Reading the Laws and Literatures of Anglo-American Modernism


Review of Modernism and the Law, by Robert Spoo

London: Bloomsbury Academic, 2018


The area of inquiry known as “Law and Literature” is often characterized as an interdiscipline, in that its focus is less on a specific jurisdiction or a set corpus of texts than on the intersections between two different discursive domains. Some commentators have noted that the most important word in the label is the conjunction: the question of how the word “and” in “Law and Literature” should be understood is what energizes the scholarship of the interdiscipline.

One way of thinking about the conjunction is through the act of reading. Obvious as it may sound, the act of reading is what unites lawyers, jurists, and literary critics. While it is impossible to reduce legal or literary reading to any single formula, it is fair to say that both praxes follow certain conventions. In the common law tradition, reading as a lawyer includes the process of identifying or formulating relevant legal principles in a case, separating the ratio decidendi from the obiter dictum, and applying or distinguishing precedent cases in relation to the facts at hand. In literary criticism, one traditionally engages in a process of close reading to discern how meaning is created through language and situates literary texts in their historical contexts. “Law and Literature” can, in a sense, be thought of as the forum where the reading practices of the two domains are studied with particular intensity. Another way of putting this idea is that the “and” in “Law and Literature” can be understood as the place where legal reading and literary reading meet, where experiments in crisscrossing ways of approaching texts can take place, and where longstanding interpretative practices in one established discipline are brought into conversation with—and tested against—those of the other. 

Thoughts on the centrality of reading to the interdiscipline were on my mind as I read Robert Spoo’s Modernism and the Law. Written by a scholar with a background in both legal critique and literary analysis, it moves comfortably between the two modes of reading, and brings them to bear on an important period in cultural history. The modernist period is a particularly apt moment for thinking about the intersections between literature and law, because modernism is intertwined with law: the criminal prosecution of Oscar Wilde for acts of gross indecency; the obscenity trial sparked by the “Nausicaa” episode in James Joyce’s Ulysses; and concerns about one’s wife, young children, and servants getting hold of indecent reading material that surfaced during the trial of D.H. Lawrence’s Lady Chatterley’s Lover are but a few of the more memorable instances of modernist literature’s encounter with the legal establishment. 

Over the past decade or so, there has been much critical interest in the study of law, literature, and modernism: Rex Ferguson’s exploration of the parallels between criminal law and the modernist novel, Elisabeth Ladenson’s study of modern literary trials, and my own work on law, literature and masculinity form part of a burgeoning critical corpus. Spoo’s book constitutes a notable extension of this scholarly tradition examining the entanglements and interpenetrations between the legal and the literary in the modernist period. It takes its readers on a journey through the key texts, figures, and institutions of Anglo-American modernism, and in doing so provides a fascinating new take on the topic.

Before coming back to the theme of reading, I want to say a few words about the two other terms in the dyad: “Law” and “Literature.” From a jurisprudential angle, Spoo’s book offers a productively expansive approach to law. The title notwithstanding, it approaches law not as a monolithic entity—“the” Law, with a capital “L”—but as a mosaic of rules, norms, practices, and codes which shaped literary form and production. It demonstrates that while these rules, norms, practices, and codes sometimes operated as distinct areas of regulation, more often than not they operated in tandem with one another. Each of the chapters deals with a cluster of laws: censorship and obscenity, patronage and copyright, defamation and privacy, and also constitutional principles like freedom of expression. The book further gives the complexity of law its due by underscoring that, like literature, law is not a static institution, and the modernist period is noteworthy in part because this was a time in which elements of the legal frameworks familiar to us today were in flux or still in the process of emerging. 

The book also offers an expansive definition of modernist literature. It begins in the final decades of the nineteenth century, and includes in its discussion such late-Victorian and Edwardian figures as Henry James, Arthur Conan Doyle, and Oscar Wilde. Spoo identifies Wilde as a “man of law,” a figure whose work, and indeed whose entire adult life, were caught in the vast patchwork of law: he was subjected to blackmail by rent boys; infuriated by the meager copyright protection offered in nineteenth-century America; and of course infamously prosecuted for gross indecency under the Labouchère Amendment of the 1885 Criminal Law Amendment Act. Such multifarious entanglements with law, Spoo contends, are in fact characteristic of modernist writers, whose works are often shaped, explicitly or implicitly, by the forces of regulation that surround them. Wilde can therefore be regarded as a kind of precursor to the novelists and poets more conventionally identified as modernist, such as Joyce, T.S. Eliot, Wyndham Lewis, Ezra Pound, and Virginia Woolf.

The book aims to make an intervention in two distinct areas in the study of “Law and Literature.” First, it seeks to show how law, broadly defined, regulated modern literature—the so-called “law of literature” strand of law and literary studies. Here, one senses that the primary material is filtered through the analytical mind of the lawyer, and one of the book’s key contributions is its clear, methodical explication of the technicalities of the legal rules in question. The primary material is read in a “lawyerly” mode. Spoo’s discussion of the Wilde trials is again illuminating. Incensed by what he regarded as Wilde’s unseemly interactions with his son, Lord Alfred Douglas or “Bosie,” the Marquess of Queensberry left a card at Wilde’s club. As Spoo points out, there is some debate as to what the Marquess’s semi-legible scrawl on the card actually said, though the most commonly accepted version seems to be “For Oscar Wilde posing as sodomite.” In response, Wilde initiated libel proceedings against the Marquess, and the libel trial became the first of the three Wilde trials. 

This part of the factual matrix is familiar to most students of nineteenth-century studies and Wilde studies. What Spoo does here, though, is insert a discussion of the exact nature of the law of criminal libel on which Wilde relied and its differences from a civil action, which would normally have been the means of addressing a dispute between two private parties. The technical distinction between civil and criminal libel is rarely given attention in analyses of the Wilde trials, but it tells us much about the way in which the confrontation was understood in historical context, as Spoo demonstrates. 

Situating the trial in relation to “a fierce culture of honor” (18) in the late nineteenth and early twentieth centuries, Spoo traces how honor feuds evolved from being settled through acts of dueling to being resolved through adversarial trials in the law courts. The context of honor and the backdrop of dueling sheds light on Wilde’s recourse to criminal law: he alleged that, not only did the Marquess’s card damage his reputation, but it was also maliciously intended to incite him to commit a breach of the peace (20). At stake in the speech act embodied in the card, then, was not only a private wrong (the damage to reputation) but a potential public harm (a breach of the peace). 

For his part, the Marquess also argued that this was more than a purely private matter: he was not only trying to save his son from Wilde’s corrupting influence but also attempting to expose Wilde’s nefarious impact on other young men, for the benefit of the public (21). Spoo further points out that, unlike a civil action, there was no defense of truth in criminal libel, as a truthful statement could still be inflammatory and provoke retaliation. The technical question of what kind of libel action is being pursued in the trial demonstrates the extent to which the dispute between Wilde and the Marquess was understood at the time as a wider destabilization of the boundaries between the public and the private in the late nineteenth century. 

Similar lawyerly attention to the details of procedure can be found in the discussion of the Henry Vizetelly trials. Vizetelly and Company was one of the biggest publishing houses in late nineteenth-century England and specialized in the translation and publication of French fiction. As novels from across the Channel came under increasing scrutiny for immorality, Vizetelly became targeted for spreading pernicious literature in the country. At the request of the National Vigilance Association, the legislator Samuel Smith initiated a debate in Parliament about the impact of novel reading on the British population, and singled out Émile Zola as a writer of novels that were “only fit for swine.” The English version of three of Zola’s novels that Vizetelly published were at the core of the trials: Nana, Pot-Bouille (translated as Piping Hot!), and La Terre (translated as The Soil).

Vizetelly initially appeared before a magistrate for publishing an obscene libel; he paid a fine and made an undertaking not to circulate books by Zola that were as objectionable as the three in question. Mistakenly believing that the undertaking meant that he could continue selling Zola’s novels as long as the more offensive passages were excised, he was indicted again at the Old Bailey. He was sentenced to three months in prison, and later transferred to Holloway in light of his poor health. The events broke the aged Henry Vizetelly. Spoo departs from much existing scholarship on the Vizetelly trials by underscoring the dynamic of in rem and in personam proceedings at work: the former targeted inanimate objects like books, while the latter targeted individuals or businesses (52). He points out that while the common law acted in personam when it convicted, fined, and imprisoned Vizetelly, the proceedings were also underpinned by an in rem logic insofar as his stock was confiscated, rendering him insolvent. The prosecution of Henry Vizetelly was a tragic event, and the legal analysis here lends clarity to the exact nature of the tragedy: the operation of both in personam and in rem proceedings targeted both the body and the physical belongings of the man, leaving him with nothing.

In addition to examining the “law of literature,” the book also investigates how literary texts of the period registered and represented the forces of law—the so-called “law in literature” strand of law and literary studies. If the former approach reflects the mind of a meticulous lawyer at work, the latter is indicative of the attentiveness of a literary critic. In these sections, Spoo reads a selection of both famous and lesser-known literary texts by situating them in the context of the evolving legal ideas and doctrines of their time. 

The combination of close reading and careful historicization here points to a more “literary” mode of analysis. In his hands, the eponymous protagonist of Wilde’s The Picture of Dorian Gray becomes a copyright-infringing photograph of the original painting in the attic, as well as a stand-in for cheap reproductions of immoral texts which were made all the more dangerous for being readily available to young men and women (66). Spoo’s book offers a new understanding of Wilde’s novel not only as a Victorian morality tale, but also as an embodiment of ideas about such issues as copyright and obscenity that were circulating at the time.

One of the most striking readings in the book is of Henry James’s “The Real Right Thing,” which is often categorized as a ghost story. George Withermore, a young journalist and writer, is summoned by the widow of the celebrated author Ashton Doyne to write the biography of her late husband. James presents Withermore as having been acquainted with Doyne, though, as with much of his short fiction, the exact nature of the acquaintance is left tantalizingly unclear. Withermore is given access to Doyne’s belongings, including all of his books, letters, and papers, and he proceeds to write the “volume” the widow requested. While he is doing his research in the study, he senses Doyne’s ghostly presence in the room. He at first presumes that the presence is a friendly one, but as his research into the dead man progresses Withermore realizes that Doyne has returned to express discontent and even hostility towards the project of writing the biography. Withermore and Mrs. Doyne eventually decide to do “the real right thing” of abandoning the project.

 Spoo situates this short story in the context of the increasing importance of privacy in the late nineteenth century, in the legal sense of “a reputational right to be let alone” (117). By drawing attention to the dawning societal awareness of the harm caused by such factors as commercialized gossip and unwanted photography, Spoo interprets Doyne’s return as driven by the desire to preempt an invasion of his privacy. In that light, the chilling quality of the tale stems not so much from the ghostly presence itself, but from the risks of exposure, the forced revelations, and the uninvited unveilings which the readers witness but which nonetheless had not yet coalesced into the infringement of a fundamental right per se. “We lay him bare. We serve him up. What is it called? We give him to the world,” says Withermore to Mrs. Doyne. The question “What is it called?”, as well as the three attempts at describing their project, simultaneously point to Withermore’s conviction that they are doing something deeply disrespectful to the dead, and to his inability to fully grasp just what is so problematic about the writing of the biography. Through the genre of the ghost story, James was in fact communicating, from beyond the grave for readers of our time, the horror of having one’s intimate and personal life coercively revealed before such horror was given the name of a violation of the right to privacy.

Much of the promise of “Law and Literature” lies in its creative, and deliberate, crossing over of modes of reading from the legal to the literary, and vice versa. Modernism and the Law not only deepens our understanding of an important period in literary and legal history, but also demonstrates how it can be done through this form of interpretative crossing over. The imaginative mixing is not confined to literature and law: drawing on the reading practices of historians, anthropologists, and statisticians, to name but a few, can help uncover the blind spots of both literary close reading and legal reasoning, and provide new lenses for productively defamiliarizing what may seem to be our most recognizable discursive domains.



Posted on 20 April 2022

MARCO WAN is Professor of Law and Director of the Law and Literary Studies program at the University of Hong Kong. He is Managing Editor of Law & Literature.