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A.P. Shah: The links between law and literature
November 01, 2017
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When I first started thinking about law and literature as the subject for this speech, I ran through the many connections that the two disciplines have — they are complex and interesting. For example, many literary works deal with law as a subject, one of my personal favourites being The Pickwick Papers. At the same time, the judicial opinions of several judges have been regarded as having literary merit. I am familiar with only those of the English-speaking world, such as Lord Denning, Krishna Iyer and Oliver Wendell Holmes, but there must be others of equal distinction elsewhere. A literary bent helps lawyers argue better and judges articulate better. Critical theory, so central to the study of literature, is also an invaluable tool for the study of law, with both requiring a keenness for detail. Finally, law itself also regulates certain fundamental aspects of literature, such as through the law of copyright.

Just as the law has fascinated writers over centuries, many writers have also themselves been lawyers, or at least trained in the law, including some of the best-known names such as Sir Walter Scott, Dostoevsky, Tolstoy and Kafka. In India, some of the most powerful writing, which has both political and literary merit, has come from people trained in the law, such as Bankim Chandra Chattopadhyay who wrote ‘Vande Mataram’, among many other works, and was a Deputy Magistrate. P.L. Deshpande, the great Marathi writer, studied law but never practised. Another novel that blends both law and literature is that of Mani Shankar Mukherjee, who wrote under the pseudonym of Shankar and published Kato Ajanare which centred round his real-life experience as a clerk to Barrister Noel Frederick Barwell. The novel brings together true stories — some of them reported judgments — into a fictional space and experiences at Calcutta High Court.

Meaning of literature

The next question that came to my mind was, what exactly is literature? I am reasonably certain as to what the law is, but literature is more fluid. A speech could be literature just as much as a 1,000-page novel, and so could an epic passed down in an oral tradition over millennia. The Ramayana has spiritual status, but is still literature. The Mahabharata is a literary text. Surely, even the Vedas and the Smritis are, just as much as the Bible is. Gandhi’s journalism can be regarded as literature too, as much as Nehru’s The Discovery of India. Homer’s epics such as Iliad or Gibbon’s The History of the Decline and Fall of the Roman Empire are as much literature as Lincoln’s Gettysburg address. The Tirukkural also touches on issues of law and justice.

Perhaps asking what literature really is may be the wrong question. Only time can determine whether a piece of writing or speech or performance is to be regarded as having literary merit or not. As George Orwell noted, one of the parameters to judge a literary work is its ability to survive over time and in competition with other works — not only works of literature but also cultural products.

The obvious interconnection

One thing appears recurrently in many works treated as literature and that is the element of drama. This is where the interconnection with law becomes so obvious. Nothing could possibly be more dramatic, or attractive, than the setting of a courtroom trial. An adversarial system, foe placed against foe, the slow build-up of tension between the parties — all of these are irresistible to a literary mind with dramatic proclivities. This perhaps explains the surfeit of stories we have based around trials. If we were to only consider popular culture, for example, there are movies like Talvar (based on the Aarushi Talwar murder case), Rustom (based on the Nanavati trial), To Kill a Mockingbird (based on Harper Lee’s novel), or Erin Brokovich; serials such as Suits, The People v. O.J. Simpson (on the O.J. Simpson trial), Ally McBeal, or Rumpole of the Bailey; and even writers like John Grisham. These have all milked the audience’s weakness for the trial as the scene for drama.

Literary legalese

Just as we have had the writer writing about the law, or using literature as a means to explain the law, or using law as a means to explain society, we have judges who have resorted to literary legalese to explain their arguments. An Indian example is that of Justice Vivian Bose in Bidi Supply Company v. the Union of India in a complicated tax matter, elaborated thus: “After all, for whose benefit was the Constitution enacted? What was the point of making all this pother about fundamental rights? I am clear that the Constitution is not for the exclusive benefit of governments and states; it is not only for lawyers and politicians and officials and those highly placed. It also exists for the common man, for the poor and the humble, for those who have businesses at stake, for the ‘butcher, the baker and the candlestick maker’. It lays down for this land ‘a rule of law’ as understood in the free democracies of the world. It constitutes India into a Sovereign Democratic Republic and guarantees in every page rights and freedom to the individual side by side and consistent with the overriding power of the state to act for the common good of all. I make no apology for turning to older democracies and drawing inspiration from them, for though our law is an amalgam drawn from many sources, its firmest foundations are rooted in the freedoms of other lands where men are free in the democratic sense of the term.”

Another judicial luminary whose name cannot go unmentioned when one speaks of literary flair was Justice V.R. Krishna Iyer. In his famous judgment on the question of remission of life convicts in Maru Ram v. Union of India, he began with the following beautiful description: “A procession of ‘life convicts’ well over two thousand strong, with more joining the march even as the arguments were on, has vicariously mobbed this court, through the learned counsel, carrying constitutional missiles in hand and demanding liberty beyond the bars. They challenge the vires of s. 433A of the Criminal Procedure Code (Procedure Code, or short) which compels ‘caging’ of two classes of prisoners, at least for fourteen eternal infernal years, regardless of the benign remissions and compassionate concessions sanctioned by prison law and human justice. Their despair is best expressed in the bitter lines of Oscar Wilde: ‘I know not whether Laws be right, or whether Laws be wrong, All that we know who lie in gaol, Is that the wall is strong; And that each day is like a year, A year whose days are long.’ (Emphasis added)

“But broken hearts cannot break prison walls. Since prisons are built with stones of law, the key to liberation too is in law’s custody. So, counsel have piled up long and learned arguments punctuated with evocative rhetoric. But Judges themselves are prisoners of the law and are not free to free a prisoner save through the open sesame of Justice according to law. Even so, there is a strange message for judges too in the rebellious words of Gandhiji’s quasi-guru David Thoreau: ‘The law will never make men free; it is men who have got to make the law free. They are the lovers of law and order who observe the law when the government breaks it.’”

The Hindu

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