Abstract
We saw above how law and art treat villains and justice differently. We shall in this section explore some of the reasons that lie behind this different treatment. But, to begin with, one must set the scene by reminding the reader of the different angles from which each branch of learning looks at the same subject. Thus, as Judge Posner, who has written on law and literature (but not discussed the issues explored in this essay), has said:204
“We must distinguish between concrete legal problems, which lawyers are expert in solving, and broader issues of legality, governance, and justice that are the grist for moral, political — and literary — examination205 rather than for technical legal analysis.”
Notwithstanding this warning a few specific comments can be attempted, especially if one bears in mind the fact that some of the religious texts206 can be seen as both literary and legal documents. Indeed, many of the religious texts deal with “concrete legal problems.” In any event, the points I make below do not merely refer to legal technicalities (though I touch on some nonetheless) but can be seen as emanations of the kind of wider issues which Posner (rightly) thought were proper subjects to be addressed by art and literature.
The Ten Commandments must be one; certain passages from other parts of the Exodus offer another.
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References
Law and Literature. A Misunderstood Relation (1988), p. 76.
I have italicized the two verbs — solve and examine — deliberately because not all authors feel their task to be to provide answers but to describe a situation and then let the reader take a stance. See, on this, Chekhov’s views, given below in Chapter VIII, Steven N. Zwicker (eds.), Politics of Discourse: The Literature and History of Seventeenth-Century England (1987), pp. 181 ff. at 186 note 404. This personal detachment must not be confused with the ending given to a plot, for instance, the fall of the hero, which may be dictated by other factors.
For a comparative discussion of English, American, German and French law see Markesinis, O’Cinneide, Fedtke and Hunter-Henin, “Concerns and Ideas about our Developing Law of Privacy (and how Knowledge of Foreign Law Might be of Help)” 52, The American Journal of Comparative Law 133–208 (2004).
[2001] 2 WLR 1038.
BVerfGE 35, 202 = NJW 1973, 1227, reproduced translated into English in Markesinis and Unberath, The German Law of Torts. A Comparative Treatise, 4th ed. (2002), 423 ff.
For a detailed study of this phenomenon in German and English law see Markesinis, Unberath, and Johnston, The German Law of Contracts. A Comparative Treatise, 2nd ed. (2006). What is particularly interesting to note here is how the European consumerist movement has resulted in a degree of harmonization of what otherwise would be fairly different contract rules in Germany and England.
On this see his epigrammatic view in X. v. Bedfordshire and, more recently, in D v. East Berkshire.
The literature is enormous but it is interesting to see how the judges themselves see this need. On this aspect see, for instance, the views of the First President of the Cour de cassation M. Guy Canivet in “Le juge entre progrès scientifique et modialisation,” RTDCiv, 2005, pp. 33–46.
Professor Mitch Lasser of the Cornell Law School is among those who has done much to demonstrate this. Thus see, “Judicial (Self-)Portraits: Judicial Discourse in the French Legal System”, 104 Yale L. J. 1325, 1326–27 (1995).
Balachandra Rajan, Paradise Lost and the Seventeenth-Century Reader (1962), chap. 4, esp. p. 107.
Though in the Douglas v. Hello decisions, much information is given about the way competing glossy magazines operate in order to obtain “scoops.” Thus see [2001] QB pp. 967 ff.
On this see my “Judicial Mentality: Mental Disposition or Outlook as a Factor Impeding Recourse to Foreign Law,” 81 Tulane L. Rev. 1325 (2006).
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(2007). Some Technical Reasons for the Differences. In: Good and Evil in Art and Law. Springer, Vienna. https://doi.org/10.1007/978-3-211-49919-1_5
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DOI: https://doi.org/10.1007/978-3-211-49919-1_5
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