Nan Goodman and Simon Stern, eds., The Routledge Research Companion to Law and Humanities in Nineteenth-Century America (London: Routledge, 2017), 372 pp.
In recent years, the study of law, culture, and society has benefited from an expansion of the academic dialogue beyond that between law schools and social science departments, towards a state in which the evolving field can more aptly call itself Law and Humanities. The Routledge Research Companion to Law and Humanities in Nineteenth-Century America, edited by Nan Goodman and Simon Stern, takes stock of this state by presenting twenty-one articles on current topics and approaches, and it clearly aims to encourage and direct new inquiries. In this respect, the Research Companion can be said to join previous publications, such as Law and the Humanities: An Introductions (2014), edited by Austin Sarat, Matthew Anderson, and Catherine O. Frank, and New Directions in Law and Literature (2017), edited by Elizabeth Anker and Bernadette Meyler. As a research companion, however, the book places an even stronger emphasis on systematically covering central topics and debates, as well as on diverse methods and approaches.
For Americanists, the Research Companion is valuable because it attests to the multi-dimensional role of law in nineteenth-century American society and culture, alerting us to the importance of understanding the impact of American legal culture on, for example, affect and emotions, but also, in turn, pointing to the ways in which American society and culture have shaped various aspects of law. The Research Companion not only facilitates access to this legal dimension for those not presently familiar with the field of Law and Humanities, but it also offers many fresh perspectives on current debates for those already working in the field. Most importantly, however, the Research Companion is geared towards a transdisciplinary dialogue on law. For that reason, the editors employ a “capacious understanding” of the humanities, arguing that, during the long nineteenth century, “the humanities intersected with the law in establishing a critical apparatus and a vocabulary for bringing people into a broader discussion about the world, the nation, and the democracy” (xiii).
Consequently, the articles in the Research Companion have been written by legal scholars as well as scholars of American literature, history, and religion, and they are arranged thematically into four sections. However, perhaps inevitable to such a project, not all of the ideas, topics, or approaches are fully new or innovative, whether from a legal or a Cultural Studies perspective. This is partly due, of course, to the necessity of including well-established research in such a Companion. Some of the authors summarize previously published, important works but add new insights, such as Simon Cole on identity and finger-printing in Mark Twain’s The Tragedy of Puddn’head Wilson and Robert Ferguson on the Somers case and Herman Melville’s Billy Budd. Nonetheless, the selection of materials is not always opportune. Both Melville’s and Twain’s texts, for example, are canonical texts in the field of Law and Literature and have already yielded numerous analyses in the last four decades; and not all of the chapters can be said to balance analyses of such canonical sources with new material and/or new perspectives. The Research Companion would also be more useful, if the chapters correlated more to one another: certain topics, such as slavery, extra-legal violence, and criminal punishment, are treated more than once, but the chapters do not reference one another, and some of them even fall behind the insights provided by previous chapters. In spite of that, the Research Companion does contain many insightful chapters that provide fresh materials and approaches, and the following overview of its four sections points to some of the most inspiring contributions as well as to how some of them are connected.
The first part, “Human Kinds,” addresses “[l]aw’s power as a maker and unmaker of persons,” thus acknowledging the lasting impact of Colin Dayan’s The Law is a White Dog (2011) in this area of research (3). Specifically, the chapters in this section aim to discuss diverse forms of “legally fashioned personhood” (3) by examining some of the law’s “primary characters” (xv). In general, the articles aim to give an overview of the history and development of their topics. Joyce W. Warren’s chapter on women and the law, for example, provides an introduction to the legal rights and duties of women in the nineteenth century, in particular of the married woman, and to a selection of texts by women about law and legal conflicts, such as suffrage (Margaret Fuller) and child custody (Fanny Fern). Similar chapters in this section include Aaron Ritzenberg’s on corporations, Cheryl Suzack’s on American Indians, and Tal Kastner’s on deviant figures. Taking a more argumentative approach, Jeannine DeLombard’s chapter on nineteenth-century slavery and the categories of human, property, and personhood, as well as Susanna Blumenthal’s chapter on the legal person as forensic fiction emphasize the significance of capacities and faculties in the discourse of legal personhood. Both DeLombard and Blumenthal show how philosophical, religious, and scientific discourses contributed to such categories, and how the “popular legal consciousness” was shaped by as well as resisted legal categorization (20).
To some extent, it is this “popular legal consciousness” that is at the center of the following section, “A New Archive.” This part’s point of departure is the growth of the legal archive in the nineteenth century, in particular through the publication and dissemination of case reports, and it examines popular forms of writing, publishing, and staging the law. Michael Hoeflich’s article on periodicals, for example, explains the development and diversification of specialist legal periodicals but also discusses the presentation of law and legal matters in general circulation periodicals, such as Godey’s Lady’s Book, which regularly published reviews of law books, as well as “legally themed articles and stories” (124). Overall, the articles in this section suggest that, as Jon Blanford puts it in his article on law and disorder in the visual imagination, the law’s diminishing visibility—the fact that it moved behind courthouse walls and became a domain of specialists—meant that the law’s spectacle became accessible to Americans in “different venues” (132). Blanford’s analysis of “the spectacle of the law” through analyses of popular crime fiction, courthouse architecture, and the mass mediation of lynchings thus discusses the visual figure that is, according to Norman Spaulding, the “organizing principle” of the law in the nineteenth century: “enclosure” (131, 165). Focusing specifically on so-called “extralegal” violence (dueling, lynching, and striking), Spaulding contends that “extralegal” is often used synonymously with “extrajudicial” but that such usage was far from uncontroversial even among lawyers and legal scholars in the nineteenth century (168). By abandoning this “Manichean” logic within and beyond the scope of law, he suggests, we can begin to ask new questions, foremost among them, “what kind of legal order those who engaged in such violence were trying to establish, protect, or upend” (168).
Taking a similar approach, Andrea McDowell’s article on frontier associations also interrogates forms of popular order and sovereignty that have often not been perceived as such. As part of the third section, “Managing the Human,” McDowell’s chapter gives a brief overview of how Americans on the western frontier, in particular in the mining towns of California, used parliamentary rules and procedures (printed, for example, in the 1845 Cushing’s Manual) to organize themselves politically and economically. Her fascinating findings on pioneer associations (from claim clubs to joint stock companies) give new insights into the ways in which civic and economic practices intersected in the nineteenth century. More generally, the third section focuses on the practices and technologies the law employs to establish and protect its order, among them the law of identification, immigration policies, incarceration, and slavery. Hence, Milette Shamir writes on the early nineteenth-century legal and cultural history of privacy in the United States, John Barton on the development of the American prison up to the Civil War, while two chapters—one by Simon Cole, the other by Trinyan Mariano—interrogate race, legal personhood, and the science of identity in Mark Twain’s The Tragedy of Puddn’head Wilson. Edlie Wong’s chapter further adds to this section’s exploration of the disciplining practices of the law by presenting “the trope of invasion” that shaped both legal and non-legal American narratives about Chinese immigration in the nineteenth century.
The first chapter of the final section, “Affective Relations,” establishes a bridge to the first section, by looking at how the category of capacity could determine the ability or inability to exercise one’s citizenship rights. Yvonne Pitts explains civic capacity’s origins in republican ideology, in a fusion of civic virtue and reason, and focuses on the role of affect—on the ability to control one’s passions—in the development of this remarkably fluid concept. The remaining chapters of the final part likewise explore “the ways in which nineteenth-century American law was bound up with human passions and sensations” and suggest a rich field for further research (xx). Doni Gewirtzman’s chapter on “the affective life of the U.S. Constitution,” for example, provides an overview of three interrelated constitutional functions and their connections to emotions: how contemporary beliefs about emotions found their way into the text of the constitution; to what extent constitutional law is designed to manage and encourage popular emotions; and, finally, Americans’ lack of emotional attachment to the Constitution as a national symbol—when compared, for example, to the Declaration of Independence (xxi). Deborah Whitehead’s chapter, in which she interprets the First Amendment through the lens of nineteenth-century religious sentiment and legal norms, and Laura Appleman’s chapter on Gothic fiction’s influence on criminal law and in particular on the concept of the intent to do wrong (mens rea) conclude this final section.
Stefanie Müller (Münster)