Law and Literature : Law in Literature

The “Law and Literature” movement exploded onto the scene in the United States during the second half of the 1970s. Immediately identifying itself with literary modernism, it took up position in a tradition symbolized by the names of Camus, Kafka, Melville and Dostoyevsky. The rapid establishment of the movement in American law faculties was demonstrated by the convening of numerous courses on the works of these four authors, which in turn consolidated the idea that “Law and Literature” was inseparable from a particular type of literary modernism. However, in attempting to reconstruct the intellectual history of the movement, it is striking that one of its most important branches – “Law in Literature” - is in fact far from going hand in hand with modernity, instead taking literary classics (Dickens, Scott, Dumas, Balzac) as its guiding lights and Victorian novelists as its home ground. It is this “upper middle-brow” canon that inspires the “legal novel”, a genre created and promoted by the pioneer Wigmore, in the hope of encouraging lawyers to read literary texts that were influential in their approach to juridical life understood in a broader sense.

Research carried out in the Wigmore archives held at the faculty of Northwestern University (Chicago) gave rise to two publications more specifically examining the lists of “legal novels” put together by Wigmore in the early twentieth century for the use of law students (see especially « Éloge de l’éclectisme. Penser le champ « Droit et Littérature » à partir des listes de Legal Novels  (1900-1987) », Textyles, n° 31, Droit et Littérature, 2007, pp. 12-28). John Henry Wigmore is at the origin of one of the two main branches of the “Law and Literature” movement – law in literature; the Supreme Court judge Benjamin Cardozo (1870-1938), meanwhile, may be considered the father of the alternative approach, law as literature. While much has been written about Cardozo, Wigmore has attracted far less attention: only one bibliography exists on his work, which although very useful was clearly drawn up to order by a librarian. Yet Wigmore is a unique character in the literary world. Sole author of a ten-volume treaty on evidence that makes him one of the major reference points of American criminal law, Wigmore was also a jurist who knew well how to illuminate the magic lamps and kaleidoscopes that could introduce laymen to the universal history of law. His legacy has perhaps suffered more from this general diffusion of a juridical culture usually reserved for an audience of experts than from his misjudged political stances during the 1920s, in particular regarding the Sacco-Vanzetti affair. In short, posterity has been unforgiving not so much of Wigmore’s political ultra-conservatism at this point in his career as of his determination to democratize access to law. He fought this cause by illustrating that practical law is not in fact born from the seed of pure law itself, but instead from the stuff of everyday life – personal character, human emotions, ideas arising out of chance or contingency – all phenomena that are perfectly at home in literature on the other hand, and above all in popular literature (see: « Make the Unorthodox Orthodox : John Henry Wigmore et la naissance de l’intérêt du droit pour la littérature ». In Antoine Garapon, Denis Salas (eds.), Le Droit dans la littérature, Michalon, coll. « Le bien commun », 2008, pp. 27-68).

What is more, Richard H. Weisberg, professor at the Cardozo Law School and one of the most influential figures in the contemporary “Law and Literature” movement in the United States, took part in the first seminar in France to be devoted specifically to “Law and Literature”, convened by Antoine Garapon and Denis Salas at the Supreme Court of Appeal (Cour de Cassation) in October 2006. Whilst fully embracing Cardozo’s legacy, Weisberg was far more ambivalent about that of Wigmore; I was all the more surprised by this since it is to Weisberg’s work in the 1970s that we owe the rediscovery and updating of Wigmore’s lists. A fruitful exchange was established as a result, and led to the organization of a “Law and Literature” study day on the theme “Can democracy do without fiction(s)”, held at Sciences-Po in June 2007; the proceedings were published in a special issue of the journal Raisons Politiques (www.cairn.info/revue-raisonspolitiques-2007) in October of the same year.

The interest generated by the “Law and Literature” approach within the research group on “Frontiers of Modernity” also led to the establishment of collaborations outside the literary arena, bringing in first historians and then jurists. Frédéric Audren was thus invited to present a paper on 1st June 2007 entitled “What is a case in case-law?”, and it became clear that the research group of the Maison Française would benefit greatly from the skills of a historian of law whose different approach could enrich both the history of sciences and literary studies programmes. 
The relations of law and literature have also been explored on the basis of two case-studies: Danton and the Marquis de Sade.

The death of the leader of the “Indulgents” is perhaps one of the most highly literary events of the Revolution, as shown in the works of William D. Howarth (see in particular “The Danton/Robespierre Theme in European Drama”, in H.T. Mason and W. Doyle (eds.), The Impact of the French Revolution on European Consciousness, Gloucester, Alan Sutton, 1989, pp. 21-35). The literary arena, however, is not limited to fiction: it also takes in political texts such as the speeches given at the Convention during the session of 11 Germinal, Year II (31st March 1794), which led to the accusation and sending before the revolutionary tribunal of Danton and Dantonist deputies. Applying the counter-factual method formulated by the novelist Manzoni to this parliamentary session reveals many ambiguities: the uncertainty of parliamentary enunciations, for instance, and the difficulty of knowing today exactly what was said by the actors at the time given the vast contradictions encountered in newspaper accounts that claim to report these events. Most importantly perhaps, this method also reveals the “juridical constraints” (Michael Troper) that held sway over the actors, and that took their toll so much more dramatically on the Dantonists than on their accusers, the members of the Committee of Public Safety (Robespierre and Barère). “Who killed Georges Danton” is to appear in the volume of Essays in Honour of Professor of Law Yves Guchet, edited by Pascal Morvan, later in 2008.

On Sade, the “Law and Literature” approach is elaborated principally in Chapter IV of L’Honneur dans la République, a history of indignity from the French Revolution to the 1950s (forthcoming in Editions Grasset in 2008) which attempts to show that the resistance displayed in a text such as One Hundred and Twenty Days of Sodom (1785) perhaps arises from the fact that insufficient account has been taken of the juridical foundations of Sade’s thought. Law is present above all in this work, in which Sade considers an extreme juridical statute that had been in force not only in ancien régime law but also in the anti-emigrant legislation of the Convention: civil death (that is, the deprivation of civil rights). The ambition of One Hundred and Twenty Days of Sodom, which can be read as a practical treaty on civil death, is arguably therefore to dare to question how there could be any concrete relationship between individuals completely deprived of their civil rights, since civil death goes hand in hand with social death and the ultimate “de-linking” of natural relationships from law. Can any such relationships then continue to exist? This standpoint was further developed during the discussion on Caroline Warman’s paper on Sade in a study day organized by Alexis Tadié at the Voltaire Foundation on 29th February 2008 on “The figure of the philosopher in non-philosophical prose”.