Custom and the Law: Some Speculations

In 2012, at the end of a dissertation regarding the relationship between the literary custom sketch and the novel in the nineteenth century, I speculated that “the struggle between local laws and national laws only mask the struggle between customs and the law” (134). My larger point was that, in the context of maturing countries and societies in the Americas, appeals to the “tradition” articulated in custom sketches, to stories that reinforced social norms, signaled a new national (literally postcolonial) world in which the state would legitimate itself through written laws (e.g., national constitutions), often at the expense of local customs and, arguably, local laws. That hunch stemmed from my analysis of Cecilia Valdés and Sab, two antislavery Cuban novels; Quincas Borba, a novel about a rather mediocre Brazilian gentleman who convinces himself he is Napoleon III; and The Scarlet Letter. My proposal for the present project is to more carefully explore that hypothesis through computational literary studies. The main research question driving this project is this: to what extent does mid-nineteenth century fiction deploy custom, tradition, or social norms vis-a-vis the law, particularly national law? Can we point to a particular dynamic between norms and the law in this fiction? Are these concepts pitted against each other (never, sometimes, all of the time)? Or are they mutually reinforcing (never, sometimes, all of the time)? Are they figured as an evolution or, perhaps, a mere transition?

These overall questions are complicated, but this project is a necessarily modest one, a proof of concept. For this reason, I am focusing on readily available texts in the public domain, specifically texts that can be found on Project Gutenberg. I have created a corpus composed of texts written by Harriet Beecher Stowe, Charles Chesnutt, Nathaniel Hawthorne, Herman Melville, and Edgar Allen Poe. These authors were selected not only because of their prominence in nineteenth century U.S. literature and their availability but also because they are each well known writers of custom sketches and/or novels that described social life in the United States of their time. 

In order to investigate the relationship between norms and the law, I will use the digital tools Voyant and AntConc to perform frequency, collocation, word list, and keyword queries on the corpus using terms closely related to norms and the law (e.g., custom, law, tradition, norm, taboo, outlaw, church, ancestor, strange, queer, pariah, etc.). My hope is that these tools will point me to a statistically significant relationship between these terms and/or lead me to other terms that may elucidate this relationship. 

To the extent that I can use the word thesis, what I seek to show is that the mid nineteenth century fiction alerts us to the waning of custom as an organizing principle for society and the rise of the law, particularly federal law (I’m explicitly thinking here of the Fugitive Slave Act of 1850 as one example). The stakes of this hypothesis are manifold. Such a finding would show that the fiction of the time was registering a paradigmatic shift in not only how society was organizing itself but also on how national law grappled with local custom and law for the supremacy promised by the Constitution. But it would also reveal and restore to continuing importance on custom and law that is sometimes at odds with the law and at other times necessary for the law’s functioning (e.g., the Constitution is merely a blueprint for a government system; it requires norms, here explicit as well as tacit agreements between people, to be implemented and maintained).

Through Voyant and AntConc (as well as other tools that may be useful), I will create data visualizations that will show my findings, which I will assemble into an interpretive essay using visualizations. This essay will be posted to this website, which is built on the WordPress platform and readily supports images (visualization) and videos (should I find useful public domain videos). While I would like the text to be accessible to “casual readers,” my audience is very much experts on nineteenth century fiction and/or the law as well as the community of practice of digital humanists. 

Work Cited

Jimenez, Javier. Regarding American Customs. University of California, Berkeley, PhD dissertation.

Works Consulted

Bakhtin, Mikhail M. “From the Prehistory of Novelistic Discourse.” Trans. Caryl Emerson and Michael Holquist. The Dialogic Imagination. Ed. Michael Holquist. Austin: University of Texas Press, 2002. 41-83.

Hale, Dorothy J. “Aesthetics and the New Ethics: Theorizing the Novel in the Twenty-First Century.” PMLA 124.3 (2009): 896-905. Web. 30 Sept. 2009.

Harpham, Geoffrey G. Shadows of Ethics. Durham, N.C.: Duke University Press, 1999.

Korobkin, Laura. “The Scarlet Letter of the Law: Hawthorne and Criminal Justice.” Novel. 30.2 (Winter 1997): 193-217.

Nussbaum, Martha C. Poetic Justice : The Literary Imagination and Public Life. Boston, Mass.: Beacon Press, 1995.

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