Nussbaum, LaCroix, and Colleagues Explore the Law and Victorian Literature

Why would legal minds spend their time reading Victorian novels of the 18th and 19th centuries?

Professor Martha Nussbaum, co-editor with Professor Alison LaCroix of a volume dedicated to that very topic, Subversion and Sympathy: Gender, Law, and the British Novel, provided a poetic answer:

“Novels inform us about the laws of the heart,” she wrote in her article, “The Stain of Illegitimacy: Gender, Law, and Trollopian Subversion.” “They also do more: they form the heart.”

That’s the idea behind this collection of papers, inspired by a 2010 Law School conference on the British Novel hosted by Nussbaum, LaCroix, and Professor Jane Dailey. Each writer – several of them Law School faculty who do not typically write on literature – chose a different topic related to Victorian literature and the law. What was talked about back then is relevant now, the editors assert.

“You can learn a lot about developments in the law relating to women, both civil and criminal,” Nussbaum said. “But I think more deeply you can understand the human predicaments that made people turn to law for recognition and assistance.”

These novels were written at a time when authors were thinking about legal regimes involving women, said LaCroix, from property ownership to the practice of wife-selling.

“It’s a good period to look at when we knew law was changing, and literature was responsive to that,” she said. And she echoed Nussbaum’s sentiment that literature makes the reader, including lawyers, more human. “It’s a source of evidence for lawyers about how people feel and act in relation to the law.”

As Judge Diane P. Wood, a Senior Lecturer in Law, pointed out in the preface, literature is “especially critical for highlighting voices – such as the voices of women – that have not been heard well enough or long enough.”

Nussbaum’s chapter is about the laws of illegitimacy in pre-Victorian and Victorian Britain, and the many legal and social problems faced by “bastards.” Furthermore, she gives many examples in literature of the double standard between male and female offspring whose parents were not married. Men are seen as vibrant, lusty, attractive rogues, imbued with the spirit of their parents’ passionate consummation. Illegitimate women are portrayed as ugly, nonsexual, doomed monsters. Nussbaum outlines how the novels of Anthony Trollope subvert these prototypes.

Nussbaum said she’s been fascinated with the subject for some time, because the stigma attached to illegitimate children was so irrational. She “adores” Trollope, she said, and wanted to write about his humane view.

“That fall I had run a half marathon on a beautiful fall day in northern Wisconsin, listening to the opening of (Charles Dickens’) Bleak House, and I was aghast to come upon the terrible speech made to Esther about her illegitimacy. It was such a terrible way to talk to a child that it made me run faster so that I could get to a place where I could write about it.”

LaCroix’s piece focuses on the interpretation of these works by a very specific and influential population in American history. Her chapter, “The Lawyer’s Library in the Early American Republic,” describes the reverence for literature felt by the leaders of the second generation of the new republic. Literature was seen as a nation-builder, and reading a critical component of building a national culture and America’s participation in a broader world of letters. To demonstrate, LaCroix describes an 1826 correspondence between Supreme Court Chief Justice John Marshall and Justice Joseph Story over the import of the works of Jane Austen. Story was not alone among lawyers and statesmen in that he “regarded a literature-loving people as essential to the success of the Republic, and reading as an enactment of liberty.”

The rest of the chapters are written by prominent legal minds, some of them from other institutions and some on the faculty at Chicago Law. Judge Richard A. Posner, a Senior Lecturer in Law, who Nussbaum called, “one of the nation’s leading theorists of literature in its relation to law,” wrote, “Jane Austen: Comedy and Social Structure.” Professor Geoffrey R. Stone wrote, “The History of Obscenity, the British Novel, and the First Amendment.” Professor Douglas G. Baird authored, “Law, Commerce, and Gender in Trollope’s Framley Parsonage.” And Professor Saul Levmore wrote, “Promigenture, Legal Change, and Trollope.”

“We wanted to show that, in characteristic Chicago fashion, we could join together across lines of subdiscipline and politics to investigate this fascinating set of issues,” Nussbaum said.

Or, as Levmore put it, “It’s fun to broaden one’s horizons.”