In lit-crit circles, “meta-discourse” or “meta-criticism” has been big for so long that it is now as passé as polyester paisley-print leisurewear. “Critical theory,” its more common name, exploded on the American intellectual scene in the early ‘70s. Inspired by a bunch of frogs—Derrida, Foucault, Lyotard, Lacan, de Man—the movement took aim at the fundamental premises of criticism, the very act of judging texts, and the practice of interpretation. Criticism about criticism. This approach to texts also prompted great interest among literary scholars in writing that is self-referential such that readers are forced to remain conscious that they are reading something that has been constructed by an author—instead of merely being seduced, for instance, by a gripping plot.
Oh so postmodern.
But really, Shakespeare was all over this concept long before the Derrida Man came to town. Shakespeare weaves self-referential bits into many plays and sonnets. He gives us plays-within-plays and numerous extended metaphors about theater. For instance, Hamlet uses a traveling band of actors to put on a play, which Hamlet calls “The Mousetrap,” to “catch the conscience of a king;” that endeavor reminds the audience that it is watching a play, but also underscores Shakespeare’s tragic theme: Hamlet, who is obsessed with deceptive appearances, employs artifice to get at the truth. Similarly, Shakespeare has the “mechanicals” in A Midsummer Night’s Dream rehearse a play in the woods about two young lovers whose demise looks an awful lot like the plot of another play Shakespeare had written a few years earlier. And this self-referential, self-deprecating critique makes the mechanicals’ naively sincere performance even more hilarious. Likewise, in the sonnets Shakespeare does a lot of writing about writing: “If this be error and upon me prov’d,/ I never writ nor no man ever loved.” Shakespeare uses meta-talk as a potent literary tool that goes well beyond just reminding the audience that texts are cultural constructions.
I mention all this because it struck me the other day that one of the cool things about the common-law tradition is that the whole enterprise amounts to meta-talk. Maybe that is why Shakespeare was so drawn to the law as an enterprise. Cases consist of talk about other cases—which is one reason why cases are so tough for even really smart people to read. Before the reader is in a position to assess or even comprehend what some court is saying in a particular case, they have to read a bunch of other cases to which the opinion cites. And sometimes a case only makes sense if you also track down certain highly relevant cases that preceded a particular opinion that the court chose not to cite. Yes, our law is overtly comprised of meta-talk. Yet people are often shocked and dismayed by the notion that case law is constructed by particular authors, not delivered on tablets from on high. And perhaps people forget this because only with dissents and concurrences is an author’s meta-talk tied expressly to a particular authorial voice. More likely, people forget about the constructed nature of the law because most people are not actually spending their days reading cases. They rely on what others—often non-lawyers—say the law says such that the meta nature of the law is harder to see. But seeing the law as meta-discourse really is essential to making any sense out of why courts decide things the way they do—whether one is pleased with a given holding or not.
I end this post with some meta-talk of my own: blawging about a blawg post. I’d like to call attention to a recent post on Balkinization by Joey Fishkin: “Who’s Afraid of the Medicaid Expansion (and Why)?” This post provides concrete rebuttal points to those arguing that states should “just say no” to the Medicaid expansion provided for in the Affordable Care Act (aka Obamacare). I turned to this post for guidance after I realized that I was not entirely sure about: (1) how the Medicaid expansion is supposed to work and (2) why certain governors were going to such lengths to say “no” in advance on behalf of their entire states using rhetoric that sounds a bit like nostalgia for the ole Jim Crow era. Fishkin’s post is lively, accessible, informative, and provocative. Except for being even more long-winded than I tend to be, it exemplifies blawgging at its best. I am grateful for the schooling. Perhaps if I had read it sooner I would have been in a better position to keep up with a doctor-friend during a recent conversation on this topic instead of free-lancing in a way totally unbecoming to a lawyer. Certainly, posts like Fishkin’s promote more informed policy debates and more nuanced readings of charged political discourse.