The limits of the law and literature movement: An example of Sophocles
| Autor: | Avramović Dragutin S., Jovanov Ilija D. |
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| Jazyk: | English<br />Serbian |
| Rok vydání: | 2017 |
| Předmět: | |
| Zdroj: | Zbornik Radova: Pravni Fakultet u Novom Sadu, Vol 51, Iss 2, Pp 353-368 (2017) |
| Druh dokumentu: | article |
| ISSN: | 0550-2179 2406-1255 |
| Popis: | Relationship between law and literature became topic of particular scientific and academic interest in legal philosophy during the last decades. Academic debates on Law and Literature Movement followed soon after its appearance. No one denies that there are significant ties between law and literature. The only question is about the quality of those ties, of their strength, of their authenticity, and particularly of the degree of perplexing and interinfluence of those two spheres. Legal theory often constructs quite artificial differentiation between the 'law in literature' and 'law as literature'. Such distinction can be explained and useful only to distinguish academic field and for didactic purposes. 'Law in literature' comprehends use of literary texts in legal, mostly educational goals, while 'law as literature' implies mostly use of literary techniques in law, such as deconstruction, semiotics, hermeneutics, etc. The most important promoters of that theoretical stream are James White, Richard Weisberg, Robin West, etc. But on the other side firmly stands with his critical attitude one of the most prominent lawyer of our times, Richard Posner, an American judge and professor of law at the University of Chicago. He graduated literature from the Yale University and then law from the Harvard University, and became famous as one of the founders of the Economic Analysis of Law. He strongly points to limited range of the Law and Literature movement. In his words those are two different disciplines with different goals. Posners's main argument is that law is used in literature in a methaphorical sense, and not as a main field of study. A small, peculiar test of Posner's view about the limitations of the Law and Literature Movement could be performed upon famous, controversial verses in Sophocles' plays. One of the eternal issues of legal philosophy, and of many other disciplines, is whether Antigone has referred to the natural 'law' in contradiction to positive law when she stated that 'They are not of yesterday or today, but everlasting, though where they came from, none of us can tell' (Sophocles, Antigone 457-458). Does it mean that Sophocles recognized, or even introduced, the sophistic antithesis nomos/physis? Was that one of the first forms of appearance of natural law philosophy among the Greeks beside sophists? Was it just a figure without a theoretical loading that the drama writer needed, or it is a proof of the existence of natural law concept in that time? Beside many contemporary scholars, Aristotle is explicit in his Rhetoric (Aristotle, Rhetoric, 1, 13, 2) that Antigone addresses to natural law when she says that it is just, but forbidden to bury Polynices. Many other scholars, on the contrary, believe that natural law idea was never present in the form of divine law (law of Gods) in Greece, and that it was particularly the case in early times. They state that appeal to laws of Gods does not represent more than reflection of the old belief about earliest, customary positive legal norms and that it represents unity of religious and political elements. Unwritten laws quoted by Sophocles are not a kind of ideal laws constituted for the sake of certain high ethical foundation of natural law principle, but that the word is about real, existing, positive law. According to primitive custom, they are only vested in the religious veil, having been formulated not in the written form but through the oral tradition. Also, an extra argument for that view is that Sophocles does not mention in his plays natural law at all, but he only appeals to the laws of Gods. A tiny analysis of Sophocles' plays considering a single issue of natural law is just a small illustration of how the modern Law and Literature movement could be limited, timid and tricky (particularly in the sphere of 'law as literature'). Substantial difference between law and literature is quite overwhelming (but it does not mean that there is no need for a closer touch between them). Legal language has to be clear, unambiguous and precise while, on the other hand, basic value of the literature by its very nature is indistinctness and richness of language. Law has to be exact, objective and precise with the dominant presence of logic, while a literary work and language is much more characterized by emotions, imagination, aesthetic, symbolic and metaphorical expression, etc. This is why literary texts cannot always be used as a solid and firm source for legal understanding (particularly as fons iuris cognoscendi), except for a better perception of the time and circumstances. Legal language is usually criticized as ugly, unattractive and formal (and it has to remain like this), while functional literary style has to be by its nature substantially far and different from administrative and bureaucratic expression. However, literature could be of some use for a wider intellectual profiling of a lawyer, for a more charming expression, for a better contextual understanding of legal phenomena, for improving value system of a lawyer, as a source of insight about human life, etc. In that sense only, and in a limited framework of the so called 'law in literature', Law and Literature Movement could be useful and actual in educational sense, but not much more than that. It seems that its authentic value could be achieved mostly on that ground. |
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