It is widely accepted that the first phase of studies on law and literature began with the publication in 1908—in the midst of the revolt against formalism—of John Wigmore’s a List of Legal Novels, where the author presented a selection of narrative works related to legal themes, with the stated purpose of promoting and making jurists aware of literary works that represented the fundamental legal values of American culture. In the years that followed, other similar works were published, cementing the conviction that literature was useful for shaping the ethical conscience of lawyers and jurists, and, by this route, the law-and-literature perspective found its way into university lecture halls.
In his 1925 essay Law and Literature, Benjamin Cardozo heralded the possibility of reading and interpreting sentences as examples of literature or, more accurately, of literary writing.
In this way, the two branches into which the movement has traditionally been divided—law in literature and law as literature—began to take shape. The former encompasses the analysis of literary depictions of the law deemed useful for the humanistic education of legal practitioners; the latter, predicated on the analogy between law and literature as texts, tends to develop a methodology that uses techniques of literary criticism to tackle some of the classic problems of legal theory (interpretation and analysis of legal reasoning).
In the first half of the 20th century, many works devoted to the topic of law and literature also appeared in Europe. In German-speaking culture, Recht und Literatur emerged with the publication of two essays by Hans Fehr—Das Recht in der Dichtung in 1931 and Die Dichtung im Recht in 1936—which, together with the 1929 work Das Recht im Bilde, constitute the Kunst und Recht trilogy. In these contributions, Fehr examined one hundred and fifty authors, mostly German, from traditional legends to the contemporary era, associating them with the rapprochement between law and literature that had characterized the German Historical School.
In Italy, the first systematic work was La letteratura e la vita del diritto, published in 1936 by Antonio D’Amato, who argued that, ideally, literature and the law both express the aspirations of collective consciousness; they are two different moments of the materialization of the human spirit, initially manifested through literature and later formalized in the law.
Another relevant name in this early stage of law and literature in Italy was Ferruccio Pergolesi, whose extensive output on the subject began in the 1920s (Il diritto nella letteratura, 1927) and reached the pinnacle of its development in the 1940s and 50s (particularly in the 1949 work Diritto e giustizia
In Spain, a significant milestone was the release in 1949 of Derecho y Literatura by Juan Ossorio Morales, professor at the University of Granada, republished in 2016. In that essay, through a selection of writers, the author underscored the importance of studying literary works to acquire a better understanding of legislation.
A second phase in law and literature studies was inaugurated, so to speak, by almost unanimous consensus, with the publication in 1973 of James Boyd White’s The Legal Imagination: Studies in the Nature of Legal Thought and Expression, the first installment of a trilogy that continued with When Words Lose Their Meaning in 1984 and Heracles’ Bow in 1985. In these volumes, White took an in-depth look at the affinity between law and literature: like literature, the law is a cultural product, a cultural and social activity that must be critically examined; the law should be considered an integral part of a cultural “system” to which jurists must constantly refer when attributing meaning to the words they use.
In this respect, he argued that the field of law and literature should be part of the jurist’s education: unlike in the movement’s initial phase, which focused on using literature to instruct students in a system of values, White believed that the nexus between law and literature could give students a broader knowledge of the cultural aspect of the law, thereby overcoming the excessive technicality that had dominated legal studies in the United States since the mid-20th century.
In America, the debate was fueled by White, Robert Cover, Richard Weisberg, Martha Nussbaum, Robin West, Guyora Binder, Richard Posner, and many other renowned scholars, who also branched out into new fields of research, considering the law as interpretative practice, as narrative practice, as an activity aimed at persuasion, etc. In addition to these and other traditional areas, another variant, called the regulation of literature by law, is concerned with copyright, crimes committed in the press, etc.
Over the last forty years, Europe has witnessed a “revival” of law and literature studies instigated by scholars in both disciplines.
Fields that have traditionally embraced the rapport between literature and the law, such as the philosophy of law (for many of us, I think, Sophocles’ Antigone was our introduction to the topic), the sociology of law (where
In the Spanish-speaking world, María José Falcón y Tella stands out among those authors who have studied the theme of law and literature in its diverse modalities. In 2015 she published one of the greatest contemporary European studies on law and literature, a dense volume titled Derecho y Literature, with a foreword by François Ost, divided into three sections that explored the three different variants of law and literature.
In the first part, dedicated to the law “of” literature, the author addressed topics related to private law (copyright and intellectual property laws), criminal law (censorship, pornography, libel and slander in the press), and constitutional law (freedom of the press and freedom of speech); in the second, she examined the law “as” literature, discussing questions of interpretation, hermeneutics, and rhetoric; and in the third, devoted to the law “in” literature, she analyzed 46 of the most significant literary works from a legal perspective in different historical periods.
Naturally, those works included Don Quixote by Miguel de Cervantes and Shakespeare’s dramas, the topic of this new monographic volume by María José Falcón y Tella, which is divided into five chapters. The first two offer an introduction to the law and literature movement; the two longest chapters are dedicated to Cervantes and his masterpiece, Don Quixote, although some of his other works are also mentioned; and the fifth focuses on Shakespeare and three of his plays—King Lear, The Merchant of Venice, and especially Hamlet, concluding with a comparison of the characters of Don Quixote and Hamlet.
The publication of this volume, with its impressively extensive bibliography, in English by Brill-Nijhoff (Leiden/Boston) will give global audiences a chance to reread, through the “lens of law and literature,” immortal works that have shaped western culture, of which the law is an integral part.
Carla Faralli
Professor of Legal Philosophy
University of Bologna