The field of interdisciplinary scholarship focusing on the relation between law and literature has undergone enormous growth.
There were only a tiny number of scholars discussing the topic when I became interested in the subject way back in the eighties and nineties.
Today, scholars and literary artists examine and discuss issues in this area of legal academic research on a regular basis. Even practitioners have become interested in the topic.
Despite threats to prevent me from writing, I will try to complete this essay and post it online, since it may lead others to discover several fascinating intellectual works and to contribute to this important discussion.
I may find it necessary to post the work after typing the first two points of the essay. I will be adding a third and concluding section as quickly as circumstances (including continuing computer crime) permit me to do so.
The final quotation is a paragraph whose spacing has been altered by hackers. I have retyped this paragraph twice, but the deformation remains. I will attempt to retype the paragraph, again, from a public computer to repair the harm done fully expecting additional attacks and alterations of the text.
I will list only a few of the sources that I have found most helpful in commenting on an article by Ian McEwan appearing in a recent issue of The New Republic.
Primary Sources:
Ian McEwan, "The Laws of Fiction," The New Republic, September 29, 2014, p. 24. ("What is memory?" and "Shakespeare's Black Prince.")
Ian McEwan, The Children Act (New York: Doubleday, 2014).
Ian McEwan, Atonement (New York: Vintage, 2001). (Please notice the opening quotation from Northanger Abbey then see "The Northanger Arms On Park Avenue" and "'The French Lieutenant's Woman': A Movie Review.")
Justin Driver, "Divine Justice: How to be fair to Scalia," The New Republic, September 29, 2014, p. 40. (Book Review.)
Bruce Allen Murphy, Scalia: A Court of One (New York: Simon & Schuster, 2014). (Is a legal biography -- or any biography -- a literary narrative, "life story," or a kind of historical fiction?)
Secondary Sources:
Lon L. Fuller, "The Case of the Speluncean Explorers," 62 Harvard Law Review 616 (1949).
Lon L. Fuller, Legal Fictions (Stanford: Stanford University Press, 1967). ("Ape and Essence" and "Primates and Personhood.")
A. Soifer, "Reviewing Legal Fictions," 20 Georgia Law Review 871 (1986). (A collection of materials focusing on all aspects of law and literature.)
I am in possession of a paperback book given to Donald Davidson by Ian Hacking, the author of the work, examining issues of language in philosophical and, unknowingly, jurisprudential thought that contains Hacking's inscription and note to Davidson signalling the importance of the issue of metaphor, I believe, in law and philosophy. The conversation between these philosophers on the nature of language is important, but not previously made public. ("A Doll's Aria" and "Metaphor is Mystery.")
Ian Hacking, Why Language Matters to Philosophy (Cambridge: Cambridge U. Press, 1973). ("Dear Donald, ... Your patience in explaining some of this stuff, when I called on you in Oxford, does, I hope, show in chapter 12. ..." It does indeed. "Donald Davidson's Anomalous Monism.")
Vincent Halliman, "The Case of the Unconscious Killer," in Norman Sheresky, ed., On Trial: Masters of the Courtroom (New York: Viking Press, 1977), pp. 89-97. (States akin to sleep or hypnosis preclude criminal liability and may render an actor blameless even in civil contexts. "Will Texas Kill an Insane man?")
Terry Eagleton, The Event of Literature (New Haven: Yale University Press, 2010).
Susan K. Langer, Philosophy in a New Key: A Study in the Symbolism of Reason, Rite, and Art (Cambridge: Harvard University Press, 1957).
Richard Neeley, How Courts Govern America (New Haven: Yale U. Press, 1981). (" ... in any society there are two systems of government -- the myth system [literature] and the operational system [reality].")
Two American law cases (among many that are relevant to the law and literature discussion) may be amusing and instructive:
United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 226 n. 59 (1940). (Metaphors and Similes that become reified govern entire areas of law.)
Miles v. City Council, 710 F.2d 1542 (11th Cir. 1983). (The owner of a "talking cat" named "Blackie" challenged, as a deprivation of free speech, an ordinance that required businesses to be licensed, with no exception for the commercial exhibition of talking animals. The way the decision of the court is written does not challenge the owner's belief, for which there was no contradictory testimony, that "Blackie" was capable of speech. Hence, by implication, the claim is accepted as a matter of factual finding by the court -- if only as dicta -- which counsel for "Tommy the Chimp" may find useful. Please see my short story "Serendipity, III.")
Many contemporary novels and other literary forms have examined legal issues or noted court cases. I will limit myself to listing only two of my favorites:
Clifford Irving, Trial (New York: Simon & Schuster, 1990).
Scott Turow, Innocent (New York: Grand Central, 2010).
Shakespeare and Dickens, Melville and James were fascinated by law and court cases as well as mastering the rhetoric of the profession, often making use of legal doctrines in their writings, sometimes in very subtle ways.
Less well known is Jane Austen's interest in law and the unspoken "impossible desire" she harbored to become a barrister -- an insane ambition for a woman in her day -- which obviously underlies many of her plots. (Again: "Master and Commander" then "Sherlock Holmes and the Case of the Missing Author.")
G.H. Teitel, "Jane Austen and the Law," Law Quaterly Review, 549 (1984).
Daniel J. Hornstein, Shakespeare's Legal Appeal (New Jersey: Princeton U. Press, 1994). (A focus on the plays from a juridical perspective.)
Among the many evenings devoted to nefarious activities during my misspent youth, I recall some late nights in my law school's library perusing dusty volumes of the King's Bench Reports and All England Reports.
Lord Mansfield's admonition -- like a thunderbolt -- lingers in my memory: "Let justice be done though the heavens fall!"
Yes, My Lord. Among the most important anthologies and collections dealing with these issues of multidisciplinary interest are:
Guido Calabresi, Ideals, Beliefs, Attitudes and the Law: Private Law Perspectives on a Public Law Problem (New York: Syracuse U. Press, 1985). (Ostensibly a study of law and economics in connection with abortion, the book is actually filled with literary examples: "The Gift of the Evil Deity." Please see "Innumerate Ethics.")
Ronald Dworkin, "How Law is Like Literature," in A Matter of Principle (Cambridge: Harvard U. Press, 1985), pp. 146-167.
Ronald Dworkin, Law's Empire (Cambridge: Harvard U. Press, 1986). ("Ronald Dworkin On Law as Interpretation" and "Ronald Dworkin Says 'The Law Works Itself Pure.'")
Sanford Levinson, "Law and Literature," in S. Levinson & S. Mailloux, eds., Interpreting Law and Literature (Evanston: Northwestern U. Press, 1988), pp. 155-175.
Richard A. Posner, Law and Literature: A Misunderstood Relation (Cambridge: Harvard U. Press, 1988).
Richard A. Posner, The Problems of Jurisprudence (Cambridge: Harvard U. Press, 1990).
W. Michael Reisman, Folded Lies (New York: Free Press, 1979). (America's political-legal system as a network of "lies" or literature usually generated by lawyers. "On Bullshit.")
Richard Weisberg, Poethics and Other Strategies of Law and Literature (New York: Columbia U. Press, 1992). ("John Banville's 'The Newton Letter.'")
James B. White, The Legal Imagination: Studies in the Nature of Legal Thought and Expression (New York: Little & Brown, 1973).
James B. White, When Words Lose Their Meaning: Constitutions and Reconstitutions of Language, Character and Community (Chicago: University of Chicago Press, 1984).
Jay Wishingrad, Legal Fictions: Short Stories About Lawyers and the Law (New York: Overlook Press, 1992).
"The choices for a judge are often limited to the lesser harm rather than the greater good."
I am in my usual spot on a Monday morning, sitting on a thin sliver of the first bench in a large room of the second floor of the county courthouse that is filled with a disorderly crowd of litigants in the Superior Court, Family Division.
We are waiting to have our cases called. There are many children and old people present, numerous languages are spoken. Stories are overheard only in fragments. The details are sometimes horrible: A mother decides to discipline her child -- a five year-old boy -- by forcing the naked child to sit on a lit stove; a twelve year-old girl is raped by her drunken father and his friends who then rape her mother as she witnesses the scene; grandparents seek custody of a child in "pigtails" working on her coloring book because their daughter (the girl's mother) is in prison for dealing cocaine and is also pregnant, again.
Lawyers chat about weekend plans or trips to the Opera, theater, or Superbowl tickets.
The various lives recounted on this one morning alone provide enough material for a library shelf's worth of novels revealing the conflicts and meanings of these people's lives. Also, any typical gathering of suffering souls "dramatizes" (literary term) the fundamental tensions in American society today.
Racism, poverty, lack of education produce their effects long before persons afflicted or deprived of "life-options" can recognize all that has been taken from them. Many -- if not most -- of these humble lives are over before they have really begun.
Only a great literary artist could do "justice" (legal term) to the simplest person in this room.
In a recent article in The New Republic Ian McEwan comments on the "illicit affair" between literature and law. The themes of Mr. McEwan's Atonement come to mind. I felt at several points in reading his essay that I was in the company of Mr. McEwan's "Briony" as she sought to give anonymous lives their moment of transcendent meaning, an explanation of their (our) usually absurd and tragic sufferings, in order to help make ordinary pains (and worse) bearable. Perhaps this is to speak of the reasons for which literature and all of the arts exist:
"The problem of these fifty-nine years has been this: how can a novelist achieve atonement when, with her absolute power of deciding outcomes, she is also God? There is no one, no entity or higher form that she can appeal to, or be reconciled with, or that can forgive her. [There is nothing outside the text?] In her imagination she has set the limits and the terms. No atonement for God, or novelists, even if they are atheists. It was always an impossible task, and that was precisely the point. The attempt was all." (Atonement, pp. 350-351.) ("The Wanderer and His Shadow" and "Jacques Derrida's Philosophy as Jazz.")
There are so many ways in which these ancient disciplines (law and literature) that are jointly concerned, as fellow conspirators, with human lives and the mysteries of good and evil as well as the elusive societal quest for justice "interact" that merely to decide on the kind of relation between them to study -- civil or criminal law? novels or poems? -- is worthy of book-length treatment. ("Images and Death" and "Oh, to be in India.")
To be a judge or legal academic is also to be a kind of god of the law library. Judges are the novelists of litigants' lives. Selection and creativity is everything; there are many valid approaches to resolving complex legal issues; many possible views of the best outcome in complex cases, but also an infinite number of ways of characterizing the facts when judges seek to decide a controversy with an eye on justice.
One might concentrate, for example, on the literary analysis of legal prose to discover creative uses of "fictions," or metaphors, that often govern the lives of persons.
The very word "persons" designates a kind of legal fiction that includes your grandmother and General Electric Corporation. This fiction or concept ("person") is under enormous strain at the moment generating a crisis for the system that is best explored in literature or philosophical essays. (Compare "The Galatea Scenario and the Mind/Body Problem" with "A Doll's Aria" then "Mind and Machine" with "Conversation On a Train" and "Consciousness and Computers.")
Alternatively, one might concentrate on the hermeneutics of legal advocacy by examining the metaphysics and epistemology of allegorical or analogical reasoning and interpretation: What is "proximate cause" as opposed to "cause in fact"? What is the scope and limit of liability in accident cases? Where do we draw the boundaries on open-ended concepts like "relevance" in evidence law? How are such determinations made or related to judgments concerning public policy, ethical values, or other policies served by the law? ("Roberto Unger's Revolutionary Legal Theory" and "Richard A. Posner On Voluntary Actions and Criminal Responsibility.")
Judges assign "persons" roles in the dramas constructed by the legal system that then allow these same judges -- like novelists -- to make sense of the chaos that life often is when events remain uninterpreted and unarranged into meaningful patterns.
Societies and persons cannot live with or as chaos. Hence, the need for order and meaning, pattern, goodness and beauty is cultural and jurisprudential. It may be impossible for any society to fully satisfy this fundamental human need. Absurdly, perhaps, we insist that suffering and loss "make sense" somehow. ("What is Law?" and "Shakespeare's Black Prince.")
Legal assessments often assume that others will agree on what is lesser as distinct from greater harm. No determination of such matters can fail to evoke underlying values in law. There is no judge -- let alone a great one -- who is a nihilist or relativist, particularly about the "reality" of law. ("The Allegory of the Cave" and "John Finnis and Ethical Cognitivism" then "The Critical Legal Studies Movement.")
In the absence of universally accepted values and the decline of religion in Western democracies, judges (who are ill-equipped for the task) must answer values questions by deciding on the most just outcome of controversies not only in criminal cases, but also in what are called "civil" cases. ("Ronald Dworkin On Law as Interpretation.")
"The blurring of fact and fiction is part of the intellectual climate of our postmodern time -- dominated as it is by epistemological skepticism and Nietzschean denials of the possibility of objectivity that are sweeping through every humanistic discipline, sometimes with cyclonic ferocity. Historians are sometimes the last to know about current fashions, but so powerful have the deconstructive theories become that even historians [lawyers?] can no longer remain ignorant of them." (Wishingrad, pp. xvi-xvii.) ("Charles Fried and William Shakespeare On Interpretation.")
"The law exists to set and live by boundaries."
McEwan is fascinated by the craftsmanship of judges. He notes the elegance of some judicial opinions as texts, their underlying humane wisdom, and even the genuine wit that is occasionally discovered in court opinions.
Some judges in the common law tradition have indeed been very fine writers. Every lawyer and student of legal prose has a list of such distinguished names. Among my preferred judicial stylists I certainly include Benjamin Cardozo and Oliver Wendell Holmes, also Lord Mansfield in Britain and, perhaps, a few of the so-called "Great Reformers," like Leslie Stephen or William O. Douglas in America.
I am more interested in McEwan's recognition of something shared by novelists and judges deploying linguistic tools in the doomed effort to control, make sense of, or merely to understand the messy realities of life in complex, fast-moving societies dealing with crumbling belief systems. Among those disintegrating systems is law and the very notion of legality. (Again: "The Wanderer and His Shadow" and "The Allegory of the Cave.")
There is a kind of desperate and proud human faith in the power of reason and effort to tame and transform horror, evil, confusion and conflict into sanity and precision and -- on very rare occasions -- a beauty that we call art, justice, or civilization. No doubt this "faith" is connected to the need to understand and make sense of tragedy and evil.
Law is an essentially Modern effort to rationalize social life in convenient patterns that is in tension with our currently dominant post-modernist culture in America and Europe that is skeptical of all efforts to make sense of things. (Again: "Roberto Unger's Revolutionary Legal Theory" and "Richard A. Posner On Voluntary Actions and Criminal Responsibility.")
I once ("naively," I was told) believed that law is a force "for" sanity and goodness, that justice could rarely, perhaps, actually be achieved in the "real" world (and not only in novels) through the mechanisms of law, that men and women of good faith (are there any left?), for the most part, could improve the lot of suffering humanity by making things whole, or repairing what is broken in all of us. ("Aaron Schwartz, Freedom, and American Law.")
I do not know whether I can or would make any such grand claims today. I doubt it.
A generation of legal professionals have been reared in an environment of profound skepticism about law and all values. Legal institutions -- like most institutions in America and the Western world -- have suffered a deflationary and humbling loss of esteem among persons from all walks of life. ("What is Law?")
Many persons -- including American political officials and judges, probably -- argued for nihilism and "absolute relativism" (incoherently) against my defense of ethics in another forum. I am sure that the discussion then (and events since) have drawn a large international audience astonished by what they have seen as well as the apathy of local authorities content to witness the catastrophe and unable or unwilling to prevent crimes against me and innocent members of the public. When lawyers describe themselves as nihilists and worshipers of power, you may be sure that legality has become a joke or a lie. ("New Jersey's Office of Attorney Ethics" then "Why I am not an ethical relativist" and "Drawing Room Comedy: A Philosophical Essay in the Form of a Film Script.")
Laughter greets assertions that law is a social phenomenon that cannot be separated from our moral aspirations, that the mechanisms of law and political institutions cannot function if they are subjected to certain levels of corruption and ineptitude. ("Law and Ethics in the Soprano State" and "New Jersey is the Home of the Living Dead" then "John McGill, Esq., the OAE, and New Jersey Corruption" and "American Hypocrisy and Luis Posada Carriles.")
Law is necessarily reflective of the moral tradition culminating in the Enlightenment, drawn from ancient religious traditions, secularized in neutral and objective principles meant to apply equally to everyone. Law is not engineering. Law is not merely about power. Law is certainly not merely a "game." ("What is Enlightenment?" and "Derek Parfit's Ethics" then "Manifesto For the Unfinished American Revolution" and "John Rawls and Justice.")
Corruption and mediocrity are rampant as never before in the legal profession. This realization is reflected in the many jokes about lawyers everywhere in the world. The same truth is also seen in the deeper perception among scholars and judges of structural limitations upon the judicial power or activism.
Law is a blunt instrument for subtle moral surgery in a world of uncertainties and mysteries, none greater than human nature itself. ("New Jersey Supreme Court's Implosion" and "Terry Tuchin, Diana Lisa Riccioli, and New Jersey's Agency of Torture" then "Psychological Torture in the American Legal System" and "American Lawyers and Torture.")
The wisdom gained from the experience of so many legal disasters is that personal autonomy and human dignity must be respected even by the best-intentioned legal paternalist, perhaps, to his or her chagrin. ("An Open Letter to My Torturers in New Jersey, Terry Tuchin and Diana Lisa Riccioli" and "American Doctors and Torture" then "Is America's Legal Ethics a Lie?")
McEwan mentions a wise judge's decision to save the life of a juvenile who came before him refusing a life-saving blood transfusion because it offended the boy's religious beliefs as a Jehova's Witness. Loving parents shared the boy's beliefs and supported his controversial decision. All were articulate, competent, legally sane individuals and they found a solid basis in legal principles for requesting respect for the young person's autonomous decision.
The very same legal autonomy is invoked as a basis for unfettered decision-making by women -- many no older than the young Jehova's Witness -- seeking control over their bodies.
Abortion decisions by very young women are often opposed by their ministers or family members who view terminating a pregnancy as murder.
Judges tend to respect the juvenile's decision in abortion cases, but not in right to die cases where potentially life-saving medical treatment is rejected on religious grounds.
Adults facing similar or identical tragic choices are usually respected in their unpopular decisions, correctly, as required by human rights laws, since they are no longer children in need of the court's judgment concerning their welfare or interests.
McEwan's well-meaning judge refuses the juvenile's request to die and comes to know and like him as well as his family. The British novelist reports, sadly, that when the same young man, as an adult, found himself faced, again, with the decision to accept or reject treatment, he chose to reject treatment that violated his religious beliefs, even if this meant that he would die.
The point is not whether the young man was right to die in order to uphold what he felt to be beliefs that defined his identity, as a person, but that it was only for him to make that judgment in a free society.
Analogously, the decision about whether to carry a fetus to term and deliver a human infant into the world must remain only for the pregnant woman to make, not for those (many of whom will be fine, humane, witty judges who have attended Oxford with Mr. McEwan) to make on her behalf, regardless of their good intentions and willingness to socialize with litigants.
Perhaps one theme of McEwan's typically brilliant new novel is that judges (and novelists?) faced with such dilemmas tend to place great value on their own privacy and should resist the impulse to play God by respecting the privacy of others rather than telling persons how to live their lives.
Persons and literary characters tend to insist on their freedom. Let us try to respect the wishes of fictional and non-fictional persons. The world in which we live is not fashioned in the image of human compassion, as Briony discovers, and "humane wisdom" as understood by well-educated, privileged elites -- usually white males in powerful positions -- often resembling Mr. McEwan (or myself) may be irrelevant to the wishes of "strangers" seeing the world very differently than we do.
Democracy, pluralism, demands that we respect the differences among us in ethnically, racially, and otherwise extremely diverse cultures of strangers with conflicting needs and values where violence is always a possibility in order to allow multiethnic societies to thrive. ("Immanuel Kant and the Narrative of Freedom.")
If we are to coexist, peacefully, persons must be allowed their differences as long as they abide by the laws -- laws against theft and rape, assaults, and computer crimes included. ("The Invicta Watch Company" and "The Invicta Watch Company Caper.")
We will "choose" differently because we are different beings residing in different worlds of meaning while sharing a single empirical reality. Impositions of power that are illicit will not work in "controlling" persons, they will only make things worse for everyone.
Legal paternalism is an explosive substance to be used rarely and cautiously, never outside legal "boundaries," or secretly in the lives of unsuspecting persons.
Law must not seek to frustrate the valid wishes of competent adults acting within their legal rights, even when the result of respecting persons' wishes may be tragic from the point of view of "elites" commenting in the pages of The New Republic, or of those reading and admiring the writings of authors and judges whose opinions are found in such lofty publications. ("What is it like to be plagiarized?" and "'Brideshead Revisited': A Movie Review.")
"If the judgments had been fiction, they would have belonged in the tradition of moral exploration."
"A central issue within law is therefore the ability to maintain a separation between disinterested legal analysis and interest-saturated political decision-making. Only such a separation allows the litigants to believe that well-trained judges will reach their verdicts without any taint of their personal political views. The decline of a belief in judicially produced right answers derived from techniques of right reading has recently led some analysts, especially those identified with critical legal studies [Again: "The Critical Legal Studies Movement"] ... to assert that legal rules are determined by political and historical contingencies. Given these ambiguities of interpretation, many legal theorists have substituted for the hermeneutics of objective interpretation what Gerald Graff has termed a 'hermeneutics of power,' where one emphasizes the political and social determinants of reading texts one way as opposed to another. Indeed, it is often suggested that the major reason for preferring a reading lies in the political consequences occasioned by it." (S. Levinson & S. Mailloux, eds., Interpreting Law and Literature, pp. xii-xiii, emphasis added.)
A final observation concerns the immediate feeling among lawyers and other Western elites of absurdity and waste that accompanies a person's strongly-held religious belief or the willingness to die for that belief.
There is a kind of contempt that many educated persons feel for religious believers today, especially the fundamentalist sort of believers who are willing to die for what seems absurd from our secularist and scientifically-minded perspective.
McEwan, of course, only seeks understanding in order to capture in his work the utterly bizarre perspective of fellow citizens experiencing life so differently from, say, novelists and judges.
It rarely occurs to any of us who are products of Western educational systems that for many people in the world -- probably a majority -- our philosophical views and much that we accept as valid appears completely ridiculous. I have discussed quantum mechanics and evolution with persons from different parts of the world, for example, who found much of what I said, drawn directly from scientific texts, ludicrous and hysterically funny. I agreed with them. It also happens to be what we call scientific truth in the Western world. ("Dialectics, Entanglement, and Special Relativity.")
A deeper point concerns commitment. In a city and among self-indulgent elites wallowing in callous narcissism, indifferent to so much human suffering, for whom the idea of genuine altruistic or self-giving love, or laying down one's life for an ideal -- any ideal -- is simply laughable "sacrifice" may be meaningless. Life is about "shopping," we are told, maximizing material comforts, greed for possessions, or power over the little brown people. ("Innumerate Ethics" then "Nihilists in Disneyworld" and "America's Nursery School Campus.")
To die for any cause is a joke for kids today. The very notions of good and evil are merely "relative" and easily dismissed by the children of privilege in polite conversations held in the university cafeteria. ("Whatever!" then "Why Jane Can't Read" and "Whatever happened to the liberal arts?")
McEwan reminds us that the notion of self-sacrifice is not all that comical or distant from us, after all, even a generation ago it was pretty common. For persons experiencing the Second World War, for instance, the importance of commitment and sacrifice was well-understood and real. This recognition is a theme explored in McEwan's novels, like Atonement and The Innocent.
Perhaps Ian McEwan, like many disappointed sixties idealists, needs to remind himself that when life comes down to fundamental realities something must be worth dying for if we are to go on living.
More likely, this point about the need for self-giving and ideals is one of the lessons of McEwan's literary works.
One reason to go on telling stories in print may be to find and serve those commitments to human values and/or the persons we love for which we are willing to make the ultimate sacrifice:
"We prefer to think we are remote and well-defended from such sacrifice. But there are always exceptions we might make, as long as we are brave enough: Some scales of moral value, some sacrifices, are superior, more meaningful, than others. We honor the parent who drowns while rescuing a child, as we do the men and women who gave their lives liberating Europe from Nazi barbarity. That in turn summons the complicating memory of the many Jehova's Witnesses rounded up in the Third Reich's death camps and offered their freedom if they would renounce their pacifism. They almost always chose to die." (McEwan, p. 27.)
