Law and Literature Essay - Critical Essays

Law and Literature

Introduction

Law and Literature

The subject of law and literature has been a recognized field of study in universities and law schools since the 1970s. Since its inception it has been, and still continues to be, to some extent, a controversial union of disciplines. Almost everyone involved in the discussion—lawyers, students, literary critics, and ordinary readers—agree that there is a relationship between the fields of literature and the law, or jurisprudence. The exact nature of the relationship and the degree to which the two areas can or should influence one another continues to be a much debated issue.

Many critics and legal scholars agree that both literature and the law are based on language, and so share a common tradition. Both fields depend on narrative—on the idea of telling a story for either fictional or legal purposes. Also, argumentation and internal logic are crucial to both a good piece of fiction and a well-presented law case. Many scholars—for example, Ian Ward, Bruce L. Rockwood, and Gregg D. Crane—also point out that practitioners in both fields can benefit from a study of rhetoric, a deeper understanding of language, and an understanding of the interdisciplinary nature of law and literature. The debate becomes sharpened when the study of law and literature is divided into its two branches—law in literature and law as literature. Those scholars who engage in writing about law in literature emphasize the usefulness to the legal profession of reading certain works of literature that either centrally or peripherally deal with legal issues, and so potentially enrich the cultural context of the law. The other approach to the field, law as literature, is much more controversial. Some legal and literary scholars suggest that there are intellectual benefits to be derived from approaching legal texts as if they were literary criticism; using a deconstructive approach, for instance, law students can arrive at an understanding of the legal text's internal contradictions, biases, and faulty logic that can sharpen their intellectual and legal acumen. But critics of the law as literature approach point out that the fields are diametrically opposed: literature is dramatic and therefore concerned with developing conflict, whereas the purpose of law is conflict resolution. Richard A. Posner, one of the critics of the approach, has emphasized this essential difference and has also stressed that literary works deal with the law only metaphorically and not as a central concern. Because the two disciplines form divergent contexts, there is only a limited benefit to be derived from parallel study of law and literature. Posner has written, “Law is a complex set of rules and institutions from which a writer can borrow but which does not lend itself to being imitated.” Others still, for example Daniel J. Kornstein, have warned that the whole field is in danger of becoming too academic and abstract and that the study of law and literature will only provide a benefit if practitioners of law continue to be engaged with literature on an everyday level.

Literary critics have written much about the role of law in literature, especially in such works as Franz Kafka's Der Prozess (1925; The Trial) and Albert Camus's L'Etranger (1942; The Stranger). They have also explored fictional works that offer a direct and pointed critique of an aspect of the law—for instance, E. M. Forster's A Passage to India (1924), Charles Dickens's Bleak House (1852-53), and Jonathan Swift's Gulliver's Travels (1726). But more often, they have written about various reactions to the law in literature, ranging in scope from Nathaniel Hawthorne's The Scarlet Letter (1850), to the plays of Bertold Brecht, to John Updike's novel S. (1988), and to the contemporary plays of Alice Childress and August Wilson.

Representative Works

M. M. Bakhtin
Tvorchestvo Fransua Rable i narodnaia kul'tura srednevekov'ia i Renessansa [Rabelais and His World] (criticism) 1965

John Barth
Floating Opera (novel) 1956

Bertolt Brecht
Der kaukasische Kreidekreis [The Caucasian Chalk Circle] (play) 1954

Albert Camus
L'Etranger [The Stranger; also published as The Outsider] (novel) 1942

Alice Childress
Wedding Band (novel) 1973

Don De Lillo
White Noise (novel) 1985

Charles Dickens
Bleak House (novel) 1852-53

E. M. Forster
A Passage to India (novel) 1924

William Gaddis
A Frolic of His Own (novel) 1994

Nadine Gordimer
The Late Bourgeois World (novel) 1966

John Grisham
The Firm (novel) 1991
The Client (novel) 1993

Nathaniel Hawthorne
The Scarlet Letter (novel) 1850

Franz Kafka
In der Strafkolonie [“In the Penal Colony”] (short story) 1919
Der Prozess [The Trial] (novel) 1925

Ivan Klima
Soudce a smeti [Judge on Trial] (novel) 1991

Herman Melville
Billy Budd, Sailor (novella) 1924

Friedrich Nietzsche
Jenseits von Gut und Böse: Vorspiel einer Philosophie der Zukunft [Beyond Good and Evil] (essay) 1886
Zur Genealogie der Moral: Eine Streitschrift [A Genealogy of Morals] (essay) 1887
Der Antichrist [The Antichrist] (essay) 1895
Der Wille zur Macht [The Will to Power] (essay) 1901

Richard A. Posner
Law and Literature: A Misunderstood Relation (criticism) 1988
Overcoming Law (criticism) 1996

Salman Rushdie
The Satanic Verses (novel) 1988

Jonathan Swift
Gulliver's Travels (novel) 1726

John Updike
S. (novel) 1988

August Wilson
Ma Rainey's Black Bottom (play) 1985
Fences (play) 1986
Joe Turner's Come and Gone (play) 1988
The Piano Lesson (play) 1990
Two Trains Running (play) 1993
Seven Guitars (play) 1996

Tom Wolfe
The Bonfire of the Vanities (novel) 1987

Richard Wright
Native Son (novel) 1940

Criticism: Overviews And General Studies

Ian Ward (essay date 1995)

SOURCE: Ward, Ian. “Law and Literature: A Continuing Debate.” In Law and Literature: Possibilities and Perspectives, pp. 3-27. Cambridge: Cambridge University Press, 1995.

[In the following essay, Ward summarizes the history and evolution of the scholarly debate regarding law and literature, noting key ideas and critics.]

Students seek out good teaching to learn not the rules but the culture, for the rules are everywhere the same.1

The purpose of this introductory chapter is essentially synoptic. Indeed there is a very tangible sense in which, after more than a decade of the renewed law and literature...

(The entire section is 11541 words.)

Ian Ward (essay date 1995)

SOURCE: Ward, Ian. “Law and Justice in the Modern Novel: The Concept of Responsibility.” In Law and Literature: Possibilities and Perspectives, pp. 142-56. Cambridge: Cambridge University Press, 1995.

[In the following essay, Ward explores Kafka's The Trial and Camus's The Outsider as texts useful in the literary and legal study of the concept of responsibility.]

There is no doubt that modern literature has been more extensively used by law and literature scholars than any other literary source. It does not, then, represent a particularly new perspective. There are, of course, certain contemporary ‘modern’ texts which are fresh, and I will look at...

(The entire section is 5641 words.)

Bruce L. Rockwood (essay date 1996)

SOURCE: Rockwood, Bruce L. “Introduction: On Doing Law and Literature.” In Law and Literature Perspectives, edited by Bruce L. Rockwood, pp. 2-38. New York: Peter Lang, 1996.

[In the following essay, Rockwood surveys recent critical approaches to the study of law and literature and suggests that the two disciplines together can be helpful in understanding the moral complexities of the postmodern world.]

Despite its deep roots in culture and civilization, in the last decade of the twentieth century law and literature is still a relatively new and emerging field of study.1 It is a distinct discipline, and a true “interdiscipline,” involving fundamental...

(The entire section is 16420 words.)

Gregg D. Crane (essay date winter 1997)

SOURCE: Crane, Gregg D. “The Path of Law and Literature.” American Literary History 9, no. 4 (winter 1997): 758-75.

[In the following essay, Crane discusses the extent to which literature and law interact and are capable of influencing each other and evaluates three recent studies of that subject.]

In the Library of Congress's small collection of Chief Justice Roger B. Taney's papers, I recently happened upon the fragmentary beginnings of an essay on slavery and antebellum sectional hostility. Apparently written on the eve of the Civil War, the anonymous author laments the election of Abraham Lincoln and condemns “free state aggression” upon the nation's...

(The entire section is 7436 words.)

Daniel J. Kornstein (essay date winter 1998)

SOURCE: Kornstein, Daniel J. “A Practicing Lawyer Looks Back on Law and Literature.” Cardozo Studies in Law and Literature 10, no. 2 (winter 1998): 117-19.

[In the following essay, Kornstein presents a brief summary of literature and law study over the past two decades, emphasizing that the future of the discipline lies in engaging the interest of actual practitioners of law.]

Law and Literature has much to be proud of. In two decades or so, it has grown from an abstract idea to a contemporary school of jurisprudence. It has started to permeate the legal consciousness. It is taught in colleges as well as law schools. It has produced an expanding body of writing...

(The entire section is 994 words.)

Richard A. Posner (essay date 1998)

SOURCE: Posner, Richard A. “The Reflection of Law in Literature.” In Law and Literature, revised and enlarged edition, pp. 11-48. Cambridge: Harvard University Press, 1998.

[In the following essay, Posner argues, citing numerous examples of fiction that encompass legal issues, that the law figures in literary works as a metaphor rather than as the center of thematic interest.]

Law is so common a subject of literature that one is tempted to infer a deep affinity between the two fields, giving the lawyer privileged access if not to the whole body of literature then at least to those works that are explicitly about law. But I shall argue that the frequency of legal...

(The entire section is 18398 words.)

Kieran Dolin (essay date 1999)

SOURCE: Dolin, Kieran. “The Modern Western Nomos.” In Fiction and the Law: Legal Discourse in Victorian and Modernist Literature, pp. 21-44. Cambridge: Cambridge University Press, 1999.

[In the following essay, Dolan explores the cultural and philosophical context which enabled a connection between literature and law in the post-Enlightenment European tradition.]

The study of fictional representations of law demands a contextual criticism. In this chapter I attempt to establish this context for the subsequent analysis of my chosen novels by presenting a short account of the intellectual and social history of European law since the eighteenth century. The...

(The entire section is 11035 words.)

Criticism: Fiction Critiquing The Law

Wen-Chi Lin (essay date spring-summer 1995)

SOURCE: Lin, Wen-Chi. “Law and (Anti-)Colonialism in A Passage to India.Tamkang Review 25, no. 3-4 (spring-summer 1995): 362-75.

[In the following essay, Lin discusses the role of the central legal case in A Passage to India in terms of Forster's depiction of the “oftentimes self-contradictory role law plays in the colonial context.”]

E. M. Forster's A Passage to India has not been a novel known for its observation of colonial politics. Critical attentions have been drawn more to issues of its aesthetic form like structure and language, reflecting the dominant critical trend of the New Criticism, Structuralism, and Deconstruction as the...

(The entire section is 4223 words.)

William Pencak (essay date 1996)

SOURCE: Pencak, William. “Swift Justice: Gulliver's Travels as a Critique of Legal Institutions.” In Law and Literature Perspectives, edited by Bruce L. Rockwood, pp. 255-67. New York: Peter Lang, 1996.

[In the following essay, Pencak comments on Swift's Gulliver's Travels as a critique of English legal injustices but emphasizes that neither anger nor utopian thinking prove useful for Gulliver, but only working within the realities of the present system.]

Gulliver's Travels ends with a paradox. Gulliver wrote the book for the Publick Good, the only words so capitalized in the entire text, “for who can read the virtues I have mentioned in the...

(The entire section is 4834 words.)

Kieran Dolin (essay date 1999)

SOURCE: Dolin, Kieran. “Reformist Critique in the Mid-Victorian ‘Legal Novel’—Bleak House.” In Fiction and the Law: Legal Discourse in Victorian and Modernist Literature, pp. 71-96. Cambridge: Cambridge University Press, 1999.

[In the following essay, Dolin focuses on Dickens's criticism of the court of Chancery and its inheritance laws as exhibited in Bleak House.]

A reviewer of the first number of Bleak House anticipated that Jarndyce and Jarndyce would “doubtless be a famous cause—and take its future place beside the Common Pleas case of Bardell v Pickwick in the Law Reports of Fiction.”1 This prediction has proved true in...

(The entire section is 12306 words.)

Kieran Dolin (essay date 1999)

SOURCE: Dolin, Kieran. “Freedom, Uncertainty, and Diversity—The Critique of Imperialist Law in A Passage to India.” In Fiction and the Law: Legal Discourse in Victorian and Modernist Literature, pp. 169-92. Cambridge: Cambridge University Press, 1999.

[In the following essay, Dolin explores A Passage to India as Forster's critique of British imperialist law and specifically of the policy of “Anglicization.”]

English law and English literature were closely, yet variously connected during Britain's imperial domination of India. Anglo-Indians—the English who lived and worked in India—have been enrolled in the “configuration of law and...

(The entire section is 11244 words.)

Criticism: Literary Responses To The Law

Tamkang Review (essay date spring-summer 1995)

SOURCE: “John Updike's S.Tamkang Review 25, no. 3-4 (spring-summer 1995): 379-405.

[In the following essay, the critic examines the relationship between sex and the law as treated by Hawthorne and Updike in their respective novels The Scarlet Letter and S.]

In John Updike's S. (1988), set in 1986 America, there are passages and characters pointedly reminding the reader of its intertextual relationship to Nathaniel Hawthorne's The Scarlet Letter (1850),1 which has as its setting 17th-century Puritan Boston. The epigraphs of the novel, to begin with, are drawn from the masterpiece by Hawthorne. The first epigraph is about...

(The entire section is 8689 words.)

Alma Jean Billingslea-Brown (essay date 1996)

SOURCE: Billingslea-Brown, Alma Jean. “The ‘Blight of Legalized Limitation’ in Alice Childress's Wedding Band.” In Law and Literature Perspectives, edited by Bruce Rockwood, pp. 39-51. New York: Peter Lang, 1996.

[In the following essay, Billingslea-Brown explores the effect of anti-miscegenation laws in the framework of social repression of Blacks through established legal mechanisms.]

Between American jurisprudence and literary expression by African Americans, there is multifaceted relationship, one that has at its center questions of freedom and identity. It may be argued, in fact, that the impulse to creative expression by African Americans arises,...

(The entire section is 4181 words.)

Robert F. Barsky (essay date summer-fall 1998)

SOURCE: Barsky, Robert F. “Bakhtin as Anarchist? Language, Law, and Creative Impulses in the Work of Mikhail Bakhtin and Rudolf Rocker.” South Atlantic Quarterly 97, no. 3 (summer-fall 1998): 623-42.

[In the following essay, Barsky comments on Bakhtin's theory of the implicit relationship between language, anarchy, and natural law presented in the framework of personal freedom.]

The various directions toward which Bakhtin studies are presently moving suggests that whatever the differences from one scholar to another, there remains a nagging question in much Bakhtinian work: What else can be done with Bakhtin? This is not, or should not be, a purely academic...

(The entire section is 7368 words.)

Andrew Low (essay date fall 1998)

SOURCE: Low, Andrew. “Bernard Williams, Moral Law, and Kafka's Der Prozess.Symposium: A Quarterly Journal of Modern Foreign Literatures 52, no. 3 (fall 1998): 142-54.

[In the following essay, Low focuses on Kafka's depiction of justice and morality in The Trial, suggesting that his notion of it is a complex, nuanced one not easily summarized by modern critics.]

It would be inaccurate to label as “postmodern” Bernard Williams's criticisms, written in the last several decades, of the major Western traditions of philosophical ethics—inaccurate, but not altogether misleading. Without rejecting as necessarily ideological any competence claims of...

(The entire section is 6458 words.)

Dorothy Figueira (essay date May 1999)

SOURCE: Figueira, Dorothy. “Aryan Aristocrats and Übermenschen: Nietzsche's Reading of the Laws of Manu.Comparatist: Journal of the Southern Comparative Literature 23 (May 1999): 5-20.

[In the following essay, Figueira discusses how Nietzsche incorporated his interest in the Indian law book The Laws of Manu into his work.]

Much has been written on Nietzsche's reconstruction of Indian thought.1 Indologists and historians of religion have placed great importance on Nietzsche's appropriation of Indian themes; and, indeed, the philosopher's evocation of India is varied and often tantalizing. These evocations range from Nietzsche's use of...

(The entire section is 7486 words.)

Michael Freeman (essay date winter 1999)

SOURCE: Freeman, Michael. “Truth and Justice in Bertolt Brecht.” Cardozo Studies in Law and Literature 11, no. 2 (winter 1999): 197-214.

[In the following essay, Freeman examines Brecht's notions about law, morality, and justice as revealed through his play The Caucasian Chalk Circle.]

I. NOT BERTOLT BRECHT

This paper is not about truth and justice in Bertolt Brecht, the man. There was not much of either of these values in his life. Like Dubedat in Shaw's The Doctor's Dilemma, he was a “scoundrel but an artist.”1 Politically self-serving, a misogynist, plagiarist and anti-Semite,2 he crossed “his fingers...

(The entire section is 6797 words.)

Andreas Gailus (essay date April 2001)

SOURCE: Gailus, Andreas. “Lessons of the Cryptograph: Revelation and the Mechanical in Kafka's ‘In the Penal Colony.’” Modernism/Modernity 8, no. 2 (April 2001): 295-302.

[In the following essay, Gailus explores Kafka's idea of the law as a “force without significance” as developed through his satire of the law machine in “In the Penal Colony.”]

According to a great Rabbi, Walter Benjamin recalls in his essay on Kafka, the coming Messiah “will not wish to change the world by force but will merely make a slight adjustment in it.”1 A slight adjustment of the ordinary—this is indeed what happens everywhere in Kafka's texts in which daily...

(The entire section is 4483 words.)

Çigdem Üsekes (essay date summer 2001)

SOURCE: Üsekes, Çigdem. “‘You Always under Attack’: Whiteness as Law and Terror in August Wilson's Twentieth-Century Cycle of Plays.” American Dramas 10, no. 2 (summer 2001): 48-68.

[In the following essay, Üsekes discusses Wilson's linking of whiteness with law and terror in his plays, suggesting that off-stage white characters symbolize a corrupt legal system that oppresses blacks.]

August Wilson has won critical acclaim for his ambitious project of chronicling the African American experience in the twentieth century with a cycle of ten plays. But those critics who have applauded Wilson's black characters have neglected to pay attention to his equally...

(The entire section is 6380 words.)

Further Reading

CRITICISM

Cheng, Sinkwan. “Crossing Desire and Drive in A Passage to India: The Subversion of the British Colonial Law in the ‘Twilight Zone of Double Vision.’” Literature and Psychology 47, no. 3 (2001): 1-24.

Argues that the neutral space of the Marabar caves creates an environment in which the relationship between colonizer and colonized becomes first destabilized, then reversed in Forster's novel.

Dimock, Wai Chee. Residues of Justice. Berkeley: University of California Press, 1996, 278 p.

Dimock explores the interaction between literature and the law, positing that literature can provide a needed...

(The entire section is 465 words.)