'Importance of a Literary Sensibility for Life and Living' ❤️

Law, Literature, Life | Ruminations

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Students of literature are particularly interested in judgments or remarks in which the honourable judges embellish their observations with literary allusions!

I chanced upon one such observation by Justice Jayachandran, Madras High Court, in today’s ‘The New Indian Express’.

Today's The New Indian Express, 01st June 2024

Quoting from the news report -

The Madras High Court has quashed a case pending in a local court, registered against a man under the Pocso Act, for the alleged assault of a minor girl, whom he married later.

Equating their relationship to the story of Romeo and Juliet, the court said a lenient view on the law has to be taken.

“It is the case of Romeo and Juliet, which has ended in marriage and the enlargement of the family by the birth of a child,”

said Justice G Jayachandran in an order.

He raised the question of whether the judicial system should strictly comply with the law in this case or deal with with the humanitarian aspects of it. “Unfortunately, the Pocso Act is silent,” the judge noted.

Furthermore, powers conferred under Section 482 of CrPC has to be used for quashing the case against the husband in such cases; or else, the girl may be made ‘vulnerable to exploitation’.

The order was passed on the petition filed by the man, against whom an FIR was registered in 2018 for aggravated penetrative sexual assault, based on a complaint filed by the girl’s mother.

The case was taken on file by the mahila court in Allikulam in 2022. In the meantime, the man and the girl, who by then had become majors, married in 2020 and had a child. The girl had told the court that she married him of her own volition and they were leading a happy life.

In yet another judgement delivered quite recently, Additional Sessions Judge Anuj Aggarwal began his verdict with a quote from Swami Vivekananda, that says –

‘Thoughts live; they travel far!’

“We are what our thoughts have made us; so take care about what you think. Words are secondary. Thoughts live; they travel far.”

The judge also quoted from British poet John Milton, on the fundamental right of “freedom of speech and expression,” -

“Give me the liberty to know, to argue freely, and to utter according to conscience, above all liberties.”

Well, Literature and Law are called twin sisters. However, while literature focusses mainly on creativity, the law abides by rationality!

Added, while literature serves to humanise society by imparting values, the law seeks to regulate society by prescribing law codes that govern society.

One reason why legal professionals make it a point to read literature exhaustively, just to make sure that they can comprehend the human psyche in all its variety, and connect it with everyday life and living, and to drink deep of ‘God’s plenty’ in the entire gamut of literature.

In this regard, it would be apt to recommend a very interesting book written by Richard A. Posner titled, Law and Literature. The book has been hailed as ‘The most clear, acute account of the intersection of law and literature’.

Posner is a judge of the U.S. Court Appeals for the Seventh Circuit, and a senior lecturer at the University of Chicago Law School.

In this highly valued 1988 book, Posner observes that,

Law and literature are related to each other in interesting ways. Innumerable literary works, many of great distinction, take law for a theme, and feature a trial (Eumenides, The Merchant of Venice, Billy Budd, The Trial, The Stranger), abuse of judicial authority (Measure for Measure), conflicting jurisprudential theories (Antigone, King Lear), the practice of law (Bleak House), crime and punishment (Paradise Lost, Oliver Twist), the relation of law to vengeance (Oresteia, Hamlet), even specific fields of law, such as contract (Marlowe’s Doctor Faustus), inheritance (Felix Holt, The Woman in White), and intellectual property (William Gaddis’s A Frolic of His Own).

These examples could be multiplied manyfold. (Anyone who doubts this claim should glance at Irving Browne, Law and Lawyers in Literature [1883].)

Moreover, law is a rhetorical discipline, and the judicial opinions of some of the greatest judges, such as Oliver Wendell Holmes, have literary merit and repay literary analysis. Opinions and briefs are like stories; they have a narrative structure.

A literary sensibility may enable judges to write better opinions and lawyers to present their cases more effectively. 

And the literary critic’s close attention to text has parallels in the judge’s and the lawyer’s close attention to their authoritative texts - contracts, statutes, and constitutions. The law even regulates literature, under such rubrics as copyright infringement.

Some law professors, moreover, have tried to make legal scholarship itself literary by incorporating narrative, memoir, anecdote, and fiction into their scholarship, and others have claimed that the study of literature in general—literature not limited to works that take law for a subject - can humanize the practice of law and the outlook of judges,

says Posner.

And as eminent critic Scupin Richard rightly avers,

Law governs lives! Literature transforms lives!