Law and Literature Critical Essays


(Twentieth-Century Literary Criticism)

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.