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.
1. Law in literature – study of representations of the legal order in novels, plays,
and poetry.
2. Law as literature – the study of law as a form of literature. Treats court
judgments, legal texts, and even statutes as if they were literary works.
Study of literature in law is helpful because
 literature is a storehouse of alternative visions of law and society,
 law is part of our culture, not a mere technical study,
 literature stresses intuition and feeling,
 literature undermines lawyers’ excessive faith in reason,
 literature is almost always more interesting, disturbing, and entertaining than law.
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 texts with a legal
framework that regulates those human experiences in reality gives a democratic judiciary
a new and dynamic approach to reach 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 the 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.

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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.
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.

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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.
Law v. literature
What's the difference between law and literature? Both are just words on paper. And both
are created by men and women from their native, intellectual powers. So why then does
society treat them so utterly different? Why is literature allowed to be private property,
subject to the capricious whims of a creator who can do whatever he wants with it, while
personal ownership of law is forbidden? In fact, in free and democratic countries the
creation of law has been studiously circumscribed, and is subject to great control, huge
regulatory mechanisms and public participation.
While we in free and democratic societies have been thrust into a world with these
verities presented as gifts, who among us has stopped for a moment of reflection to
wonder why this is or how it came about? Has it always been that law and literature were
treated so differently?
Remembering back to high school history we can all recollect learning of times when law
was just the dictates of all-powerful kings. When law was really just whatever the king
wanted it to be at the moment without restriction. Back then, writing good laws made
them good kings and bad laws made them bad kings. But either way, kings were the
solitary authors of law, creating real world effects for their subjects with their mere
utterances, just like literary authors today create fictional worlds with their words. So, at
the time, law was just the private property of kings. Or to put it another way, law was the
king's literature.
So in fact even not too long ago, the world was confused about the differences of law and
literature. Some places today still live under the confusion. But for the most part, the
world through bloody trial and error has discovered that law and literature are somehow
very different. With countless political wars fought over who would get to write the

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words to be placed in law books, the world came to slowly realize that law creation ought
to rest in the governed through some democratic means, and not be the private preserve
of a particular person. This is surely clear to all thinking people in the 21st century and
needs no elaboration here.
What is the essential difference?
Over centuries, therefore, the world has established that there is a difference between law
and literature, and that the two ought not to be confused. But has the world ever
rationalized the essential differences in them to explain the difference in treatment more
specifically? Because to apply effects to different circumstances as we are trying to do
here with software, one must understand the causes too, not just the outcomes. So what
really is it in law that makes it different from literature? Again, both are merely words
from people's intellect, so exactly what is the essential difference?
For one thing, people don't have to read an ordinary book. Experiencing literature is
totally voluntary, whereas law is compulsory. Does that explain all of the essential
differences? It certainly appears to go a very long way, but that is not the whole story.
Law is not only compulsory; it is coercive, also. Law, unlike literature, does not only tell
you what you need to know, it tells you what you have to do, too. And if you don't do it,
it sends the police to knock on your door at night to politely, or not so politely, make sure
you do it. And this is ultimately the essential difference between law and literature.
Therefore, in the final analysis, law is essentially not like literature, because it controls
people.
So to briefly recap, over the centuries, starting with rational predispositions of equality,
autonomy and freedom, the world has deduced in bloody and deadly cycles of reductio ad
absurdum that if law is to control people, the only legitimate creation of that law is a
social contract among the people as written in a democratic process by the governed
themselves.
Using Literature in Judgements
Specimen 1- Judgments of courts generally make dull reading. Lord Denning in the UK
was an exception. His judgments were well crafted, and written in simple language with a
literary touch. Recently, a simple issue before the Bench of the Supreme Court
comprising Justices Dipak Misra and Adarsh Kumar Goel was whether anticipatory bail
should be granted to Teesta Setalvad and her husband. The bench referred the issue of the
principles for grant of anticipatory bail to a larger bench and ordered that interim
protection from arrest granted by the previous order of the court shall remain in force till
the larger bench takes up the matter.
Interestingly, in the course of the judgment, reference has been made by Justice Misra to
the statement of Lord Bolingbroke that “without health, no pleasure can be tasted by
man; without liberty, no happiness can be enjoyed by society”. Thereafter, there are
quotations from the famous statesman and parliamentarian, Edmund Burke: “Men are
qualified for civil liberty, in exact proportion to their disposition to put moral chains upon
their own appetites… It is ordained in the eternal constitution of things that men of
intemperate minds cannot be free. Their passions forge their fetters”.
Subsequently, the judgment reproduces the statement of John Adams, second President of
the US. “The true and only definition of a Republic is a Government, in which all men,

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rich and poor, magistrates and subjects, officers and people, masters and servants, the
first citizen and the last, are equally subject to the laws.” These references and quotations
are both instructive and enjoyable.
Specimen 2- From a famous couplet of 18-century poet Mirza Ghalib to the freely
available pearls of wisdom on internet and widely-researched legal doctrines on mercy
killing across the globe - the Supreme Court ruling on euthanasia refers to all of these.

"Marte hain aarzoo mein marne ki, Maut aati hai par nahin aati (One dies longing for
death but death, despite being around, is elusive)," Justice Markandey Katju quoted
Ghalib, while starting his 141-page judgement on euthanasia (mercy killing) plea for
Aruna Ramachandra Shanbaug, a sexual assault victim lying in a vegetative state in
Mumbai hospital for 37 years.
In a path-breaking ruling, the bench rejected a plea for mercy killing for Aruna and ruled
that passive euthanasia, however, can be executed if the high court decides in its favour
in case a plea is made to it.
"Euthanasia is one of the most perplexing issues which the courts and legislatures all over
the world are facing today," he said in his ruling.
"This court, in this case, is facing the same issue, and we feel like a ship in an uncharted
sea, seeking some guidance by the light thrown by the legislations and judicial
pronouncements of foreign countries, as well as the submissions of learned counsels
before us."

A voracious reader and a judicial philosopher in his own right, Justice Katju, who often
quotes from the Upnishads, the Bhagwad Gita, the Quran in his judgements, has in this
case the help of the internet to differentiate between passive and active euthanasia.

Specimen 3- SC declares Salwa Judum Unconstitutional Judgement (2011)

As we heard the instant matters before us, we could not but help be reminded of the
novella, “Heart of Darkness” by Joseph Conrad, who perceived darkness at three levels:
(i) the darkness of the forest, representing a struggle for life and the sublime;
(ii) the darkness of colonial expansion for resources; and finally,
(iii) the darkness, represented by inhumanity and evil, to which individual human beings
are capable of descending, when supreme and unaccounted force is vested, rationalized
by a warped world view that parades itself as pragmatic and inevitable, in each individual
level of command.
They go on to say that as they heard more evidence about what was happening in
Chhattisgarh we could not but arrive at the conclusion that the respondents were seeking
to put us on a course of constitutional actions whereby we would also have to exclaim, at
the end of it all: “the horror, the horror.”

Specimen 4- Justice Vivian Bose in Bidi Supply Company v. the Union of India in a
complicated tax matter, elaborated thus: “After all, for whose benefit was the
Constitution enacted? What was the point of making all this pother about fundamental

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rights? I am clear that the Constitution is not for the exclusive benefit of governments and
states; it is not only for lawyers and politicians and officials and those highly placed. It
also exists for the common man, for the poor and the humble, for those who have
businesses at stake, for the ‘butcher, the baker and the candlestick maker’. It lays down
for this land ‘a rule of law’ as understood in the free democracies of the world. It
constitutes India into a Sovereign Democratic Republic and guarantees in every page
rights and freedom to the individual side by side and consistent with the overriding power
of the state to act for the common good of all. I make no apology for turning to older
democracies and drawing inspiration from them, for though our law is an amalgam drawn
from many sources, its firmest foundations are rooted in the freedoms of other lands
where men are free in the democratic sense of the term.”

Specimen 5- Justice V.R. Krishna Iyer in his famous judgment on the question of
remission of life convicts in Maru Ram v. Union of India, began with the following
beautiful description: “A procession of ‘life convicts’ well over two thousand strong,
with more joining the march even as the arguments were on, has vicariously mobbed this
court, through the learned counsel, carrying constitutional missiles in hand and
demanding liberty beyond the bars. They challenge the vires of s. 433A of the Criminal
Procedure Code (Procedure Code, or short) which compels ‘caging’ of two classes of
prisoners, at least for fourteen eternal infernal years, regardless of the benign remissions
and compassionate concessions sanctioned by prison law and human justice. Their
despair is best expressed in the bitter lines of Oscar Wilde: ‘I know not whether Laws be
right, or whether Laws be wrong, All that we know who lie in gaol, Is that the wall is
strong; And that each day is like a year, A year whose days are long.’

“But broken hearts cannot break prison walls. Since prisons are built with stones of law,
the key to liberation too is in law’s custody. So, counsel have piled up long and learned
arguments punctuated with evocative rhetoric. But Judges themselves are prisoners of the
law and are not free to free a prisoner save through the open sesame of Justice according
to law. Even so, there is a strange message for judges too in the rebellious words of
Gandhiji’s quasi-guru David Thoreau: ‘The law will never make men free; it is men who
have got to make the law free. They are the lovers of law and order who observe the law
when the government breaks it.’”

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