Words are simple, they are like notes making up the music, it’s their arrangement that leads to a novel complexity, to a symphony, their arrangement that makes a piece of literature, their arrangement that composes a judgment.
There would be notions albeit a few which share a unique relationship. These notions being independent of each other, fill up a void in the other, complement the other or form such a part that they are interlinked deriving a rather distinctive value from the other, one such relationship is shared by law and literature. It is words and their interpretation that make up the real and as well as the fiction - with the Law on the one hand; defining our rights, punishing our misdeeds, rewarding us damages and literature on the other; creating characters, describing their lives and taking us on the journey with the protagonist all the while making us live vicariously.
Whether it’s our Constitution carefully inked by the constituent assembly, the multiple statutes drafted by our lawgivers, the articulate arguments of our lawyers creating a story in the minds of the listeners and the reasoned judgments or orders of the adjudicator, all embrace a substantial literary aspect that is hard to ignore. Similarly, literary works contain characteristics of law in some form or the other, even in Jane Austen’s Pride and Prejudice[1], primogeniture was the entire pivot on which the ideas of “love” revolved.
There is an overlay between these two genres that forms an incomparable correlation dovetailed by the significance of rhetoric.[2]
In this article I shall endeavour to explore the various facets of this relation, it’s significance in reaching the depths of law, appreciating the peculiar conditions that prevail in our society, how quixotically they may be dealt with in literature and realistically they are presently being confronted with in law and primarily I am going to highlight the well-structured judgments that seek the help of literature to support further rationalisation in addition to arousing empathy in the minds of the readers whether they are lawyers or laymen.
For the purpose of understanding this concept with all its intricacies, I intend to deal the connect between Law and Literature in three dimensions: (1) Law – AS – Literature; (2) Law – IN – Literature; and (3) Law – ON – Literature.[3]
PART ONE
Law - AS - Literature – The Cohesion of Ethics and Aesthetics
Law is generally perceived as a dry discipline and judgments authored by the judges are insipid by-products of law. However, there are moments when the judges, showing their acumen, have turned judgments into splendid pieces of literature. And, there are occasions when literature is used in the judgments, thereby adding strength to their opinions that would convince not only the lawmen, but laymen also.
No artist will produce the same piece of art. If there were a live painting that had to be drawn by a number of artists, no two artworks would be the same. Each artist has atypical style one, which is unique to him, whether it is the brush strokes, the use of the colour scheme or even the composition of the objects. Ronald Dworkin also highlighted this aspect [5] and likened the interpretative style of judges to that of a chain of authors, writing a novel in succession, each reading the chapter written by the previous author, to then pen the next one. A judgment is a creation of the judge motivated by the aim of attaining justice. Whether it’s the style of writing, the use of grammar, metaphors, literary examples, quotes or even couplets-”shayari”, every judge uses the pieces that lay in front of him; the statue, the parties, their bereavement, the arguments of their counsels, their rights or duties, the punishments or damages to be awarded, ethical and moral considerations and thereafter he has to form a cohesive whole.
Judicial discourse is a process that encompasses emotion in its endeavour to establish the rights and duties of the parties following its sense of justice[6], one that takes into its fold the tribulations of the prosecutrix, the loss of the litigants, the ordeals faced by the witnesses. Emotion permeates not just courts hearing matters of criminal nature but also the civil courtroom as well as the appellate courtrooms. “It propels the judges, lawyers as well as the public”[7].
When the judge, is confronted with a case composing of such elements it is essential for him to bring the passions of the court room, the emotions of the parties and the sentiments of the witnesses to his pronouncement, for then only will the end result be a true culmination of the proceedings that occurred, one that is able to reflect empathy and one that is able to mirror the events with such accurateness instilling confidence in the public, by bringing about a sense of transparency. It is for these reasons that judges frequently refer to Shakespearean stories, quotations from famous literary pieces, prose revealing moral significance, poems or even couplets or narrate the facts of the case as if it were a literary piece. To be emphatic and not mechanical, to be ardent and not half hearted, it is essential at times to take the help of the literature, that brings out these elements rather seamlessly, for the judge aspires to express the exact thing, its simply that literature conveys it better.
In Budhadev Karmaskar v. State of West Bengal [8], while upholding the conviction and the sentence of life imprisonment imposed on the accused for the murder of a sex worker, the court referred to a number of literary works to convey the message of human dignity enshrined in Article 21 of the Constitution which extends to all humans, regardless of what they chose as a profession.
“In novels and stories of the great Bengali writer Sharat Chand Chattopadhyaya, many prostitutes have been shown to be women of very high character, e.g., Rajyalakshmi in ‘Srikant’, Chandramukhi in ‘Devdas’ etc.
The plight of prostitutes has been depicted by the great Urdu poet Sahul Ludhianvi in his poem ‘Chakle’ which has been sung in the Hindi film Pyasa “jineh Naaz Hai Hind Per wo Kahan hai”
We may also refer to the character of Sonya Marmelodov in Dostoyevsky’s famous novel ‘Crime and Punishment’. Sonya is depicted as a girl who sacrifices her body to earn some bread for her impoverished family.
Reference may also be made to Amrapali, who was a contemporary of Lord Buddha.”
In Supreme Court Advocates On Record Association and Another v. Union Of India[9], while upholding the Primacy of the Chief Justice of India, the Court cautioned against the misuse of this power and the judgment began with this conception by quoting Shakespeare in ‘Measure for Measure’,
“We begin with a note of caution, thus :
O, it is excellent To have a giant's strength;
but it is tyrannous To use it like a giant.”
In Nallapati Sivaiah v. Sub-Divisional Officer, Guntur, A.P.[10], the Supreme Court was concerned with the evidentiary value of dying declaration and regarding the same relied on literary texts.
“There is a historical and a literary basis for recognition of dying declaration as an exception to the Hearsay Rule. Some authorities suggest the rule is of Shakespearian origin.
In “The Life and Death of King John”, Shakespeare has Lord Melun utter what a “hideous death within my view, retaining but a quantity of life, which bleeds away,..lost the use of all deceit” and asked,”Why should I then be false, since it is true that I must die here and live hence by truth?” William Shakespeare, The Life and Death of King John act. 5, sc.2, lines 22-29.”
‘Euthanasia’ has been the subject of debate whether it's in the space of philosophy, literature, politics and law. It has moral and ethical considerations that touch the very core of the issue. In Aruna Ramchandra Shanbaug v. Union Of India & Ors[11], the Supreme Court dealt with the issue starting with a couplet of Mirza Ghalib
“Marte hain aarzoo mein marne ki Maut aati hai par nahin aati”
The federal magistrates Court of Australia, in the case of Saba Bros Tiling Pty Ltd v. Minister of Immigration and Anor, quoted Merkel J’s citation of one of the most amour literary works that has a strong legal implication in Chun Wang v. Minister for Immigration (1997 FCA 70)
“Where his Honour said by way of introduction to the facts of that case:
In “The Trial” Franz Kafka tells the story of a man who comes form the country to fain admittance to the Law. Before the Law stands a door- keeper who says that he cannot admit the man at the movement. The man had not expected to meet this difficulty as he though that the Law should be accessible to every man and at all times. But he decides that he had better wait until he gets permission to enter. He waits for days and years. Finally the man asks how does it come about in all these years no one has come seeking admittance but me? The door- keeper perceives that the man is at the end of his strength and his hearing is failing, so he bellows in his ear: “no on but you could gain admittance through this door, since this door was intended only for you. I am now going to shut it.”
Occasionally a case arises which makes the word Kafkaesque appear to be a description of fact rather than fiction. The present is such a case”
The dissenting stand of Lord Atkin in Liversidge v. Anderson[12] stirred controversy and in the recent years received support from many. This case concerned Regulation 18 B, under which the Home Secretary had authority to detain persons who he had ‘reasonable cause to believe to be of hostile origin’ The issue in this case was whether the words ‘reasonable cause to believe’ in the regulation were to be construed objectively or subjectively.[13]
“The words have only one meaning. They are used with that meaning in statements of common law and in statutes. They have never been used in the sense now imputed to them.
‘when I sue of word’ Humpty Dumpty said in rather a scornful tone. ‘it means just what I choose it to mean, neither more nor less.’ ‘the question is,’ said Alice, ‘whether you can make words mean so many different things.’ ‘ the question is’ said Humpty Dumpty, ‘which is to be master – that’s all.’[14]
Above are the cases where aid of literature was taken by the judges to forcefully convey particular principles of law. We also know the judges who have employed their own language in a literary form. Who does not know the inimitable story telling style of Lord Denning (for example, see his judgment in Miller v. Jackson[15]. Lord Hailsham adopted the same style in Smedley’s Limited v. Breed[16]. Back home, we have examples of Justice Krishna Iyer and Chief Justice Dipak Misra (though I am eschewing the debate on the kind of language used which is difficult to understand).
While citing literary texts usually helps in bringing out the emotional element thereby appealing to the masses, one cannot lose sight of the primary aim of the judicial opinion. The purpose of the judgment has to be kept in mind though how it is delivered is subjective being a product of the style of the judge authoring it. The purpose cannot be lost in the attempt to make it pleasing to the ears or a delight for the eyes. It is a tool that is used by judges around the world, and it ceases to be a useful one when it adds to the confusion of the legal jargon than simplify it, when it counteracts the sentimental aspect of the case, when it is irrelevant to the subject matter of the dispute. One should not forget that literature cannot surpass the law but can only supplement it.
The author is Justice A.K. Sikri, an International Judge, Singapore International Commercial Court and a former judge of the Supreme Court of India. Views expressed are personal.
[1] Pride and Prejudice Penguin Classic Deluxe Edition
[2] Richard Posner Law and Literature 3rd Edition
[3] Robert Weisberg, in his article “The Law-Literature Enterprise” divided the relationship as (1) law in literature and (2) law as literature
[4] Deputy President of Supreme Court of United Kingdom 2009
[5] Ronald Dworkin, Law as Interpretation
[6] The Passions of Law: Susan A. Bandes
[7] Supra note 6
[8] (2011) 10 SCC 354
[9] (1993) 4 SCC 441
[10] (2007) 15 SCC 465
[11] (2011) 4 SCC 454
[12] (1942) A.C. 206
[13]The Literature of the Law – selected and introduced by Brian Harris
[14] Lewis Carroll, Through the looking glass ch. 6
[15] [1977] 3 All ER 338, 340
[16] [1974] 2 ALL ER 21, 24