The Sovereign Virtue For Judge Is Clearness- When Law Met Literature
Law as a profession is often regarded as an infinite field. The more one digs into this ancient tunnel, the more one excavates. Law is interdisciplinary, it is closely intertwined with various subjects including History, Philosophy, Psychology, Economics, Sociology, and Literature. However, the relationship between Law and Literature can be defined as that of pen and paper, they complement each other. Law and Literature first crossed paths in 1930, when former United States Supreme Court Justice Benjamin Nathan Cardozo wrote an essay called “Law and Literature”. (1) It is considered among the finest writings in law. In this essay, Justice Cardozo emphasized the novelists/ playwrights' way of expressing ideas with a sense of clarity. Cardozo suggested the same for judges proclaiming that “in matters of literary style the sovereign virtue for the judge is clearness”. The Law and Literature movement has been developing ever since. American Law Professor James Boyd White is attributed as the founder of the Law and Literature movement because of his distinguished contribution to the ever-growing field. White believed in the interrelationship of Law, Literature, and other sciences. In “Law as Language: Reading Law and Reading Literature”, White mentioned the similarity between a lawyer and a literary critic, as readers of the text. With the emergence of new ideas in the movement, two subdivisions: “Law as Literature” and “Law in Literature” were materialized.
Law as Literature
To understand the association of Law with Literature, it is crucial to understand what Literature is. According to the Oxford Dictionary, Literature is defined as “written works, especially those considered of superior or lasting artistic merit” or “books and writings published on a particular subject”. These definitions obligate us to ask, can legal texts be classified as Literature? Can Bare Acts, Court Judgements, Commentaries, or The Constitution of India be considered as pieces of Literature? In my opinion, yes, Bare Acts are part of Literature. Court Judgements are Literature. The Constitution of India is a piece of Literature too. Adhering to the given definition of Literature, the Constitution of India is a phenomenal piece of Literature as it is the longest-written constitution and is the supreme law of India, lasting since 1949. Similarly, Bare Acts and Court judgments are books/writings published on the subject of Law. Therefore, these texts can be regarded as legal literature. This idea of legal literature unfolds the dimension of Law as Literature. At the Mountain Echoes Literary Festival, Jerry Pinto, an Indian Poet with a degree in Law said, "All law is an interpretation of literature. When you are reading law as a lawyer or as a judge, what you are doing is making up your mind about the spirit and the letter of the law that you are reading. So the act of law is an act of literature. It is an act of interpretation in literature". This statement of Pinto brings out the captivating similarity between the two fields: Law and Literature. Both Law and Literature deal with society at large. Many supporters of the Law and Literature movement argue that lawsuits are like stories in novels, dramas or short stories. From a literary lens, the facts of legal proceedings can be seen as a storyline and the parties involved in the case as characters of those stories upon whom certain obligations are made to do or abstain from doing something by law.
Further, in the field of law, precedents are established. They are a set of rules or principles binding on a court when deciding succeeding cases with similar facts. In other words, the court sets a moral ground for certain actions, and if not obeyed are penalized. Every judgment sets a deterrent that can be seen as the moral of the whole proceedings; a set of rules/principles/morals set up by the court of the law for the betterment of society. By the same token, literary texts establish morals towards the end of the story. Most literary works, from children’s stories to scholarly works, have a ‘moral of the story’ element in it.
In furtherance of the Law as a Literature argument, writing is the most important ingredient of both law and literature. It is interesting to mark out the amount of writing a Lawyer does during a trial. Like a Writer writes various drafts before the publishing of the final draft, a Lawyer too drafts various suits/contracts/agreements before finalizing the final one. Lawyers probably do more writing than any other professional. Lawyers have developed their style of writing; a formal means of writing is evolved by them, which conveys the facts of the case with remarkable precision.
Often, literary words or literary theory are used to interpret law rules and case laws. One such theory is the philosophy of “Deconstruction”, propounded by French philosopher Jacques Derrida in the 1960s. Derrida’s philosophy of deconstruction is defined by the Cambridge Dictionary as “the act of breaking something down into its separate parts to understand its meaning”. To comprehend cases, Lawyers “break down” facts, circumstances, legal language, evidence, and the respective law to give it a desirable meaning. Lawyers and law students follow the same philosophy of deconstruction to form a better understanding of factual and legal issues.
Law and Literature
The impact of Literature on Law is as much as the operation of Law in Literature; the two disciplines are closely knitted to each other to create an alluring effect on society. Not only Law is closely related to Literature but also used as a subject matter in various Literary works. Authors/Writers/Poets base their novels, stories, poems, and dramas around the theme of law. From Shakespeare to Dickens, Kafka, and Dostojevskij, most authors criticized the Law and Order of their contemporary society through their literature.
Shakespeare, who himself is rumored to be trained in Law, satirically writes: “the first thing we do, let’s kill all the lawyers” in his play Henry VI(4). Literature is consumed by the people of society, thereby creating greater influence on the prevailing norms of society. When authors mention/condemn/criticize Law and Order in their literary work, it creates a fundamental impact on the readers; and by extension, on rules and regulations of society. Many Literary movements including Realism and Transcendentalism influenced the laws of the time. Literature makes law makers, lawyers, jurists etc. more sensitive towards the needs of humankind as social beings by writing lifelike stories. It enriches law and develops one’s consciousness.
As mentioned, the relationship between Law and Literature is correlated. While the theme of various literary works revolves around the law, advocates/ judges quote literature to make their arguments/judgments more comprehensible and relatable. Lord Hope of Craighead, Deputy President of the Supreme Court of the United Kingdom had said, “Writing judgments is an art, not a science”. Judges at times take the aid of literature to convey the principles of law. In 2011, in a writ petition regarding ‘euthanasia’ (Aruna Ramchandra Shanbaug vs Union Of India & Ors (2011) 10 SCC 354), Justice M. Katju opened the judgment with a couplet of Mirza Ghalib, an 18th century Urdu poet: “Marte hain aarzoo mein marne ki Maut aati hai par nahin aati”, which is loosely translated as “O each minute I die, for death to come/But death seems to have taken a flight”. Similarly, Shakespeare not only inspired fellow authors but also judges, as his work is most quoted by American judges. In the Indian sphere, in N. Ranga Rao and Sons vs Anil Garg and Ors 2006 (32) PTC 15 Del, Justice Sanjay Kishan Kaul borrowed lines from Shakespeare's Romeo and Juliet for a judgment of an intellectual property case where the products were sold under the identical name by both the petitioner and the defendant. He wrote: “What's in a name? That which we call a rose by any other name would also smell as sweet, said William Shakespeare.” These instances of judges quoting authors highlight the significant relationship between Law and Literature.
Future of Law and Literature
The relation of literature with modern-day law is compelling as the law regulates principle aspects of literature, such as through the law of copyright. In 1710, the Statute of Anne came into force in Great Britain and changed the dynamics of the copyright world. It acknowledged the rights of the authors of published work and since then laws related to copyrights are evolving. Every piece of literature published has a copyright, and if plagiarized, it will be categorized as an offence.
The future of Law and Literature perhaps lies in academics. The ‘Law in Literature’, and ‘Law as Literature’ dimensions of the Law and Literature movement are growing rapidly. Nowadays, the study of two subjects as an interdisciplinary course is widely offered by many universities worldwide. Many Legal English professors argue that learning law through literature will help budding Lawyers interpret legal principles better and faster. The universality of Literature makes the practice of teaching law with the help of literature more acceptable and relatable, as most law aspirants are aware of authors such as William Shakespeare, Charles Dickens, and Keats than Jeremy Bentham, John Locke, and H.L.A Hart. Literature can be used as a tool to interpret factual or legal meanings. If the two disciplines are put together in a classroom, a space and a class of people will be created who will have attributes of both Law and Literature, making the learning process more efficient and engaging.
It is important to note that Law is not within Literature, but outside. Literature does not surpass Law but supplements it. With changing times, people of law need new and unique ways of teaching, interpreting, understanding, and arguing legal aspects. In this regard, Literature as a discipline supplements law. In the Discipline of Law, Lord Denning wrote, “when I was called to the Bar, I had to become proficient with words. I did it by drawing on my reserves of English literature…Next, I had to practice continually. As a pianist practices the piano, the lawyer should practice the use of words, both in writing and by word of mouth”(6). This statement by Lord Denning further marks the importance of the Law and Literature movement. Resultantly, there is an unavoidable relationship between Law and Literature. Both subjects are independent as well as dependent upon each other.
Author is an Advocate.
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