Simon Stern: Ethical Criticism and the Penchant for Play

Simon SternStern_0
Associate Professor of Law and English & Co-Director, Centre for Innovation Law & Policy, University of Toronto

Discussions of ethics and literature, like discussions of law and literature, tend to fall into a couple of familiar patterns. One part of the discussion is concerned with the representation of ethical relations in literature, and when commentators focus on this question, they’re generally also concerned with the ethical effects of reading fiction, almost always fiction close the higher end of the spectrum that seeks to measure literary value. Some of these arguments are rehearsed in Mark Kingwell’s essay, The Ethics of Ethics and Literature; the participants in that discussion include a number of literary critics and philosophers, and, more recently, various psychologists who have tried to study the question empirically (as in Mar et al., “Bookworms versus Nerds”). This kind of argument resembles one that continues to remain influential among some scholars of law and literature, who argue that Charles Dickens’s Hard Times, Susan Glaspell’s “A Jury of Her Peers,” Franz Kafka’s The Trial, and Harper Lee’s To Kill a Mockingbird are important parts of a legal education because they expose students to the legal plight of those who are mistreated, marginalized, subordinated, or ignored by the legal system, and that being exposed to the thoughts and perspectives of characters in this situation will make students better lawyers – better able to listen to their clients, better able to tell stories that represent clients faithfully, better able to recognize the discriminatory effects of laws that are supposedly neutral.

Objections to this kind of argument reflect the same concerns that Kingwell raises about the instrumental use of fiction, although the objection, among those who write on law and literature, is usually cast in disciplinary terms: when the aim is to use novels to cure law students of the ills that law school breeds, the novels tend to be reduced to a propositional form, and the exercise often ignores many of the novel’s literary features, even though they were selected precisely because they were seen as having literary value rather than as being merely entertaining. The disciplinary objection thus emphasizes that when we translate novels into ethical propositions, the problem isn’t just that we’re instrumentalizing them, but that we’re not reading them as literary works any more – we’re forgetting that they draw on or rebel against certain generic conventions, that they control the reader’s access to the characters’ thoughts in various ways, and that they have their own designs on us, which we can only recognize if we ask how they are made rather than simply accepting them as given. This worry would, doubtless, apply with much the same force in the context of law and ethics, and indeed it may simply be a recharacterization of Kingwell’s observation about the instrumental use of literary texts: that is, to read them non-instrumentally would be to read them as literary texts, and therefore to be concerned with the literary features I’ve just mentioned.

Another part of the discussion asks how literature, and particularly Victorian fiction, became interested in, and concerned about, its ethical potential. In the work on law and literature, these arguments find a parallel in the historical research that examines the literary manifestations of particular developments in law, such as the Prisoners Counsel Act of 1836. Notably, in both areas – that is, in both ethics and literature, and law and literature, this part of the discussion has been dominated almost entirely by literary critics. In the writing on ethics and literature, the emphasis has been not on what effects novels might have on readers, but rather on the patterns we can discern in various aspects of plot and narration when novels reflect a degree of self-consciousness about their ethical potential. Some of the critics who have taken up these questions include my colleague Audrey Jaffe, in her books Scenes of Sympathy: Identity and Representation in Victorian Fiction (2000); and also Rachel Ablow, The Marriage of Minds: Reading Sympathy and the Victorian Marriage Plot (2007); Adela Pinch, Thinking about Other People in Nineteenth-Century British Writing (2010); Rae Greiner, Sympathetic Realism in Nineteenth-Century British Fiction (2012); Jesse Rosenthal, Good Form: The Ethical Experience of the Victorian Novel (2016), and some work in progress by Patrick Fessenbecker, in a book manuscript titled Novels and Ideas (and, in a related but slightly different vein, a terrific new book by Marta Figlerowicz, called Flat Protagonists.) It’s not easy to summarize the thrust of this line of work, but one of its concerns has involved the particular kinds of literary devices that writers use, when they take the novel’s ethical possibilities to be a question rather than a given: the concept of character that comes into play, and the ways in which narration is managed. In that regard, it is perhaps worth noting that Kingwell’s essay implicitly points in this direction:  he notes that the novels he’s interested in are “those with the kind of supple, free-indirect narration that are the high-water-marks of the realist tradition,” which is to say, novels from the 19th and 20th centuries. Free indirect narration, in particular – the device by which novelists purport to give us unmediated access to a character’s thoughts – was not a pervasive feature of fictional prose until the 19th century (it’s often associated with Austen’s novels) and its use has been an abiding concern in the line of research that I’ve just sketched.

Finally, some of the work in law and literature has shown how certain imaginative works exhibit legal styles of thought or explanation, and arguably we see something similar in the point that Kingwell’s essay ends with – his discussion of “the free play of images, characters, and ideas” and of the “contemplative mode of being.” One way of to make sense of this would be to say that the ethical potential of imaginative writing lies not in its propositional use, but in its penchant for avoiding that kind of use. The penchant for free play pushes us towards a pleasure in ambiguity, indecision, and uncertainty, akin to the “negative capability” that John Keats described. This way of engaging with a novel – not trying to extract propositional conclusions but seeing how it refrains from asserting them – generally involves attending to the very literary features that the search for morally uplifting attitudes would ignore. But if so, the willingness to approach a novel in this fashion still depends on the reader’s disposition – the disposition to revel in this kind of uncertainty instead of finding it off-putting, for example. Novels can help to cultivate that attitude in a reader who is already inclined in that direction, but not everyone shares even the inclination, to begin with.