Law and literature

The law and literature movement focuses on the interdisciplinary connection between law and literature. Believed to have originally begun as a subcategory of jurisprudence, the movement encompasses the complementary ideas of "law in literature" and "law as literature".

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, judges, 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.

History of the Movement

Perhaps first to envision the movement were John Wigmore and Benjamin Cardozo, who acknowledged "novelists and poets" as the principle teachers of law in the first half of the 20th century. Most scholars, however, credit James Boyd White 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 numerous literary contributions, White's most renowned publication, "The Legal Imagination", is often credited with initiating the law and literature movement.

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.

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 Kafka, Albert Camus, Fyodor Dostoevsky and Charles Dickens. The fictional situations presented in literature they 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:

:"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 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.

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 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 illusions." (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"

:"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 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.

Significant Contributions to the Movement

Robin West

Another advocate for the integration of legal studies with the serious examination of literary texts, Robin West 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:

:"Obedience to legal rules to which we would have consented relieves us of the task of evaluating the morality 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 adjudication, instead of its interpretive gloss, we free up meaningful criticism of law."

Such assertions have caused many to believe that her goals are more political in nature and that she isn't simply a law and literature scholar but also a member of the critical legal studies movement (CLS).

Allan Hutchinson

Allan Hutchinson is a professor at York University'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 thinks that there is no foundation, 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 statue, 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.

Jack Balkin

Jack Balkin 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.

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 1996, a Ph. D from University of Cambridge in 1999, and an LLM from the University of Toronto in 2000. 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."

Criticisms of Law and Literature

Richard Posner has played an important role in the law and economics movement. As the author of "Law and Literature: A misunderstood Relationship", 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 accord. 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 has called West's analysis of literature in legal debate "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 "". 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.

Suggested readings

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 Barbarians". 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.

Writings by Supreme Court Justices

An excellent source is Cornell University'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 statues.

Dickens's "Bleak House"

Charles Dickens, famous for "Oliver Twist" and "Great Expectations" amongst many other fine works, published "Bleak House" much as he had previous works - in monthly installments - between 1852 and 1853.

Camus's "The Fall"

Albert Camus published "The Fall" in 1956. It was his last complete work.

Kafka's "The Trial"

Franz Kafka, most famous for his "Metamorphosis" also wrote "The Trial", which was first published in Germany in 1925, a year after Kafka's death.

Shakespeare's "The Merchant of Venice"

Shakespeare's controversial tale of a Jewish moneylender, "The Merchant of Venice", examines themes of justice and the bias of legal systems.

Ramage's "Rhetoric: A User's Guide"

John D. Ramage is a professor at Arizona State University who's book [http://www.amazon.com/dp/0321202120/ "Rhetoric: A Users Guide"] champions the contemporary rhetorical theory of Kenneth Burke over the classical theory of Aristotle.

Bibliography

* Breyer, Stephen, "Active Liberty." New York: Random House, 2005.
* Dworkin, Ronald M. "Law as Interpretation." JSTOR: "The Politics of Interpretation." Vol. 9, No. 1. 1982. 179.
* Minda, Gary, "Law and Literature at Century's End." JSTOR: "Cardozo Studies in Law and Literature", Vol. 9, No. 2. 1997. 245-258.
* Ramage, John, "Rhetoric, a User's Guide." New York: Pearson, 2006.
* Scalia, Antonin. "A Matter of Interpretation." Princeton: Princeton University Press, 1997.
* Ward, Ian, "Law and Literature: A Continuing Debate." "Law and Literature: Possibilities and Perspectives." Cambridge University Press, 1995. 3 - 27.
* Weisberg, Richard. "Poethics: Toward a Literary Jurisprudence." "Poethics and Other Strategies of Law and Literature." Columbia University Press, 1992. 3-47.
* Van Zanten Gallagher, Susan, “Torture and the Novel: J.M. Coetzee’s Waiting for the Barbarians.” "Contemporary Literature", 1988. 277-285.