Law and literature
The relationship between law and literature is ages old. If we go back to the origins of law, among the ancient Greeks it was aligned with rhetoric, speaking and writing. Rhetoric was originally intended to present arguments in court. As law became more professional, it was closed off from this. Thus, law and literature have taken different ways, literature being more and more concerned with the expression of human emotions and feelings, while law became increasingly concerned with the maintenance of social order.
Nexus between law and literature
Law and literature are closely interrelated. One of the sources of law is “legal fiction.” Legal fiction, that is, fictio juris means “any assumption which conceals or tends to conceal the fact that the rule of law [has] undergone any alteration, its letter remaining unchanged but its operation being modified” (Islam, 2002). By means of a legal fiction, a child can be adopted from one family into another. In the eye of the law a limited company is given a personality which is distinct from that of its members. Case law is based on a fiction that while enacting a particular rule of law, the legislature had a particular intention. Fiction also played an important role as a source of law in ancient times. There was a rule of procedure in Rome by which a non-Roman was allowed to make a false allegation that he was a Roman citizen and thereby a praetor urbanus was able to try his case. The fiction of citizenship was adopted merely for the purpose of extending the Roman law to the non-Romans. All were under the same “lex gentium.” In England the Court of Exchequer took jurisdiction over civil cases by means of a legal fiction that the plaintiff was the debtor of the king. These fictions were adopted by the courts as devices to add to the jurisdiction of the courts. The old Roman law was laid down in the Twelve Tables, and additions to it were made by Responsa Prudentium-the judgements of the men learned in law. The teachings of the most highly qualified of various nations are still considered as a source of international law.
Fictions stand in the way of the codification of law. A property may be in the actual possession of X, but at the same time may be in the constructive possession of Y, the owner. No trust may have been created, but law may presume the same. By fiction, a Hindu child in the womb becomes entitled to family property.
Legal fiction and legal presumption, however, are not the same. Legal fiction is a source of law while legal presumption is a rule of law. One fact is recognized by law as sufficient proof of another. A notification in the official gazette is presumed by law to have been duly signed by the person by whom it is purported to have been signed. These few examples are perhaps enough for us to understand that law can be regarded as literature.
In this context, we can very relevantly talk about the Holy Qur’an which gives the impression of a perfect piece of exposition on one hand and a storehouse of law on the other. The Qur’an may sound astonishingly literary in terms of content and style, and at the time of its revelation poetry and oratory skills were the most outstanding forms of art in Mecca. Having heard the Qur’an’s enchanting verses, the best poets of the time tore apart their poems for they thought they could not challenge it. But as the Qur’an is the word of God, ascribing literary characteristics to the Holy Scripture is to devalue it. Nevertheless, various powerful forms of expression are found in the Qur’an to convey the message of Islam. The chapters and verses of the Qur’an maintain phonetic and thematic structures so that people can recall the message of the text. The narrative style of the innumerable events, particularly their dramatic presentation, have continued to amaze the scholars throughout the centuries. Sells says, “The values presented in the very early Meccan revelations are repeated throughout the hymnic suras. There is a sense of directness, of intimacy, as if the hearer were being asked repeatedly a simple question: what will be of value at the end of a human life?” (Sells, 1999). But these very verses are basically the laws meant to be for the whole humanity. Coupled with the Prophet’s practice the Qur’an as a main body of Islamic religious law undoubtedly covers almost all the aspects of human life ranging from family, sexuality, hygiene, social issues, business, economics, to politics both national and international. Thus the ultimate law comes in the form of a perfect exposition.
The impact of literature on law is far reaching with regard to teaching, legal writing, statutory interpretations and duly submission of petitions before the bench. Many authors have tried to show the human condition and the law’s effect on it through their literary works from a neutral point of view. The fictional situations presented in literature, they assert, can tell a great deal about political and social situations, and the individuals that often find themselves before the court. Ronald Dworkin in his article, “Law as Interpretation” stated, “I propose that we can improve our understanding of law by comparing legal interpretation with interpretation in other fields of knowledge, particularly literature” (Dworkin, 1982).
Intermingling of law and literature as reflected in the works of some great authors
Some popular as well as critically acclaimed literary works by prominent writers like Shakespeare, Kafka, Dickens, Camus, have dealt with the theme of law. Almost every careful reader would know that these writers were influenced by the legal system of their own time and were aware of its impact both the personal and social level. It would be wrong to think that they took law as the subject matter of their novel or play just to tell an interesting story. In fact, through skilful plot development their views about the then legal system are expressed. What is most interesting here is that they were influenced by the law and have definitely influenced the law as well.
The Stranger or The Outsider is a novel by Albert Camus where the virtues of truth confront the deceits and corruptions of law. We also come to know about the justice system of the time and existing loopholes as the trial for the murder of an Arab proceeds. Furthermore, the novel addresses the issue of the inevitable conflict between defective legal proceedings and a man’s individual way of thinking.
Franz Kafka’s The Trial is another novel where the author exposes how law is abused and made to bring enormous suffering to a man’s life. The main character, Josef K., awakens one morning and, for reasons never revealed, is arrested and subjected to the judicial process for an unspecified crime. Some crucial questions of judicial proceedings like a backlog of cases, arresting on suspicion and detaining a person for an uncertain period, absence of proper investigation, and absence of the right to self-defence are brought to our attention.
Shakespeare’s works contain a remarkable quantity of law terms and they are used very accurately. The use of legal jargon in Hamlet is particularly impressive. But it is The Merchant of Venice, a controversial tale of a Jewish moneylender, that examines themes of justice and the bias of legal systems.
Dickens’ popular novel Bleak House is particularly known for the novelist’s blunt attack on the flaws of the British judiciary system. Dickens’ experience of working as a law clerk in London came in handy in unearthing and depicting the law’s flaws so vividly. The plot concerns a long-running legal battle that takes place between two parties claiming the inheritance of a large property, a battle which in the end costs both parties dearly. Many believe that Dickens’s harsh portrayal of the lengthy Chancery system made way for the reforms that took place in the 1870s.
Benefits of intermingling of law and literature
The intermingling of law and literature produces certain benefits for both the subjects. First, literature is exceptionally capable of probing human psychology and conditions through text. This capacity can be combined with the legal framework which regulates human actions in real life and truly pave the way for a democratic judiciary which is a prerequisite for establishing a just and moral society. Second, literature is considered to be a carrier of human will and freedom of expression. This characteristic can be positively incorporated into the judicial system to facilitate more humane legal decisions. Third, literature helps us understand the text’s role in defining human experience as used in legal rhetoric. Fourth, by applying literary methods in legal writing, laws can be more readily interpreted and legal decisions can be conveyed more effectively. Fifth, reading and writing literature helps improve clarity of expression which is a must for everybody involved in the legal profession. Moreover, every citizen of a society should also acquire this clarity to enable them to defend themselves in the legal arena. Next, special cases can be accommodated through the application of literary standards to legal documents and thus despotism can be reduced to a great extent. In this regard some proponents of the admixture of law and literature argue that this looks back to and restores the image of the lawyer as a person of letters possessing a broad liberal education and being well versed in languages, rhetoric and literature, who views law as an aspect of the humanities and the public life, not a science or a business. Lastly, one of the skills literature teaches lawyers is the power of the imagination so that lawyers learn to place themselves in the shoes of the client, the opponent, the witnesses, the judge, and the jury in order to anticipate reactions to their pleadings, presentation of evidence, arguments, and settlement proposals.
However, one need not think that only law will benefit from this intermingling; rather, it is advantageous for literature as well. The law has immensely enlarged the area and scope for literature already. The law enriches itself every day and this ever widening sphere of law can be a great source for literature. Until now most literature in which law plays a major role has concerned criminal law, ignoring the many disputes over inheritance, contracts, divorce and real property. These very issues can be presented with more legal focus in literature if the writers are interested in knowing a bit more about law and the legal system. In this context we do very well remember the nineteenth-century British novels which are rich sources of thinking about law and lawyers and offer insight into the legal heritage, mainly because the novelists Charles Dickens, George Eliot, Anthony Trollope and others participated in the debate about the best way to implement legal reform. In this regard more scope will be created to consider human feelings, emotions, and the environment where a person is raised. Then theories of punishment-as there are different theories available, like reformative, punitive, deterrent, expiation, preventive, and so on-should be analysed thoroughly. This is where literature can open up windows of thought for the reformers.
In fact, law is not at all a stagnant subject, rather it has undergone huge changes over the ages and literature can very well claim to be the greatest contributor. Different writers in different ages have made the lawmakers think about the loopholes of the prevailing laws through their writings. This is how new interpretations of different laws have come about, and thus the loopholes have been exposed. Similarly, writers have provided us with new ideas about how to define crime and punishment under different circumstances and helped clarify law. Likewise, the discretionary power of the judges and its effects on the justice system can be viewed in a broader literary perspective. In this context the effort of Lord Denning, the greatest law-making judge of the century is worth mentioning. Lord Denning showed his willingness to override precedent to do what he saw as justice and foreshadowed the move towards moulding the law to suit changing times and circumstances.
The definition of an offence can be scrutinised even more critically if it is seen through literature. Taking lessons from literature, life can be improved, which can substantially help the law-enforcement agencies to maintain order in society with ease and comfort. Social and communal conflicts are commonplace in every country and they are well-depicted in literature; law can borrow these materials to deal with them. Literature also helps to find ways of dealing with psychological problems which are quite common in human life and have certain effects on the whole of society. Again literature tells us how to look at these sensitive issues and therefore may help the law manage them in a more delicate way. As edification is one of the objectives of literature, the blending of law and literature ultimately helps the moral development of anybody concerned with the law. Since literature critiques lawyers and the overall legal system, this intermingling will certainly widen the scope for criticising the different shortcomings of the legal system, such as delays in trial proceedings, imprisonment without trial, torture on remand or interrogation, lack of sincerity in investigation, corruption, and so on, and will no doubt help to find ways to curb them.
Recently, in the global perspective, law has expanded its sphere and in the process problems like eviction, mass killing, war crimes, arbitrary power, and illegal occupation by foreign armies have come to the fore. All these issues are the themes of many literary works by different writers, which can assist legal experts to find ways to think about and deal with them. Literature also helps in building a better society by illustrating the consequences of committing crimes and the dreadful conditions of a criminal life.
To conclude, the intermingling of literature and law can give us hope of having a legal system touched by humanity. It may help writers to produce literature with more experience of life and society. At the same time, we need not forget that law is a part of our culture, not a mere technical study and it has a lot to offer to literature as well. As literature is a storehouse of alternative visions of law and society, the more literature comes into the thoughts of a lawyer or a law student, the better is the chance of law in a society paying due regard to human values and emotions, a quality which many people believe law seriously lacks. Likewise, literature should be more concerned with the everyday problems of life and a true reflection of society in the broad view. The times demand that writers do not just project a series of imaginary pictures playing in their minds, and law can truly help literature meet this demand.
Ahamuduzzaman is a Senior Lecturer at the Department of Law, ASA University, Bangladesh. Sharif Rakib Hasan is a Lecturer at the Department of English at the same university.
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--. The Merchant of Venice, USA: Penguin Group, 1998.