Law and literature

Which is better – the spoken word of law or the written word of law? In the modern world this may not be a relevant question. We accept whatever as written to be final – and the court is the finest example of this. Even the oral testimony of a witness is transcribed, and the transcript serves as the official, legal record of the testimony. This article analyzes the impact of judicial activism on the spoken and written word of law.

In recent years, the superior judiciary has embraced the Islamic and the ancient world where speech and actions were considered superior. An oath or a vow had to be spoken, not written. In ancient times, Plato argued that oral communication was better than the written word.

The media, mostly to create a special interest with respect to the case at hand, relentlessly sensationalizes words spoken from the bench. Perhaps, judges feel that simply speaking from the judgments alone will not allow the reader to hear the discourse that is now so common in court. Hence, media coverage takes full advantage with its unabated and at times harsh and unremitting reporting.

Very clearly, there is immediacy to courtroom utterances as the spoken word is a living thing – particularly when they are captured by the media and debated with vigour. The written word, in the form of a judgment, will always lack this.

Unfortunately, in the last several years we have seen obedience and allegiance being ordered only by spoken words of law. Language and words being the most powerful tool available to humanity have at times despaired at the hands of the law as it has not been used constructively for encouragement but to harm and mostly humiliate or hurt. Indeed, such spoken words and utterances if converted into instructions or judgments are not speaking orders. Hence, the spoken word of law that orders obedience and allegiance will always be open to question and criticism.

The danger with judicial activism in recent years is when judgments or the spoken word of law have attempted to shape the common law according to judges’ own highly individualist vision of society which at times is based on their own belief rather than the letter of the law. This is why such judgments or the spoken word of law are often criticized for subjectivity.

Despite this age of digital technology, law courts remain one of the main scenes of rhetorical activity and rhetoric is used by all lawyers for persuasion. Words can remain the raw material of the legal profession; however, precedent and law reports must always be not just a treasury of law but also a great treasury of literature. Only our judges can ensure this; they must be masters of both the spoken and written word of the law. The writings of our judgments must survive the immediate hour.

It is for this reason that the written word of law gains so much more importance when it is combined with literature (be it in the form of the eloquence of Lord Denning or from Shakespeare or popular theatre). Indeed, Denning’s story-telling style of writing in perfect English – short and in crisp sentences – intended to bring the command of the judgment but also make the judgment accessible to the layperson.

Literature to Denning was very different. His judgments would start with a prologue, as the chorus does in a Shakespearean play. He would then introduce the story by drawing upon the characters as they really were and usually avoided all references to pleadings.

Poetry, like the law, is fiction. Law and literature have common properties of language and vision. Judges seek support from this while formulating their judgments as the law is inevitably a matter of language and can be articulated in words – the written word of the law. In other words, there should be willingness to quote non-legal literary sources and bring the same in the text of the law in order to improve the jurisprudence so that it can gain more clarity rather than on its antiquity. This then becomes the fundamental connection between law and literature.

If law and literature become strangers to each other then the spoken word of law will prevail. This will only be the case when future lawyers, judges and legal academics are no longer orators, philosophers or historians and by default will be driven and enamored by the spoken word of the law (that requires no serious intellectual preparation for practice). Hence, the law will find itself surrounded by the mechanical approach of lawyers and judges.

Law therefore must provide protection to literature as a valuable category of expression. This can only be achieved if ‘law and literature’ returns to the core of law school curriculum. When a great judgment is often referred to as a celebrated judgment, it is literature that has come to the aid of the law. In this way, the text of the law will not only be studied, but it will also be celebrated.

The writer is a barrister with over 35 years of experience in law.