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LITERATURE AND THE LAW: LITERATURE AS CONDUCIVE TO A MORE ACCURATE UNDERSTANDING OF THE LAW

-- By IrisAikateriniFrangou - 14 Apr 2021

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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