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THE LEGALITY OF LITERATURE IN LAW

ABSTRACT: The researcher believes that literature should be taught to all law students as a
part of academic curriculum. This is becauseliterature in law is an established jurisprudential
discipline. This paper attempts to explore the link between law and literature as distinctive but
overlapping disciplines. By drawing examples from noted literary works, incorporating the
intricacies of law within it, the researcher concludes that Law as a subject cannot be studied in
isolation and is not bereft of literature. Apart from that literature imparts a greater degree of
jurisprudential insight that is very vital for grasping any legal issues and for providing adequate
and effective remedy.
Although over the years various classics have dealt with the legal system of their times, but it
was in 20th Century when Law and Literature Movement gained momentum. The credit for this
goes to Prof. James Boyd White, whose works triggered this movement. After this many alaw
professors have woven works of literaturenovels, memoirs, short stories, essaysinto classes
and seminars to tell the stories of law. In spite of the inherent advantages, critics have been quite
critical of the combination of law and literature. The study addresses the concern of critics
threadbare, analyzes them and concludes with a strong case for the combination of law and
literature.

1. INTRODUCTION
The relationship between law and literature is ages old. If we go back to the origins of law,
among the ancient Greeks it was aligned with rhetoric, speaking and writing. As law became
more professional, it was closed off from this. Thus, law and literature have taken different ways
with time. Over the years, Literature became increasingly concerned with the expression of
human emotions and feelings, while law with the maintenance of social order.1
1Ahamuduzzaman, The Relationship between Law and the Benefits of Intermingling Them, The
Fountain (June 10, 2016, 11:30 a.m.), http://www.fountainmagazine.com/Issue/detail/The-Relationshipbetween-Law-and-the-Benefits-of-Intermingling-Them

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Apart from that the works of ancient Greek tragedian Sophocles the writing of
WilliamShakespeare, Charles Dickens, Franz Kafkaetc on law have fascinated readers over
centuries. It is because it has offered an outsiders view of the efficiency of judicial system at that
time.2
The law and literature movement focuses on the interdisciplinary connection between law and
literature. This field has roots in two major developments in the intellectual history of lawfirst,
the growing doubt about whether law in isolation is a source of value and meaning, or whether it
must be plugged into a large cultural or philosophical or social-science context to give it value
and meaning; and, second, the growing focus on the mutability of meaning in all texts, whether
literary or legal. Those who work in the field stress one or the other of two complementary
perspectives: Law in literature (understanding enduring issues as they are explored in great
literary texts) and law as literature (understanding legal texts by reference to methods of literary
interpretation, analysis, and critique).3
Post law and literature movement many a law professors have woven works of literature
novels, memoirs, short stories, essaysinto classes and seminars to tell the stories of law. Using
these works, professors and students dissect scenarios not otherwise encountered in traditional
legal curriculum.4

2. HISTORY OF LAW AND LITERATURE MOVEMENT

Perhaps first to envision the movement were John Wigmore and Benjamin Cardozo, who
acknowledged novelists and poets as the principal teachers of law in the first half of the 20th
century. However, James Boyd White is considered the founder of the law and literature
2 Id.
3Law and Literature, Wikipedia (June 11, 2016, 11:45 a.m.),
https://en.wikipedia.org/wiki/Law_and_literature
4 Denise Forster, Using Literature to Make Better Lawyers, UVA Lawyer (June 11, 2016, 11:45 a.m.),
http://www.law.virginia.edu/html/alumni/uvalawyer/f05/literature.htm

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movement because of the dedicated research and distinguished publications in this field. Among
his many literary books and articles, his most renowned publication is The Legal Imagination.
This book is often credited with initiating the law and literature movement. It was first published
in 1973. This book is a fusion of anthology and critique, superficially resembling a traditional
legal casebook but drawing on a much wider and more diverse range of sources, with headnotes
and questions emphasizing the relationship of legal texts to literary analysis and literary texts to
the legal issues that they explore.5
The movement began attracting attention in the 1970s and gained substantial ground in academia
by 1980s. The proponents of the law-in-literature theory, such as Richard Weisberg and Robert
Weisberg, believed 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.6
In its early stages, the law and literature movement focused strictly on the law in literature
theory; however, in the late 1970s 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, which 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.7

3. JAMES BOYD WHITE: FATHER OF LAW AND LITERATURE

MOVEMENT
5 Supra note 3.
6 Id.
7 Id.

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James Boyd White graduated from Amherst College, Harvard Law School, and obtained as M.A.
in English from Harvard Graduate School. After graduation from law school, he spent a year as a
Sheldon Fellow in Europe and then practiced law in Boston for two years. He began his teaching
career at the University of Colorado Law School and moved to the University of Chicagoin the
mid-1970s, where he was a professor in the Law School, the College, and the Committee on the
Ancient Mediterranean World. He served as a governor of the Chicago Council of Lawyers and
is a member of the American Law Institute and the American Academy of Arts and Sciences. He
has received fellowships from the Guggenheim Foundation and the National Endowment for the
Humanities and in 1997-98 was a Phi Beta Kappa Visiting Scholar. At Michigan, he is a
professor of English emeritus and the L. Hart Wright Collegiate Professor of Law Emeritus. He
is also a former chair of the Michigan Society of Fellows. 8
He has published numerous books: The Legal Imagination (1973), Constitutional Criminal
Procedure (with James Scarboro, 1976), When Words Lose Their Meaning: Constitutions and
Reconstitutions of Language, Character, and Community (1984), Heracles' Bow: Essays in the
Rhetoric and Poetics of the Law (1985), Justice as Translation: An Essay in Cultural and Legal
Criticism (1990), "This Book of Starres": Learning to Read George Herbert (1994), Acts of
Hope: The Creation of Authority in Literature, Law, and Politics (1994). From Expectation to
Experience: Essays on Law and Legal Education (2000), The Edge of meaning (2001); and in
2006, both Living Speech: Resisting the Empire of Force and an edited volume, How Should We
Talk About Religion? These all books have played an important role in the growth of Law and
Literature Movement. As a result of his efforts now literature is taught to law students all over
the world. 9 Therefore, calling him father of Law and Literature Movement wont be wrong.

4. INTERFACE BETWEEN LAW AND LITERATURE

8James Boyd White: Biography, Michigan Law University of Michigan(13th June, 2016, 10:40
a.m.),https://www.law.umich.edu/FacultyBio/Pages/FacultyBio.aspx?FacID=jbwhite
9 Id.

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The study of Law and Literature can be divided into two distinct parts Law in Literature and
Law as Literature.10 As a reflection of Law in Literature, we should notice description of law
order in classics and in dramas. Looking at it as Literature in Law, we use literary words and
literary theory to explain all kinds of law rules and its cases. This is considered Literature in
Law. Literature in Law plays an important role in novels and dramas. Through these media,
the value of law can be discerned. By examining this topic through this lens we can understand
the timing of law and itsvalue to society. It allows us to think more deeply about human beings
and their community. Looking at this topic As Literature in Law we can see this method has
understandable, explainable methods. For instance, we use hints and descriptions to explain the
law and the real meaning of these rules. Through classics and dramas we can discern the function
of law.11

4.1 SIMILARITY BETWEEN LAW AND LITERATURE

Even though Law and Literature are two different fields, both are a creation of humans and target
humans and society as their research structure. This is the reason why their relationship is so
interlinked. Till date there have been many classics in which law is the subject. They describe the
relations among law, humans, and society.
The close relationship between Law and Literature is revealed in their methods of explanation,
description, readings, and expression. This connection is most apparent in that they both
implement the use of words and rhetoric. They both gather humans experiences and stories.
Beneath the strict language, they simply reflect the human world of experience. 12

4.2 DIFFERENCES BETWEEN LAW AND LITERATURE

10 L. Ledwon(Ed.), Law and Literature: Text and Theory, Preface 1 (Garland, New York, 1996).
11 Li-Ching Chang, The Research of Comparison between Law and Literature: As Illustrated by KafkasThe
Trial, NTU Law Review (June 12, 2016, 10:30 a.m.), http://www.law.ntu.edu.tw/ntulawreview/articles/3-1/2008_31-Li-Ching+Chang_%E5%BC%B5%E9%BA%97%E5%8D%BF_.pdf

12 Id.

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The language used in law and those used in any kind of literary expression is different. Law and
Literature utilize two different set of vocabularies. Literature originates from humankinds
inspirations and ambitions and feelings all brought together in this personalized product. It is
complex with emotion and personality. It expresses the writers personal thoughts and personal
style.
Literature is not only about storytelling and gossiping but also expresses the human concern for
the bitter and tough life. It is a personal voice. It becomes simply a tool when Literature is used
in the songs of the country, or the mouth of the political parties, and the media. 13 And then,
Literature loses its original function. Law is the rule of human behavior. It should be clear and
stable. It should gather peoples intelligence to reach the goal order and peace.
Under these auspices, we can create justice laws. Although, there were few famous classics
written by many writers, works of law come under more general authorship as they reflect the
whole society and its culture.
Literature was created by writers. So it shows its uniqueness through literary words. These
writers didnt follow the rules. They liked to shatter boundaries. Even more, they fought with the
power. There would be no limits. It challenged the current ideology and societys values.
Therefore, it is very unstable.
Law is the rule that everyone should follow. It solves the issues of peoples relationships. So, its
theory should be very reasonable and logical. It must avoid ambiguity. Also it cannot
continuously be amended. Law should be stable.14

5. SOME CLASSICS PORTRAYING LAW AND JUDICIAL SYSTEM OF

THEIR TIMES
13 Shin-Jam Kao, Nobel Prize in Literature award-winning speech: The Reason of Literature, Royal Swedish
Academy of Sciences, Switzerland, 2000.

14 Supra note 11.

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Some popular as well as critically acclaimed literary works by prominent writers like
Shakespeare, Kafka, Dickens, Camus, have dealt with the theme of law. Almost every reader
would know that these writers were very much influenced by the legal system of their time and
were aware of its impact both on the personal and social level. It would be wrong to think that
they took law as the subject matter of their novel or play just to weave an interesting story. In
fact, through skillful plot development, they expressed their views about the legal system of their
time.15
The Stranger, a novel of Albert Camus deals with the virtues of truth,confronts the deceits and
corruptions of law. We also come to know about the justice system of that time and existing
loopholes as the trial for the murder of an Arab proceeds. Furthermore, the novel addresses the
issue of the inevitable conflict between defective legal proceedings and a mans individual way
of thinking.16
Franz Kafkas The Trial" is another novel where the author exposes how law is abused. The
main character of the novel, Josef K., awakens one morning and, for reasons never revealed, is
arrested and subjected to the judicial process for an unspecified crime. Some crucial questions of
judicial proceedings like backlog of cases, arresting on suspicion and detaining a person for an
uncertain period, absence of proper investigation, and absence of the right to self-defense are
raised and brought to the attention of readers.17
William Shakespeares works contain a remarkable quantity of law terms. Apart from that they
are also used very accurately. The use of legal jargons in Hamlet is quite impressive. But it is
The Merchant of Venice, a controversial tale of a Jewish money lender which examines themes
of justice and the bias of legal systems.18 The speech of Portia is considered a classic even today.

15 Supra note 1.
16 Id.
17Franz Kafka,The Trial, Kurt Wolff Verlag (Munich), 1925.
18William Shakespeare, The Merchant of Venice, Penguin Group (USA), 1998.

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Even the funeral speech of Mark Antony in Julius Caesar is considered one of the finest speeches
given. These two speeches teach law students the skills of advocacy.
Charles Dickens popular novel Bleak House is particularly known for the novelists blunt
attack on the flaws of the British judiciary system. Dickens experience of working as a law clerk
in London came in handy in unearthing and depicting the laws flaws so vividly. The plot
concerns a long-running legal battle that takes place between two parties claiming the inheritance
of a large property, a battle which in the end costs both parties dearly. Many believe that
Dickenss harsh portrayal of the lengthy Chancery system made way for the reforms that took
place in the 1870s.1920

6. ADVANTAGES OF STUDYING LITERAUTRE BY LAW STUDENTS

As said earlier, law as a subject cannot be studied in isolation. We have to go through the
cultural, social and philosophical aspects while studying law.
This apart, there are many advantages of studying literature by law students like it imparts a
greater degree of jurisprudential insight that is very vital for grasping any legal issues and for
providing adequate and effective remedy.
Literary studies sharpen the sensibility and enable a judge to write better judgments. It also
enables a law practitioner to present his case more effectively as it greatly increases the rhetoric
power i.e. making one as much as persuasive.
Literature helps us understand the texts role in defining human experience as used in legal
rhetoric. By applying literary methods in legal writing, laws can be more readily interpreted and
19Charles Dickens, Bleak House, Yale University Press, 2000.
20Supra note 1.

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legal decisions can be conveyed more effectively. Reading and writing literature helps improve
clarity of expression which is a must for everybody involved in the legal profession
Further it enhances ones capacity to imagine, visualize and anticipate things whereby a lawyer
can foresee how his arguments will be responded. Study of literature enables a person to
approach a problem from various dimensions. Certain psychological problems can be cured more
effectively if someone is well exposed to literary studies.
Study of literature enables a law practitioner to present things from the perspective of his client.
Understanding of literature helps us know the root cause of offences and its various influences.
Hence it humanizes ones outlook and thereby induces harmony in society.

7. CRITICAL APPRAISALS
Richard Posner has played an important role in the Law and Economics Movement. As the
author of Law and Literature A misunderstood Relationship, Posner is highly critical of the
law and literature movement and the book helps to voice his more hard-lined interpretation of
law. This book can be seen as a reaction against the writings of Robin West, who has written
substantially against Posner's economic take on legal interpretation. A powerful critic of the
writings of White, Weisberg, and West, Posner sees literature as having no weight in the legal
realm although he does hold the authors in high esteem. He writes:
"Although the writers we value have often put law into their writings, it does not follow that
those writings are about law in any interesting way that a lawyer might be able to elucidate."21
Posner does not believe in the use of literary discourse in jurisprudential debate, and in colloquy
has described West's analysis of literature in legal debate as "particularly eccentric."22

21Supra note 3.
22Richard A Posner, The Ethical Significance of Free Choice: A Reply to Professor West, 99Harv. L.
Rev. 1433 (1985-1986).

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Posner asserts that law is subject matter rather than technique, and that legal method is the
method of choice in legal realms, not a literary one. To expand further, Posner believes literary
works have no place in judicial debate because one can never truly contemplate the original
meaning of the author, and that novels should only be considered in their contexts. He
characterizes the discovery of laws in fiction as "ancillary" and asserts the main subject matter of
a novel is always the human condition, and not the legal setting. From this perspective, the legal
background created by Kafka and Albert Camus are simply that, background, and have no further
meaning beyond the environment which they create.
Highly critical of the notable Law and Literature scholars, Posner believes that such legal minds
have taken literature "too seriously" and assigned them an unsubstantiated amount of weight in
the expansion of legal knowledge and jurisprudential debate.23
Richard Delgado and Jean Stefancic were against White and his theory of certain famous legal
cases in American history and agree with Posner on several issues. Their theory is that the actual
impact of contemporary literature on the substance of judicial opinion-making is limited because
judges distinguish legal texts. According to Delgado and Stefancic, judges' moral positions are
determined by normative social and political forces rather than by literature. They are firm
believers of the critical race theory which is a school of sociological thought that emphasizes the
socially constructed nature of race.24

8. CONCLUSION
Despite criticism it is quite clear that literature has a very significant role in the study of law.
The intermingling of law and literature produces certain benefits for both the subjects. First,
literature is exceptionally capable of probing human psychology and conditions through text.
This capacity can be combined with the legal framework which regulates human actions in real
life and truly pave the way for a democratic judiciary which is a prerequisite for establishing a
23 Supra note 3.
24 Id.

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just and moral society. Second, literature is considered to be a carrier of human will and freedom
of expression. This characteristic can be positively incorporated into the judicial system to
facilitate more humane legal decisions.
Indias most notable lawyer NaniPalkhivala was himself a student of literature in his early days.
Before pursuing LL.B. he did his M.A. in English from Bombay University. This did benefit him
in his advocacy. Judges got mesmerized with Palkhivalas language. This helped him establish
himself as one of Indias greatest lawyer.
Hence, from above it is quite clear that literature plays a very important role in the study of law
and therefore every law student should also imbibe the nuances of literature as this would
facilitate him in his pursuit of establishing oneself as a good lawyer. This phenomenon, once
started by James Boyd White, has now become a globally accepted norm and for this, the effort
of James Boyd White deserves appreciation.