ABSTRACT
On 3 April 1895, the Old Bailey was transformed from England’s Central Criminal Court into the venue for a literary event. Oscar Wilde was suing the father of his lover for libel, and the courtroom was as packed as the opening night of some of his plays. When Edward Carson, the lawyer for Wilde’s opponent, raised the question of whether The Picture of Dorian Gray could be interpreted as a ‘sodomitical book’, Wilde found himself in the surprising position of having to defend his work in a trial that he himself had initiated.1 Carson also demanded to know whether Wilde thought that an exchange between Dorian and the artist Basil Hallward in the novel ‘would suggest that what they were talking about was a charge of sodomy’ when the passage was ‘taken in its natural meaning’.2 I begin with this moment from the Wilde trials because at its core are two inter-
connected questions which I will explore in this study. The first is the question of gender; the figure of the sodomite constituted one of several sexual identities that were particularly unsettling in the late nineteenth century because they put pressure on a normative bourgeois masculinity that was already under strain. The second is the question of interpretation. Carson appeared to assume a direct correspondence between Dorian Gray’s content and the life of its author, and the cross-examination proceeded on the basis that the novel can be construed as evidence of Wilde’s sexual desires and practices. To a literary critic, Carson’s approach to literature seems curious at best; as Wilde tried to tell him during the trial, a text does not allow for any easy access to a pre-discursive reality. My aim is to investigate the processes of interpretation that take place when
legal readers – lawyers, judges, jurors – encounter literature in the courtroom, and the ways in which such interpretive processes take part in the formation of gendered identities in literature and law. By approaching the trials themselves as texts that deserve to be read, I will examine the assumptions legal readers make about literary texts, the arguments used when counsel on the opposing sides
ways in which ‘legal’ language can itself be considered to have ‘literary’ qualities or significance. The period from the mid-nineteenth century to the early twentieth century is a
particularly fruitful period of investigation because it was a time of intense censorship. Michel Foucault famously argued against the view of the Victorian period as a time of prudery and repression, and his ground-breaking work has shifted our focus from the top-down model of legal prohibition to the circulation of power amongst multiple discourses.3 Nevertheless, if we examine the nature and quantity of the legal rules promulgated in that period, it remains true that it was one of the most repressive in literary history: the modern definition of obscenity in English law, which is still operative today, was first formulated in the 1850s; the French edicts regulating literary and journalistic publications became increasingly stringent as the century wore on; and governments uncompromisingly intervened in literary production in the name of protecting the moral health of the nation.4 A large number of literary trials, in which writers or their publishers were
brought to the dock because of fiction or poetry that was allegedly indecent, obscene or transgressive, took place between the 1850s and the 1930s, and they constitute particularly illuminating instances of how literature is interpreted through the eyes of the law. In this study, I shall examine five of these court cases, including those concerning Flaubert’s Madame Bovary (1856); Paul Bonnetain’s narrative about a compulsive masturbator, Charlot s’amuse (Charlot Plays with Himself ) (1883); Émile Zola’s La Terre (The Earth) (1887), whose English translator and publisher, Henry Vizetelly, was prosecuted for obscenity in the English courts; Oscar Wilde’s The Picture of Dorian Gray (1890) and Radclyffe Hall’s novel about lesbianism, The Well of Loneliness (1928). I call these cases ‘literary trials’ not because I assume that the texts were necessarily
considered of great aesthetic value at the time of the prosecution, or that ‘literature’ embodies any timeless, incontestable standard of beauty. On the contrary, I call them ‘literary trials’ because they are events which turned on the very question of what constitutes ‘literature’ in the first place. Even though this question was rarely explicitly articulated in the courtroom, it hovered just below the surface, always ready to emerge during the proceedings, as when a writer sought to defend the ‘literary’ merit of his or her writing, or when a lawyer contended that a novel should be construed as ‘filth’ or ‘trash’ rather than literature. Elisabeth
on literary obscenity, arguing that books which were considered obscene in the nineteenth century became accepted as literature in our own time because ‘realism’ and ‘art for art’s sake’, two ideas which were then regarded as ‘avant-garde heresy . . . gradually became accepted clichés, and then grounds for legal defence’.5 She demonstrates that as literary styles which were ‘unmentionable’ gained acceptance, so did the works that were written in those styles. The terms ‘realism’ and ‘art for art’s sake’ (or aestheticism) are also central to
my study, and I will return to them in the following pages, and especially in the chapter on the Wilde trials. At the same time, I will broaden the scope of inquiry by showing that the question of what constitutes ‘literature’ with which all of these cases were implicitly concerned intersected with a number of other issues, such as the relationship between literature and the visual arts, the ‘scientific’ basis of fiction, the distinction between literature and pornography and the intertwined epistemologies of law and literature. The nineteenth and early twentieth centuries were also a crucial period in the
history of gender and sexuality. In recent years, some of the most productive work on ‘law and literature’ studies, especially those with an explicit historical focus on the period, have examined the relationship between women, literature and the law, revealing the patriarchal assumptions behind legal discourse and underscoring how literature questioned conventional legal notions of femininity.6 In this study, I build on the existing scholarship on law, literature and gender, but
shift the focus from femininity to masculinity to examine the ways in which the legal reading of literature bolstered, interrogated and subverted orthodoxies about normative male identity of the time. The middle-class belief about the desirability and normality of a procreative, conjugal and familial masculinity, established in the first half of the nineteenth century, became increasingly challenged from the second half of the century. As the foundation of this male identity became less and less secure, a number of literary works whose plots revolved around characters that did not fully conform to gender expectations were placed under legal scrutiny. Their writers or publishers were prosecuted for publishing obscene material, or had their desires and beliefs publicly put on trial.
