Once upon a time there was a burgeoning field called ‘Victorian studies’. Its roots can be found in the 1950s, it flourished in the 1960s and ‘70s, but since then it has withered. Given how tight disciplinary constraints can be, the emergence of such an interdisciplinary field usually betokens some powerful new motivations. In this case they were, perhaps unpredictably, liberal and social-democratic motivations, reflecting a mounting social conscience among academics in both the US and the UK. This social conscience drew attention to the social problems of the Victorian period, notably problems of poverty, proletarianization, urban sprawl and, latterly, sexual repression and gender differentiation. You can see these motivations in the surge of interest in the ‘Condition of England’ novels and social criticism of the 1830s and 1840s and in the ‘Dyos’ school of urban history, topics which intersected in that great climactic document of Victorian studies, the lavishly illustrated two-volume ‘Victorian City’ project edited by Dyos and Wolff and published in 1973.[1]
It may be controversial to say that ‘Victorian studies’ has since withered; the journal of that name still flourishes; so do ‘Victorian studies associations’ in both the US and the UK; there are ‘Victorianists’ aplenty still in literature departments, though fewer in history departments. But the interdisciplinary project has faded, perhaps with fading hopes in the social conscience of the period. Those tight disciplinary constraints have blown apart many fledgling ‘Victorian studies’ programmes and no-one now hires in the field, and not so many even in Victorian literature or history. Nevertheless, if the field doesn’t exist as it once did, there are scholars who carry on its spirit. Notably there is a loose cluster of scholars, more often with literary than with historical origins, who continue to study Victorian liberalism – or, now, more often recognised explicitly as capitalism – as not just a political affiliation or a form of political economy but as a way of life. I am thinking of the likes of Elaine Hadley, whose book Living Liberalism (2010) states its intentions in the title[2], Lauren Goodlad, author of among other books Victorian Literature and the Victorian State: Character and Governance in a Liberal Society (2003)[3], Amanda Anderson, whose book Bleak Liberalism (2016)[4] follows a similar path to Hadley’s, and Clare Pettitt, whose ongoing trilogy[5] proposes seriality as a new way of living (and reading) for ever-growing populations in the Victorian city.
Anat Rosenberg is one of these scholars. Unusually she combines history and literature with the law. I say unusually but in this context it is not incongruous. The law offers an obvious alternative text to literature as a window on Victorians’ ways of living in a liberal society. Among the scholars I’ve mentioned, Anderson cites Derrida and Agamben as taking a view of law as an external authority, an act of violence or exception that dehumanises and demoralizes, whereas Anderson wishes to see the law as part of lived experience, a challenge to be met at least, and possibly also a context within which ‘truth and justice’ might be maintained. (She is keen to insist that for her liberalism is not just a challenge but an opportunity for active and constructive engagement.[6])
Rosenberg too sees the law as embedded in life. In her first book, Liberalizing Contracts, she posited a ‘relational liberalism’ that was not a Polanyian defence against liberalism, or living in a capitalist society, but rather ‘a form of implementation of a market economy’ in which older ideas of status and relationships were preserved, not destroyed.[7] Her exemplary case is the marriage contract which both in literature and in the law is hardly a simple matter of rational choice between atomistic individuals but embeds status relations of class and gender and could perhaps even incite new understandings of mobility and authority.[8] In this, although she doesn’t cite him, she seems to be aligning with Durkheim’s view of the marriage contract as indicative of the ‘noncontractual foundations of the contractual’, and perhaps also with Melinda Cooper’s recent, harsher evocation of the exceptional terms of the marriage contract, involving some forms of irrevocable consent and ‘the imperative of inalienable labour’.[9]
In Rosenberg’s new book, the one to hand, similar questions are at stake in the way in which advertising broaches both matters of rational choice between atomistic individuals and also extra-rational promises of fantasy and imagination (if not often love): in fact, Rosenberg explicitly proposes that advertising incites some similar fantasies of mobility and democratized authority that she attributed to the marriage contract. Here she contributes to a burgeoning literature on the enchantment or re-enchantment of capitalism that challenges Weber’s theses on the disenchantment of capitalism by asserting the persistence of enchantment in everyday life and its entanglement with rather than distinction from protocols of rationality. Consumption is never a matter simply of meeting needs or securing value for money. It always invokes fantasy – what Rosenberg calls ‘the will to enchantment’ – and in the age of mass advertising fantasy is promoted to hitherto unimaginable levels.
The place allotted to the law here is however very different to its place in her account of the marriage contract. Rather than embracing and accommodating the ‘noncontractual foundations of the contractual’, the law’s approach to advertising is a straightforward piece of boundary work, the disavowal of enchantment. The law did not deny the scope for enchantment in market relations but ruled such adventures as outside its own province. In this the law allied not with market-makers but with experts (especially scientists) and professionals who sought to rope off legitimate, rational claims from the necessary free play of fantasy involved in market exaggerations. Rosenberg illustrates this most vividly through the application of the doctrine of puffery: a puff is not an actionable promise (a puff for patent medicine is not, for example, a promise of cure).
The irony, as she shows, is that the law, by roping off the realm of rationality for itself (and also as Rosenberg says helping to constitute the idea of modernity as disenchanted), left both advertisers and consumers largely free from the constraints of law to enchant, fantasize and imagine. Advertisers seemed aware of this risk; as she argues in her final chapter, they developed regimes of self-regulation aimed at checking enchantment, constituting their own forms of expertise in psychological science and allocating more of their resources to branding and reputation management. The law did not worry. Why not? Presumably because its course was dictated by some of its own internal preferences and path dependencies. It was simply not equipped to police human psychology or even to fathom it as late-stage advertisers did. Its belief in the legitimacy of the profit motive drove it to accept all sorts of non-rational (and socially damaging) consequences of greed and avarice as outside its remit.
There is an interesting contrast here with the marriage contract. The non-contractual elements of the marriage contract were accepted and clung to in the law well beyond the nineteenth century. (This is again the point of Melinda Cooper’s book, which argues that even neoliberal legal scholars of the Chicago School hold that ‘freedom of contract cannot exist without the ostensibly natural, noncontractual obligations of family’.[10]) It must have helped that for most of the nineteenth century the property implications of the marriage contract were minimized by the preponderance of the unpropertied and even in the middle class the exclusion of married women from property rights. There was a consumption dimension to this too; under coverture married women were entitled to contract debts for ‘necessaries’, but not for anything else their fevered, fragile imaginations might covet.[11]
But these exclusions no longer applied at the end of the nineteenth century and must surely have troubled legal thinkers who saw enchantment running ‘rampant’ outside their province. Rising living standards for the mass of the people and married women’s property rights were bringing millions more people into the ambit of ‘luxurious’ consumption and thus of advertising. Perhaps surprisingly, given her general sensitivity to issues of class and gender, Rosenberg does not press much on this issue. In the Carlill case, which helped to establish puffery as a defence, the suggestibility of the female plaintiff was itself a point of interest – as one commentator put it, mind had a habit of triumphing over matter, ‘especially the female mind’[12] – but that hazardous suggestibility did not in any way impugn puffery, as it might have done.
As Rosenberg shows, it was only when suggestibility led directly to criminal acts – abortion, say, or gambling – that it came under the cosh. Otherwise it was just a matter of human nature to be accepted resignedly, even humorously. Perhaps this is another illustration of ‘relational (or, perhaps, more properly affective) liberalism’, now stretched to include fully women and the working class, but with the law playing the role not of supporting the non-rational but of stepping aside and letting it rip. Or perhaps the law came to embed an assumption that people – even women and the working class – would become progressively more rational over time, such that their desires and behaviours would increasingly fall within rather than outside the purview of the law? But didn’t the prior assumption that non-rational behaviours were ineffective in the market evoke growing anxieties about the law’s ability to govern that marketplace as ever larger numbers of ‘non-rational’, ‘suggestible’ consumers entered it? It is a besetting sin of commentaries on ambitious books that they always tend to ask, ‘what happened next?’ (or, alternatively, ‘what had happened previously?’), but I’m sure Rosenberg has answers to this one.
[1] H.J. Dyos and Michael Wolff (eds.), The Victorian City: Images and Realities (London: Routledge & Kegan Paul, 1973).
[2] Elaine Hadley, Living Liberalism: Practical Citizenship in Mid-Victorian Britain (Chicago: University of Chicago Press, 2010).
[3] Lauren M.E. Goodlad, Victorian Literature and the Victorian State: Character and Governance in a Liberal Society (Baltimore: Johns Hopkins University Press, 2003).
[4] Amanda Anderson, Bleak Liberalism (Chicago and London: University of Chicago Press, 2016).
[5] So far, Clare Pettitt, Serial Forms: The Unfinished Project of Modernity, 1815-1848 (Oxford: Oxford University Press, 2020); Serial Revolutions 1848: Writing, Politics, Form (Oxford: Oxford University Press, 2022).
[6] Anderson, Bleak Liberalism, 7-10, 15.
[7] Anat Rosenberg, Liberalizing Contracts: Nineteenth Century Promises Through Literature, Law and History (Abingdon and New York: Routledge, 2018), 10.
[8] Ibid., ch. 5.
[9] Melinda Cooper, Family Values: Between Neoliberalism and the New Social Conservatism (New York: Zone Books, 2017), 88.
[10] Cooper, Family Values, 117.
[11] Though it might be argued that middle-class women’s ability to manipulate the law of necessaries counts as one of those noncontractual exceptions that rendered liberalism ‘relational’: see the discussion in Margot Finn, ‘Women, Consumption and Coverture in England, c. 1760-1860’, Historical Journal 39 (1996), 703-22.
[12] Anat Rosenberg, The Rise of Mass Advertising: Law, Enchantment, and the Cultural Boundaries of British Modernity (Oxford: Oxford University Press, 2022), 246.