Literature and the law

There are numerous relationships between literature and law. Particularly in the areas I’m interested in, literature and law similarly produce fictional worlds. They do this to resolve problems in the imaginary. The findings are intended to have real-world applications or apply to the real world in some way.

The ways in which literature relates to the law is rarely direct. For all of the claims that literature scholars make about literature’s social importance, there are very few books that people strongly claim changed the law in some specific way. Sure enough, literature doesn’t work so directly with law. Only rarely does it have a decisively measurable impact on the law.

When I think about the relationship between literature and law, I focus on a more oblique connection. I focus on how literature produces imaginary solutions to real problems. Law undergoes the same exercise.

More specifically, both work through the same figurative logic and figurative grammars. When we talk about law producing legal fictions, it does so not as a kind of independent quality of law but as a literature and storytelling model. Like in poetry, the law incorporates figures of speech to operate on such fictions. Law doesn’t act directly on the world. It operates on fiction.

An obvious example is the legal fiction that a corporation is a person: a persona ficta. It’s been understood for centuries that a corporation is a person, but this has no basis in the real world. Nevertheless, even to this day, we treat corporations as though they have intentions and responsibilities.

We accomplish this feat through legal fiction. Through this, we endow corporate bodies with a certain kind of intentionality. Moreover, we achieve this via a literary device standard throughout poetry and fiction: personification.

This means the Genocide Convention isn’t primarily concerned with individuals as individuals. It’s thinking about individuals only insofar as they represent a larger class of people.

It operates according to this logic of synecdoche common in storytelling. We encounter this thinking in stories where the hero is supposed to represent an everyman. Here, the individual is a synecdoche for a particular society, and he is used in discussing universal ideas.

I use Hotel Rwanda as an example to illustrate this synecdochal logic of genocide law. Of course, Hotel Rwanda is based on real-life events. Yet, in the film, individuals with names and backstories, in large part, survive the genocide. Those who aren’t treated as individuals in the movie and who don’t have names and backstories – i.e. those who aren’t fully personified – become victims of the genocidal violence.

In general, we can use literature to help us understand how the law considers and approaches problems. When we read carefully, we can understand how things like personification, metonymy, metaphor, synecdoche and other speech figures operate and how the law borrows the same logic.

However, there are many more profound ways in which literature allows us to think about the proper relationships between individuals and society. I often think of international human rights law in this respect.

While the Commission was at an impasse, one of the delegates referenced Robinson Crusoe. According to the representative, the book suggests that the individual does not need society: individuals are capable of creating their own personality and a good life by themselves. Indeed, Robinson Crusoe lives on an island in the absence of society.

However, the Soviet delegate immediately claims that’s not the message of Robinson Crusoe. He continues that Robinson Crusoe is not about an individual who manages to reconstruct society on his own. Instead, Robinson Crusoe depends upon a slave and all of the books that washed ashore from his shipwreck. He relies upon all of the technologies and the knowledge that he carries with him from society.

What I find interesting about this is not so much that the novel was able to resolve this question because it wasn’t – delegates still had competing views. Still, it’s striking that the book was so commonplace that delegates could have a literary debate.

This debate contributed to what ultimately became Article 29 in the Universal Declaration of Human Rights. This Article declares that all human beings have responsibilities to society, in which alone the free and full development of the human personality is possible. Overall, Robinson Crusoe was an enabling fiction for human rights law. This is true, although not everyone understood the novel in the same kind of way.