Windows and 'Windows': Reflections on Law and Literature in the Digital Age

If art teaches anything . . . it is the privateness of the human condition. Being the most ancient as well as the most literal form of private enterprise, it fosters in a man, knowingly or unwittingly, a sense of his uniqueness, of individuality, of separateness - thus turning him from a social animal into an autonomous 'I.'

- Joseph Brodsky, 1987 Nobel Lecture

I Introduction

Our digital age surrounds us with an ever-growing quantity of information, with fragmented stories and counter-stories, and with an incessant flow of moving images. Poetic structures are disjointed, coherent narratives inaudible.¹ Literature, it seems, is rapidly losing its cultural prominence;² its claim and aspirations to have a significant bearing on other disciplines appear less and less viable. In particular, the interdisciplinary study of law and literature finds itself today in a confused and aimless state, its once well established status threatened, its once clear raison d'être in doubt.

Nevertheless, I will argue here that it is now more essential than ever to focus on the links between law and literature, because literature - and, in particular, the poetic idea - possesses unique abilities to constitute and maintain the senses of self and of the other upon which the authority and legitimacy of law depend. I will present the poetic idea as an expression of a particular stance toward the world, one ascribing to poetics the power to generate messages that make possible effective interpersonal communication. Poetic productions can faithfully represent, as nothing else can, their author's inner experiences, consciousness, values, feelings, and needs, as well as those of other persons. Poetic expressions resonate with a wide audience, the members of which can relate to them and conduct themselves in their light. These expressions can help forge and sustain well-functioning interpersonal relationships, which the law, too, wants to encourage. Thus, I argue, to abandon the poetic idea is to waste a resource highly valuable to the legal enterprise.

I begin by positing a paradigm of literature alongside law that delineates a theoretical framework for addressing the interrelationships between law and literature. The notions of poetic justice and poetic licence are then put forward as complementary themes, illustrating the interplay between law and literature. After establishing the need for the poetic enterprise in general, I will criticize authors who underline the importance of specific literary genres, concluding that the form of the narrative as such, not its particular genre, is the most powerful means of instilling a sense of self as well as an attentiveness to the other. At this point, I will make some remarks about the future of narrative in a digital environment, maintaining that the 'digital storm' we are facing challenges law as well as literature and that the notions of poetic justice and poetic licence can help both fields to face these challenges successfully.

II The paradigm of literature alongside law

The academic study of law and literature is generally considered to have begun in 1973, with the publication of James Boyd White's The Legal Imagination.³ The book inspired a wave of additional investigations, and the discourse related to law and literature has been fruitful and varied.⁴ It seems, however, that the law and literature enterprise has lost some of its thrust. In a recent article, Kenji Yoshino describes law and literature as currently presenting conflicting symptom of health.⁵ Though impressively penetrating the legal academy and attracting many literary and legal scholars, the field, Yoshino claims, is 'caught in a limbo' and has never achieved the status of other interdisciplinary fields such as law and economics, legal history, and jurisprudence.⁶

I believe that the thriving of certain disciplines generally linked to the humanities, such as law and history, law and cultural studies, and law and film, is, to a large extent, a consequence of the discourse on law and literature. Thus, the growing interest in other links between law and the humanities does not overshadow the past interest in law and literature; it is generated from law and literature and exhibits the latter's importance and...