Integrating Antithetical Spheres Of Law And Literature
“Writing Judgment is an art, not a science” -Lord Hope of Craighead
The fundamental recourse in the aftermath of a situation that adheres to the principalities of reductionism in legal realism is to supplement the situational viscosity with a flavour of literary interpretation that can help in humanising the rough roads of legal discourse while pronouncing judgments in the altars of natural justice. When I took a flight from the imaginative corridors of literature as a student and briefly as a teacher to its antipodal determinism by taking up the study of law, I understood that the influx of literature and philosophy in the study of law is central to the understanding of complex human issues and finding meaningful solutions. I thus, always believed in its co-existence, imagining my social position as Judge Posner’s “literary lawyer” in the making, who can use literary criticism for interpreting statutes, questioning Constitutional propositions, all these while knowing that the social and cultural functions have been different for law and literature, but contributing to the logical flow of argument in their best interest.
While one tries to situate the importance of fiction in the study of law, there is a necessity to first relate the subjective choice of the art of words in the framing of issues or drafting in case of any legal proposition and even in the followed up submissions.
The “constructive rhetoric”, as James Boyd White calls law in his seminal text titled “ The Legal Imagination”, is a kind of meaning that he puts to the otherwise dry subject, to put the strands of imagination and foster a holistic learning in the study of law as a literature or literature as a law. The results could have been outstanding as very few legal and literary theorists have so far tried to give meaning to the spatial parameters of their subjects beyond the limitations set by the grammar of the subject. There is however a very hairline difference between understanding law as literature and law in literature.
The legal education over the world for so many years has focussed more on the clinical subjects to shape the students of law as the citizens of the elite world, while neglecting the entire paradigm shift from imagination to practice. What I found fascinating in White’s book is the way he narrates the cases and explains legal theories. What is striking is his explanation of the M’Naghten Rule by quoting Marlowe’s Doctor Faustus.
According to the M’Naghten Rule, any person is presumed to be sane unless the contrary is proved and the act must be followed by a defect of reason caused by the disease of the mind and that the person must be unaware of the nature of his or her crime. White says that in Doctor Faustus, he blasphemes a God who exists, he knows the same and also knows of his mistake.
He is given a chance to repent and he rejects the offer. This can never be the criminal or insane mind and the damnation presented in the play only shows that there is no sense of disbelief in God, but his hatred towards him. The author correlates the case of Ferrin v People where a young boy shot his brother with a poem by Emily Dickinson, “ A bird came down to walk” where the focus is again on the degree to which the insanity defense can be used in criminal jurisprudence.
He finally says that "the central frustration of writer and lawyer, the perpetual breaking down of language in your hands as you try to use it." and it can be understood that the paralysis of thought processes works out in a similar fashion when a lawyer writes the briefs and prepares his submission or when an author writes down the characterisation and puts the layers into it.
Justice A.K. Sikri in his article titled “Mystifying Yet Unavoidable Relationship between Law and Literature”, proposes that the judges are artists and every judge has their own style while pronouncing judgments from quoting Shakespeare to Kafka, judges across the subcontinent and over the world have reflected upon the necessity to integrate the finer nuances and linguistic aesthetics in their judgments. In Supreme Court Advocates On Record Association and Another v. Union Of India, the Court quoted “Measure for Measure" by William Shakespeare:
“We begin with a note of caution, thus :
O, it is excellent To have a giant's strength;
but it is tyrannous To use it like a giant.”
Oscar Wilde, one of the greatest Irish literary giants, experienced the first hand tyranny of a faulty justice system and wrote in his last poem titled, ”The ballad of reading gaol”:
“We know not whether laws be right
Or whether laws be wrong
All we know who lie in gaol
Is that the walls are strong
And each day is like a year
A year whose days are long.”
While deviating from the necessity to find law in literature, there are various elements of constitutional jurisprudence that can be explained well with a backing of literature. American free speech is a “free trade in ideas” as pronounced in Abrams v. United States Similarly Wallace Stevens refers to free speech and the freedom of imagination as a blue guitar, a metaphor he uses in his poem, “The Man with the Blue Guitar”.
Therefore metaphors play a wide role in law and literature, standing often at the juncture of conflicting opinion, as is explained by a "geistigen meinungskampf" or the intellectual struggle of opinions. The cultivation of the literature in law stands at such a point that the humanities faces a greater crisis even while existing in a pluralistic society that invites confluence of myriad ideas and accepts the liberty to act beyond the discipline of the subject. Study of literature enables a deep sense of legal professionalism by tuning the practitioner of law (in any capacity) with the very deep rooted ideas of ethics, morality and the synchronization with the social necessities around, thereby filling up the gap that exists between understanding the theory of law and the practical response to the same. The timelessness of the questions of justice finds a solid footing, so does the moral answers to various innate questions of law. The justice system is changing around the world and the right kind of literature only helps in bringing the law to every reading room. In the case of State vs. Babu, Ld. Additional Sessions Judge Amitabh Rawat wrote a poem to reason out his judgment. Some lines from the same are mentioned below:
“Babu pleading for his bail;
State opposing tooth and nail.
Summers bygone, winters have arrived;
But crime you did, and Rahul cried.
I am not the one, I am not the one;
Too grave the charge, don’t pretend.”
Two other pieces of Literature that brought in greater meaning to the existing rationale behind studying literature with Law are “ The Trial” by Franz kafka and “To Kill a Mockingbird” by Harper Lee. Closer home, Bengali author Shankar’s Koto Ajanare speaks about his own experience at the Calcutta High Court as a clerk to Barrister Noel Frederick Barwell. John Wigmore’s pioneering piece titled “A List of Legal Novels” would help readers find their best pick while choosing to understand the importance of literature for the study of law.
Thus, the reasoning of law is fortified by the application of literary sensibilities, brings in a better sense of understanding for the common men and engages them to take a better interest in understanding law. The diverse subjects and the diverse stories brought from different lands helps in giving the firm foundation to legal jurisprudence in a country, helps often in rendering better judicial interpretation and that too in a country where the cultures amalgamate to form a complete united whole.
The entire contention has been beautifully explained by Pierre Boudieu, French Sociologist who calls it a magical society of words or Ferdinand de Saussure who saw Law as a language as therefore a social product that could speak. Jurists like Benjamin N. Cardozo also believes that Law is assisted in its way of being accessible if there is assistance from literature, focussing on how narrative techniques help the judge for writing better judgments and develop better judicial railings that shall imbibe the clarity and comprehensibility.
Therefore justified interpretation is a huge benefit to the justice system of the country, however often throwing the debate between how much a question of law can be answered through interpretation, often making the text sacred and often unusable, as Umberto Eco believes, which can be conflicting with the theory of Originalism which is often necessary for interpreting constitutional questions. However, that debate is for another day and it only must serve our purpose that literature must be binding to law and never superimposing, that will help in the generation of the finest judgments.
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