Law and Literature: The Interconnectedness and Distinction Between Them
1. Introduction
“I want to do a simple arithmetic, though I am not a friend of the subject.”
Per Niki Tobi, J.S.C., in Inakoju v. Adeleke.[1]
The concept of Law and Literature has been a heated argument among scholars, like the age-old Nature and Nurture debate. It is, of course, an academic movement originated from American law schools in the 1970s and developed into a school or field of legal studies.[2]The argument appears in two facades: “Law as Literature” and “Law in Literature” or “Literature in Law.” This article, therefore, seeks to lend a veritable voice to this long-time argument. And in doing the same, a conscious reference shall be made to some literary pieces and decisions of our Courts in a few out of a shipload of cases across jurisdictions that brim with law and literariness.
2. Interface Between Law and Literature
Law is similar to literature in several respects. But law is not literature, and neither is literature law. In spite of the fact that anything written down is considered to be literature, Law and Literature in the strict sense of the two concepts are not the same and can never be the same. Hence, the concept of Law and Literature is nothing but a complementary combination.
Law is literature only to the extent that it uses literature in its general sense to express itself. Literature, therefore, cannot be considered as law, or law, literature. But there is, of course, some elements of literature in law and some elements of law in literature. In fact, law guides literature in widespread ramifications. The law of copyright, for instance, protects literary works from copyright infringement. This is seen in the case of Tabansi v. Okeudo & Ors,[3] where the plaintiff, a printer and publisher, claimed, among other things, damages for infringement of his copyright in a book by one O. A. Ogali, titled Veronica, My Daughter.
Of course, the first defendant, also a printer and publisher, counterclaimed in terms similar to those of the plaintiff, and the Court after considering the evidence adduced by the first defendant before it, showing that the said O.A. Ogali had assigned the copyright in the book to him for full consideration, resolved same in favour of the first defendant and granted damages to him against the plaintiff.
Stating the obvious, Law and Literature allow us to think more deeply about humans and their society. We employ literature in law in explaining, describing, and analysing the wordings of the law. Law and Literature share similarities due largely to the fact that their subject matter is human beings and society. Literature mirrors the life, culture, and behaviors of people in society. Law, on the other part, controls, regulates, protects, and safeguards the activities, behaviors, and life of people in society.
Fundamentally, literature educates, instructs, informs, and inspires the people of every society. Law, however, guides, guards, warns, and restricts the behaviors and excesses of people in the society; through the punishments it prescribes for all kinds of crimes. A voyage into literature arouses a deep feeling in lawyers, lawmakers, and judges to approach human beings realistically, and not just in their mind’s eye. Law and Literature both explore people’s experiences and stories through the use of human beings to practically explained their interests, intents, and purposes.
Jurisprudence, which is fundamentally considered as the philosophy of law, for instance, is an amalgam of different kinds of literature. Like literature, jurisprudence more logically educates law students and lawyers about the human condition in the society through the use of eloquent prose spiced with anecdotes, humour, and practical allusions. Generally, the knowledge of the law enables law students and lawyers to grow and develop in all ramifications. Literature like the law is complex, though interesting; it helps to improve legal understanding. Law is a discipline full of knowledge – an amazing knowledge of almost everything.
Interestingly, the relationship between Law and Literature is so symbiotic that literature gives expression to the law while law creates literature. This is categorically evident in the boatloads of literary pieces across the globe, ranging from those of the ancient to those of the contemporary writers. Owing to the above, Law and Literature are interdisciplinary in nature, although considering the entire corpus of our laws and the fact that law depends largely on precedents, one would be tempted to wonder that law is self-sufficient. Literature, like other disciplines, does not only enrich our laws but broadens our understanding of society, especially for the benefit of lawyers, lawmakers, and judges.
3. Dissimilarities Between Law and Literature
Law and Literature differ characteristically from each other, especially in the employment of jargon and vocabularies. Each of them is special to the extent of its own peculiarities. While the law is much more objective, due majorly to the fact that it is often made for the administration of justice, literature, as a matter of fact, is more often than not, rendered in a personalized style. Law is fundamentally known to be stable, but there is no stability in literature. Although law changes with the changes of things, its changeability does not equal with that of literature.
Similarly, while literature is often clothed with ambiguity and disguise, the law is rendered mainly with clarity and clearness. Literature does not obey any form of rules; it crosses all sorts of boundaries. But the law, in its peculiar nature, bends to precedents and has a well-spelt-out limitation on its operation, scope, and application. Literature is basically persuasive, while the law is objective and provides standardized parameters with which society is measured.
Essentially, the law makes some restrictions on literature by warning writers against launching any sorts of a diatribe on natural persons without putting it in a fictitious manner. Literature makes us think more critically about the law; it shapes and reshapes the thinking and mentality of lawmakers, lawyers judges. We learn law through the sensitivity and compassion that literature bestows. Law, however, endows us with the logic, critical thinking, and reasoning that power and pattern our expressions, arguments, and behaviors anytime, anywhere.
Despite the fact that law powerfully regulates our actions and reactions towards others, creative writers invoke and employ literature with the view to correct, ridicule, and satirize any law or acts of those in power perceived by them to be draconian. Literature often intrudes dramatically into the rich setting of a courtroom trial. A good example of this is The Trial of Dedan Kimathi by Ngugi wa Thiong’o and Micere Githae Mugo, which was written to satirize the ills, torture, and ruthless operation of the British colonial regime in Kenya.
There are, of course, a myriad of others, but classics like Merchant of Venice by William Shakespeare, People of the City by Cyprian Ekwensi, and The Incorruptible Judge by D. Olu Olagoke, were specially written to lionize and glorify the ingenuity, creativity, and doggedness of our lawmakers, lawyers, and judges. No Longer at Ease by Chinua Achebe is not out of the list.
But unlike literature, law, in spite of its scope and wide coverage, has been vehemently attacked to be overly pragmatic and doctrinal or library-based. And this accounts for why there has been no Nobel Prize for lawyers who did not veer off entirely into non-doctrinal or socio-legal disciplines. If there is Nobel Prize for chemistry, physics, medicine, literature, economics and work towards peace, there ought to be Nobel Prize for law, due mainly to its interdisciplinary nature and wide coverage. Damages caps, for instance, which is half-law, half-economics, are employed by our lawmakers and judges in determining the quantum of damages to be awarded for non-economic damages such as compensation for pain and suffering, mental anguish, humiliation, loss of consortium, loss of enjoyment of activities and losses not easily quantified in monetary terms in civil suits.[4]
In view of the aforesaid, I have not seen any substantial reason for the denial of the Nobel Prize for law since the Nobel Prize for economics started posthumously in 1968. But I hope that this eureka moment would, in future times, give birth to a glorious dawn.
4. Case Laws: The Creativity Judges
Our legal systems are full of truckloads of cases whose decisions are redolent with law and literariness. Although out of these truckloads of cases, I have only selected a few for the purpose of this article. Going through the wordings of the judgments of Courts underlying, you cannot but be marvelled at how stylistically and poetically put they are.
Let’s start with Lord Denning, Master of the Rolls, and one of the most famous judges of all times, in Southam v. Smout.[5]Hear him:
“The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail – its roof may shake – the wind may blow through it – the storm may enter – the rain may enter – but the King of England cannot enter – all his force dares not cross the threshold of the ruined tenement. So be it – unless he has justification by law.” This is both metonymic and metaphoric.
Again, hear Justice Foy in Davies v. London & Provincial Marine Insurance Co.,[6] alluding to the need for full disclosure in fidelity guarantee:
“Very little said which ought not to have been said, and very little not said which ought to have been said would be sufficient to prevent the contract from being valid.” This is equally stylistic!
Now, let’s hear from some of the Nigerian Supreme Court Justices. In Adegoke Motors Ltd v. Dr. Babatunde Adesanya & Anor,[7] in answer to the issue of whether there is a conflict between the Supreme Court cases of Sken-Consult (Nig.) Ltd and anor v. Ukey (1981) 1 S.C 6 and Ezomo v. Oyakhire (1985) 1 NWLR (pt.2) 195, each of the cases having been decided on its own merit. His Lordship, Hon. Justice Chukwudifu Akunne Oputa, J.S.C., stylistically states:
“My simple answer is that it is not part of the jurisdiction or duties of this Court to go on looking for imaginary conflicts. We are final not because we are infallible; rather, we are infallible because we are final.”
In an issue of jurisdiction, the Supreme Court per Kayode Eso J.S.C. in A-G. Lagos State v. Dosunmu,[8] was not left out. Hear him:
“Without jurisdiction, the laborers, that is, the litigant and counsel on the one hand, and the Court, on the other hand, labour in vain.” This is overly poetic!
Again, the Supreme Court per Katsina-Alu J.S.C. in A-G. Ondo State v. A-G. Federation,[9] in the issue of corrupt practices and abuse of power, figuratively states:
“These submissions, in my view, overtook the reality of the situation. Corrupt practices and abuse of power spread across and eat into every segment of society. It is a good sense that everyone involved in the corrupt practices and abuse of power should be made to face the law in our effort to eradicate this cankerworm.”
Now, let’s hear from the Supreme Court per Niki Tobi, J.S.C. in Buhari v. Obasanjo:[10]
“It is elementary law that Courts of law, like nature, do not act in vain but for a purpose and the purpose must exist and be identifiable and identified. Courts of law do not embark on academic exercise because they are not academic institutions.” This is equally stylistic! Apart from the fact that it is rich in simile, it creates a memorable picture in our minds.
Categorically speaking, “Good intentions can only be valid if they tally with the Constitution,” per Niki Tobi, J.S.C., in A-G. Abia State v. A-G. Federation.[11]
What do you think of these judgments? They are cerebral! That is what the law does.
5. Conclusion
The argument, therefore, is that law is not and cannot be considered as literature; neither can literature be considered as law. But there are some elements of law in literature, and some elements of literature in law, considering the musicality of the wordings of most of the judgments of our Courts and other elementary laws, the style and the meaning that inhere in them. Owing to the logic and the depths of legal arguments inherent in law, it cannot be considered as literature since literature deals more with fiction. Law is full of arguments and logic. Hence, Law and Literature are just complementary but not the same.
Author
Arinze J. Oduburu
Life Intern at St. Sen Solicitors, Abakaliki
Arinze2015j@gmail.com; 07035051869
[1] (2007)All FWLR(pt.353)3.
[2] L.C. Chang, The Research of Comparison Between Law and Literature: As Illustrated by Kafka’s “The Trial”,footnote1<https:www.google.com/ur/?sa=t&source=web&rct=j&urt=http://www.law.ntu.edu.tw/ntulawreview/articles/3-1/2008_3-1-Li-Chang%2Bchang%25€5%25BC%25B5%25c9%25BA%259725€5%258D%25BF_pdf&ved=2ahUK Ewi-ng-p7lzsAh×inVwkHd1aAPkQFjAAefQlAhAB&usg=Aov Vaw2UkgWYYFzGGwGqlcm1vrf>accessed 28 September,2020.
[3] 0/156/61; Judgment of Kaine J., Onisha High Court (Unreported) in 1963.
[4] See Universal Trust Bank of Nigeria v. Fidelia Ozoemena (SC. 129/2001) [2007] NGSC 154.
[5] (1964) 1 QB 203 at 32.
[6] (1878) 8 CL. at p. 475.
[7] (1989) 5 S.C 113 at 129; 3 NWLR(pt.109) 250 at 274.
[8] (1989) 3 NWLR (pt. 111) 552.
[9] (2002) 6 SC (pt. 1) 1.
[10] (2003) 17 NWLR (pt. 850) 587.
[11] (2005) 6 SC (pt. 1) 63 at 111-112.