everything is true in its own time, place, circumstance, and untrue outside of its own place, time, circumstance.’’ ³⁹ Lawrence is not alone in this view: read Sartre ⁴⁰ or Kundera ⁴¹ or any of the other twentieth-century literary critics and you will find the same understanding born of the same aesthetic experience: that the amorality of the novel, its refusal to finally judge but only to encompass the uniqueness of human relations, is its morality. ⁴² In Bakhtin, of course, this plurality was elevated to a fundamental aesthetic principle, but also to a fundamental ethical principle. ⁴³ For Bakhtin, as for Lawrence, the fragmentation and inadequacy of the hero in the novel marks a break from the epic form’s depiction of both hero and world as parthogenetically whole. ‘‘There always remains in [the hero of the novel] unrealized potential and unrealized demands … an unrealized surplus of humanness. … The epic wholeness of an individual disintegrates in a novel.’’ ⁴⁴ The voice of a character, ‘‘a day, of an epoch, a social group, a genre, a school, and so forth … [is] exposed as a contradiction-ridden, tension-filled unity of two embattled tendencies in the life of language.’’ ⁴⁵

Kangaroo is continually marked by internal dialogues amongst these tendencies. Indeed one of the most destabilizing features of the novel is the way in which the discourses of different characters continually inform and overlap with that of the narrator. At one point Lawrence presents an extended metaphor on marriages and boats. But the shifting perspective of the writing is apt to leave one a trifle sea-sick. The progress of the marine marital analogy is particularly striking. It is first presented provisionally by the narrator in direct first-person discourse, by degrees adopted by Somers as though overhearing it, and then dramatized in the debate with Harriett, who ridicules it. This then destabilizes the narrator’s own voice. He first adopts Harriett’s critique then resists it, like an advocate, only to return at the end of the chapter to Harriett’s tone, mocking Somers’ fantasy and acknowledging his inadequacy. ⁴⁶ This is exactly what Bakhtin means when he draws our attention to the novel as double-voiced and polyphonic, not on its surface but all the way down. After a page of such internal argument, the narrator remarks, somewhat defensively, ‘‘I hope, dear reader, you like plenty of conversation in a novel: it makes it so much lighter and brisker.’’ ⁴⁷ The point is once again a subtle Bakhtinian one. There is no private language – we are always hearing voices in our head, whether those voices have come from other people, like Harriett, or other parts of ourselves. These warring conversations change us. As Lawrence writes, ‘‘Harriett had struck home once or twice, and she knew it … But he stuck to his essential position, though he was not so sure of the circumstantial standing.’’ ⁴⁸ Kangaroo’s fragmented form and voice marks the fragmentation of the world and of the self. ⁴⁹ It marks the triumph of doubt and transformation not just as an idea but as a literary method and experience.

Again what makes this breakup of reality and of identity so ethical in Bakhtin is the way the novel thus continues to force its characters to grow and change in an unfinished opening to the world. Lawrence insists on the relativity, the context-dependence of the novel. Bakhtin sees this as an intrinsic and necessary feature not only of the novel, but of language itself. In all discourses, meaning inheres neither in individual utterance nor in systemic structure, but only in the dynamic and endless translation that occurs between specific speakers and specific contexts. ⁵⁰ For Bakhtin, all language is essentially dialogic and, in addition to its intrinsic heteronomy, it is always positioned in relation to another discourse, another style, with the aid of whose voice it seeks to persuade and move.

Every word is directed towards an answer and cannot escape the profound influence of the answering word that it anticipates. The word in living conversation is directly, blatantly, oriented toward a future answer-word: it provokes an answer … oriented towards the listeners and his answer. ⁵¹

‘‘Answerability’’ is both an argument for the special place of the novel in aesthetic activity and equally as a paradigm of ethical activity. ⁵² The two fields converge through the constitutive role of discourse in both. ⁵³

For Bakhtin, pairs of relationships – self/other, author/hero, inside/outside, narrator/character – exist against each other as a dynamic activity not as a static contrast. Just so, the flying buttress exists in active tension with the cathedral. ⁵⁴

The force of literature can be understood not as a series of propositions that ‘‘talk about’’ justice, but as engendering a feeling for certain practices ‘‘of’’ justice. Such an approach does not rely on some mental archive of canonical subjects. It addresses, rather, how the narrative method in and of itself transforms our interpretative approach and leads to the rejection of rule-fetishism. A novel like Kangaroo does not tell us what he thought about politics and justice: it shows us what he learnt about them and records how he changed in the very act of writing about them. It thus provides evidence for the meaning and force of literature by recording the transformations it wrought on the thinking and beliefs of the author himself. ‘‘This pseudo-philosophy of mine is deduced from the novels and poems, not the reverse. The novels and poems come unwatched out of one’s pen.’’ ⁵⁵

This causal relationship is very important for our understanding of how the narrative form modifies our attitude to rules. In keeping with his determination to rescue the tale from the clutches of the moral, Lawrence thinks of literature not as a didactic lesson intended to display a priori principles, but as an experience that forces us by its very particularity to challenge those principles. That it comes ‘‘unwatched’’ is precisely the beauty of literature, both for the writer, and for the reader – it comes at one all unwary, from a side that is not subject to conscious editorial censorship. Through its subversive performativity, the novel shatters abstract judgment in favor of a richer understanding born of the diversity and singularity of all experience and of the multiple discourses that contribute to it. Literature thus gives to law more than simply a laboratory in which to test the truth and impact of abstract ideas. Neither can it be reduced to the facts or information about the world it imparts to us. It manifests, through narrative, the singularity of beings and circumstances, and it is these constantly challenging differences which undermine the very possibility of interpretative closure. To pay attention to narrative in law is to acknowledge that the rule, by itself, cannot and will not tell you how it is to be applied in a distinct time and a distinct circumstance. This uniqueness might not, but nonetheless may at any moment, prove to be entirely unsettling to all our previous interpretations of the rule.

IV. Authority and Irony

Bakhtin thus argues that the structural instability generated by the novel’s ‘‘heteroglossia’’ and its inherent structural incompleteness function as a comprehensive critique of authority as such. The whole trajectory of its historical development leans towards problematizing not only traditional sources of authority but the novelist’s own authority and own limits of understanding. ⁵⁶ According to Bakhtin, the novel’s mixity of high and low, of narratives of myth and life, of common and stylized language, casts a new and shifting light upon all claims to a transcendent and objective authority, whether legal, political, or spiritual. ⁵⁷ Now this point lies at the heart of Bakhtin’s approach to the history of the novel: it is another way of putting the moral claim for ‘‘the amorality of the novel’’ and for its presentation of identity as increasingly fluid, indeterminate, and multiple.

This approach has by no means gone unchallenged. One thing that has struck me is that the writers that have paid most attention to Bakhtin in the field of law and literature have been those who disagree with him. It is interesting that the defenders of Bakhtin’s claim to have found in the novel a relentless anti-authoritarianism have been satisfied with assertions, ⁵⁸ while those who have opposed the argument have paid him considerably closer attention. The central element of this criticism is that there is something utopian about Bakhtin’s theories. ⁵⁹ The claim that the novel embodies openness and dialogic transformation, inherently antagonistic to the ‘‘monological’’ voices of authority and morality – no less than the claim that its imaginative empathy is inherently supportive of marginalized or under-privileged groups ⁶⁰ – has come under considerable pressure. To the contrary, D.A. Miller insists that the nineteenth-century novel is, in Bakhtin’s sense, ‘‘monological.’’ Its many different voices are finally dissolved within an overarching structure of objectivity which judges its characters with pitiless certainty. The master voice of the omnipotent narrator ‘‘whose accents have already unified the world in a single interpretive centre,’’ always endorses, qualifies, controls the actions of its characters and subjects them all to the demands of a linear narrative and a didactic morality. ⁶¹ Even the famous poly-vocality of Wilkie Collins’ The Moonstone proves illusory, for ‘‘the possibility of an authentic ‘dialogism’ in the text disappears once we realize that in every crucial case, all readers … pass the same judgment.’’ ⁶² For Miller, the essential features of the nineteenth-century novel are its fundamental acceptance of institutions, its moralism, and its claim to a total knowledge not only of its world but even of the inner life of its characters. Taken together, the novel couples the panoptic gaze of the omniscient narrator with the pseudo-objectivity that it deploys over its world, in a Foucauldian sense disciplining its readers. The novel ‘‘is the policing power that never passes for such.’’ ⁶³

In Imagining the Penitentiary John Bender, too, emphasizes the panoptic power of the narrative conventions of the novel and insists on the unchallenged regulative authority of the ‘‘novelistic conventions of transparency, completeness, and representational reliability.’’ ⁶⁴ Bender, in stark contrast to Bakhtin, sees the history of the novel as ‘‘a struggle for control of narrative resources.’’ ⁶⁵ A writer like Henry Fielding takes the licentious heteroglossia of writers and artists of an earlier generation, like William Hogarth and John Gay, and subjects their ‘‘multiple, heterodox babble of dialects’’ to an ever stricter governance. ⁶⁶ “Over and over again in [Fielding’s] novels, as in his activities in Bow Street, the issue is who will have final control over narrative construction; the difference is that fiction can realize the fantasy of omniscient authority.” ⁶⁷ Finally, Bender makes his disagreement with Bakhtin explicit:

Bakhtin’s global, pan-historic ‘‘novel’’ does indeed freely register alien voices, but in the realist novel the means of representation do more than record multiple voices: the convention of transparency treats the one presence within which all other presences are staged as if its embrace were invisible. Transparency absorbs the heterodox within tacit authoritative resources. … [Bakhtin] largely neglects the containment of heterodoxy effected within the realist mode, where narration itself invisibly controls, contains, and comes authoritative. ⁶⁸

These are of course powerful points and one cannot read a great deal of nineteenth-century literature without being conscious of their ideological drift. At the same time it seems to me that the inter-textual aspects of Bakhtin’s analysis is not really addressed by these arguments. Both Bender and Miller treat the novel as the obedient servant of its author’s ideology. But this argument ignores exactly Bakhtin’s point as to the ways in which the different voices in a novel interact in a complex layering whose reception and implications are not ultimately subject to authorial control. For Bakhtin, the narrative voice is not the final arbiter but merely one kind of discourse which itself appropriates, transforms, and embeds others. These discourses are not simply the agents of the narrator’s omniscience: they interrogate and transform it, participate in it and undermine it.

Thus far the argument is conceptual, and hinges on a claim as to the forces of instability that exist in the unavoidable ‘‘doubleness’’ or hearsay of any novel, even those most ‘‘monologic.’’ Bender assumes a kind of authorial mastery which Bakhtin rejects, for reasons deeply drawn from his theory of discourse. Thus Bender quotes with approval Daniel Defoe’s introduction to the third volume of Robinson Crusoe: “the fable is always made for the moral, not the moral for the fable.” But two hundred years later, D.H. Lawrence made exactly the opposite point.

The artist usually set out – or used to – to point a moral and adorn a tale. The tale, however the other way, as a rule. Two blankly opposing morals, the artist’s and the tale’s. Never trust the artist. Trust the tale. ⁶⁹

Lawrence, like Bakhtin, argued that the structural polyphony of the novel works against its moralistic force, undercuts it, challenges it, and disturbs it. And he was saying that this force operates not just by virtue of the author’s power but sometimes in the very teeth of it. The example of Tolstoy is a good one, on which both Lawrence and Bakhtin draw. For Tolstoy was a great monologist and a great moralizer, a writer perfectly positioned to illustrate the claims of Bender and Miller. In Anna Karenina he set out to write a parable of the just suffering of a fallen woman. But Anna defeated him. The truth with which his skill as a novelist compelled him to portray her made her a more vibrant and a more sympathetic figure than his Christian morality had wished. And this dialogism, not just between the characters but even between the character and the author, is not something subject to the author’s control, as any writer will tell you. As Bakhtin saw and insisted, in a novel the characters talk back.

In historical terms, Bakhtin’s point was to see in the novel this dialogic force consistently and increasingly making its presence felt and destabilizing authority from within, as it were. Whatever one might think about the disciplinary power of the nineteenth-century novel – and yes, a writer like George Eliot does seem to be a kind of moral policeman for her readers – it is surely the case that by the early years of the twentieth century, in the work of Woolf or Joyce or Lawrence, the subjectivity of perspective and the unreliability of narration become increasingly central concerns. In modernism, the centrifugal logic of the dialogic achieved escape velocity, from which no voice, and especially not that of the author, remained immune.

Bender’s confidence in the author’s power to entirely contain the heterodoxy he lets loose can be seen in his treatment of free indirect discourse. For Bender, the author’s ability to render immediately accessible the interior speech of another is the ultimate tool of social control. ⁷⁰ But from the point of view of the reader, which is Bakhtin’s concern, these interior voices do not entrench the author’s governance of his world but ultimately and subtly challenge it. The experience of another’s speech, says Bakhtin, confronts us with a new object of knowledge, true, but it also confronts us with the shock of otherness irreducible to such knowledge. Again that shock was already pressing upon the novel in the nineteenth century and came more fully to define it in the twentieth century. Bender says that the authorial governance of consciousness was invisible, transparent, and omnipotent; but Bakhtin says that dialogism slowly but surely imploded even these features.

This question has led to a misreading of some of Lawrence’s later novels. While Women in Love is often held up as exemplary in its use of doubled and dialogic speech, the so-called leadership novels of the 1920s are routinely dismissed because of the supposed dominance of the authorial voice within them and the tendentious structure of their plots. ⁷¹ But this is to adopt a strangely old-fashioned reading of Lawrence’s own authority in his texts. In the nineteenth-century world described by Bender or Miller, the magisterial author does to some extent act as the governor who regulates this polyphonic interaction by imposing a final moral judgment on the opinions and views of his characters. ⁷² In the post-war world of Virginia Woolf, standpoint epistemology is not a claim to authority but highlights instead its partiality. True, the narrator of Kangaroo is highly visible and sometimes didactic throughout the novel. But within a distinctly modernist framework, authority be it narrative, institutional, or of any other provenance, is no longer to be trusted. Indeed Bakhtin’s point is that this represents the working out of the very history of the novel itself. He emphasizes the importance of ‘‘a plurality of independent and unmerged voices and consciousness’’ in dialogue but likewise recognizes the way in which these internal dialogues have steadily undermined the power of any pontifical (uninterpretable, monologic, hieratic – positivist, even) authority treated by the text. So the very prominence of Lawrence’s voice in Kangaroo as in his other novels actually problematizes his absolute authority over the text and situates him instead as merely one amongst many of its fractious characters. In Kangaroo, Lawrence’s narrator, who speaks through the eyes of Somers, descends into the world of his characters and is frequently bloodied and bested by them. It is his vulnerability, sometimes even his foolishness, that is most in evidence and that allows him to be shaken and changed by the multiple voices and contradictory experiences around him. Lawrence’s ability to ironically modulate his own voice, citing his own opinions in contexts that subtly destabilize them, is an achievement of Bakhtinian dialogism which has been insufficiently appreciated.

Irony, which is by definition a kind of discursive meaning that is never entirely reducible to authorial intention, therefore holds a special place in the novel. What is irony but the play of levels and registers within a text, and the tensions between levels of meaning which thereby undermine the most innocent, the most transparent, of speech acts? Irony is the juxtaposition of intentional meaning against a context and causality that remains external to the speaking voice and thereby destabilizes it. Irony cannot be reduced to the content of a novel or the meaning of the words of a text since it is always situated outside that framework and transcends those words. Irony is the ruin of totality – not least the totalitarian ambitions of the author. For Bakhtin the necessary consequence of the novel’s doubleness and polyphony is to continually ‘‘bring … different languages in contact with one another.’’ ⁷³ Irony resists any final closure.

Again, this argument has not been without its detractors. Carl Schmitt, for one, condemns irony because it distances the ironist from any commitment or action. Indeed, the point had already been made by Hegel who condemned irony as hypocritical and inauthentic – indeed as the death of art. ⁷⁴ The ironist stays aloof from the beliefs and passions that propel others to engage with the world. He is a romantic, says Schmitt: he replaces politics with aesthetics and decisive action with an endless deferral. ⁷⁵ There is something to this. Yet the distancing effect of irony is less than half the story. As Schmitt himself points out, romantic irony is directed towards the world and never towards the self. ⁷⁶ A self-critical irony, on the other hand, preserves the possibility, through the slightest juxtaposition and allusion, of new and unforeseen meanings by which to revisit the past, to re-open a memory, to cast doubt upon a judgment. Irony disrupts causality, certainty, and law. It opens interpretation to an authority beyond the characters and beyond the author, transversal to time, subversive to power. ⁷⁷ Shoshana Felman says it best:

Since irony precisely consists in dragging authority as such into a scene which it cannot master, of which it is not aware and which, for that reason, is the scene of its own self-destruction, literature by virtue of its ironic force, fundamentally deconstructs the fantasy of authority in the same way and for the same reasons that psychoanalysis deconstructs the authority of the fantasy. ⁷⁸

The power of polyphonic juxtaposition and the indeterminacy of irony demonstrate the extent to which all authority, including the literary text’s own authority, is both vulnerable to rhetorical re-accentuation and engineered by just such effects. Paradoxically, Derrida remarks that irony is the ‘‘invincible resource’’ of sovereignty. ⁷⁹ This points us perhaps to the way in which the sovereign’s assertion of total freedom is necessarily juxtaposed to the unstable and provisional nature of all such claims. There is, then, always something ironic about authority’s claims. But at the same time there is nonetheless something anti-authoritarian in both employing and exposing at last that irony. If the sovereign proceeds by way of irony, he also proceeds by concealing it. That is why the strategy of anti-totalitarianism equally exploits this invincible resource. ⁸⁰

The question of irony might also allow us to respond to another criticism of the social implications of Bakhtin’s theories. Harriet Murav, in Russia’s Legal Fictions, acknowledges what might be called the dangers lurking in Bakhtin’s presentation of the carnivalesque, particularly in his work on Rabelais. Bakhtin focuses on the figures of the rogue, the clown, and the fool – the rogue who deceives and parodies highfalutin languages; the clown who distorts and overturns them; the fool who naively fails to comprehend them. These three subversive registers relentlessly infect the monological discourse of power. ⁸¹ But the carnival as a celebration of the grotesque body, and of the merging of self into a sublime body politic, had other and darker implications. It suggested a theoretical framework for the transcendence of individual identity through bodily suffering that was at once deeply embedded in the mysticism of Russian theology, and deeply implicated in the brutality of Soviet politics. ⁸² Mikhail Ryklin’s chilling re-reading of Bakhtin’s Rabelais has not lost its power to shock. He finds that the trope of carnival represents “the trauma of a representative of the Russian intelligentsia, who found himself in the ‘unthinkable’ situation of terror, and the ever-growing and increasing dominance of a collective corporeality” and ultimately provides an apology for Stalinist excess. ⁸³ Yet this critique avoids two central features of Bakhtin’s treatment which have been central to the introduction I have attempted here. The first is that Bakhtin is specifically treating the carnival as a literary device and not as a social reality. Bakhtin’s fundamental concern is the carnival in discourse and the way in which this discourse subverts and radicalizes literature. To move from Rabelais’ development of the carnivalesque to the nature of the carnival in social history and from thence to contemporary manifestations of the bodily sublime, on the grounds that one occurred ‘‘almost exactly four centuries’’ after the other, ⁸⁴ is to draw a long bow.

The second feature, even more important perhaps, is the way in which such an analysis of Bakhtin misses precisely the ‘‘doubleness’’ of his own writing. Ryklin condemns Bakhtin’s treatment of Rabelais as condoning the ‘‘collective corporeality’’ of the folk in a way that is ultimately complicit in ‘‘the institutions of terror’’ and ‘‘the ecstatics of terror’’ under Stalinism. ⁸⁵ For Ryklin, Bakhtin was so traumatized by the bodily terror, the power of the rhetoric of collectivity and ‘‘folkness,’’ and the ‘‘all pervasiveness of public speech’’ ⁸⁶ that suffused Soviet society that he ends up not merely echoing it but legitimating it in a truly Faustian bargain, through his sanctification of Rabelais’ merry rejoicing. One might agree with Ryklin that the parallels between Soviet and Rabelaisian rhetoric are no coincidence. But they are neither ‘‘unconscious’’ ⁸⁷ nor complicit. On the contrary, they are ironic. Bakhtin’s juxtaposition of Soviet rhetoric and the language of carnival serves only to highlight exactly what is different about the two: the monologic violence of the one, and the pluralism and anti-authoritarianism of the other. That Bakhtin should draw on the rhetorical palette of the time – or that Stalin should draw on the rhetorical palette of the past – is perhaps not so surprising. But it also illustrates Bakhtin’s own belief in the capacity of language to surreptitiously subvert – by parody, by citation, and by reappropriation – the closed discourses of power. Bakhtin’s central interest lay in the capacity of a voice to transmute a particular kind of authorized speech, to appropriate it in order to express quite different contents, and thus to open up language to new effects. Because what we say is always directed towards another, language always attempts to accommodate, appropriate or transform ‘‘the alien conceptual system of the understanding receiver.’’ So in speech – the parallels with Levinas are again striking – ‘‘one always anticipates an answer, one always speaks in another’s language.’’ ⁸⁸ For Bakhtin, all language is positioned in relation to another and prior discourse, another style, with the aid of whose voice it seeks to persuade and move. ‘‘Every word is directed towards an answer and cannot escape the profound influence of the answering word that it anticipates. The word in living conversation is directly, blatantly, oriented toward a future answer-word: it provokes an answer … oriented towards the listeners and his answer.’’ ⁸⁹

Those who criticize the carnivalesque for its glorification of the abject body and the triumph of an ecstatic community, ignore how Bakhtin employed the image as a vision of liberation from authoritarianism. It is quite false to accuse Bakhtin of ignoring the effect of language ‘‘upon real bodies.’’ ⁹⁰ It was precisely for that reason that he lauded Rabelais: for ruthlessly juxtaposing the sanctified and whitewashed epic violence of the authorized discourses of his time against the real and brutal effects of that violence. The Soviet State’s annihilation of polyphony, its appropriation of Dionysian ecstasy into an instrument of State control, was mythic, epic, and therefore the ultimate travesty of carnival. Above all Bakhtin connects the trope of carnival to the polymorphous nature of language, to which Stalinist Russia was utterly blind. As Siniavskii argues, Soviet culture appeared incapable of either perceiving or tolerating irony or ambiguity in language. It treated metaphors as truths, heroes as authors, and fictions as conspiracies. It took literature literally; it failed to understand Bakhtin. ⁹¹

Bakhtin’s work on Rabelais, which was submitted for a doctorate during those years, was by no means the only of his texts to do exactly what he insisted all discourse must and should do: cite and adapt the familiar words and language games of others for new purposes; ironize the monologic voices of authority; juxtapose different discourses against one another in order to bustle meaning out of the complacent passivity of authority. His long experience of writing and living under Stalinism may well have given him a special sensitivity to the endemic and subtle resource of ambiguity in language. ⁹² Bakhtin highlights language’s ability to operate on multiple levels and to marshal nuances of discursive difference. Not just in theory but in everyday life, these features held the key to reading the politico-legal subtext of Stalinist ‘‘doublespeak,’’ a skill which might perhaps have saved his life. And it held the key, which surely saved his sanity, to Bakhtin’s unusual ability to write in such a way as to superficially mimic and yet to subvert ideological clichés. A sensitivity to doubleness and an adeptness in irony was, throughout Bakhtin’s life, both an interpretative necessity and a strategic opportunity. His theory of discourse might be said to have taken his own experience of the relationship of irony to politics and generalized it to language as a whole.

V. Conclusion

So we need to pay less attention to the content of literature in relation to law and more attention to its generic force and its stylistic experience. This force and this experience brings us closer, moreover, to the nature of literature, and of the novel in particular, than any discussion of its content or its concepts. Bakhtin demands that we attend to the meaning of style and metaphor in the novel, to its deep and inherent discursive plurality, to the inter-subjectivity of all meaning, and to the ironic self-critique of all authority embedded in it. Elevating these themes to a central place in the tradition of the novel and drawing from that tradition an ethical imperative, Bakhtin is not interested in literary works which are self-consciously about justice; rather he is showing us how the whole tradition, whatever its ostensible subject-matter, is a way of performing a mode of justice. The discourse of justice is not to be found in the specific matter of the novel, but in its manner.

Perhaps most importantly of all, and that which has been least exploited in writing on law and literature, is the importance of style and form in our understanding of its emotional force. For one hundred years, the critics that have written most about literature, and about the novel in particular, have been making the same point. ⁹³ For Susan Sontag, the obsession with content in the interpretation of art is ‘‘a hindrance, a nuisance, a subtle or not so subtle philistinism.’’ Indeed, ‘‘interpretation’’ itself – the compulsion which we might for present purposes call a legal fetish, to reduce an aesthetic experience to a factum and then to formulate a generalizable rule based on it – ‘‘is the revenge of the intellect upon the world. To interpret is to impoverish, to deplete the world in order to set up a shadow world of ‘meanings’.’’ ⁹⁴ While we might doubt whether Sontag’s vision of a completely unmediated access to an aesthetic event is ever really possible, her argument moves towards renewed attention to the role of form in art, towards the sensory experience of seeing or reading, and in place of hermeneutics, an ‘‘erotics of art.’’ ⁹⁵ Sontag highlights the importance of form and style in explaining the distinctness and accounting for the power of the work of art. While metaphors for style typically put the style on the outside and the matter on the inside, ‘‘it would be more to the point to reverse the metaphor.’’ Style is the soul of the work. ⁹⁶ This is particularly so in relation to the modern novel. One of modernism’s distinctive features was its rejection of the focus on plot and its pursuit instead of what one might call the eternal recurrence of play and form and the priority of voice over event. This is what links form with ‘‘erotics.’’ The reduction of art to a proposition, while not entirely misplaced, ‘‘has little to do with what actually happens when a person … looks at a work of art appropriately. A work of art encountered as a work of art is an experience.’’ ⁹⁷

If we can begin to see the objects of our literary analysis through these lenses and with a renewed sensitivity to these features and to their histories and their structures, we are given new tools through which to understand central features of the relationship of law and literature, including questions of subjectivity, specificity, interpretation, rules, judgment, and process. Bakhtin writes:

Discourse in the novel is dialogized, permeated with laughter, irony, humor, elements of self-parody and finally – this is the most important thing – the novel inserts into these other genres an indeterminacy, a certain semantic open-endedness, a living contact with unfinished, still-evolving and contemporary reality. ⁹⁸

That these questions might be central to the genre of law as much as to literary genres is at least worthy of consideration. That we have paid plenty of attention to the treatment of capital punishment, divorce law, and education in the novel and not enough to the dynamics of humor, instability, polyphony and voice within it seems to me unarguable.