Shakespeare and the Law

Study Materials

General Works on the relationship of law and literature

From Benjamin N. Cardozo, “Law and Literature.” In Selected Writings of Benjamin Nathan Cardozo, ed. M. Hall (1947; reprinted New York: Matthew Bender, 1975)

We are merely wasting our time, so many will inform us, if we bother about form when only substance is important. I suppose this might be true if only one could tell us where substance ends and form begins….[But] form is not something added to substance as a mere protuberant adornment. The two are fused into a unity….There is absolutely no substance without [form]….The argument strongly put is not the same as the argument put feebly any more than the ‘tasteless tepid pudding’ is the same as the pudding served to us in triumph with all the glory of the lambent flame. The strength that is born of form and the feebleness that is born of the lack of form are in truth qualities of the substance. They are the tokens of the thing’s identity. They make it what it is. (339-40)

In matters of literary style the sovereign virtue for the judge is clearness…But clearness, though the sovereign quality, is not the only on to be pursued, and even if it were, may be gained through many avenues of approach. The [judicial] opinion will need persuasive force, or the impressive virtue of sincerity and fire, or the mnemonic power of alliteration and antithesis, or the terseness and tang of the proverb, and the maxim. Neglect the help of these allies, and it may never win its way. (341-42)

The judge or advocate is expounding a science or a body of truth which he seeks to assimilate to a science, but in the process of exposition he is practicing an art. The Muses look at him a bit impatiently and wearily at times. He has done a good deal to alienate them, and sometimes they refuse to listen and are seen to stop their ears. They have a strange capacity, however, for the discernment of strains of harmony and beauty, no matter how diffused and scattered through the ether. So at times when work is finally done, one sees their faces change; and they take the worker by the hand. They know that by the lever of art the subject the most lowly can be lifted to the heights. (355-56)

From Richard A. Posner, Law and Literature: A Misunderstood Relation (Cambridge, Mass: Harvard University Press, 1988)

The study of law and literature seeks to use legal insights to enhance understanding of literature [and] literary insights to enhance understanding of law. The field envisages a general confrontation or comparison, for purposes of mutual illumination, of two vast bodies of texts, and of the techniques for analyzing each body. (1)

Both legal and literary scholarship are centrally concerned with the meanings of texts. In the case of law these are constitutions, statutes, judicial and administrative rules, and judicial opinions. Interpretation is therefore a central issue in both fields. And legal scholarship, like literary scholarship, consists to a significant extent of commentary on tests temporally and culturally remote from the commentator. (8)

Many legal texts, especially judicial opinions, resemble literary texts in being highly rhetorical rather than coolly expository. Judges and other lawyers resemble literary artists in the close attention they pay to the choice of words in which to express themselves, as well as in the fondness for metaphors and similes. (9)

The legal process, especially the adversary process of Anglo-American civil and criminal jury trials, has a significant theatrical dimension. This is one reason why trials are a staple of literature and why writers of fiction…have turned their talents to the description of actual trials. (9)

Academic lawyers newly concerned with the problematics of interpreting difficult legal texts look to the study of literature for clues and find there a parallel concern with the problematics of interpretation, while literary scholars wrestling self-consciously with problems of interpretation occasionally glance across to academic law to see how such problems are being addressed there. (11)

James Boyd White’s The Legal Imagination [1973]…audaciously claims that the study of literature should be a part of legal education, that a distinct, self-conscious field of law and literature can be said to have emerged. (12)

A number of the monuments of Greek and Elizabethan literature stimulate reflection on issues of the highest jurisprudential importance, such as the choices between rules and standards, between law and equity, between strict liability and liability based on culpability, and between ‘a government of laws’ and ‘a government of men.’ (16)

Lawyers and judges can learn from literary criticism of judicial opinions and perhaps of other legal writings…how important rhetoric is to law. (18)

Revenge is one of the great themes of literature….Revenge is also a traditional though nowadays infrequent subject of legal scholarship. [Oliver Wendell] Holmes’s classic, The Common Law, is simply the best known of a large number of scholarly studies that argue that law grows out of revenge and that many modern legal doctrines continue to reveal traces of their origins in revenge….Most of criminal law, and much of tort law besides, can be viewed as a civilized substitute for what would otherwise be the irrepressible impulse to avenge wrongful injuries….So perhaps legal training can enable one to say something fresh about revenge literature. (25-26)

Richard Weisberg, Poethics and Other Strategies of Law and Literature (New York: Columbia University Press, 1992).

The way lawyers talk, the way they rule, the way they figure out what has occurred—these pursuits represent for the literary artist an analogue on the level of coercive reality to their own more private but equally verbal pursuits….Law has drawn the attention of the literary artist because of its similarities to narrative art, not its differences. Law’s manner of recreating and discussing reality strikes the artist as close (and where misguided or erroneous, threateningly close) to what storytellers themselves are in the business of doing. (x)

Rightness in a legal decision derives from an imaginative and intuitive process within the adjudicator. This process results in the opinion, and the way in which the adjudicator explains the case determines the rightness or wrongness of the decision. Rhetoric, in other words, does not assist an argument to march to a conclusion; rhetoric is the argument, and the perceived rightness or wrongness of the conclusion may be as much based on the style and form of the argument as on the extrinsic application to it of the observer’s notion of what the law of the case ‘should have been.’ (16)

Far less constrained by precedent and rule than he may think, the judge in almost any case must regard the situation before him from an essentially personal perspective and then write about that situation in terms that have legal validity and authority…Adjudication brings forth subjectivity. When the judge is made aware of the facts of the case he has a response to them. If he is an appellate judge, he may be responding to a factual situation somewhat divorced from the parties’ pristine realities, and, indeed his own opinion may serve to fictionalize the event even more; but he is still responding to at least the shadow of an actual event. As soon as he begins to write, he colors the event with his own subjective approach to it. His articulation of the facts generates a perspective on the law that can never be identical to an earlier perspective. (16-17)

Paul Gewirtz, “Narrative and Rhetoric in the Law.” Law’s Stories: Narrative and Rhetoric in the Law, edited by Peter Brooks and Paul Gewirth (New Haven: Yale University Press, 1996).

Examining law as narrative and rhetoric can mean many different things: examining the relation between stories and legal arguments and theories; analyzing the different ways that judges, lawyers, and litigants construct, shape, and use stories; evaluating why certain stories are problematic at trials; or analyzing the rhetoric of judicial opinions, to mention just a few particulars. But as a matter of general outlook, treating law as narrative and rhetoric means looking at facts more than rules, forms as much as substance, the language used as much as the idea expressed (indeed, the language used is seen as a large part of the idea expressed). It means examining not simply how law is found but how it is made, not simply what judge command but how the commands are constructed and framed. It understands legal decision making as transactional—as not just directive but [as] an activity involving audiences as well as sovereign lawgivers; indeed, it emphasizes the ways legal processes involve speakers in exchange with audiences everywhere. It sees laws as artifacts that reveal a culture, not just policies that shape the culture. And because its focus is story as much as rule, it encourages awareness of the particular human lives that are the subjects or objects of the law, even when that particularity is subordinated to the generalizing impulses of legal regulation. (3)

[The study of law as literature] examines law and legal texts the way a literary text might be examined, sometimes with the help of tools provided by literary theory and literary criticism. Of course, there are fundamental differences between law and literature; most obviously, the law coerces people. But both law and literature attempt to shape reality through language, use distinctive methods and forms to do so, and require interpretation—and therefore there may be things to learn from seeing how analogous problems are treated in the two disciplines. (4)

Storytelling in law is narrative within a culture of argument. Virtually everyone in the legal culture—whether a trial lawyer presenting her case to a court or jury, a judge announcing his findings about what happened in the case, even a law professor writing an article—is explicitly or implicitly making an argument and trying to persuade. Storytelling is, or is made to function as, argument….The goal of telling stores in law is not to entertain, or to terrify, or to illuminate life, as it usually is with storytelling outside the legal culture. The goal of storytelling in law is to persuade an official decision maker that that one’s story is true, to win the case, thus to invoke the coercive force of the state on one’s behalf.” (5)

Alan M. Dershowitz, “Life is Not a Dramatic Narrative.” Law’s Stories.

The life of the law…should be human experience. And human experience cannot by cabined into the structure of narrative. Let literature continue to borrow from law and life….[And] let law develop its own rules of structure and editing—of evidence, relevance, and prejudice—by looking to the vagaries of real human experience. (105)

A dissenting view: Pierre N. Laval, “Judicial Opinions as Literature.” Law’s Stories.

I…object to a movement that tells judges we should consider our opinions literature and invest them with the power of literary and dramatic rhetoric….The potential for harm is real and considerable. The objectives and duties of the judicial opinion are far different from those of polemics, poetry, and the narrative forms of literature; the employment of their rhetorical techniques of suggestion and evocation will more likely be at the expense of, than in the service of, the opinion’s capacity to achieve its goals. Pursuit of literary techniques is more likely to undermine than to reinforce the success of the opinion in meting its judicial obligations. (206-7)

From Patrick Colm Hogan, On Interpretation: Meaning and Inference in Law, Psychoanalysis, and Literature (Athens: University of Georgia Press, 1996)

Determining the relevance of particular statutes or precedents to a particular case is a complex problem. Legal interpretation involves not only something like induction from precedents and something liked deduction from statutes but a concurrent determination of the set of relevant precedents and statutes from which such induction and deduction are to proceed….The entire process reacts back upon the statutes and precedents. Our interpretations function not only to determine the legality or illegality of certain behaviors, or acts, or states of affairs, but equally to determine the relevance to the case at hand of the statutes and precedents being interpreted. (96)

From Lawrence M. Friedman, The Republic of Choice: Law, Authority, and Culture (Cambridge, Mass: Harvard University Press, 1990).

To tell a meaningful story about modern law, one cannot talk only about law itself, that is, law as it is lived and felt within the world of the jurists. Nor is the story best told in the language of law and in the categories that are peculiar to law. One has to start the story somewhere else, that is, outside the law itself….The legal system is part of society in the same way that muscles and the circulation system are part of the body; the legal system does not and cannot exist as a viable, independent agency. (4)

Films with legal themes

Adam’s Rib (dir. George Cukor; 1949; w. Katharine Hepburn)

The Accused (dir. Jonathan Kaplan; 1988; w. Jodie Foster)

Amistad (dir. Stephen Spielberg; 1997; w. Anthony Hopkins)

And Justice for All (dir. Norman Jewison; 1979; w. Al Pacino)

Breaker Morant (dir. Bruce Beresford; 1979; w. Edward Woodward)

The Caine Mutiny (dir. Edward Dmytryk; 1954; w. Humphrey Bogart)

Caine Mutiny Court Martial (dir. Robert Altman; 1988; w. Eric Bogosian)

Class Action (dir. Michael Apted; 1991; w. Gene Hackman)

Compulsion (dir. Richard Fleischer; w. Orson Welles)

In Cold Blood (dir. Richard Brooks; 1967; w. Robert Blake)

A Few Good Men (dir. Rob Reiner; 1992; w. Tom Cruise)

Fury (dir. Fritz Lang; 936; w. Spencer Tracy)

Inherit the Wind (dir. Stanley Kramer; 1960; w. Spencer Tracy)

Judgment at Nuremberg (dir. Stanley Kramer; 1961; w. Spencer Tracy)

The Law (dir. John Badham; 1974; w. Judd Hirsch)

The Music Box (dir. Costa Gavras; 1989; w. Jessica Lange)

My Cousin Vinny (dir. Jonathan Lynn; 1992; w. Joe Pesci)

The Pelican Brief (dir. Alan J. Pakula; 1993; w. Julia Roberts)

Presumed Innocent (dir. Alan J. Pakula; 1990; w. Harrison Ford)

The Rainmaker (dir. Francis Ford Coppola; 1997; w. Matt Damon)

Roxie Hart (dir. William Wellman; 1942; w. Ginger Rogers)

Sergeant Rutledge (dir. John Ford; 1960; w. Jeffrey Hunter)

The Story on Page One (dir. Clifford Odets; 1959; w. Rita Hayworth)

Suspect (dir. Peter Yates; 1987; w. Cher)

To Kill a Mockingbird (dir. Robert Mulligan; 1962; w. Gregory Peck)

Twelve Angry Men (dir. Sidney Lumet; 1957; Henry Fonda)

Twelve Angry Men (dir. William Friedkin; 1997; w. Jack Lemon)

The Verdict (dir. Sidney Lumet; 1982; w. Paul Newman)

Witness for the Prosecution (dir. Billy Wilder; 1957; w. Charles Laughton)

The Wrong Man (dir. Alfred Hitchcock; 1957; w. Henry Fonda)

Television programs

Literary Works On Legal Themes

Achebe, No Longer at Ease

Atwood, Alias Grace

Auchincloss, The Embezzler; I Come As a Thief

Stephen Becker, A Covenant With Death

Walter van Tilburg Clark, The Ox-Bow Incident

Dickens, Bleak House; Great Expectations

Dosteovsky, Crime and Punishment; The Brothers Karamazov

Dreiser, An American Tragedy

Faulkner, Intruder in the Dust

Glaspell, A Jury of Her Peers

Hawthorne, The Scarlet Letter

Kafka, The Trial

Malamud, The Fixer

Morrison, Beloved

Njal’s Saga

Paton, Cry the Beloved Country

Barry Reed, The Verdict

Shakespeare, Measure for Measure

Sophocles, Antigone

Traver, Anatomy of a Murder

Turow, The Burden of Proof; The Laws of Our Fathers; Presumed Innocent

Twain, Pudd’nhead Wilson

Wolfe, The Bonfire of the Vanities

Wouk, The Caine Mutiny

Works on Law and Literature

Peter Brooks and Paul Gewirtz, Law’s Stories: Narrative and Rhetoric in the Law

Benjamin Cardozo, “Law and Literature”; The Nature of the Judicial Process

Cardozo Studies in Laws and Literature (quarterly journal)

Ronald Dworkin, Law’s Empire

Lawrence M. Friedman, The Republic of Choice: Law, Authority, and Culture

Thomas Hobbes, The Leviathan

Oliver Wendell Holmes, The Common Law

Jerome Lawrence, Robert E. Lee, Inherit the Wind (play)

Ephraim London, The World of Law (2 vols.)

Machiavelli, The Prince and The Discourses

Plato, The Apology

Richard A. Posner, Law and Literature: A Misunderstood Relation

----------------------, editor, The Essential Holmes

Richard Weisberg, Peothics and Other Strategies of Law and Literature

James Boyd White, Heracles’ Bow