Evaluating literature

I was in a great class a couple weeks ago (Peter Brooks' wonderful seminar Reading Law Reading) with Robert Post of Yale Law School, and we were talking about the the First Amendment and the current legal test for obscenity. Built into the test is a certain provision that basically allows expert testimony as to whether something under consideration for obscenity is politically, socially, or artistically valuable: if, say, an offensive work of art is determined to be valuable in one of these ways, this will factor in any determination as to its being deemed obscene. Post moved past the considerations of social value and went straight towards the odd question of artistic value, rightly posing to us the question of what, as literary critics, we might have to say if we were there testifying as experts on a piece of writing. Does the writing have literary value? What would we say? He came to the dismal conclusion that as it stands, we wouldn't be able to say much. This was both a failure of literary studies for him and a failure of the law for asking this particular question to critics in this particular (perhaps outdated) way. For him, it presupposes a set of Leavises out there, when we have a conception of literature that has moved far away from that.
Alexander Nehamas, who was there in the seminar, rightly rejoined that this was a bit of a mischaracterization of Leavis: Leavis--I'll expand on his point here--by no means was trying to make literature something that could just either have value or not--which is how the test seems to characterize literary evaluation--but trying, primarily to rescue value from scientificity (in a specific sense: scientificity as having the qualities of pure positivistic empiricism), from having a particular type of value that he saw as pernicious. But just because a value is not as determinable as a sort of scientifically or pseudo-scientifically determined value doesn't mean that it is a sort of value that would be inherent to the work of art, or be commensurate with some sort of essential literariness, which is what Post seems to want us to give the court. The fact is that Leavis was just as firm a disbeliever in the "phantom aesthetic state" and claims of essential literariness as was I.A. Richards--his theories indeed would not be possible without this disbelief. Terry Eagleton, for one, completely mischaracterizes this in his "study" (it's more like popular fiction) Literary Theory, and is largely responsible for this particular misunderstanding of Leavis (though Leavis' virulence as a critic didn't help this either: sometimes people can't distinguish a very intense statement of support for a work or a very intense castigation from some positing of an essence).
But all that aside, the point is that Leavis too is part of a tradition in literary studies that precisely keeps at bay the question of whether something is literary or not by studying other things about this object--and this is the deeper thing that Post was rightly getting at. The problem for me is when this movement away from some notion of the essence of the literary object is confused with a movement towards scientificity or towards theory, and away from something like appreciation. For inevitbly the task of evaluating literature gets aligned with the latter task: evaluation is something more appreciative. For me, personally, I don't find literary study scientific enough (in a broad sense, which is not necessarily positivistic empiricism): perhaps in no other field in the humanities would we be as concerned with appreciation as we are in literature. Perhaps art, but not history, say, or even studies in film, and definitely not architecture. That's a broad statement, but the point is less about other fields than it is about literature, where we are still very much concerned with an idea of our object as something that is resistant to determination, and that promotes a an almost completely indeterminate act of "appreciation." So the more and more we lock down this object, the more and more we see literature as a determined cultural object, with both external and intrinsic patterns that can and should be specified and not just consumed--the more and more we do this the more and more we can actually then allow the work to cultivate students, and, through teaching, actually control appreciation, or reduce it to a mere effect of that much more important thing, learning.
Personally, I also think seeing the literary object as something more scientifically able to be determined (which doesn't always mean empirically studied, remember--something like sociology, in my view, scientifically studies its objects without being as dependent upon the empirical, and the best aspects of psychology do something similar) would allow us to provide an answer to the test: not necessarily through a scientific analysis, but in the same way that a sociologist would be able to say, yes, this has value because it is something we could study as significant to a society, or a political scientist could say, yes, this is a politically significant document that not only has immediate effects but is part of a larger discourse that, through our studies, we have seen to be important and pervasive in some way. But this all in a way only extends the problem that I pointed to: that we characterize this study of the determinateness of the literary object as scientificity (this determinateness--as you'll see--is really what I'm advocating when I say that we aren't scientific enough: it is what resides in scientificity and is the best part of all science), and then see this scientificity as opposed to appreciation--and see the history of the discipline as beginning in appreciation and moving towards this scientificity. Not only is this wrong because it overlooks the (to me, blech, disgusting) aestheticism that still escapes this movement (which produces little cliques not over theoretical issues but over personal quirks and sensibilities that inform one's study of literature because the literature merely reflects these quirks, as Evan pointed out commenting on a previous post of mine), but it is wrong because it conceives of the sort of determinateness that comes with a statement about a literary object with something like a buzzkill. Saying something definite about literature cuts away at something else in the work, which is usually (but I'd say, mistakenly) conceived of as affective, personal, private (or belonging to a select group), or what have you. But definiteness doesn't have to work that way, and therefore scientificity does not even have to be opposed to appreciation in the first place. Once this is admitted, evaluation can operate on both sides. The progression of literary studies then, would not be a movement away from appreciation and evaluation, but a movement of varying degrees of specification and definiteness, and evaluation in all sorts of ways.
The only thing is that statements about literature must then be definite: they cannot appeal to something vague, or whenever they do, this vagueness must be systematized--preferably be something able to be diagrammed or modeled, though that is asking a lot, perhaps (this is what I particularly like about Franco Moretti--though I could also say the same about I.A. Richards, both of whom are often ostracized as "scientific:" he understands that it is not so much graphs or models that are important for literature, but that what we say about literature must be clear and definite enough to be represented otherwise, in a diagram). I don't know if this would produce better answers to the question Post put to us (remember, part of the problem is that the law poses the question funnily--and not just to us, but to other experts too), but I do think that it would remove the notion that evaluation is saying something significant and rich about the significant and rich work of literature, when it is often more of an effort of saying something definite and clear about a work of literature that fits into complex systems of discourse, more of which is being studied every day. In other words, it would basically do away with evaluation in its still (still!) current sense, and place it alongside the other functions of the study of literature that we deal with--it would no longer be something like an ultimate question, but a product or effect of the study of literature. As this effect, it would be then be something quite easy to determine for a lawyer if questioned, not something highly complex requiring tortuous and confusing justifications. At the same time, neither would it be a simple yes or no: it would still be the product of an analysis that fits the object (or fails to fit it) into a system that isn't essentially one way or another way, but is constantly at work, functioning in all sorts of ways.