Art illuminates Law

How films and books influence justice

"Nobody can say: we would have handled this case differently without Das Leben der Anderen."

Marleen van Wesel

Legal scientists in Leiden have compiled an anthology of films and books, as they claim that they are indispensable illustrations of justice – and their students should really read more.

"For justice, we must go to Don Corleone", declares Bonasera the undertaker grimly in the first scene of The Godfather (1972), after realising the judge had released his daughter’s attackers the same day. Now, as the sovereign power has failed, he seeks retaliation through the Mafia and subsequently, we see the legal system presented from an interesting angle: down the barrel of a gun.

Claudia Bouteligier, a PhD student of law and literature at Leiden University, and Afshin Ellian, Professor of Jurisprudence, wrote a book together about the critical views films and books have of law and the legal system: Fundamentele verhalen [Fundamental Tales].

"Liberty, equality and brotherhood, important principles for our legal system, are very abstract, ambiguous and open to more than one interpretation. Films and literature give specific meaning to them. Accordingly, stories influence how rules are created and they can change the way we think. That’s why they present an indispensible perspective: there is always a threat of dogmas and tunnel vision if lawyers, legal scientists and students only study law from a legal angle", explains Bouteligier. "Those terms are the most problematic ones I can think of", adds Ellian. "Nowadays, they live up to their promise more than they used to, compared to the era of the guillotine. Writers and film directors conjure up all sorts of dilemmas for legal specialists and challenge them to make the principles of law visible."

Fiction offers a more human perspective, more than philosophy of law or legal economics. Ellian continues: "Those disciplines are important but very theoretical. A figure, such as ten thousand unemployed, does not describe unemployment or the actual people."

Law and literature is a rising interdisciplinary area of expertise which has its roots in the United States in the seventies. Common law, based on societal customs, with juries, etc. prevails in the United States. Bouteligier says: "In recent decades, a European law and literature movement has been gathering force and we want to stimulate it."

You might suppose that every non-fiction law case would be a story in its own right, one lawyers could learn from, but, according to Bouteligier, that’s not enough. "Obviously, the court constructs its own story, the one that seems the most likely, from the two parties in court. The story is based on a file,etc. containing plain facts, which must qualify as legal facts if the court is to apply the rules to them. The legal ‘bird’s eye view’ simply doesn’t give you the real story of what happened. It can’t – the court wasn’t there to see it. But you can relive it if you read things like Dostoyevsky’s inner dialogues."

Consequently, literature and films could be a reflective framework for judges. "After all, judges must be able to demonstrate wisdom" claims Ellian. "Otherwise, we could just as well place a slot machine with rules in the court room." He hopes that his students will read more, too. "It might be obvious for literature students to read but other disciplines could gain a lot from literature, too. Perhaps we could discuss parts of Fundamentele Verhalen during lectures." He has already watched Das Leben der Anderen with his students: "To explain the right of privacy. In the end, you need stories to understand the spirit of the law."

Bouteligier adds: "The Godfather explains a legal term like sovereignty. The Mafia are a sovereign power within a sovereign power, i.e. the state, providing more food for thought than definitions in textbooks."

Fundamentele verhalen continues where Willem Witteveen’s work leaves off. Witteveen studied and worked at Leiden University from 1979 to 1989. He turned down an invitation to work on the book because he was writing one himself and the authors intended to present Fundamentele verhalen to him; however, he was killed in the MH17 disaster in July.

"More has been written about literature and law, but usually only a few pages per novel. Now, fourteen academics have filled four hundred pages. Witteveen was very pleased with it", says Ellian. "But then someone fired a missile in Ukraine." Ellian fetches a book from the case in his office in the Kamerlingh Onnes Building. "Here’s his doctoral thesis from 1988, after which he was appointed Professor of Jurisprudence in Tilburg – the same job I’m doing now. At the time, I’d just arrived in the Netherlands and I became one of his students. An intellectual friendship sprang up between us." Later on, Witteveen became Ellian’s employer. "My first real employer: I had worked for a vegetable company, but now I was a student assistant and held that position until I graduated. He was very human for such a great academic."

Although the discipline is young, the subject matter has a long tradition. Literature had an impact as far back as the French Revolution and the rise of the principles of liberty, equality and brotherhood. "Montesquieu criticised Europe in the guise of Eastern letter writers and there are many literature-related aspects to Rousseau’ work", says Ellian. Later on, in the nineteenth century, Victor Hugo carefully dissected the French Revolution in Les Miserables and Quatre-Vingt-Treize.

"Imagine that you, a journalist, are being wiretapped; you could tell the court: ‘This just like Das Leben der Anderen!’ or if you get lost in a labyrinth of laws: ‘How Kafkaesque!’ Ellian explains. It is an image shared by the world. Kafkaesque is a term that Ellian has actually heard mentioned in court.

Nevertheless, it is still difficult to determine precisely how large the impact of films and literature is on justice. "Judgments don’t include a reference to them and due to the confidentiality of the judges’ chambers, no one can actually say: ‘This is a borderline case: without Das Leben der Anderen, we would have handled this case differently.’ You can’t tell whether insights are produced after reading something or from life experience. You can’t gauge how thoughts evolve", says Bouteligier. "But common sense suggests that few politicians or lawyers are not affected after seeing the thought-provoking film The Godfather", Ellian supposes. "Using crown witnesses, like they do nowadays, was probably inspired by the film."

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Art illuminates Law

Legal scientists in Leiden have compiled an anthology of films and books, as they claim …