LEAVENING LAW WITH LITERATURE
By “literature” in the classic sense, we mean those works that by popularity, influence, and durability have stood the test of time. They include the monuments of Western culture – the Judeo-Christian Bible, and works by Homer, the Greek tragedians, Shakespeare, Tolstoy, Melville, and Hugo, among many others, but also those of innumerable writers of lesser texts, including popular fiction, etched in memory and passed along to succeeding generations as legacy.
By “law” in the literary sense, we mean a broad variety of writings of a legal nature such as statutes, judicial opinions, treatises, legal reviews and articles that serve the institution of law, no more, no less.
By “law and literature” in its modern formulation, we are talking about a relatively new study and discipline seeking to investigate both bodies of thought for signs of cross-fertilization and symbiosis; an unusually ambitious task considering apparently widely divergent DNA’s.
Law operates governments, and makes rules and regulations to safeguard the lives and social, political, and economic rights of citizens. It is a dynamic, evolving institution, omnipresent, punitive, as essential to health and well-being as food and shelter. Literature is a creative art form, an individual, solitary and timeless exploration of truth and beauty, with obligations to no one. Its existence is justified by mere occurrence. Law is analytical, scientific, detailed, circumscribed; it analyzes, reasons, and concludes; it seeks to persuade. Literature is existential, imaginative, transcendental, borderless; it seeks to seduce. Law operates by analogy and precedent, literature by similes and metaphors. Law is about man. Literature is about God.
Not surprisingly, the ancient Greeks saw the distinction just about right. In their games, as Saint Paul observed: “If anyone contends…he is not crowned unless he has contended according to the rules.” In their poetry contests, crowns were bestowed in three forms. The third place winner received a rose rendered in silver. The second place winner, a rose rendered in gold. First place winner? A freshly cut rose.
And yet modern scholars find law and literature to be quite congenial bedfellows. A majority focuses on law “in” literature, particularly the manner in which literature portrays legal conflict and its effects on those embroiled in it. They identify commonalities and differences in conflicts and characters appearing in great literary texts such as Kafka’s The Trial, Melville’s Billy Budd, and Camus’s The Stranger. The educational dividend: a sharpened awareness of law as a human system with moral obligations, an understanding of human motives and manners when confronted with the power of the law, and an appreciation for the tactics, available or unavailable, chosen or disregarded, on the chessboard of confrontation.
Some scholars concentrate on law “as” literature instead, identifying those writings that have graduated from the cauldrons of the law to the pantheon of literature, placing them in social and historical context, and exploring the genius which produced them. In this category, they celebrate American works such as the Declaration of Independence, the Federalist Papers, the United States Constitution, and the Gettysburg Address. They also reserve places of honor for towering works such as de Tocqueville’s Democracy in America, Holmes’s History of the Common Law, and every word Benjamin Cardozo ever wrote.
On a non-academic level, however, the law-literature coupling offers perhaps a far more valuable perspective, literature not only for the illumination, but for the nourishment, the leavening, it provides to law. Leavening in the form of collateral knowledge, brilliant inventive language, and transcendental spirit that speaks not only to what attorneys “do” but to who they “are”. Franz Kafka’s Trial, for instance, exposes the difference between the judicial systems of totalitarian and democratic governments in clinical and absolutely terrifying fashion. Gabriel Garcia-Marquez’s allegory, Chronicle of a Death Foretold subtly, in a mere 120 pages reveals all of the complicity and guilt that can ever be ascribed to participants in reprehensible crimes such as the Holocaust. Edmund Wilson’s Dead Sea Scrolls records the first discovery of the likely Jewish origins of Christianity in the midst of a rapidly escalating battle over creation of the State of Israel, told in a much-needed voice of sweet neutrality.
The vocabulary of the law is necessarily limited, narrow, precise, simple, organized for presentation inside a closed box with a lid -- courts of law. The language of literature shares its goals of clarity and lucidity but none of law’s other restrictions. Literary language is often gorgeous, unchained, in the service of tales over which the artist has complete dominion and control. And while it does offer occasional new vocabulary the working attorney can adopt for his or her professional use, it does more. It helps by contrast to make the presentation of law’s own limited words more lucid, as it humanizes the selection of those words.
Occasionally its brilliant language offers solace to attorneys for bitter legal defeats they may experience inside the box, such as when a religious sense of fairness is crushed by law’s sense of justice, in the words of Robert Frost, when they become like “pieces of ice on a hot stove”, compelled to “ride their own melting”. And occasionally, it supplies a desperately needed smile, such as late at night, in the coal mine of trial preparation, when the headlamp reveals a dog-eared copy of J.P. Donleavy’s zany, The Beastly Beatitudes of Balthazar, on a nearby book shelf.
And then there is literature’s existential contribution to law and its practitioners.
Consider the word “character”, the Bar so often promotes and cites in a variety of forms such as “good character” and “character and fitness” – a word derived from the Greek “charakter” which identified a particular mark impressed on a coin, “ethikos” (ethical) the adjective cognate of the Greek “ethos” (character). Aristotle expanded that cognation beyond mere surface individuality and moral neutrality to mean high personal standing, excellence of an exalted kind, “ethikai aretai”, or simply “moral excellence”, a state of grace in which deeply-etched values are continuously applied to countless situations, balancing extreme choices to achieve a “golden mean” in all things. The attorney, a person of character.
Consider the challenge to Rabbi Hillel to teach the whole Torah during the time a Gentile could remain standing on one foot. “What is hateful to thee,” said the Rabbi, “do not unto thy fellow; this is the whole law.” The attorney, a person of civility.
Consider the distillation of Chief Justice George Sharswood of the Pennsylvania Supreme Court in his gracefully written 19th century treatise upon which the first system of ethics ever prescribed by the Bar, the 1908 “Canons of Ethics”, was largely based: “Let it be remembered and treasured in the heart of every student, that no man can ever be a truly great lawyer, who is not in every sense of the word, a good man.” The attorney, a good man or woman.
And finally, consider the statement of unknown origin which may just provide the soundest explanation of how law relates to literature: a difference of degree, not of kind. “If I cannot be a poet,” the individual said, “I might as well be a lawyer.”