SubStance

The Pen and the Sword: Dangerous Liaisons?

No doubt there are people who believe that the law is the exclusive domain of the legal profession— that it arises from a system of "normative management" whose exact formulas are known to lawyers alone, and that any intrusion into this so-called "positive" field of the law by lay persons is nothing but ....literature. I fear that such people will not be interested in the dialogue that I propose to them.

If, on the other hand, one believes, as many do, that the law maintains an essential relationship with the "imaginary institution of society," as Castoriadis would put it, that it touches the "institution of the human," as Legendre would say, that it contributes in an essential way to the constitution of "a shared symbolic order," to use Ricoeur's terms—in a word, that its proper function is to express the collective values of a society and to furnish guidelines to individuals, then one can understand that the confluence of the law and literature is not coincidental.

Further, an important "Law and Literature" movement has developed in the United States, with its retinue of journals, colloquia, and university courses. In France and Belgium this approach has yet to take root, though one can detect a few stirrings of interest. But it is encouraging that these first inquiries, albeit modest, arise from the intersection of the interests of the literary and legal professions. Thus fruitful interdisciplinary encounters are made possible, with less risk of an overdetermination of one discipline by another, less risk of reducing either to the ancillary role of alibi or something to be exploited.

This link between law and literature can be established in at least three directions:

First, there is the law of literature, an approach usually reserved to the legal profession. In this perspective, one analyzes the freedom of expression enjoyed by authors, one considers the legal history of censorship, one focuses on the lawsuits surrounding famous works that may have seemed scandalous in their time, from Madame Bovary to The Satanic Verses, from Les fleurs du mal to Pierre Mertens's Une paix royale. One compares copyright systems and authors' rights, one studies the rules [End Page 3] governing public libraries, scholarly programs and the politics of subsidized publishing.

A second approach would be to study the law as literature. In this case, one considers judicial and parliamentary rhetoric, one studies the style so particular to lawyers—a style that is simultaneously dogmatic, tautological and performative. One compares methods of interpreting literary texts vs. legal texts. This approach is well developed in the United States, as seen in the work of Ronald Dworkin and Stanley Fish.

Finally, in the approach that I favor, one can study the law in literature. Not, of course, the technical law—that of the official journal and treatises on doctrine (although certain pages of Balzac teach us more about the arcane aspects of bankruptcy than the most complete anthologies of jurisprudence). No, the law that I seek in literature is that which poses the most fundamental questions about justice, the law and power. Orestes and Hamlet are the ones who invite us down the narrow path that distinguishes vengeance from justice; it is Antigone's revolt that questions natural law's challenge to institutionalized law in every era; it is Joseph K.'s apparently arbitrary incrimination that lifts a corner of the veil covering the archaic law of necessity, which takes over when institutions are corrupt and procedures are perverted.¹

Gradually an object of study common to both the legal and literary professions takes shape, articulated around these the questions: 1) What can literature bring to the law? and 2) What can literature gain by understanding the presence of the law in its works?² There are certain risks in this enterprise. Between the pen and the sword, aren't the liaisons necessarily dangerous? When the two genres are...