Thematic Pillar IV

Cultural Forms of Law: Literature, film and architecture (Year 5)

Not only religion has been neglected among the facts of culture that interact with law in the course of a materialistic concept of law focused on the relationship between law and economics. The literature within the realm of the normative has also been slighted. Anglo-Saxon literature makes use of a double perspective of researching ‘law in literature’ while simultaneously reading ‘law as literature’.

Which lawyer does not have his favorite poets, preferably one of the poet-lawyers, and which writer does not have at least a due amount of disdain for law which, according to Georg Simmel, is “passed on like an eternal disease”? It should be considered that a number of important German-speaking poets have a legal background. This applies to Goethe, Kleist, von Hardenberg, Kafka, Handke, etc. Is this a coincidence, due to the dominance of law in the canon of 18^th and 19^th century Cameralism and its offshoots? Or does the structure of narration about unheard-of events rather constitute a narratologically identifiable elective affinity between law and literature?

For Islamic law, for instance, there have surprisingly been no attempts made at reconstructing the hadiths into different forms of narration distinguished into ‘sanad’ and ‘matn’, even though we all believe the Islamic-Arabic culture to be a civilization of narration. Should the obstacles to a systematic, rational analysis of the topic of law result from the logic of narration, then the question becomes one on the limitations or idiosyncrasies of legal rationalism in legal orders that maintain narrative moments in their legal rhetoric and dogmatics. This question should be approached comparatively. How, then, is it that the relationship of ‘law and literature’ receives so much attention in the Anglo-Saxon area, where it has, in fact, brought forth an entire interdisciplinary discipline, with its own chairs, journals, etc., while no comparable movement has emerged in German-language legal research? Might the reason be found in the idiosyncrasies of the respective legal systems, where, for instance, the Anglo-Saxon tradition of linking the facts of cases not only requires the use of fiction, but also requires narration forms, which the continental – in the Weberian sense systematically rationalized – law believes to have escaped?

The comparative, innovative approach, which, in our view, goes beyond the ‘law and literature’ research, would be two-fold: Contrasting legal cultures on the one hand, while on the other hand isolating means of narration within literary communication, which do not differ by mere chance, but rather correspond to different narration cultures in law and literature. Therefore, the ‘translation’ necessary for the reconciliation of conflicting normative orders of legal cultures needs to take account of the respective narrative traditions. If William Hazlitt’s quip “poetry like law, is a fiction; only a more agreeable one” is accurate, then one should harness the expertise in narrative poetology amassed at the Institute for Asian and Oriental Studies (Institut für Asien- und Orientwissenschaften) at the University of Bonn in order to do the double perspective of narrated life in law and literature justice. What are the consequences of the ‘logique du récit’ for the legal cultures in China, India, and the Islamic world? A comparative approach would go beyond the mere demonstrative intent of showing law to be an object of literature, of revealing that literature can be used as a historical source of law, or of demonstrating the reverse, that law can avail itself of literary-rhetorical forms. Rather, this approach would pursue the hypothesis that the idiosyncrasies of legal cultures are manifested in the form of narration of its (case) facts, as well as the condensation to narrative nodes. Further, it would investigate the claim that narration chains are created by reference to acts of speaking or writing (“it is written”, “the prophet said, and X said that the prophet said”, or: “Y said, that X had said, that the prophet had said”), which attain their own normativity by becoming ‘settled law’.

Here, the discipline of German language and literature studies would also have something to say. For instance, Eva Geulen’s research on Agamben’s work already contributes to a strong reference to law in German language and literature studies as well as Romance studies. Finally, the use of the methods of discourse analysis promises to be a useful tool. With these aids, it becomes possible to reveal and decipher legal-literary communication, convoluted discourses, and discursive knots. Hereby, it is possible to not only gain new insights into the different cultures of discourse, which lead to normative orders, but also to put the theories and methods of discourse analysis to work on a new area of application, which was heretofore grossly underresearched. Moreover, in (and through) the medium of film collective representations of law are crystallized and constituted, which appear particularly suited to dramatic effects, depending on its legal cultural ‘setting’. The court room drama represents a film genre of its own, in which not only the effects of ‘last minute witnesses’ can be studied. That legal-cultural idiosyncrasies can be found in the ‘wrong place’ in the course of globalization of the media can be seen in court TV shows, which transplant the form of American court proceedings into foreign legal cultures. To the extent that legal systems grant movie and TV crews access to the court room, dedicated ‘court channels’ sometimes emerge (four in Brazil alone), who concern themselves, inter alia, with the reappraisal of injustice done by the state in its search for historical ‘justice’. To this extent, ‘simulacra of justice’ (Baudrillard) would lend themselves to strategies of comparative analysis.

The ‘ceremonial form’ of law is already connected to its efficiency in Grimm, by claiming that it encourages a general faith in the law (cf. supra). As a reminder: symbols and rituals take their place next to the forcibly maintained, imperative duty to abide by the law in creating the ‘force du droit’, which needs to be gathered at a determinable place: in the village square or in the court room of modern law. This both oft-forgotten and oft-abused or perverted role of symbols and rituals of law needs to be recaptured in order to gain an understanding of the law. Particularly where the sanction mechanisms fail, the belief in the law is affected, and recourse to extra-judicial means of conflict resolution is taken. According to the underlying concept of legal culture, it is thus important to grasp the symbolic, ritualistic and organization cultural dimension of law, so as to gain a better understanding of the differences, commonalities, and dissonances of the various legal cultures. Here, the sub-disciplines of legal symbolism studies, legal ritualistic dynamics, and the search of places of justice do not need to be reinvented. The innovative approach would rather be found in the combined use of the existing research expertise at the University of Bonn, in order to implement these cultural dimensions of law – that are tied in with the function of law as a guarantor of validity – in comparativeresearch.

For example, the legal cultures of Islam, China and India not only differ with regard to the normative contents of their provisions and the sense of validity found in their (legal) order, but also with regard to their respective symbolic culture, ritualistic dynamics, and the organizational cultures of legal proceedings. Whereas the material on court buildings in Europe appears accessible, and, for instance, the architecture of courts is already often regarded as legal culture set in stone and thus as symbolically charged, our knowledge on the relationship between legal symbolism, ritualism and spatialization of law in places of justice outside the occident is completely inadequate. Whoever concerns himself with the history of architecture of justice will have encountered the buildings by Le Corbusier in Chandigarh, or the superior court of justice by Ungers in Berlin – but systematic observations within the legal culture of Islam are basically non-existent, even if we can read about the spatial organization of Islamic proceedings in Mawerdi. How does the plurality of conflicting, overlapping and segregated normative orders manifest itself in India? What story of symbolic-ritualistic tribunalization does China have to tell?

The point of this research segment at the Center for Advanced Study is thus to reveal the differences between legal cultures in the Islamic-Arabic and Asian area at the meeting-point of symbolism studies, history of architecture and legal research from a cultural studies perspective. The goal is, further, to examine the inherent conflict potential and illuminate such integrative places of legal cultures.