What and Why Is Law and Literature?
by John Aquino on 07/16/12
As I have mentioned before on these pages, my wife is a Shakespeare scholar, and I have a B.A. and M.A. in English. When I was taking evening law classes, I heard about a legal movement or trend called “law and literature.” My law school offered a course in law and literature, and in my third year I signed up, thinking that with my background it would be especially meaningful to me. After I took the course, I didn’t know what law and literature was. And I am still not sure I know.
Some of those who have written about law and literature claim that law has greater value and meaning if it taps into a large cultural or philosophical or social-science context rather than existing in isolation. Richard Weisberg and Robert Weisberg, among others, write that literary works, especially narratives centered on a legal conflict, will offer attorneys and judges insight into the nature of law.
It sounds reasonable. I am not sure how it is different than saying that a holistic education is the best education or that it is better to be well read than not.
In the class I took, we read Shakespeare’s Measure for Measure, Dickens’ Bleak House, and Scott Turow’s Burden of Evidence. It came out during one of the many Socratic discussions the professor held that I was a member of the Mystery Writers of America, and I was quizzed about my opinion of Turow’s book.
I actually prefer Turow to John Grisham. I remember reading Grisham’s early books and feeling that they had interesting premises but that everyone seemed to be waiting around for the Federal Express package to be delivered for the plot to move forward. Turow’s plots seemed more grounded. But I remember saying with Burden of Proof that (spoiler alert) the explanation of the mystery is that his wife killed assistant D.A. Rusty Savich’s mistress and made it look like her husband did it by injecting the mistress’ corpse with the wife’s discharge that she had kept in the freezer. (“Honey, what’s this?” “I dunno. But let’s keep it until I figure it out.”) I felt on reading this twist that Turow had the idea for this but then had to explain it. He threw in a sentence about how she had read a book on artificial insemination. “Is that all it took?” I asked. “I mean, the mistress is lying there dead and the wife has to inject her in her vaginal area. She only had one shot. Didn’t she have to practice? Like start by injecting pineapples?”
But outside of this course being a nice respite from contracts and international law, I really didn’t get it. I didn’t see how it was different from a psychology professor bringing in a recording of Rodgers and Hart’s song “Where or When” to illustrate the concept of déjà vu.
Maybe the need for it is that law professors have been finding that students are coming to them not having had a holistic education and not being well read. I’m not sure that a course or two on law and literature is going to correct a dozen years of educational neglect. The movement toward law and literature also may be the product of fifty or so years professors emphasizing case law to the exclusion of all else—see Professor Kingsfield in the film and television series The Paper Chase. (When my father was in law school at Georgetown University in the early 1920s, he read cases but also read the speeches of Cicero and other classical literature and was trained in rhetoric.)
Last week, I was working on the website of the New York Court of Appeals and saw that they had a video recording of the court’s 2012 Lecture, which was by Daniel J. Kornstein, author of Kill All the Lawyers: Shakespeare’s Legal Appeal. I had read his book when it came out and thought it pretty superficial. In the lecture, he talked on Shakespeare and the law and how Shakespeare forms the basis for any law and literature course or discussion.
His book was published, and I am sure it was successful since he was invited to speak. I am sure he’s a fine lawyer. My problem with his talk is that it reflected what I think is the weakness of the law and literature concept, at least as I have experienced it.
Kornstein pointed out that 20 of Shakespeare’s 38 plays have trial scenes. He said, “Shakespeare helps us understand law, and law helps us understand Shakespeare. Great art often inspires a passion for justice.”
He suggested that Shakespeare’s plays can illustrate certain principles and concepts of law. Kornstein said that in The Winter’s Tale when Leontes orders “a just and open trial” for Hermione, what else is he doing by acknowledging the need for due process.
Kornstein focused on Measure for Measure, as we had in our class, and listed these legal issues that exist in the play
• sexual harassment—the judge Angelo says that he will only release the novice nun’s Isabella’s brother Lucio if she sleeps with Angelo;
• dead letter statutes—the law by which Isabella’s brother is to be sentenced has not been utilized for 14 years;
• capital punishment—the dead letter statute carries the death penalty;
• sentencing guidelines; and
• abuse of power.
I still say, that’s fine, but justices and attorneys were citing and quoting Shakespeare long before the law and literature movement began. Finding a literary allusion to a legal concept can enhance the learning of the concept but cannot teach it by itself.
One thing that Kornstein did say that is interesting is that Isabella in Measure for Measure has a beautiful speech about mercy that is not as famous as Portia’s in Merchant of Venice ("The quality of mercy is not strained..") but he thinks it is better.
ANGELO
Your brother is a forfeit of the law,
And you but waste your words.
ISABELLA
Alas, alas!
Why, all the souls that were were forfeit once;
And He that might the vantage best have took
Found out the remedy. How would you be,
If He, which is the top of judgment, should
But judge you as you are? O, think on that;
And mercy then will breathe within your lips,
Like man new made.
ANGELO
Be you content, fair maid;
It is the law, not I condemn your brother:
Were he my kinsman, brother, or my son,
It should be thus with him: he must die tomorrow.
ISABELLA
To-morrow! O, that's sudden! Spare him, spare him!
He's not prepared for death. Even for our kitchens
We kill the fowl of season: shall we serve heaven
With less respect than we do minister
To our gross selves? Good, good my lord, bethink you;
Who is it that hath died for this offence?
There's many have committed it.
LUCIO
[Aside to ISABELLA] Ay, well said.
ANGELO
The law hath not been dead, though it hath slept:
Those many had not dared to do that evil,
If the first that did the edict infringe
Had answer'd for his deed: now 'tis awake
Takes note of what is done; and, like a prophet,
Looks in a glass, that shows what future evils,
Either new, or by remissness new-conceived,
And so in progress to be hatch'd and born,
Are now to have no successive degrees,
But, ere they live, to end.
ISABELLA
Yet show some pity.
ANGELO
I show it most of all when I show justice;
For then I pity those I do not know,
Which a dismiss'd offence would after gall;
And do him right that, answering one foul wrong,
Lives not to act another. Be satisfied;
Your brother dies to-morrow; be content.
ISABELLA
So you must be the first that gives this sentence,
And he, that suffer's. O, it is excellent
To have a giant's strength; but it is tyrannous
To use it like a giant.
LUCIO
[Aside to ISABELLA] That's well said.
ISABELLA
Could great men thunder
As Jove himself does, Jove would ne'er be quiet,
For every pelting, petty officer
Would use his heaven for thunder;
Nothing but thunder! Merciful Heaven,
Thou rather with thy sharp and sulphurous bolt
Split'st the unwedgeable and gnarled oak
Than the soft myrtle: but man, proud man,
Drest in a little brief authority,
Most ignorant of what he's most assured,
His glassy essence, like an angry ape,
Plays such fantastic tricks before high heaven
As make the angels weep; who, with our spleens,
Would all themselves laugh mortal.
Portia’s is really a single speech, rather than this exchange with another character. I think they are both good and just different, Isabella’s being more dynamic because she is interacting with someone else.
Anyway, that’s what I think about law and literature.
Copyright 2012 by John T. Aquino
