Day to day, we use stories to navigate and interpret our lives. More formally, in history and literature, narratives shape understanding of past events, culture, and morality. Many other disciplines, such as law, lay claim to a special, rigorous narrative, whereby general principles are tested and refined in multiple cases. David Gurnham challenges the privileged nature of law's discourse in his interesting new book. He proposes to treat “the law as a patient and its texts as manifest content of dream”, thereby bringing, through analysis, “those concealed ideas eventually to the surface, to give themselves up as a train of thought leading back to an otherwise hidden source”.
Gurnham defends what might initially seem an idiosyncratic enterprise. A mainstream task of legal scholarship, he argues, is to expose unacknowledged assumptions, biases, and prejudices, and to prevent unintended side effects of particular rules and interpretations. Narratology – the practice of layering stories on one another to reveal repetition, contradiction, and omission – performs this task by disclosing unconscious assumptions and biases operational in legal rhetoric, critique, and debate. In drawing together legal, literary, and cultural threads, which are then examined psychoanalytically and inter-textually, he proposes to illuminate a new set of narratives about race, gender, class, agency, and authority. It is not surprising that, with his interest in what is omitted from a story, Gurnham's strongest sources are from Freud's case histories, with their references to unconscious desire and displacement.
The term “law” is used broadly in Gurnham's book and includes “the milieu in which legal and literary texts are consumed”. The reader has to track, on his or her own, what is being analysed. At one end of the spectrum are legally argued cases; at the other lie public reactions to press reports of crimes.
He considers, first, judicial and scholarly narratives about sexual agency. There is a legal requirement to respect sexual agency, and a need to prevent legal constraints on practices solely on the grounds that they are outside traditional normative boundaries. However, a story about consent can also be a story about exploitation; but protectionism requires a careful balance, since, in excess, it would foster a culture of female subordination and helplessness. This exercise is further complicated by implicit biases in stories about femininity and its fate. Violence against women has cultural licence, particularly as punishment for sexuality or disobedience. From Perrault's cautionary tale about Little Red Riding Hood to Susanna Moore's 1995 erotic thriller In the Cut, violence against women exudes dramatic correctness. These narratives, which imply a natural progression from love to jealousy to heated passion to killing, link up with trials in which men plead provocation in their defence. Murder of a sexualised woman may be seen as perversely appropriate in dramatic terms. Implicit in these narratives is the belief that eroticism must necessarily embrace violence and, without inequality and domination, there is no genuine desire.
In high-profile crimes of sexual exploitation, such as the 2009 cases involving trafficking of teenage girls in Rochdale and Oldham, Gurnham focuses on the relationship between press reports and an outraged public. Reports of these cases in The Telegraph and The Times positioned race as integral to the exploitation, with the underlying message that the Asian exploiters disrespect working-class girls even more than they (the European readers) do. The press narrative provided the opportunity to express misogyny while blaming someone else for it. Sexual exploitation includes organised befriending of girls and young women who are then shared commodities or traded goods, and they are also enticed with material goods. The metaphorical terms used in the trial – white trash and white meat – highlighted an interest in edible things and hence symbolised the oral stage of psychosocial development: in the repressed erotic fantasy, the “white meat” of young girls “feeds the sexual appetites of the judged criminal and judging public alike”.
Here, as elsewhere, there are ungainly slips between what is said in a trial, what is reported in the press about a trial, and the legal decision. Nevertheless, Gurnham makes the important point that public outrage often provides means for the expression of an unacknowledged desire, and therefore having occasion to be outraged can be satisfying. Hence, he marks the secret alliance between the judged individual and the judging community. This alliance is particularly pronounced in recent cases of paedophilia where “furious but untimely efforts by which child sexual exploitation is now pursued … might be thought to betray something more than merely opposition to crime and transgression”; the heat of disgust signals unconscious ownership of the same impulse, which most people repress. The condemnation of those who actually enact their sexual impulses might offer opportunity to the judging public to enjoy something of the sexual licence that they wish for, without disrupting the integrity of their moral self-image.
Gurnham drives a more original and intriguing discussion when he considers criminal sanctions for the spread of HIV. The criminalisation of HIV transmission rests (and fosters) the misconceptions that HIV is highly transferrable and likely to be fatal, and that transmission can occur only when an HIV-positive individual conceals his infection. Gurnham argues that criminal sanctions do not make sense as a response to a genuine problem (that is, the spread of HIV) but only as an expression of a wish to control death and turn it into an object of desire.
The misconceptions arise from “strategic forgetting” of facts, Gurnham argues. This motivated omission arises from a more general fear of silence. In considering the meanings of silence in King Lear and The Merchant of Venice, he sees evidence that silence represents death. Cordelia's silence, the value of which Lear fails to see, triggers the tragic events that eventually lead to her death, while Bassanio duly appreciates the “silence” of the lead casket, and hence enjoys a fine comic conclusion to his choice. The happier play rests on the transformation of silence or death into life and love.
Overlaying these themes and variations with the criminalised silence of the HIV individual seems contrived. Whether these “misperceptions” actually constitute strategic forgetting, as Gurnham claims, or laws formed from a public's failed understanding of risk is unclear. It is perhaps ignorance rather than unconscious knowledge that underpins these laws. Fortunately, Gurnham does not labour this point. Instead, he notes that the emotional power of such cases derives from the fear of being injured when we are most trusting and receptive. We are reluctant to accept that infection can be a matter of bad luck or mutual risk-taking; harm to oneself tends to be perceived as a consequence of criminally devious or cruel intent.
His most illuminating discussion is also the one that follows legal arguments closely. He considers the 2000 case of Re A (Conjoined Twins Medical Treatment), in which the Court of Appeal sanctioned the surgical separation of twins fused at the abdomen. This was against the parents' wishes – perhaps not surprising since the result of the surgery was the inevitable death of one child. Three different judgments were given by the three judges. While one judge construed the weaker twin's dependence on the stronger twin's heart as aggression, and a second judge declared that the weaker twin was “self designated for an early death”, and the third judge argues that the weaker twin was incapable of an independent life, all three judges agreed on one thing: surgical separation was justified. Gurnham highlights the hidden and dark omission in each of the three judicial narratives. The rhetoric in the judgments displaces the reality that one child was to be killed. Gurnham suggests this repression harkens back to Oedipal rivalry and the infantile wish to be rid of competitors for the family resources. Unconscious adherence to the Oedipal narrative allows the legal judgments to endorse medical murder.
While many would support the legal decision, Gurnham argues persuasively that omission of any reference to justified killing is problematic. In so doing, he wins his case for treating legal judgments, like literature, film, and drama, as a vehicle for expressing unconscious desires and cultural influences. When viewed in this critical way, unacknowledged biases and assumptions are no longer hidden, or protected from criticism and revision.
