On law as poetry: Shelley and Tocqueville

Abstract

Consonant with the ongoing “aesthetic turn” in legal scholarship, this article pursues a new conception of law as poetry. Gestures in this law-as-poetry direction appear in all three main schools in the philosophy of law’s history, as follows. First, natural law sees law as divinely inspired prophetic poetry. Second, positive law sees the law as a creative human positing (from poetry’s poesis). And third, critical legal theory sees these posited laws as calcified prose prisons, vulnerable to poetic liberation. My second and third sections interpret two texts at the intersections among these three theories, namely Percy Bysshe Shelley’s “A Defence of Poetry” and Alexis de Tocqueville’s Democracy in America. Shelley identifies a poetic rebirth in the ruins of natural law, suggesting a philosophy of law as “natural poesis”. And Tocqueville names several figurative aristocracies capable of redeploying aristocratic law against democratic despotism, suggesting a philosophy of law as “aristo-poetic counterforce”. Finally, I propose a new theory of law as poetry bridging these two theories, “natural aristo-poetic counterforce”.