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IrisAikateriniFrangouSecondEssay 7 - 18 May 2021 - Main.IrisAikateriniFrangou
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< | Literature and the Law: Literature as Conducive to a More Accurate Understanding of the Law | >
> | The Need for Confluence of Creation Styles in the Law | | | -- By IrisAikateriniFrangou - 14 Apr 2021 | |
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< | Introduction: The Atypicality of Kafka’s and Joseph’s Depiction of the Law
Joseph’s “Lawyerland” converges with some of Kafka’s works in the atypicality of the law’s portrayal. Rather than being lucid through its theoretical objectivity, the law appears muddled in its practical effect on its subjects. The subjectivity of experience (in the law’s impact) dominates both worlds: Kafka’s characters suffer as defendants under what they perceive to be the absurdity of the law – a system that inflicts real harm on their lives, but which is inaccessible (and hence incomprehensible) to them; Joseph’s protagonists suffer as lawyers who are honest about the misalignment of law in theory and law in practice, but whose acceptance of which, renders them despondent. The characters’ experience of the law is subjective, yet generalizable: Kafka’s subjects embody the point of view of defendants, and Joseph’s that of lawyers. Their atypicality therefore resides not only in their depiction of the law (as subjectively experienced), but also in the literary means through which such depiction is effectuated (narration). What to make of this atypicality? | >
> | Introduction: Kafka’s and Joseph’s Subjective Depiction of the Law
Joseph’s “Lawyerland” converges with some of Kafka’s works in the subjectivity of the law’s portrayal. Rather than being lucid through its theoretical objectivity, the law appears muddled in its practical effect on its subjects. The subjectivity of experience (in the law’s impact) dominates both worlds: Kafka’s characters suffer as defendants under what they perceive to be the absurdity of the law – a system that inflicts real harm on their lives, but which is inaccessible (and hence incomprehensible) to them; Joseph’s protagonists suffer as lawyers who are honest about the misalignment of law in theory and law in practice, but whose acceptance of which, renders them despondent. The characters’ experience of the law is subjective, yet generalizable: Kafka’s subjects embody the point of view of defendants, and Joseph’s that of lawyers. The authors’ unconventional depiction of the law as subjectively experienced is effectuated through an equally unorthodox vehicle – that of literary narration. | | | | |
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< | I suggest that literature has the potential to provide a more complete account of the law than the law itself (by which I refer to American legal academia, confined largely to legal scholarship and judicial opinions). Kafka and Joseph dramatize the gap between law in theory and law in practice by emphasizing the relational aspect of the law in its application. By relying on narration, they demonstrate the power of literature to portray all aspects of the law through literature's conveyance of the multiplicity of truth. | >
> | In so doing, the present essay argues, both Kafka and Joseph reveal the limitations of the traditional jurisprudence’s view of the law as judge-oriented, which largely confines legal imagination to legal scholarship and judicial opinions. There are many other conceivable ways through which the authors could have teased at the limitations of the traditional perspective espoused by American legal academia. However, the significance of Kafka and Joseph resides, the present essay suggests, in illustrating the need in the law for consilient reasoning from multiple perspectives, which is best effectuated by inviting the confluence of different styles of creation. | | | Kafka’s “The Trial”: The Defendant’s Perspective
The Trial features “Josef K.”, a cashier who is arrested by two nameless agents from an indeterminate agency for an indeterminate crime, of which he is eventually executed. The entire experience is narrated through the perspective of the agitated defendant, entrapped by a legal system to which he nevertheless remains a foreigner: the operation of the law is never explained to him, yet it dominates his life with brute force. It is this alienating effect of the “outsider status” that renders the law (and eventually life) absurd for K. Regardless of whether the law also serves as a metaphor for the alienation of man in modern society, the law itself is definitively present in Kafka’s writing. The law objectively exists as is evidenced by the legal process of K.'s trial. Rather, it is K.'s experience of the law that makes it seem hidden because it is inexplicable to him. The only definitive revelation is by Titorelli (the court’s painter), from whom K. learns that no final acquittal is possible but even then, K. never understands how the law arrives at this outcome – it is Titorelli’s empirical (not legal) understanding of the law that is communicated. Hence, the law is objectively present in Kafka’s work and though this definitiveness is necessarily recognized by the defendant (through the absolute impact the law has on his life), the law nevertheless “feels” absurd because its mechanisms are foreign to him. There is a gap between the law’s objectiveness (definitive presence) and the defendant’s experience of the law (incoherence due to its inexplicability). | | | Joseph’s “Lawyerland”: The Lawyer’s Perspective
In the work’s first chapter, Robinson narrates his successful defense (outside of court) of a young man, who attempts to rob a residence that unbeknownst to him belongs to the AUSA. The AUSA then informs his brother-in-law (the ADA) who assigns the case to a leading female prosecutor. Robinson threatens to use his information of those relationships to exculpate the young man. His anecdote, like K.’s, illustrates the distance between the law in theory and the law in practice. However, the change in perspective (from defendant to lawyer) also imbues this distance with new meaning. Here, the law theoretically relies on the neutral application of its rules, but in practice it is social relationships that are the most significant determinant of legal outcomes. More than just convergence (in the depiction of the law as subjective i.e. perspective-dependent), Lawyerland further informs Kafka’s view of the law. The law in Lawyerland is largely relational – it is based on social relationships that the lawyer strategically navigates. In its introductory self-proclamation that it is "truthful", Lawyerland intimates that such relationality is part of the law’s reality (not just Robinson’s) – a view which traditional legal thought does not deny but largely ignores. The theoretical - practical divergence in the law is not absurd to Robinson (the way it is to K.); his suffering instead, derives from the very understanding of that system as one that is disjointed in practice from its theoretical lucidity. | |
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< | The Law Refocused
Kafka and Joseph make it painfully obvious that the traditional jurisprudence’s focus on objective rules (the law as judge-oriented, clear, and predictable) provides an incomplete account of the nature of the law. The law gains meaning only through its application to social relationships. Legal rules are meaningless without practical application, just like practical application is inconceivable without legal rules. The traditional insistence on a single point of view (that of the judge) does not convey the full range of legal experience because it omits the perspective of the lawyer and the defendant. The law however, is limited in its ability to convey multiplicity of perspective. Can literature bridge the gap? | >
> | The Limits of Traditional Legal Jurisprudence
Kafka and Joseph make it painfully obvious that the traditional jurisprudence’s focus on objective rules (the law as judge-oriented, clear, and predictable) provides an incomplete account of the nature of the law. The law gains meaning only through its application to social relationships. Legal rules are meaningless without practical application, just like practical application is inconceivable without legal rules. The traditional insistence on a single point of view (that of the judge) does not convey the full range of legal experience because it omits the perspective of the lawyer and the defendant. | | | | |
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< | A Literary Theory of the Law: the Descriptive Power of Literature in the Law
If a complete understanding of the law requires divergence in perspective then literature is better equipped towards the task given its ability to display different perspectives without contradiction. There is also an intimacy in narration that deepens time and space as Gertrude Stein notes (by also deepening the spatial and temporal dimensions of language itself) [Gertrude Stein, "Wars I Have Seen" (1945)] which allows for a fuller exploration of the truthfulness of each account. Thus, at the very least, literature can help us gain an accurate understanding of what the law currently is (within and without courts). Beyond that, it may even help law students avoid Robinson’s fate by preparing them for the realities of legal practice – the most fundamental of which is the recognition that the law itself entails contradictory representations of reality and therefore, that a lawyer (in strategically managing social relationships) needs to keep multiple contradictory perspectives in mind, at the same time. Hence, a lawyer exists in an inherently qualified world where the line between representations and lying is delicate, yet imperative. Robinson is fully reconciled with this truth, but it seems to me as though this reconciliation (via disillusionment) has obliterated his faith in the ability to change his life. It is not so much Robinson's actions that are morally suspect; it is his disposition towards the law (his despondence) that is the problem. Perhaps, if law school teaching was not confined to the traditional conception of the law as entirely lucid in its objectivity, more law students would have the courage to reconcile the relational, contradictory aspect of the law with their own individual needs for personal fulfillment (perhaps by crafting a legal practice that more accurately reflects their values). The potentiality of literature to improve legal education may be prone to skepticism - more so than its use as a mere vehicle for the more accurate depiction of the law which forms the principal argument of this essay. What is equally doubtful however, is the sufficiency of a traditional legal education that relies entirely on the teaching of legal rules, to the exclusion of the nuances of legal practice. | >
> | It therefore becomes clear, that the law, in its present form, is unable to convey multiplicity of perspective. Were American legal academia to invite the confluence of styles of creation, would this perhaps provide a more effective path towards gaining awareness of multiplicity? And would such awareness, expressed through consilient reasoning from multiple perspectives, improve the quality of interactions amongst stakeholders within the legal community? | | | | |
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> | The Power of Consilient Reasoning from Multiple Perspectives
Literature enabled Kafka and Joseph to dramatize the gap between law in theory and law in practice, evidencing the relational aspect of the law in its application. There are many other ways however, through which the authors could have evoked the limitations of the perspective espoused by the traditional jurisprudence; after all, the ability to convey multiplicity of truth is not the sole property of the literary (nor the legal) imagination, as music, art, or architecture very emblematically reveal. Nonetheless, the writings of Kafka and Joseph are important because they demonstrate the need in the law for consilient reasoning from multiple perspectives. This is perhaps most starkly evoked by Robinson’s revelations and disposition; even if legal academia shuns it, the recognition that the law itself contains multiple, different representations or “truths” is a reality that every lawyer inevitably confronts as he is faced with the ensuing task of strategically managing social relationships. Thus, awareness of multiplicity is not merely a value to be espoused by the law for the sake of any moral or enlightened attributes that it may inherently contain; it is rather, a need that is created by the very existence of society as a force in our lives (and by extension, an exigency cutting to the very core of who a lawyer is and what a lawyer does – making things happen in society using words). Having established the need for an awareness of multiplicity within the law, such an awareness is then, arguably, best cultivated through the confluence of styles of creation. With each new style, for which the law makes room, comes a greater expressive range in reflecting the multiple sides of the law itself - its multiple stakeholders, their situational divergences, and ultimately in providing a more accurate account of the nature of the law as a force within society today. The legal community then, would be well served by moving away from its focus on the law as the near exclusive style of creation and inviting greater confluence. | | | | |
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< | The best route to improvement here is through simplification. Your writing is at its best when the sentences are shorter and more definite. When lucidity is the property of your writing, it becomes easier to check the generalizations (Is Tharaud despondent? Is Judge Day? Is Robinson's depression really "morally suspect"?)
These are not actually the questions the essay is about, so far as the present draft represents the intention. The requirement to "keep multiple contradictory perspectives in mind, at the same time," is neither the sole property of the legal or of the literary imagination: Picasso and Stravinsky are responsive to this requirement too, as is the collective structure among people of music that we call "jazz." Perhaps ironically, this confluence of styles of creation from awareness of multiplicity is actually one of the central concepts (minus the assumption of contradiction rather than mutual reinforcement), about consilient reasoning from multiple perspectives, on which I built this course we have been in together. So I think there is plenty to discuss along the lines which do seem to me to be the central thematic material of the draft. Focusing there is, I believe, the most promising route to substantive improvement.
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You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |
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IrisAikateriniFrangouSecondEssay 6 - 30 Apr 2021 - Main.EbenMoglen
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< | It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | Literature and the Law: Literature as Conducive to a More Accurate Understanding of the Law | | | A Literary Theory of the Law: the Descriptive Power of Literature in the Law
If a complete understanding of the law requires divergence in perspective then literature is better equipped towards the task given its ability to display different perspectives without contradiction. There is also an intimacy in narration that deepens time and space as Gertrude Stein notes (by also deepening the spatial and temporal dimensions of language itself) [Gertrude Stein, "Wars I Have Seen" (1945)] which allows for a fuller exploration of the truthfulness of each account. Thus, at the very least, literature can help us gain an accurate understanding of what the law currently is (within and without courts). Beyond that, it may even help law students avoid Robinson’s fate by preparing them for the realities of legal practice – the most fundamental of which is the recognition that the law itself entails contradictory representations of reality and therefore, that a lawyer (in strategically managing social relationships) needs to keep multiple contradictory perspectives in mind, at the same time. Hence, a lawyer exists in an inherently qualified world where the line between representations and lying is delicate, yet imperative. Robinson is fully reconciled with this truth, but it seems to me as though this reconciliation (via disillusionment) has obliterated his faith in the ability to change his life. It is not so much Robinson's actions that are morally suspect; it is his disposition towards the law (his despondence) that is the problem. Perhaps, if law school teaching was not confined to the traditional conception of the law as entirely lucid in its objectivity, more law students would have the courage to reconcile the relational, contradictory aspect of the law with their own individual needs for personal fulfillment (perhaps by crafting a legal practice that more accurately reflects their values). The potentiality of literature to improve legal education may be prone to skepticism - more so than its use as a mere vehicle for the more accurate depiction of the law which forms the principal argument of this essay. What is equally doubtful however, is the sufficiency of a traditional legal education that relies entirely on the teaching of legal rules, to the exclusion of the nuances of legal practice. | |
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> | The best route to improvement here is through simplification. Your writing is at its best when the sentences are shorter and more definite. When lucidity is the property of your writing, it becomes easier to check the generalizations (Is Tharaud despondent? Is Judge Day? Is Robinson's depression really "morally suspect"?) | | | | |
<
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> | These are not actually the questions the essay is about, so far as the present draft represents the intention. The requirement to "keep multiple contradictory perspectives in mind, at the same time," is neither the sole property of the legal or of the literary imagination: Picasso and Stravinsky are responsive to this requirement too, as is the collective structure among people of music that we call "jazz." Perhaps ironically, this confluence of styles of creation from awareness of multiplicity is actually one of the central concepts (minus the assumption of contradiction rather than mutual reinforcement), about consilient reasoning from multiple perspectives, on which I built this course we have been in together. So I think there is plenty to discuss along the lines which do seem to me to be the central thematic material of the draft. Focusing there is, I believe, the most promising route to substantive improvement.
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You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |
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IrisAikateriniFrangouSecondEssay 5 - 19 Apr 2021 - Main.IrisAikateriniFrangou
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | The Trial features “Josef K.”, a cashier who is arrested by two nameless agents from an indeterminate agency for an indeterminate crime, of which he is eventually executed. The entire experience is narrated through the perspective of the agitated defendant, entrapped by a legal system to which he nevertheless remains a foreigner: the operation of the law is never explained to him, yet it dominates his life with brute force. It is this alienating effect of the “outsider status” that renders the law (and eventually life) absurd for K. Regardless of whether the law also serves as a metaphor for the alienation of man in modern society, the law itself is definitively present in Kafka’s writing. The law objectively exists as is evidenced by the legal process of K.'s trial. Rather, it is K.'s experience of the law that makes it seem hidden because it is inexplicable to him. The only definitive revelation is by Titorelli (the court’s painter), from whom K. learns that no final acquittal is possible but even then, K. never understands how the law arrives at this outcome – it is Titorelli’s empirical (not legal) understanding of the law that is communicated. Hence, the law is objectively present in Kafka’s work and though this definitiveness is necessarily recognized by the defendant (through the absolute impact the law has on his life), the law nevertheless “feels” absurd because its mechanisms are foreign to him. There is a gap between the law’s objectiveness (definitive presence) and the defendant’s experience of the law (incoherence due to its inexplicability).
Joseph’s “Lawyerland”: The Lawyer’s Perspective | |
<
< | In the work’s first chapter, Robinson narrates his successful defense (outside of court) of a young man, who attempts to rob a residence that unbeknownst to him belongs to the AUSA. The AUSA then informs his brother-in-law (the ADA) who assigns the case to a leading female prosecutor. Robinson threatens to use his information of those relationships to exculpate the young man. His anecdote, like K.’s, illustrates the distance between the law in theory and the law in practice. However, the change in perspective (from defendant to lawyer) also imbues this distance with new meaning. Here, the law theoretically relies on the neutral application of its rules, but in practice it is social relationships that are the most significant determinant of legal outcomes. More than just convergence (in the depiction of the law as subjective i.e. perspective-dependent), Lawyerland further informs Kafka’s view of the law. The law in Lawyerland is largely relational – it is based on social relationships that the lawyer strategically navigates. In its introductory self-proclamation that it is truthful, Lawyerland intimates that such relationality is part of the law’s reality (not just Robinson’s) – a view which traditional legal thought does not deny but largely ignores. The theoretical - practical divergence in the law is not absurd to Robinson (the way it is to K.); his suffering instead, derives from the very understanding of that system as one that is disjointed in practice from its theoretical lucidity. | >
> | In the work’s first chapter, Robinson narrates his successful defense (outside of court) of a young man, who attempts to rob a residence that unbeknownst to him belongs to the AUSA. The AUSA then informs his brother-in-law (the ADA) who assigns the case to a leading female prosecutor. Robinson threatens to use his information of those relationships to exculpate the young man. His anecdote, like K.’s, illustrates the distance between the law in theory and the law in practice. However, the change in perspective (from defendant to lawyer) also imbues this distance with new meaning. Here, the law theoretically relies on the neutral application of its rules, but in practice it is social relationships that are the most significant determinant of legal outcomes. More than just convergence (in the depiction of the law as subjective i.e. perspective-dependent), Lawyerland further informs Kafka’s view of the law. The law in Lawyerland is largely relational – it is based on social relationships that the lawyer strategically navigates. In its introductory self-proclamation that it is "truthful", Lawyerland intimates that such relationality is part of the law’s reality (not just Robinson’s) – a view which traditional legal thought does not deny but largely ignores. The theoretical - practical divergence in the law is not absurd to Robinson (the way it is to K.); his suffering instead, derives from the very understanding of that system as one that is disjointed in practice from its theoretical lucidity. | | | The Law Refocused
Kafka and Joseph make it painfully obvious that the traditional jurisprudence’s focus on objective rules (the law as judge-oriented, clear, and predictable) provides an incomplete account of the nature of the law. The law gains meaning only through its application to social relationships. Legal rules are meaningless without practical application, just like practical application is inconceivable without legal rules. The traditional insistence on a single point of view (that of the judge) does not convey the full range of legal experience because it omits the perspective of the lawyer and the defendant. The law however, is limited in its ability to convey multiplicity of perspective. Can literature bridge the gap?
A Literary Theory of the Law: the Descriptive Power of Literature in the Law | |
<
< | If a complete understanding of the law requires divergence in perspective then literature is better equipped towards the task given its ability to display different perspectives without contradiction. There is also an intimacy in narration that deepens time and space as Gertrude Stein notes (by also deepening the spatial and temporal dimensions of language itself) [Gertrude Stein, "Wars I Have Seen" (1945)] which allows for a fuller exploration of the truthfulness of each account. Thus, at the very least, literature can help us gain an accurate understanding of what the law currently is (within and without courts). Beyond that, it may even help law students avoid Robinson’s fate by preparing them for the realities of legal practice – the most fundamental of which is the recognition that the law itself entails contradictory representations of reality and therefore, that a lawyer (in strategically managing social relationships) needs to keep multiple contradictory perspectives in mind at the same time. Hence, a lawyer exists in an inherently qualified world where the line between representations and lying is delicate, yet imperative. Robinson is fully reconciled with this truth, but it seems to me as though this reconciliation (via disillusionment) has obliterated his faith in the ability to change his life. It is not so much Robinson's actions that are morally suspect; it is his disposition towards the law (his despondence) that is the problem. Perhaps, if law school teaching was not confined to the traditional conception of the law as entirely lucid in its objectivity, more law students would have the courage to reconcile the relational, contradictory aspect of the law with their own individual needs for personal fulfillment (perhaps by crafting a legal practice that more accurately reflects their values). The potentiality of literature to improve legal education may be prone to skepticism - more so than its use as a mere vehicle for the more accurate depiction of the law which forms the principal argument of this essay. What is equally doubtful however, is the sufficiency of a traditional legal education that relies entirely on the teaching of legal rules, to the exclusion of the nuances of legal practice. | >
> | If a complete understanding of the law requires divergence in perspective then literature is better equipped towards the task given its ability to display different perspectives without contradiction. There is also an intimacy in narration that deepens time and space as Gertrude Stein notes (by also deepening the spatial and temporal dimensions of language itself) [Gertrude Stein, "Wars I Have Seen" (1945)] which allows for a fuller exploration of the truthfulness of each account. Thus, at the very least, literature can help us gain an accurate understanding of what the law currently is (within and without courts). Beyond that, it may even help law students avoid Robinson’s fate by preparing them for the realities of legal practice – the most fundamental of which is the recognition that the law itself entails contradictory representations of reality and therefore, that a lawyer (in strategically managing social relationships) needs to keep multiple contradictory perspectives in mind, at the same time. Hence, a lawyer exists in an inherently qualified world where the line between representations and lying is delicate, yet imperative. Robinson is fully reconciled with this truth, but it seems to me as though this reconciliation (via disillusionment) has obliterated his faith in the ability to change his life. It is not so much Robinson's actions that are morally suspect; it is his disposition towards the law (his despondence) that is the problem. Perhaps, if law school teaching was not confined to the traditional conception of the law as entirely lucid in its objectivity, more law students would have the courage to reconcile the relational, contradictory aspect of the law with their own individual needs for personal fulfillment (perhaps by crafting a legal practice that more accurately reflects their values). The potentiality of literature to improve legal education may be prone to skepticism - more so than its use as a mere vehicle for the more accurate depiction of the law which forms the principal argument of this essay. What is equally doubtful however, is the sufficiency of a traditional legal education that relies entirely on the teaching of legal rules, to the exclusion of the nuances of legal practice. | | | |
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IrisAikateriniFrangouSecondEssay 4 - 18 Apr 2021 - Main.IrisAikateriniFrangou
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | The Trial features “Josef K.”, a cashier who is arrested by two nameless agents from an indeterminate agency for an indeterminate crime, of which he is eventually executed. The entire experience is narrated through the perspective of the agitated defendant, entrapped by a legal system to which he nevertheless remains a foreigner: the operation of the law is never explained to him, yet it dominates his life with brute force. It is this alienating effect of the “outsider status” that renders the law (and eventually life) absurd for K. Regardless of whether the law also serves as a metaphor for the alienation of man in modern society, the law itself is definitively present in Kafka’s writing. The law objectively exists as is evidenced by the legal process of K.'s trial. Rather, it is K.'s experience of the law that makes it seem hidden because it is inexplicable to him. The only definitive revelation is by Titorelli (the court’s painter), from whom K. learns that no final acquittal is possible but even then, K. never understands how the law arrives at this outcome – it is Titorelli’s empirical (not legal) understanding of the law that is communicated. Hence, the law is objectively present in Kafka’s work and though this definitiveness is necessarily recognized by the defendant (through the absolute impact the law has on his life), the law nevertheless “feels” absurd because its mechanisms are foreign to him. There is a gap between the law’s objectiveness (definitive presence) and the defendant’s experience of the law (incoherence due to its inexplicability).
Joseph’s “Lawyerland”: The Lawyer’s Perspective | |
<
< | In the work’s first chapter, Robinson narrates his successful defense (outside of court) of a young man, who attempts to rob a residence that unbeknownst to him belongs to the AUSA. The AUSA then informs his brother-in-law (the ADA) who assigns the case to a leading female prosecutor. Robinson threatens to use his information of those relationships to exculpate the young man. His anecdote, like K.’s, illustrates the distance between the law in theory and the law in practice. However, the change in perspective (from defendant to lawyer) also imbues this distance with new meaning. Here, the law theoretically relies on the neutral application of its rules, but in practice it is social relationships that are the most significant determinant of legal outcomes. More than just convergence (in the depiction of the law as subjective i.e. perspective-dependent), Lawyerland further informs Kafka’s view of the law. The law in Lawyerland is largely relational – it is based on social relationships that the lawyer strategically navigates. In its self-proclamation as being “truthful”, Lawyerland intimates that such relationality is part of the law’s reality (not just Robinson’s) – a view which traditional legal thought does not deny but largely ignores. The theoretical - practical divergence in the law is not absurd to Robinson (the way it is to K.); his suffering instead, derives from the very understanding of that system as one that is disjointed in practice from its theoretical lucidity. | >
> | In the work’s first chapter, Robinson narrates his successful defense (outside of court) of a young man, who attempts to rob a residence that unbeknownst to him belongs to the AUSA. The AUSA then informs his brother-in-law (the ADA) who assigns the case to a leading female prosecutor. Robinson threatens to use his information of those relationships to exculpate the young man. His anecdote, like K.’s, illustrates the distance between the law in theory and the law in practice. However, the change in perspective (from defendant to lawyer) also imbues this distance with new meaning. Here, the law theoretically relies on the neutral application of its rules, but in practice it is social relationships that are the most significant determinant of legal outcomes. More than just convergence (in the depiction of the law as subjective i.e. perspective-dependent), Lawyerland further informs Kafka’s view of the law. The law in Lawyerland is largely relational – it is based on social relationships that the lawyer strategically navigates. In its introductory self-proclamation that it is truthful, Lawyerland intimates that such relationality is part of the law’s reality (not just Robinson’s) – a view which traditional legal thought does not deny but largely ignores. The theoretical - practical divergence in the law is not absurd to Robinson (the way it is to K.); his suffering instead, derives from the very understanding of that system as one that is disjointed in practice from its theoretical lucidity. | | | The Law Refocused
Kafka and Joseph make it painfully obvious that the traditional jurisprudence’s focus on objective rules (the law as judge-oriented, clear, and predictable) provides an incomplete account of the nature of the law. The law gains meaning only through its application to social relationships. Legal rules are meaningless without practical application, just like practical application is inconceivable without legal rules. The traditional insistence on a single point of view (that of the judge) does not convey the full range of legal experience because it omits the perspective of the lawyer and the defendant. The law however, is limited in its ability to convey multiplicity of perspective. Can literature bridge the gap? |
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IrisAikateriniFrangouSecondEssay 3 - 17 Apr 2021 - Main.IrisAikateriniFrangou
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | |
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< | LITERATURE AND THE LAW: LITERATURE AS CONDUCIVE TO A MORE ACCURATE UNDERSTANDING OF THE LAW | >
> | Literature and the Law: Literature as Conducive to a More Accurate Understanding of the Law | | | -- By IrisAikateriniFrangou - 14 Apr 2021 | | | I suggest that literature has the potential to provide a more complete account of the law than the law itself (by which I refer to American legal academia, confined largely to legal scholarship and judicial opinions). Kafka and Joseph dramatize the gap between law in theory and law in practice by emphasizing the relational aspect of the law in its application. By relying on narration, they demonstrate the power of literature to portray all aspects of the law through literature's conveyance of the multiplicity of truth.
Kafka’s “The Trial”: The Defendant’s Perspective | |
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< | The Trial features “Josef K.”, a cashier who is arrested by two nameless agents from an indeterminate agency for an indeterminate crime, of which he is eventually executed. The entire experience is narrated through the perspective of the agitated defendant, entrapped by a legal system to which he nevertheless remains a foreigner: the operation of the law is never explained to him, yet it dominates his life with brute force. It is this alienating effect of the “outsider status” that renders the law (and eventually life) absurd for K. Regardless of whether the law also serves as a metaphor for the alienation of man in modern society, the law itself is definitively present in Kafka’s writing. The law objectively exists as is evidenced by the legal process of K’s trial. Rather, it is K’s experience of the law that makes it seem hidden because it is inexplicable to him. The only definitive revelation is by Titorelli (the court’s painter), from whom K learns that no final acquittal is possible but even then, K never understands how the law arrives at this outcome – it is Titorelli’s empirical (not legal) understanding of the law that is communicated. Hence, the law is objectively present in Kafka’s work and though this definitiveness is necessarily recognized by the Defendant (through the absolute impact the law has on his life), the law nevertheless “feels” absurd because its mechanisms are foreign to him. There is a gap between the law’s objectiveness (definitive presence) and the defendant’s experience of the law (incoherence due to its inexplicability). | >
> | The Trial features “Josef K.”, a cashier who is arrested by two nameless agents from an indeterminate agency for an indeterminate crime, of which he is eventually executed. The entire experience is narrated through the perspective of the agitated defendant, entrapped by a legal system to which he nevertheless remains a foreigner: the operation of the law is never explained to him, yet it dominates his life with brute force. It is this alienating effect of the “outsider status” that renders the law (and eventually life) absurd for K. Regardless of whether the law also serves as a metaphor for the alienation of man in modern society, the law itself is definitively present in Kafka’s writing. The law objectively exists as is evidenced by the legal process of K.'s trial. Rather, it is K.'s experience of the law that makes it seem hidden because it is inexplicable to him. The only definitive revelation is by Titorelli (the court’s painter), from whom K. learns that no final acquittal is possible but even then, K. never understands how the law arrives at this outcome – it is Titorelli’s empirical (not legal) understanding of the law that is communicated. Hence, the law is objectively present in Kafka’s work and though this definitiveness is necessarily recognized by the defendant (through the absolute impact the law has on his life), the law nevertheless “feels” absurd because its mechanisms are foreign to him. There is a gap between the law’s objectiveness (definitive presence) and the defendant’s experience of the law (incoherence due to its inexplicability). | | | Joseph’s “Lawyerland”: The Lawyer’s Perspective
In the work’s first chapter, Robinson narrates his successful defense (outside of court) of a young man, who attempts to rob a residence that unbeknownst to him belongs to the AUSA. The AUSA then informs his brother-in-law (the ADA) who assigns the case to a leading female prosecutor. Robinson threatens to use his information of those relationships to exculpate the young man. His anecdote, like K.’s, illustrates the distance between the law in theory and the law in practice. However, the change in perspective (from defendant to lawyer) also imbues this distance with new meaning. Here, the law theoretically relies on the neutral application of its rules, but in practice it is social relationships that are the most significant determinant of legal outcomes. More than just convergence (in the depiction of the law as subjective i.e. perspective-dependent), Lawyerland further informs Kafka’s view of the law. The law in Lawyerland is largely relational – it is based on social relationships that the lawyer strategically navigates. In its self-proclamation as being “truthful”, Lawyerland intimates that such relationality is part of the law’s reality (not just Robinson’s) – a view which traditional legal thought does not deny but largely ignores. The theoretical - practical divergence in the law is not absurd to Robinson (the way it is to K.); his suffering instead, derives from the very understanding of that system as one that is disjointed in practice from its theoretical lucidity. |
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IrisAikateriniFrangouSecondEssay 2 - 16 Apr 2021 - Main.IrisAikateriniFrangou
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> | LITERATURE AND THE LAW: LITERATURE AS CONDUCIVE TO A MORE ACCURATE UNDERSTANDING OF THE LAW | | | -- By IrisAikateriniFrangou - 14 Apr 2021 | |
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> | Introduction: The Atypicality of Kafka’s and Joseph’s Depiction of the Law
Joseph’s “Lawyerland” converges with some of Kafka’s works in the atypicality of the law’s portrayal. Rather than being lucid through its theoretical objectivity, the law appears muddled in its practical effect on its subjects. The subjectivity of experience (in the law’s impact) dominates both worlds: Kafka’s characters suffer as defendants under what they perceive to be the absurdity of the law – a system that inflicts real harm on their lives, but which is inaccessible (and hence incomprehensible) to them; Joseph’s protagonists suffer as lawyers who are honest about the misalignment of law in theory and law in practice, but whose acceptance of which, renders them despondent. The characters’ experience of the law is subjective, yet generalizable: Kafka’s subjects embody the point of view of defendants, and Joseph’s that of lawyers. Their atypicality therefore resides not only in their depiction of the law (as subjectively experienced), but also in the literary means through which such depiction is effectuated (narration). What to make of this atypicality?
I suggest that literature has the potential to provide a more complete account of the law than the law itself (by which I refer to American legal academia, confined largely to legal scholarship and judicial opinions). Kafka and Joseph dramatize the gap between law in theory and law in practice by emphasizing the relational aspect of the law in its application. By relying on narration, they demonstrate the power of literature to portray all aspects of the law through literature's conveyance of the multiplicity of truth.
Kafka’s “The Trial”: The Defendant’s Perspective
The Trial features “Josef K.”, a cashier who is arrested by two nameless agents from an indeterminate agency for an indeterminate crime, of which he is eventually executed. The entire experience is narrated through the perspective of the agitated defendant, entrapped by a legal system to which he nevertheless remains a foreigner: the operation of the law is never explained to him, yet it dominates his life with brute force. It is this alienating effect of the “outsider status” that renders the law (and eventually life) absurd for K. Regardless of whether the law also serves as a metaphor for the alienation of man in modern society, the law itself is definitively present in Kafka’s writing. The law objectively exists as is evidenced by the legal process of K’s trial. Rather, it is K’s experience of the law that makes it seem hidden because it is inexplicable to him. The only definitive revelation is by Titorelli (the court’s painter), from whom K learns that no final acquittal is possible but even then, K never understands how the law arrives at this outcome – it is Titorelli’s empirical (not legal) understanding of the law that is communicated. Hence, the law is objectively present in Kafka’s work and though this definitiveness is necessarily recognized by the Defendant (through the absolute impact the law has on his life), the law nevertheless “feels” absurd because its mechanisms are foreign to him. There is a gap between the law’s objectiveness (definitive presence) and the defendant’s experience of the law (incoherence due to its inexplicability).
Joseph’s “Lawyerland”: The Lawyer’s Perspective
In the work’s first chapter, Robinson narrates his successful defense (outside of court) of a young man, who attempts to rob a residence that unbeknownst to him belongs to the AUSA. The AUSA then informs his brother-in-law (the ADA) who assigns the case to a leading female prosecutor. Robinson threatens to use his information of those relationships to exculpate the young man. His anecdote, like K.’s, illustrates the distance between the law in theory and the law in practice. However, the change in perspective (from defendant to lawyer) also imbues this distance with new meaning. Here, the law theoretically relies on the neutral application of its rules, but in practice it is social relationships that are the most significant determinant of legal outcomes. More than just convergence (in the depiction of the law as subjective i.e. perspective-dependent), Lawyerland further informs Kafka’s view of the law. The law in Lawyerland is largely relational – it is based on social relationships that the lawyer strategically navigates. In its self-proclamation as being “truthful”, Lawyerland intimates that such relationality is part of the law’s reality (not just Robinson’s) – a view which traditional legal thought does not deny but largely ignores. The theoretical - practical divergence in the law is not absurd to Robinson (the way it is to K.); his suffering instead, derives from the very understanding of that system as one that is disjointed in practice from its theoretical lucidity.
The Law Refocused
Kafka and Joseph make it painfully obvious that the traditional jurisprudence’s focus on objective rules (the law as judge-oriented, clear, and predictable) provides an incomplete account of the nature of the law. The law gains meaning only through its application to social relationships. Legal rules are meaningless without practical application, just like practical application is inconceivable without legal rules. The traditional insistence on a single point of view (that of the judge) does not convey the full range of legal experience because it omits the perspective of the lawyer and the defendant. The law however, is limited in its ability to convey multiplicity of perspective. Can literature bridge the gap?
A Literary Theory of the Law: the Descriptive Power of Literature in the Law
If a complete understanding of the law requires divergence in perspective then literature is better equipped towards the task given its ability to display different perspectives without contradiction. There is also an intimacy in narration that deepens time and space as Gertrude Stein notes (by also deepening the spatial and temporal dimensions of language itself) [Gertrude Stein, "Wars I Have Seen" (1945)] which allows for a fuller exploration of the truthfulness of each account. Thus, at the very least, literature can help us gain an accurate understanding of what the law currently is (within and without courts). Beyond that, it may even help law students avoid Robinson’s fate by preparing them for the realities of legal practice – the most fundamental of which is the recognition that the law itself entails contradictory representations of reality and therefore, that a lawyer (in strategically managing social relationships) needs to keep multiple contradictory perspectives in mind at the same time. Hence, a lawyer exists in an inherently qualified world where the line between representations and lying is delicate, yet imperative. Robinson is fully reconciled with this truth, but it seems to me as though this reconciliation (via disillusionment) has obliterated his faith in the ability to change his life. It is not so much Robinson's actions that are morally suspect; it is his disposition towards the law (his despondence) that is the problem. Perhaps, if law school teaching was not confined to the traditional conception of the law as entirely lucid in its objectivity, more law students would have the courage to reconcile the relational, contradictory aspect of the law with their own individual needs for personal fulfillment (perhaps by crafting a legal practice that more accurately reflects their values). The potentiality of literature to improve legal education may be prone to skepticism - more so than its use as a mere vehicle for the more accurate depiction of the law which forms the principal argument of this essay. What is equally doubtful however, is the sufficiency of a traditional legal education that relies entirely on the teaching of legal rules, to the exclusion of the nuances of legal practice.
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IrisAikateriniFrangouSecondEssay 1 - 14 Apr 2021 - Main.IrisAikateriniFrangou
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