Law and literature
Encyclopedia
The law and literature movement focuses on the interdisciplinary connection between law
and literature
. This field has roots in two major developments in the intellectual history of law -- first, the growing doubt about whether law in isolation is a source of value and meaning, or whether it must be plugged into a large cultural or philosophical or social-science context to give it value and meaning; and, second, the growing focus on the mutability of meaning in all texts, whether literary or legal. Those who work in the field stress one or the other of two complementary perspectives: law in literature (understanding enduring issues as they are explored in great literary texts) and law as literature (understanding legal texts by reference to methods of literary interpretation, analysis, and critique).
This movement has broad and potentially far reaching implications with regards to future teaching methods, scholarship
, and interpretations
of legal texts. Combining literature's ability to provide unique insight into the human condition
through text with the legal framework that regulates those human experiences in reality gives a democratic judiciary
a new and dynamic approach to reaching the aims of providing a just
and moral
society. It is necessary, in practical thought and discussion about the use of legal rhetoric
, to understand text's role in defining human experience.
By applying literary doctrine to legal writing
, the movement allows laws to be more readily interpreted and legal decisions to be more effectively conveyed. Providing clarity of expression can empower citizens, legal professionals, judge
s, politicians, and the various legal philosophers that keep a democratic society functioning as ideally as possible. Through the application of literary standards to legal documents it becomes easier to accommodate special cases and to shirk despotism
and oppressive movements since the human element becomes reunited with the mechanism by which we regulate our lives. In short, the movement gives hope to a legal system that may need a jolt of humanity
.
as the founder of the law and literature movement because of the dedicated research and distinguished publications he has contributed to this rapidly growing field. Among his many literary books and articles, White's most renowned publication, The Legal Imagination, is often credited with initiating the law and literature movement. This book, first published in 1973, is a fusion of anthology and critique, superficially resembling a traditional legal casebook but drawing on a much wider and more diverse range of sources, with headnotes and questions emphasizing the relationship of legal texts to literary analysis and literary texts to the legal issues that they explore.
The movement began attracting attention in the 1970s and by the 1980s had gained substantial ground in academia. The proponents of the law-in-literature theory, such as Richard Weisberg and Robert Weisberg
, believe that literary works, especially narratives centered on a legal conflict, will offer lawyers and judges insight into the "nature of law" that would otherwise go missing in the traditionally strict study of legal rhetoric.
In its early stages, the law and literature movement focused strictly on the law in literature theory; however, beginning in the late 1970s the law as literature perspective began to gain popularity. This perspective seeks to enhance legal studies by examining and interpreting legal texts using the techniques of literary critics. Scholars such as White and Ronald Dworkin
find greater relevance in law as literature because it maintains that the meaning of legal texts, such as written law, like any other genre
of literature, can only be discovered through interpretation. Although legal scholars have long considered both literary and legal texts in their study of the legal process
, the recent degree to which the two seemingly separate genres interact has sparked great debates among scholars.
, Albert Camus
, Herman Melville
, Fyodor Dostoevsky
, and Charles Dickens
. The fictional situations presented in literature, these scholars assert, can tell a great deal about political and social situations, and the individual that often find themselves before the court. For example, Robert Weisberg
believes that the law in literature offers fertile possibilities. He suggests that even though some literature can not instruct its readers about legal situations, they can still educate law students about the human condition.
Richard H. Weisberg
, professor at Cardozo School of Law is another leading scholar of law and literature. Following the lead of James Boyd White, he sees an intrinsic value in the use of literature as a means of discussing legal topics. Unlike White however, who places value on literature for its ability to stimulate critical thought and theory, Weisberg believes that literature should be valued for its ability to cause one to relate to others, and for the political and social contexts that novels, particularly those dealing with the law, grapple with. For Weisberg, this is reason enough for its justification in the legal arena because such novels cause their students to reach conclusions regarding human understanding. In his study Poethics, Weisberg states that:
Richard Weisberg's interest in the law and literature movement might be seen as slightly different than that of White, who places emphasis on the rhetorical techniques and abilities that literature utilizes. Weisberg rather wishes to use literature as a way of critiquing social institutions and legal norms. For him it is the subject matter of novels and not their rhetorical tools that make them important in instructing law students, as well as furthering understanding of legal matters for the independent law scholar.
One example of his attempting to validate his stance of the effect of novels onto legal minds, is one where Weisberg cites a real life French lawyer living in France
during the beginning of the deportation of French Jews
to concentration camps. The lawyer was attempting to assign the duty of determining Jewry of an individual with only two Jewish grandparents to the state, then controlled by the Nazis and collaborators. In describing the words chosen by the lawyer, Weisberg believes that the "masking of a moral crime" is a direct descendant of Nietzschean ressentiment, which is widely believed to be a philosophical outlook that permeates through the writings of Albert Camus
and Kafka-literary authors whose works law and literature proponents cite often, including Weisberg. His belief that ressentiment makes its way into the writings of lawyers, such as this Frenchman, is seen as enough of a reason for him to view legal novels as compelling arguments of the human condition and thus their validity towards legal debate.
Benjamin N. Cardozo
was a proponent of law as literature. "The success of Cardozo's books was also due in part to their distinction as literature. Convinced that style could not be separated from substance, Cardozo brought the Judicial process to life in lucid, eloquent prose sprinkled with humor, anecdotes, and practical allusions." (enotes.com, Benjamin Nathan Cardozo 1870-1938)
While James Boyd White
acknowledges the relevance of the law-in-literature perspective, he finds law-as-literature more tenable because of the position's ability to combine the two seemingly disparate disciplines and allow for text to fulfill its role of defining culture and creating relationships. According to White, Jane Austen
's Pride and Prejudice
Ronald Dworkin
also supports the arguments in favor of the use of literature to improve legal understanding. In his article, Law as Interpretation, Dworkin stated, "I propose that we can improve our understanding of law by comparing legal interpretation with interpretation in other fields of knowledge, particularly literature." He believes that our interpretations of literary works may help us to an improved understanding of our cultural environment, which in turn helps us to come to a better understanding and interpretation of the law.
has frequently turned to Kafka's The Trial
to discuss the rule of law
. As a critic of Richard Posner
's more economic take on the law, she does not dismiss the implications made by authors in legal fictional texts. For example when discussing Kafka, West asserts that:
Comments such as these show West's ideological stand on the power of literature as well as her personal philosophy of law. West's arguments tend to focus on the human condition as read in books as well as the individual submission to authority, and what she believes to be an apparent contradiction. She calls for scholars to interpret, create and critique narrative texts in order to broaden their understanding of the human condition, and the law's effect on it and the community as a whole. West believes in a so called 'political, communal and ethical re-constitution', a mode of thinking that one might engage in when reading and critiquing texts, both fictional and legal. Because of this duality, West asserts, law and literature become more related and thus more valid in discussion when debating the implications of one or the other.
These views have caused her to be seen as in the same camp as James Boyd White, although some argue that she goes even further, by becoming more of a political writer than a legal and literary critic. In her book, Narrative, Authority and the Law, West notably diverges from thinkers like Richard Weisberg and James Boyd White by stating that there should be less focus on the debate within the texts and instead a 'truly radical critique of power'. She expands by stating:
Such assertions lead some to believe her goals are more political than scholarly in nature. West may be seen not only as a scholar of law and literature, but also as a member of the critical legal studies
movement (CLS).
's Osgoode Hall Law School
and served as associate dean from 1994-1996. Hutchinson is a legal theorist and has devoted a lot of time to examining the failure of law. He also believes there is no central or primary foundational interpretive method for interpreting the law. The main point of his work is the judging of "an engaged game of rhetorical justification" which the judge must interpret, such as a statute
, a line of precedents, or the Fourteenth Amendment to the United States Constitution
. He has a nonfoundationalist perspective which searches for the truth that forms reality
. Hutchinson says that method and medium must change, so self creation becomes the engine and energy of social change. You can grasp life by living and this task cannot be completed by outside language
or through language. Hutchinson argues that politically-charged and unstable context shapes our understanding of legal rules. Hutchinson's understanding of truth confirms that law is politics
. A nonfoundationalist account of law is compatible with a diverse range of political results.
is a professor of constitutional law
at Yale Law School
. While his work in legal rhetoric draws on literary theory, he contends that law is best analogized to the performing arts
such as music
and drama
, rather than to literature. For this reason, there is little to no work in which Balkin analyzes literature's relevance to the law, but his applications of the argument through other artistic mediums gain him admission to this discussion, as well.
In his views on politics and its effect on legal standards, Balkin adheres to what is known as "partisan entrenchment". This theory states that the party that controls the White House
can place in the federal courts judges and justices that share the President's political views. This in turn affects Supreme Court justices and, ultimately, constitutional doctrine.
in 1989, an LLM from the University of Toronto
in 1990 and a MSc from University of Leicester
in 2010. Ward believes that students in both fields, law and literature, can benefit from studying rhetoric along side with law. His research lies in legal theory and public law
among others. Ward has published numerous works dealing with law and literature and legal theory.
In his publication Law and Literature: Possibilities and Perspectives, Ward discusses the future goals of the law and literature movement while exploring elements of law in famous pieces of literature. In chapter 1 of this publication, Ward describes law in literature as the process of examining "the possible relevance of literary text, particularly those which present themselves as telling a legal story
, as texts appropriate for study by legal scholars." He then sees law as literature as the process of seeking "to apply the techniques of literary criticism to legal texts." He believes that the relationship between the two are complimentary. He states discussing the debate about the importance of the Law and Literature Movement shows "its enduring strength."
has played an important role in the law and economics
movement. As the author of Law and Literature: A misunderstood Relationship (now in its third edition, titled simply Law and Literature), Posner is highly critical of the law and literature movement and the book helps to voice his more hard-lined interpretation of the law. The book can be seen as a reaction against the writings of Robin West
, who has written substantially against Posner's economic take on legal interpretation
. A powerful critic of the writings of White, Weisberg, and West, Posner sees literature as having no weight in the legal realm although he does hold the authors in high esteem. He writes:
Posner does not believe in the use of literary discourse in jurisprudential debate, and in colloquy
has described West's analysis of literature in legal debate as "particularly eccentric." Posner writes that "law is subject matter rather than technique", and that legal method is the method of choice in legal realms, not a literary one. To expand further, Posner believes literary works have no place in judicial debate because one can never truly contemplate the original meaning of the author, and that novels should only be considered in their contexts. He characterizes the discovery of laws in fiction as "ancillary" and asserts the main subject matter of a novel is always the human condition, and not the legal setting. From this perspective, the legal background created by Kafka and Albert Camus
are simply that, background, and have no further meaning beyond the environment which they create.
This isn't to say that Posner doesn't think in literary terms-far from it. For instance he characterizes Albert Camus
's The Stranger
, as the "growth of self-awareness" on the part of the hero, Mersault. Posner gives weight to such situations on personal levels and only on personal levels, yet dismisses any sort of legal implications of such situations as lacking in "realism". Such assertions and arguments have placed him in sharp contrast with Richard Weisberg, who has cited The Stranger
numerous times, among other books. Posner sees literature's importance in legal studies only because they may help the lawyer grow as an individual and to develop character, but sees no value in them as social critiques of the era in which they were developed and written, as Law and Literature scholars might ascribe to them. Certainly he sees no value in them as sources of legal philosophy and reform.
Highly critical of the notable Law and Literature scholars, Posner believes that such legal minds have taken literature "too seriously" and assigned them an unsubstantiated amount of weight in the expansion of legal knowledge and jurisprudential debate.
Richard Delgado
and Jean Stefancic were against White and his theory of certain famous legal cases in American history and agree with Posner on several issues. Their theory is that the actual impact of contemporary literature
on the substance of judicial opinion-making is limited because judges distinguish legal texts. According to Delgado and Stefancic, judges' moral positions are determined by normative social and political forces rather than by literature. They are firm believers of the critical race theory which is a school of sociological thought that emphasizes the socially constructed nature of race.
. J.M Coetzee's fictional representation of the legal issue of torture and the implications of such behavior are the topics of this particular novel. Along with trying to portray torture in a contemporary sense without falsifying its very meaning, Coetzee also points to contemporary theories of language and meaning. Because this novel translates into the current situation in the government, using the novel as literature in law is beneficial to law students. Law students receive a personal and emotional look into the structured laws on torture
and punishment
. Expanding their knowledge on torture through literature educates lawyers about the human condition. The novel also educates English students on stylistic schemes and devices as Coetzee uses them in describing torture. Because the novel discusses legal themes, the literature becomes an interactive experience with life and the community.
's Online Law Library. Also consider Justice Antonin Scalia
's A Matter of Interpretation and Justice Stephen Breyer
's Active Liberty. It is especially interesting to juxtapose these two books because Justice Scalia holds an aversion for legislative history, which is central to his interpretive process of textualism, while Breyer places strong emphasis on legislative history in the pursuit of interpreting legislative objectives of statutes.
, perhaps the leading English novelist of the nineteenth century, published Bleak House
, a massive novel built around a vehement attack on the English Court of Chancery, in monthly installments between 1852 and 1853. Bleak House is generally acknowledged as the single greatest attack on law, lawyers, and the legal system in the English language.
published The Fall in 1956. It was his last complete work.
, most famous for his Metamorphosis
also wrote The Trial
, which was first published in Germany in 1925, a year after Kafka's death. This novel questions the value and purpose of legal proceedings.
, the American novelist most famous for Moby-Dick
, spent his last years writing a novella that he finally decided to call Billy Budd, Sailor: An Inside Narrative. Left unfinished at his death in 1891, the novel did not see print until 1924. An authoritative text, established after close study of Melville's manuscript, appeared in 1962. This book has become a central text of law and literature.
, examines themes of justice and the bias of legal systems.
whose book Rhetoric: A Users Guide champions the contemporary rhetorical theory of Kenneth Burke
over the classical theory of Aristotle
.
Italian Society for Law and Literature (ISLL), http://www.lawandliterature.org/
Erasmus School of Law, European Network for Law and Literature
William R. Terpening, Anderson Terpening PLLC, Terpening on Law and Literature Blog.
University of Toronto, Faculty of Law, Combined JD/MA in Law and English
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
and literature
Literature
Literature is the art of written works, and is not bound to published sources...
. This field has roots in two major developments in the intellectual history of law -- first, the growing doubt about whether law in isolation is a source of value and meaning, or whether it must be plugged into a large cultural or philosophical or social-science context to give it value and meaning; and, second, the growing focus on the mutability of meaning in all texts, whether literary or legal. Those who work in the field stress one or the other of two complementary perspectives: law in literature (understanding enduring issues as they are explored in great literary texts) and law as literature (understanding legal texts by reference to methods of literary interpretation, analysis, and critique).
This movement has broad and potentially far reaching implications with regards to future teaching methods, scholarship
Scholarship
A scholarship is an award of financial aid for a student to further education. Scholarships are awarded on various criteria usually reflecting the values and purposes of the donor or founder of the award.-Types:...
, and interpretations
Statutory interpretation
Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is always necessary when a case involves a statute. Sometimes the words of a statute have a plain and straightforward meaning. But in many cases, there is some ambiguity or...
of legal texts. Combining literature's ability to provide unique insight into the human condition
Human condition
The human condition encompasses the experiences of being human in a social, cultural, and personal context. It can be described as the irreducible part of humanity that is inherent and not connected to gender, race, class, etc. — a search for purpose, sense of curiosity, the inevitability of...
through text with the legal framework that regulates those human experiences in reality gives a democratic judiciary
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
a new and dynamic approach to reaching the aims of providing a just
Justice
Justice is a concept of moral rightness based on ethics, rationality, law, natural law, religion, or equity, along with the punishment of the breach of said ethics; justice is the act of being just and/or fair.-Concept of justice:...
and moral
Morality
Morality is the differentiation among intentions, decisions, and actions between those that are good and bad . A moral code is a system of morality and a moral is any one practice or teaching within a moral code...
society. It is necessary, in practical thought and discussion about the use of legal rhetoric
Rhetoric
Rhetoric is the art of discourse, an art that aims to improve the facility of speakers or writers who attempt to inform, persuade, or motivate particular audiences in specific situations. As a subject of formal study and a productive civic practice, rhetoric has played a central role in the Western...
, to understand text's role in defining human experience.
By applying literary doctrine to legal writing
Legal writing
Legal writing is a type of technical writing used by lawyers, judges, legislators, and others in law to express legal analysis and legal rights and duties.- Authority :...
, the movement allows laws to be more readily interpreted and legal decisions to be more effectively conveyed. Providing clarity of expression can empower citizens, legal professionals, judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
s, politicians, and the various legal philosophers that keep a democratic society functioning as ideally as possible. Through the application of literary standards to legal documents it becomes easier to accommodate special cases and to shirk despotism
Despotism
Despotism is a form of government in which a single entity rules with absolute power. That entity may be an individual, as in an autocracy, or it may be a group, as in an oligarchy...
and oppressive movements since the human element becomes reunited with the mechanism by which we regulate our lives. In short, the movement gives hope to a legal system that may need a jolt of humanity
Compassion
Compassion is a virtue — one in which the emotional capacities of empathy and sympathy are regarded as a part of love itself, and a cornerstone of greater social interconnection and humanism — foundational to the highest principles in philosophy, society, and personhood.There is an aspect of...
.
History of the movement
Perhaps first to envision the movement were John Wigmore and Benjamin Cardozo, who acknowledged "novelists and poets" as the principal teachers of law in the first half of the 20th century. Most scholars, however, credit James Boyd WhiteJames Boyd White
James Boyd White is an American law professor, literary critic, scholar and philosopher who is generally credited with founding the "Law and Literature" movement and is the preeminent proponent of the analysis of constitutive rhetoric in the analysis of legal texts.-Biography:White attended...
as the founder of the law and literature movement because of the dedicated research and distinguished publications he has contributed to this rapidly growing field. Among his many literary books and articles, White's most renowned publication, The Legal Imagination, is often credited with initiating the law and literature movement. This book, first published in 1973, is a fusion of anthology and critique, superficially resembling a traditional legal casebook but drawing on a much wider and more diverse range of sources, with headnotes and questions emphasizing the relationship of legal texts to literary analysis and literary texts to the legal issues that they explore.
The movement began attracting attention in the 1970s and by the 1980s had gained substantial ground in academia. The proponents of the law-in-literature theory, such as Richard Weisberg and Robert Weisberg
Robert Weisberg
Robert Weisberg is an Edwin E. Huddleson, Jr. Professor of Law at Stanford Law School, and an expert on criminal law and procedure, and a leading scholar in the law and literature movement.-Biography:...
, believe that literary works, especially narratives centered on a legal conflict, will offer lawyers and judges insight into the "nature of law" that would otherwise go missing in the traditionally strict study of legal rhetoric.
In its early stages, the law and literature movement focused strictly on the law in literature theory; however, beginning in the late 1970s the law as literature perspective began to gain popularity. This perspective seeks to enhance legal studies by examining and interpreting legal texts using the techniques of literary critics. Scholars such as White and Ronald Dworkin
Ronald Dworkin
Ronald Myles Dworkin, QC, FBA is an American philosopher and scholar of constitutional law. He is Frank Henry Sommer Professor of Law and Philosophy at New York University and Emeritus Professor of Jurisprudence at University College London, and has taught previously at Yale Law School and the...
find greater relevance in law as literature because it maintains that the meaning of legal texts, such as written law, like any other genre
Genre
Genre , Greek: genos, γένος) is the term for any category of literature or other forms of art or culture, e.g. music, and in general, any type of discourse, whether written or spoken, audial or visual, based on some set of stylistic criteria. Genres are formed by conventions that change over time...
of literature, can only be discovered through interpretation. Although legal scholars have long considered both literary and legal texts in their study of the legal process
Legal process
Legal process , are the proceedings in any civil lawsuit or criminal prosecution and, particularly, describes the formal notice or writ used by a court to exercise jurisdiction over a person or property...
, the recent degree to which the two seemingly separate genres interact has sparked great debates among scholars.
Law in literature
The law in literature view is specifically concerned with the way in which legal situations are presented in literature. Generally, they place a high value on the "independent" view from which literary writers are able to see the law. They believe that such authors have a lesson to teach legal scholars and lawyers alike about the human condition, and the law's effect on it. Such scholars tend to cite authors like Franz KafkaFranz Kafka
Franz Kafka was a culturally influential German-language author of short stories and novels. Contemporary critics and academics, including Vladimir Nabokov, regard Kafka as one of the best writers of the 20th century...
, Albert Camus
Albert Camus
Albert Camus was a French author, journalist, and key philosopher of the 20th century. In 1949, Camus founded the Group for International Liaisons within the Revolutionary Union Movement, which was opposed to some tendencies of the Surrealist movement of André Breton.Camus was awarded the 1957...
, Herman Melville
Herman Melville
Herman Melville was an American novelist, short story writer, essayist, and poet. He is best known for his novel Moby-Dick and the posthumous novella Billy Budd....
, Fyodor Dostoevsky
Fyodor Dostoevsky
Fyodor Mikhaylovich Dostoyevsky was a Russian writer of novels, short stories and essays. He is best known for his novels Crime and Punishment, The Idiot and The Brothers Karamazov....
, and Charles Dickens
Charles Dickens
Charles John Huffam Dickens was an English novelist, generally considered the greatest of the Victorian period. Dickens enjoyed a wider popularity and fame than had any previous author during his lifetime, and he remains popular, having been responsible for some of English literature's most iconic...
. The fictional situations presented in literature, these scholars assert, can tell a great deal about political and social situations, and the individual that often find themselves before the court. For example, Robert Weisberg
Robert Weisberg
Robert Weisberg is an Edwin E. Huddleson, Jr. Professor of Law at Stanford Law School, and an expert on criminal law and procedure, and a leading scholar in the law and literature movement.-Biography:...
believes that the law in literature offers fertile possibilities. He suggests that even though some literature can not instruct its readers about legal situations, they can still educate law students about the human condition.
Richard H. Weisberg
Richard H. Weisberg
Richard H. Weisberg is a professor of constitutional law at the Cardozo School of Law at Yeshiva University in New York City, a leading scholar on law and literature.-Biography:...
, professor at Cardozo School of Law is another leading scholar of law and literature. Following the lead of James Boyd White, he sees an intrinsic value in the use of literature as a means of discussing legal topics. Unlike White however, who places value on literature for its ability to stimulate critical thought and theory, Weisberg believes that literature should be valued for its ability to cause one to relate to others, and for the political and social contexts that novels, particularly those dealing with the law, grapple with. For Weisberg, this is reason enough for its justification in the legal arena because such novels cause their students to reach conclusions regarding human understanding. In his study Poethics, Weisberg states that:
- "Poethics in its attention to legal communication and to the plight of those who are 'other', seeks to revitalize the ethical component of the law."
Richard Weisberg's interest in the law and literature movement might be seen as slightly different than that of White, who places emphasis on the rhetorical techniques and abilities that literature utilizes. Weisberg rather wishes to use literature as a way of critiquing social institutions and legal norms. For him it is the subject matter of novels and not their rhetorical tools that make them important in instructing law students, as well as furthering understanding of legal matters for the independent law scholar.
One example of his attempting to validate his stance of the effect of novels onto legal minds, is one where Weisberg cites a real life French lawyer living in France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
during the beginning of the deportation of French Jews
Jews
The Jews , also known as the Jewish people, are a nation and ethnoreligious group originating in the Israelites or Hebrews of the Ancient Near East. The Jewish ethnicity, nationality, and religion are strongly interrelated, as Judaism is the traditional faith of the Jewish nation...
to concentration camps. The lawyer was attempting to assign the duty of determining Jewry of an individual with only two Jewish grandparents to the state, then controlled by the Nazis and collaborators. In describing the words chosen by the lawyer, Weisberg believes that the "masking of a moral crime" is a direct descendant of Nietzschean ressentiment, which is widely believed to be a philosophical outlook that permeates through the writings of Albert Camus
Albert Camus
Albert Camus was a French author, journalist, and key philosopher of the 20th century. In 1949, Camus founded the Group for International Liaisons within the Revolutionary Union Movement, which was opposed to some tendencies of the Surrealist movement of André Breton.Camus was awarded the 1957...
and Kafka-literary authors whose works law and literature proponents cite often, including Weisberg. His belief that ressentiment makes its way into the writings of lawyers, such as this Frenchman, is seen as enough of a reason for him to view legal novels as compelling arguments of the human condition and thus their validity towards legal debate.
Law as literature
Law as literature scholars see value in the techniques employed by literary scholars. Generally speaking, these scholars may see legal text as a form of literature thus making literary critique and analysis of it possible. Unlike the law in literature scholars, these minds only see possibilities in the tools of literary theory, and not really the subject of the great novel that law students often find themselves reading, although most might agree that literature serves a purpose that allows for ethical development and growth within the student.Benjamin N. Cardozo
Benjamin N. Cardozo
Benjamin Nathan Cardozo was a well-known American lawyer and associate Supreme Court Justice. Cardozo is remembered for his significant influence on the development of American common law in the 20th century, in addition to his modesty, philosophy, and vivid prose style...
was a proponent of law as literature. "The success of Cardozo's books was also due in part to their distinction as literature. Convinced that style could not be separated from substance, Cardozo brought the Judicial process to life in lucid, eloquent prose sprinkled with humor, anecdotes, and practical allusions." (enotes.com, Benjamin Nathan Cardozo 1870-1938)
While James Boyd White
James Boyd White
James Boyd White is an American law professor, literary critic, scholar and philosopher who is generally credited with founding the "Law and Literature" movement and is the preeminent proponent of the analysis of constitutive rhetoric in the analysis of legal texts.-Biography:White attended...
acknowledges the relevance of the law-in-literature perspective, he finds law-as-literature more tenable because of the position's ability to combine the two seemingly disparate disciplines and allow for text to fulfill its role of defining culture and creating relationships. According to White, Jane Austen
Jane Austen
Jane Austen was an English novelist whose works of romantic fiction, set among the landed gentry, earned her a place as one of the most widely read writers in English literature, her realism and biting social commentary cementing her historical importance among scholars and critics.Austen lived...
's Pride and Prejudice
Pride and Prejudice
Pride and Prejudice is a novel by Jane Austen, first published in 1813. The story follows the main character Elizabeth Bennet as she deals with issues of manners, upbringing, morality, education and marriage in the society of the landed gentry of early 19th-century England...
- "is meant to teach the reader how to read his way into becoming a member of an audience it defines-into becoming one who understands each shift of tone, who shares the perceptions and judgments the text invites him to make, and who feels the sentiments proper to the circumstances. Both for its characters and readers, this novel is in a sense about reading and what reading means".
Ronald Dworkin
Ronald Dworkin
Ronald Myles Dworkin, QC, FBA is an American philosopher and scholar of constitutional law. He is Frank Henry Sommer Professor of Law and Philosophy at New York University and Emeritus Professor of Jurisprudence at University College London, and has taught previously at Yale Law School and the...
also supports the arguments in favor of the use of literature to improve legal understanding. In his article, Law as Interpretation, Dworkin stated, "I propose that we can improve our understanding of law by comparing legal interpretation with interpretation in other fields of knowledge, particularly literature." He believes that our interpretations of literary works may help us to an improved understanding of our cultural environment, which in turn helps us to come to a better understanding and interpretation of the law.
Robin West
Another advocate for the integration of legal studies with the serious examination of literary texts, Robin WestRobin West
Robin West is the Frederick J. Haas Professor of Law and Philosophy and Associate Dean at the Georgetown University Law Center. West's research is primarily concerned with feminist legal theory, constitutional law and theory, philosophy of law, and the law and literature movement.West holds a...
has frequently turned to Kafka's The Trial
The Trial
The Trial is a novel by Franz Kafka, first published in 1925. One of Kafka's best-known works, it tells the story of a man arrested and prosecuted by a remote, inaccessible authority, with the nature of his crime revealed neither to him nor the reader.Like Kafka's other novels, The Trial was never...
to discuss the rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
. As a critic of Richard Posner
Richard Posner
Richard Allen Posner is an American jurist, legal theorist, and economist who is currently a judge on the United States Court of Appeals for the Seventh Circuit in Chicago and a Senior Lecturer at the University of Chicago Law School...
's more economic take on the law, she does not dismiss the implications made by authors in legal fictional texts. For example when discussing Kafka, West asserts that:
- "Obedience to legal rules to which we would have consented relieves us of the task of evaluating the moralityMoralityMorality is the differentiation among intentions, decisions, and actions between those that are good and bad . A moral code is a system of morality and a moral is any one practice or teaching within a moral code...
and prudence of our actions."
Comments such as these show West's ideological stand on the power of literature as well as her personal philosophy of law. West's arguments tend to focus on the human condition as read in books as well as the individual submission to authority, and what she believes to be an apparent contradiction. She calls for scholars to interpret, create and critique narrative texts in order to broaden their understanding of the human condition, and the law's effect on it and the community as a whole. West believes in a so called 'political, communal and ethical re-constitution', a mode of thinking that one might engage in when reading and critiquing texts, both fictional and legal. Because of this duality, West asserts, law and literature become more related and thus more valid in discussion when debating the implications of one or the other.
These views have caused her to be seen as in the same camp as James Boyd White, although some argue that she goes even further, by becoming more of a political writer than a legal and literary critic. In her book, Narrative, Authority and the Law, West notably diverges from thinkers like Richard Weisberg and James Boyd White by stating that there should be less focus on the debate within the texts and instead a 'truly radical critique of power'. She expands by stating:
- "By focusing on the distinctively imperative core of adjudicationAdjudicationAdjudication is the legal process by which an arbiter or judge reviews evidence and argumentation including legal reasoning set forth by opposing parties or litigants to come to a decision which determines rights and obligations between the parties involved....
, instead of its interpretive gloss, we free up meaningful criticism of law."
Such assertions lead some to believe her goals are more political than scholarly in nature. West may be seen not only as a scholar of law and literature, but also as a member of the critical legal studies
Critical legal studies
Critical legal studies is a movement in legal thought that applied methods similar to those of critical theory to law. The abbreviations "CLS" and "Crit" are sometimes used to refer to the movement and its adherents....
movement (CLS).
Allan Hutchinson
Allan Hutchinson is a professor at York UniversityYork University
York University is a public research university in Toronto, Ontario, Canada. It is Canada's third-largest university, Ontario's second-largest graduate school, and Canada's leading interdisciplinary university....
's Osgoode Hall Law School
Osgoode Hall Law School
Osgoode Hall Law School is a Canadian law school, located in Toronto, Ontario, Canada and affiliated with York University. Named after the first Chief Justice of Ontario, William Osgoode, the law school was established by The Law Society of Upper Canada in 1889 and was the only accredited law...
and served as associate dean from 1994-1996. Hutchinson is a legal theorist and has devoted a lot of time to examining the failure of law. He also believes there is no central or primary foundational interpretive method for interpreting the law. The main point of his work is the judging of "an engaged game of rhetorical justification" which the judge must interpret, such as a statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
, a line of precedents, or the Fourteenth Amendment to the United States Constitution
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
. He has a nonfoundationalist perspective which searches for the truth that forms reality
Reality
In philosophy, reality is the state of things as they actually exist, rather than as they may appear or might be imagined. In a wider definition, reality includes everything that is and has been, whether or not it is observable or comprehensible...
. Hutchinson says that method and medium must change, so self creation becomes the engine and energy of social change. You can grasp life by living and this task cannot be completed by outside language
Language
Language may refer either to the specifically human capacity for acquiring and using complex systems of communication, or to a specific instance of such a system of complex communication...
or through language. Hutchinson argues that politically-charged and unstable context shapes our understanding of legal rules. Hutchinson's understanding of truth confirms that law is politics
Politics
Politics is a process by which groups of people make collective decisions. The term is generally applied to the art or science of running governmental or state affairs, including behavior within civil governments, but also applies to institutions, fields, and special interest groups such as the...
. A nonfoundationalist account of law is compatible with a diverse range of political results.
Jack Balkin
Jack BalkinJack Balkin
Jack M. Balkin is an American legal scholar. He is the Knight Professor of Constitutional Law and the First Amendment at Yale Law School...
is a professor of constitutional law
Constitutional law
Constitutional law is the body of law which defines the relationship of different entities within a state, namely, the executive, the legislature and the judiciary....
at Yale Law School
Yale Law School
Yale Law School, or YLS, is the law school of Yale University in New Haven, Connecticut, United States. Established in 1824, it offers the J.D., LL.M., J.S.D. and M.S.L. degrees in law. It also hosts visiting scholars, visiting researchers and a number of legal research centers...
. While his work in legal rhetoric draws on literary theory, he contends that law is best analogized to the performing arts
Performing arts
The performing arts are those forms art which differ from the plastic arts insofar as the former uses the artist's own body, face, and presence as a medium, and the latter uses materials such as clay, metal or paint which can be molded or transformed to create some physical art object...
such as music
Music
Music is an art form whose medium is sound and silence. Its common elements are pitch , rhythm , dynamics, and the sonic qualities of timbre and texture...
and drama
Drama
Drama is the specific mode of fiction represented in performance. The term comes from a Greek word meaning "action" , which is derived from "to do","to act" . The enactment of drama in theatre, performed by actors on a stage before an audience, presupposes collaborative modes of production and a...
, rather than to literature. For this reason, there is little to no work in which Balkin analyzes literature's relevance to the law, but his applications of the argument through other artistic mediums gain him admission to this discussion, as well.
In his views on politics and its effect on legal standards, Balkin adheres to what is known as "partisan entrenchment". This theory states that the party that controls the White House
White House
The White House is the official residence and principal workplace of the president of the United States. Located at 1600 Pennsylvania Avenue NW in Washington, D.C., the house was designed by Irish-born James Hoban, and built between 1792 and 1800 of white-painted Aquia sandstone in the Neoclassical...
can place in the federal courts judges and justices that share the President's political views. This in turn affects Supreme Court justices and, ultimately, constitutional doctrine.
Ian Ward
Ian Ward is a professor of law and degree programme director at Newcastle University Law School. He is also on the editorial board for Studies in Law and Literature. Ward received a BA from University of Keele in 1986, a Ph. D from University of CambridgeUniversity of Cambridge
The University of Cambridge is a public research university located in Cambridge, United Kingdom. It is the second-oldest university in both the United Kingdom and the English-speaking world , and the seventh-oldest globally...
in 1989, an LLM from the University of Toronto
University of Toronto
The University of Toronto is a public research university in Toronto, Ontario, Canada, situated on the grounds that surround Queen's Park. It was founded by royal charter in 1827 as King's College, the first institution of higher learning in Upper Canada...
in 1990 and a MSc from University of Leicester
University of Leicester
The University of Leicester is a research-led university based in Leicester, England. The main campus is a mile south of the city centre, adjacent to Victoria Park and Wyggeston and Queen Elizabeth I College....
in 2010. Ward believes that students in both fields, law and literature, can benefit from studying rhetoric along side with law. His research lies in legal theory and public law
Public law
Public law is a theory of law governing the relationship between individuals and the state. Under this theory, constitutional law, administrative law and criminal law are sub-divisions of public law...
among others. Ward has published numerous works dealing with law and literature and legal theory.
In his publication Law and Literature: Possibilities and Perspectives, Ward discusses the future goals of the law and literature movement while exploring elements of law in famous pieces of literature. In chapter 1 of this publication, Ward describes law in literature as the process of examining "the possible relevance of literary text, particularly those which present themselves as telling a legal story
Narrative
A narrative is a constructive format that describes a sequence of non-fictional or fictional events. The word derives from the Latin verb narrare, "to recount", and is related to the adjective gnarus, "knowing" or "skilled"...
, as texts appropriate for study by legal scholars." He then sees law as literature as the process of seeking "to apply the techniques of literary criticism to legal texts." He believes that the relationship between the two are complimentary. He states discussing the debate about the importance of the Law and Literature Movement shows "its enduring strength."
Criticisms of law and literature
Richard PosnerRichard Posner
Richard Allen Posner is an American jurist, legal theorist, and economist who is currently a judge on the United States Court of Appeals for the Seventh Circuit in Chicago and a Senior Lecturer at the University of Chicago Law School...
has played an important role in the law and economics
Law and economics
The economic analysis of law is an analysis of law applying methods of economics. Economic concepts are used to explain the effects of laws, to assess which legal rules are economically efficient, and to predict which legal rules will be promulgated.-Relationship to other disciplines and...
movement. As the author of Law and Literature: A misunderstood Relationship (now in its third edition, titled simply Law and Literature), Posner is highly critical of the law and literature movement and the book helps to voice his more hard-lined interpretation of the law. The book can be seen as a reaction against the writings of Robin West
Robin West
Robin West is the Frederick J. Haas Professor of Law and Philosophy and Associate Dean at the Georgetown University Law Center. West's research is primarily concerned with feminist legal theory, constitutional law and theory, philosophy of law, and the law and literature movement.West holds a...
, who has written substantially against Posner's economic take on legal interpretation
Statutory interpretation
Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is always necessary when a case involves a statute. Sometimes the words of a statute have a plain and straightforward meaning. But in many cases, there is some ambiguity or...
. A powerful critic of the writings of White, Weisberg, and West, Posner sees literature as having no weight in the legal realm although he does hold the authors in high esteem. He writes:
- "Although the writers we value have often put law into their writings, it does not follow that those writings are about law in any interesting way that a lawyer might be able to elucidate."
Posner does not believe in the use of literary discourse in jurisprudential debate, and in colloquy
Colloquy (law)
In law, a colloquy is a routine, highly formalized conversation. Conversations among the judge and lawyers are colloquys...
has described West's analysis of literature in legal debate as "particularly eccentric." Posner writes that "law is subject matter rather than technique", and that legal method is the method of choice in legal realms, not a literary one. To expand further, Posner believes literary works have no place in judicial debate because one can never truly contemplate the original meaning of the author, and that novels should only be considered in their contexts. He characterizes the discovery of laws in fiction as "ancillary" and asserts the main subject matter of a novel is always the human condition, and not the legal setting. From this perspective, the legal background created by Kafka and Albert Camus
Albert Camus
Albert Camus was a French author, journalist, and key philosopher of the 20th century. In 1949, Camus founded the Group for International Liaisons within the Revolutionary Union Movement, which was opposed to some tendencies of the Surrealist movement of André Breton.Camus was awarded the 1957...
are simply that, background, and have no further meaning beyond the environment which they create.
This isn't to say that Posner doesn't think in literary terms-far from it. For instance he characterizes Albert Camus
Albert Camus
Albert Camus was a French author, journalist, and key philosopher of the 20th century. In 1949, Camus founded the Group for International Liaisons within the Revolutionary Union Movement, which was opposed to some tendencies of the Surrealist movement of André Breton.Camus was awarded the 1957...
's The Stranger
The Stranger (novel)
The Stranger or The Outsider is a novel by Albert Camus published in 1942. Its theme and outlook are often cited as examples of existentialism, though Camus did not consider himself an existentialist; in fact, its content explores various philosophical schools of thought, including absurdism, as...
, as the "growth of self-awareness" on the part of the hero, Mersault. Posner gives weight to such situations on personal levels and only on personal levels, yet dismisses any sort of legal implications of such situations as lacking in "realism". Such assertions and arguments have placed him in sharp contrast with Richard Weisberg, who has cited The Stranger
The Stranger (novel)
The Stranger or The Outsider is a novel by Albert Camus published in 1942. Its theme and outlook are often cited as examples of existentialism, though Camus did not consider himself an existentialist; in fact, its content explores various philosophical schools of thought, including absurdism, as...
numerous times, among other books. Posner sees literature's importance in legal studies only because they may help the lawyer grow as an individual and to develop character, but sees no value in them as social critiques of the era in which they were developed and written, as Law and Literature scholars might ascribe to them. Certainly he sees no value in them as sources of legal philosophy and reform.
Highly critical of the notable Law and Literature scholars, Posner believes that such legal minds have taken literature "too seriously" and assigned them an unsubstantiated amount of weight in the expansion of legal knowledge and jurisprudential debate.
Richard Delgado
Richard Delgado
Richard Delgado is a professor at the Seattle University School of Law. He is teaches civil rights law. He is a proponent of critical race theory, and a critic of law and literature movement...
and Jean Stefancic were against White and his theory of certain famous legal cases in American history and agree with Posner on several issues. Their theory is that the actual impact of contemporary literature
Contemporary literature
Contemporary literature is literature with its setting generally after World War II. Subgenres of contemporary literature include contemporary romance.-History:This table lists literary movements by decade. It should not be assumed to be comprehensive....
on the substance of judicial opinion-making is limited because judges distinguish legal texts. According to Delgado and Stefancic, judges' moral positions are determined by normative social and political forces rather than by literature. They are firm believers of the critical race theory which is a school of sociological thought that emphasizes the socially constructed nature of race.
Coetzee's Waiting for the Barbarians
J.M. Coetzee, a Nobel laureate in literature in 2003, won much international acclaim for his novel Waiting for the BarbariansWaiting for the Barbarians
Waiting for the Barbarians is a novel by the South African-born author J. M. Coetzee, winner of the Nobel Prize in Literature in 2003. The novel was published in 1980. It was chosen by Penguin for its series Great Books of the 20th Century and won both the James Tait Black Memorial Prize and...
. J.M Coetzee's fictional representation of the legal issue of torture and the implications of such behavior are the topics of this particular novel. Along with trying to portray torture in a contemporary sense without falsifying its very meaning, Coetzee also points to contemporary theories of language and meaning. Because this novel translates into the current situation in the government, using the novel as literature in law is beneficial to law students. Law students receive a personal and emotional look into the structured laws on torture
Torture
Torture is the act of inflicting severe pain as a means of punishment, revenge, forcing information or a confession, or simply as an act of cruelty. Throughout history, torture has often been used as a method of political re-education, interrogation, punishment, and coercion...
and punishment
Punishment
Punishment is the authoritative imposition of something negative or unpleasant on a person or animal in response to behavior deemed wrong by an individual or group....
. Expanding their knowledge on torture through literature educates lawyers about the human condition. The novel also educates English students on stylistic schemes and devices as Coetzee uses them in describing torture. Because the novel discusses legal themes, the literature becomes an interactive experience with life and the community.
Writings by Supreme Court Justices
An excellent source is Cornell UniversityCornell University
Cornell University is an Ivy League university located in Ithaca, New York, United States. It is a private land-grant university, receiving annual funding from the State of New York for certain educational missions...
's Online Law Library. Also consider Justice Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
's A Matter of Interpretation and Justice Stephen Breyer
Stephen Breyer
Stephen Gerald Breyer is an Associate Justice of the U.S. Supreme Court. Appointed by President Bill Clinton in 1994, and known for his pragmatic approach to constitutional law, Breyer is generally associated with the more liberal side of the Court....
's Active Liberty. It is especially interesting to juxtapose these two books because Justice Scalia holds an aversion for legislative history, which is central to his interpretive process of textualism, while Breyer places strong emphasis on legislative history in the pursuit of interpreting legislative objectives of statutes.
Charles Dickens's Bleak House
Charles DickensCharles Dickens
Charles John Huffam Dickens was an English novelist, generally considered the greatest of the Victorian period. Dickens enjoyed a wider popularity and fame than had any previous author during his lifetime, and he remains popular, having been responsible for some of English literature's most iconic...
, perhaps the leading English novelist of the nineteenth century, published Bleak House
Bleak House
Bleak House is the ninth novel by Charles Dickens, published in twenty monthly installments between March 1852 and September 1853. It is held to be one of Dickens's finest novels, containing one of the most vast, complex and engaging arrays of minor characters and sub-plots in his entire canon...
, a massive novel built around a vehement attack on the English Court of Chancery, in monthly installments between 1852 and 1853. Bleak House is generally acknowledged as the single greatest attack on law, lawyers, and the legal system in the English language.
Albert Camus's The Fall
Albert CamusAlbert Camus
Albert Camus was a French author, journalist, and key philosopher of the 20th century. In 1949, Camus founded the Group for International Liaisons within the Revolutionary Union Movement, which was opposed to some tendencies of the Surrealist movement of André Breton.Camus was awarded the 1957...
published The Fall in 1956. It was his last complete work.
Franz Kafka's The Trial
Franz KafkaFranz Kafka
Franz Kafka was a culturally influential German-language author of short stories and novels. Contemporary critics and academics, including Vladimir Nabokov, regard Kafka as one of the best writers of the 20th century...
, most famous for his Metamorphosis
Metamorphosis
Metamorphosis is a biological process by which an animal physically develops after birth or hatching, involving a conspicuous and relatively abrupt change in the animal's body structure through cell growth and differentiation...
also wrote The Trial
The Trial
The Trial is a novel by Franz Kafka, first published in 1925. One of Kafka's best-known works, it tells the story of a man arrested and prosecuted by a remote, inaccessible authority, with the nature of his crime revealed neither to him nor the reader.Like Kafka's other novels, The Trial was never...
, which was first published in Germany in 1925, a year after Kafka's death. This novel questions the value and purpose of legal proceedings.
Herman Melville's Billy Budd, Sailor: An Inside Narrative
Herman MelvilleHerman Melville
Herman Melville was an American novelist, short story writer, essayist, and poet. He is best known for his novel Moby-Dick and the posthumous novella Billy Budd....
, the American novelist most famous for Moby-Dick
Moby-Dick
Moby-Dick; or, The Whale, was written by American author Herman Melville and first published in 1851. It is considered by some to be a Great American Novel and a treasure of world literature. The story tells the adventures of wandering sailor Ishmael, and his voyage on the whaleship Pequod,...
, spent his last years writing a novella that he finally decided to call Billy Budd, Sailor: An Inside Narrative. Left unfinished at his death in 1891, the novel did not see print until 1924. An authoritative text, established after close study of Melville's manuscript, appeared in 1962. This book has become a central text of law and literature.
William Shakespeare's The Merchant of Venice
Shakespeare's controversial tale of a Jewish moneylender, The Merchant of VeniceThe Merchant of Venice
The Merchant of Venice is a tragic comedy by William Shakespeare, believed to have been written between 1596 and 1598. Though classified as a comedy in the First Folio and sharing certain aspects with Shakespeare's other romantic comedies, the play is perhaps most remembered for its dramatic...
, examines themes of justice and the bias of legal systems.
John D. Ramage's Rhetoric: A User's Guide
John D. Ramage is a professor at Arizona State UniversityArizona State University
Arizona State University is a public research university located in the Phoenix Metropolitan Area of the State of Arizona...
whose book Rhetoric: A Users Guide champions the contemporary rhetorical theory of Kenneth Burke
Kenneth Burke
Kenneth Duva Burke was a major American literary theorist and philosopher. Burke's primary interests were in rhetoric and aesthetics.-Personal history:...
over the classical theory of Aristotle
Aristotle
Aristotle was a Greek philosopher and polymath, a student of Plato and teacher of Alexander the Great. His writings cover many subjects, including physics, metaphysics, poetry, theater, music, logic, rhetoric, linguistics, politics, government, ethics, biology, and zoology...
.
External links and resources
AIDEL (Associazione Italiana di Diritto e Letteratura), http://www.aidel.it/Italian Society for Law and Literature (ISLL), http://www.lawandliterature.org/
Erasmus School of Law, European Network for Law and Literature
William R. Terpening, Anderson Terpening PLLC, Terpening on Law and Literature Blog.
University of Toronto, Faculty of Law, Combined JD/MA in Law and English