Review of Law, Literature and Therapeutic Jurisprudence
This is my first blog for the year. It is summer Downunder and I enjoyed a nice holiday. But that is a fading memory and the reality of work has returned. And so has the need to keep up with my blog entries. In coming entries I plan to review some of the latest publications relating to therapeutic jurisprudence. Here is my first effort:
Literature has had an abiding interest in the law. The law in operation in its courts, law offices and police is a bountiful source of stories about the vagaries of the human psyche and human life. Literature can bring these issues to a wider audience and be a commentary and criticism of the law in operation. For me, the case of Jarndyce and Jarndyce, from Charles Dickens' Bleak House, illustrates how some of the worst aspects of the adversarial system can cause significant suffering for individuals – with Jarndyce wreaking havoc on generations of a family. Bleak House, among other literary classics, illustrates the essential thesis of therapeutic jurisprudence, that the law in operation affects the wellbeing of those involved.
The churning out of legal thrillers by the likes of Grisham and Turow reminds us that the attraction of literature to the law remains today. Amy Ronner in her new book Law, Literature and Therapeutic Jurisprudence (Carolina Academic Press, 2009) points out that the attraction between literature and law works both ways: literature can be attractive to the law. Thus, some scholars use literature and literary tools to gain a deeper insight into the meaning of law. Others see the commonality of law and literature in the value both place on story telling.
Ronner also sees this two way approach to be relevant to the thesis of her book that “it is possible and desirable to be not just a lawyer but a literary lawyer with that ‘important “add-on” component of a TJ lawyer”. Her book illustrates how therapeutic jurisprudence can aid in the analysis of literature and how literary analysis can help develop in lawyers the skills valued by therapeutic jurisprudence. Ronner observes that “Literary appreciation can spark the imagination and teach lawyers to ‘walk around in the skin’ of not just their clients, but also opponents, witnesses, judges and juries”. This can help the lawyer in diverse ways, not the least of which is the culturing of the ability to empathise with clients and others. These skills become the basis for a more rewarding professional relationship between lawyer and client.
Ronner uses examples from literature to illustrate important principles of law and the application of therapeutic jurisprudence. For example, she uses the tragic case of Melville’s Billy Budd, Sailor to highlight the legal, personal and therapeutic importance of a defendant being able to actively participate in proceedings affecting them. She gives a careful analysis of the arguments for and against the procedures used to try and convict Budd – the subject of a malicious accusation – who was subsequently hanged. As well as the legal principle that the defendant’s right to counsel is essential for a fair trial is the therapeutic jurisprudence principle of being able to be actively involved in the proceedings and not simply by counsel, vital though that is. Budd, suffering from both a speech impediment and the absence of a lawyer at his trial was denied both.
The theme of the importance of people being actively involved in legal proceedings affecting them continues in Ronner’s analysis of Crime and Punishment. Her analysis here is rich with other therapeutic jurisprudence themes as well – including the therapeutic nature of the role of the long-suffering Sonya in listening to and expressing empathy for the self-destructive but ultimately redeemed Raskolnikov. There is also a fascinating discussion of the nature and motive for confessions, seeing them as not necessarily springing from the fact of having committed a crime but – as in Crime and Punishment – springing from sometimes complex underlying psychological needs.
Chapter 3 is a compelling but disturbing discussion of the suffering that can be inflicted by anti-therapeutic tribunals and how mass hysteria can lead to their use. The Salem witch hunts depicted in The Crucible and Harvard’s Secret Court, based on events in the 1920s when Harvard convened a “Secret Court” that “maliciously hunted down young men it believed to be homosexuals, or mere friends of homosexuals” are graphically used to depict these phenomena.
Melville’s Bartleby is used to great effect to bring out the mechanical, repetitive and de-humanising effects of working in large law firms. The analysis demonstrates the importance of firms taking a therapeutic jurisprudence approach to their practice (and staff) and the vital role legal education should play in educating students to expect and to gain so much more out of legal practice.
As some of the commentators on the dust cover of Law, Literature and Therapeutic note, the book opens up a new dimension of therapeutic jurisprudence scholarship: therapeutic jurisprudence can be a lens through which literature is analysed and taught and literature can highlight different nuances and applications of therapeutic principles. Literature can also be a powerful vehicle to revive flagging students burdened by the tedium of studying particular law subjects.
While its legal analysis is largely confined to the law of the United States, this engaging book will be of interest to readers from other nations, whether from common law nations or civil law nations. It would be good to see the further development of this application of therapeutic jurisprudence and in particular, its application to the laws of other nations. After all, therapeutic jurisprudence itself is developing through international scholarship. Perhaps an international comparative law, literature and therapeutic jurisprudence will emerge. This book has laid the groundwork for it to occur.