ICYMI: Ledwon on Maternity as a Legal Fiction: Infanticide and Scott's The Heart of Midlothian @StThomasLaw

ICYMI: Lenora Ledwon, St. Thomas University School of Law, has published Maternity as a Legal Fiction: Infanticide and Sir Walter Scott's The Heart of Midlothian at 18 Women's Rts. L. Rep. 1 (1996). Here is the abstract.

She sat down below a thorn Fine flowers in the valley, And there she has her sweet babe born And the green leaves they grow rarely. "Smile na sae sweet, my bonny babe," Fine flowers in the valley, "And ye smile sae sweet, ye'll smile me dead," And the green leaves they grow rarely. She's taen out her little pen-knife, Fine flowers in the valley, And twinned the sweet babe o' its life, And the green leaves they life, grow rarely.

From "The Cruel Mother"' (traditional Scottish ballad)

Laws tell stories-stories that create a typology of female legal subjects (or more properly, legal objects). Such stories about women historically have been written by men and delineate a mythical feminine sexual ideal with punishments for deviations from that ideal. Because legal stories (such as those contained in common law or statutes) are ostensibly impartial, they are all the more authoritative. Simple criticism, let alone outright attack, becomes an uphill task in the face of an official discourse that can lay epistemological claim to Right, Justice and Truth. As Antonio Gramsci notes, the most trenchant hegemony is that which inspires both the powerful and the oppressed to acquiesce in its ideology because no other worldview seems imaginable. But imagining the unimaginable is precisely the province of another privileged discourse-the novel. The novel's favored position, like that of a court jester, gives it the freedom to criticize the established order in a manner that, under other circumstances, would result in severe punishment. Law, as one kind of fiction., exists in a complex symbiosis with that other great fiction, the novel. The law and the novel are constructed on the same epistemology, empirical and circumstantial, but both are inherently fictional, that is, artificial and symbolic. Thus, Ian Watt notes the similarities between a novel reader and a juror: both attempt to ascertain the truth of a case, take the "circumstantial view of life" and want to know "all the particulars" of a case. And Norman 0. Brown, commenting on the similarities between the symbol systems of law and literature, cites nineteenth century legal scholar Rudolf Von Ihering for the proposition that courtroom action "is a trial or contest, an agon, as in the Greek stage plays, in which 'the parties litigant are not definite individuals, but abstract persons in the mask of plaintiff and defendant. But while law and literature share similarities in epistemology and in symbol systems, they differ in gender. While the law has been identified as masculine (i.e., rational, real and worldly) the novel has been identified as feminine (imaginative, pleasurable and domestic). Novels which address women's legal rights and obligations, therefore, enter into an ambiguously gendered space-a space where real-life female suffering under the law is made visible, but only within the structure of fiction. It is precisely in the encounter between legal fictions (concepts at law) and fictions of legality (novels addressing legal issues) that social and cultural paradigms of the category "mother" are revealed in their most complex, multivalent form. The novel, in its privileged position, has the ability to mediate between the loquacity of the law and the silence of the disenfranchised. But in mediating these extremes, a text is in constant danger of rupturing under the strain and falling into its own patterns of oppression. Despite the growing interest in the connections between legal studies and literary studies (demonstrated by the writings of James Boyd White, Stanley Fish, Richard Posner, Alexander Welsh and Richard Weisberg, among others in a growing field), comparatively little attention has been given to feminist issues in Law and Literature studies. The area I am interested in is precisely that space where legal studies, literary studies and feminism intersect. This article explores the complex reification and mythologizing of the feminine in law and literature, using Sir Walter Scott's influential historical novel, The Heart of Midlothian, to explicate the legal stories surrounding the category of "maternity." First, we will begin with Scott's legal background in order to examine how his legal expertise influences his novels. Second, we will examine the law of infanticide in Scotland and England during the time frame of the novel, focusing on the legal fiction of presumptive guilt underpinning the infanticide statute at issue. Third, we will explore the interrelated maternity narratives of the statute and the novel in light of Rene Girard's work on "persecution texts" (i.e., documents legitimizing collective violence against a scapegoat figure). My conclusion is that Walter Scott's The Heart of Midlothian and the 1690 infanticide statute which fuels its plot activate a complex of tensions around the concept of maternity. The text's narrative structure mirrors the key element of the statute-concealment. Scott gives us depths and surfaces, interiors and exteriors. He conceals in order to reveal, hides in order that we may find. In particular, Scott reveals the statute's operation as a persecution text and critiques the scapegoat role into which unwed mothers are forced. But in critiquing an already obsolete statute and revealing the persecution of women underpinning that statute, the text itself also constructs another, hidden scapegoat-the murderous mother.

The full text is not available for download from SSRN.

Justice in the Waverley Novels: The Heart of Mid-Lothian

Enrique García Díaz has published An Overview of Justice in Sir Walter Scott Waverley Novels: The Heart of Mid-Lothian in the Oñati Socio-Legal Series, Vol. 4, No. 6, 2014. Here is the abstract. 

English Abstract: Although Sir Walter Scott is a well-known writer most of his readers know that he became an advocate in 1792, when he was admitted to the bar. Since then Scott and other advocates walked the floor at Parliament House (home of the Faculty of Advocates and the Court of Session) waiting to be hired. Scott’s own experiences as a fledgling advocate are echoed in those of Alain Fairford in his novel Redgauntlet (Scott 1824), which provides a vivid picture of Parliament House in the eighteenth century. During his life, Scott combined extensive writing and editing issues with his daily work as Clerk of Session and Sheriff-Depute of Selkirkshire. Walter Scott was not unaware of Justice and Law and The Heart of Mid-Lothian is the novel in which he introduces to the reader the Scottish Legal System during the eighteenth century. However, there are few more examples that I will explain.
Spanish Abstract: Aunque Sir Walter Scott es un conocido escritor, la mayoría de sus lectores saben que en 1792 se hizo abogado, cuando fue admitido en el colegio de abogados. Desde entonces Scott y otros abogados rondaron el Parlamento con la esperanza de ser contratados. Las propias experiencias de Scott como un abogado novel se reflejan en las de Alain Fairford en su novela Redgauntlet (Scott 1824), lo que ofrece una vívida imagen del Parlamento (sede de la facultad de Derecho y Tribunal Supremo) en el siglo XVIII. Durante su vida, Scott compaginó una profusa actividad como escritor y editor con su trabajo diario como juez en Selkirk. Walter Scott conocía la justicia y el derecho y El corazón de Mid-Lothian es la novela en la presenta al lector el régimen jurídico de Escocia durante el siglo XVIII. Sin embargo, se explicarán algunos otros ejemplos.

Download the essay from SSRN at the link.

The Condemned Woman In Sir Walter Scott's Writings

Erin L. Sheley, George Washington University School of Law, has published Doubled Jeopardy: The Condemned Woman as Historical Relic at 24 Law and Literature 211 (2014). Here is the abstract. 

This article explores how Sir Walter Scott's fictional condemned women serve as relics through which a history of evolving British legal authority becomes present and legible. It argues that Scott's treatment of gender aestheticizes a particular concept of and reaction to the condemned woman in the context of the common law tradition generally. Using the backdrop of eighteenth century penal practice, it also shows how Scott establishes the female condemned body as an object necessarily fixed in time in order to contemplate legal change through a historically controlled process. The first part of the article considers the late eighteenth century movement to abolish the punishment of burning at the stake for women convicted of treason, and the extent to which competing understandings of chivalry reified an entire history of penal practice into the body of the burned woman. The second part argues that the interrelations between archaic practice and evolved norm which characterize the precedent-based common law system are dramatized in the fixed, idealized bodies of Constance de Beverly and Rebecca of York through which Scott acknowledges the implicit need for legal change over time, while simultaneously legitimizing adherence to a chivalric tradition.

Download the article from SSRN at the link. 

Lying in "The Heart of Midlothian"

Julia Ann Simon-Kerr, University of Chicago Law School & Yale University Law School, has published Pious Perjury in Scott's The Heart of Midlothian, in Gender, Law and the British Novel (Alison LaCrois & Martha Nussbaum eds., Oxford University Press, 2011). Here is the abstract.

Lying in court was a practice routinely used in the eighteenth century justice system to mitigate the severity of its criminal laws. Dubbed “pious perjury” by Blackstone, witnesses and juries often violated their oaths in order to avoid imposition of the death penalty. The practice was so common that it formed a central piece of the argument for law reform during the period when Scott was writing The Heart of Midlothian. Reformers argued that the laws were being grossly under-enforced because so many juries were mitigating sentences or freeing defendants through pious perjury. True to this practice, the men surrounding Scott’s heroine, Jeanie Deans urge her to perjure herself to save her sister, who has been wrongly accused of infanticide. Her sister, Effie, will be acquitted if Jeanie swears that Effie told her of her pregnancy. Jeanie’s refusal to lie forms the dramatic core of the novel. By creating a heroine whose major strength is her truthfulness in a public realm, Scott intervenes both in the novelistic tradition of female heroism and in the contemporary discourse on law reform.

Download the abstract from SSRN at the link.