Law and Fancy (1997)

Martha Nussbaum's graceful book Poetic Justice is an elegant brief for the importance of our capacity for imaginative to our moral and legal lives. Imaginative fancy, Nussbaum argues, allows us to know the internal substance and quality of the lives of others. It allows us to come to appreciate, to understand, to share, and ultimately to resist others' suffering. It is, in short, the means by which we come to care about the fate and happiness of others. It is a part, but not the whole, of our capacity to transcend a narcissistic and infantile egoism. It is therefore central, not peripheral, to our capacity for moral judgment, and it is accordingly central, not peripheral, to our lives as public citizens. Fancy is a part, not the whole, of what prompts us toward a generous, humanistic, egalitarian, and democratic stance toward others. Fancy is a part, not the whole, of what enables us to give a due regard to the individuality, the dignity, and the irreducible worth of our fellows. Given its importance to our moral, political, and legal lives Nussbaum argues, we should not only study our capacity for imaginative fancy, but we should also value, nurture, and encourage it. Reading modem realistic fiction, particularly (but not only) in novel form, is central to that end. The modem realistic novel, Nussbaum argues, is the fanciful genre, par excellence. Through reading realistic novels -- and only to a lesser extent watching films or reading history -- we come to understand the most important promise the book contains, however, may be implicit rather than explicit. In this work and elsewhere, Nussbaum acts on her clearly deeply felt conviction that the western literary and philosophical canon, correctly and critically read, suggests a case for a moral and political structure that is at once humanistic, egalitarian, generous, and liberal in its respect for individuals and communities alike. If sustainable, this is a claim of tremendous importance and great hope, not only to law-and-literature or law-and-humanities scholars, but obviously for all engaged citizens in liberal societies. Poetic Justice does not directly argue for this claim although the first two chapters in particular -- which rest almost entirely on interpretations of Dickens's Hard Times -- suggest it. Although they are never spelled out quite this explicitly, at least three arguments run through Poetic Justice regarding the relation between fancy and our moral lives. First, Nussbaum directs her elaboration of the capacity for fancy, and its relation to novelistic realism, to an internal, decidedly friendly critique of utilitarianism. The second argument, elaborated upon in the third chapter, is in my view the heart of the book. In this chapter, Nussbaum argues that fancy relates not just to utilitarianism or to sound normative economics, but to moral decisionmaking generally. The third argument, alluded to throughout the book but most explicitly stated in the final chapter, Poets as Judges, is that fancy informs not just our moral sense, but, more specifically, our sense of justice. I will not comment here on the arguments of the first chapter of Nussbaum's book - that utilitarianism or normative economics, or both, uninformed by narrative wisdom risk being sterile, and that a sensitive reading of both Dickens's Hard Times and Wright's Native Son underscores that truth.