'Comparative law, literature and imagination: Transplanting law into works of fiction' by Jaakko Husa in (2021) 28(3) Maastricht Journal of European and Comparative Law 371-389 discusses
comparative law and literature as an approach to studying law culturally, addressing how the study of literature from the standpoint of comparative law identifies one way of coding legal cultural knowledge in literature. The interaction between the worlds of law and culture is addressed through imaginary legal transplants. By transplanting legal ideas from the real world to literature, authors imagine worlds as they construct legal meanings in their storytelling. Whereas a legal transplant is a notion filled with problems and paradoxes, in literature it is far less problematic. Imaginary legal transplants are different from real-world transplants because in the real world legal diffusion takes place in mutant form, transforming transplants into irritants. The legislator never controls the world completely, whereas in fictional literature the creator of a written work controls the created world. In this sense, it is argued, imaginary legal transplants are perfect transplants.
Husa argues
Comparative law demonstrates that laws, legal institutions and legal doctrines do travel regardless of obstacles erected by borders between countries, legal systems, languages and even time. Demonstrating and tracing how law travels is part of what comparative law scholarship is about. For instance, the history of Roman law teaches, if nothing else, that legal ideas travel through time and space. Importantly, the issue of transplantability of legal norms and institutions across different legal traditions is not only a thing of the past, but very much a relevant issue today as well. Along similar lines, it should not come as a surprise that laws and legal ideas travel from reality into the realm of imagination, for instance into imaginary literature, although a similar phenomenon may also happen in film or theatre. This suggests a connection between comparative law and the study of law and literature.
At first glance, the fields of comparative law and law and literature seem to have very little in common. The deceptively distant relationship appears intuitively correct on the surface because comparative law focuses on the differences and similarities between diverse legal traditions whereas law and literature examines the relationship between law and literature. However, as we know: appearances may be deceptive. Both fields entertain a cultural view towards law but they do not share the same theoretical assumptions as a nationally oriented doctrinal study of law. This paper discusses comparative law and literature as an approach to the study of law culturally, addressing how the study of literature from the standpoint of comparative law may identify one way of coding legal cultural knowledge in literature. This, in turn, tells us about law as a cultural phenomenon. The connection between comparative law and law and literature is not, however, non-existent, even though it is not well known today. Famous comparative law scholar John Henry Wigmore, who authored the massive three-volume Panorama of the World’s Legal Systems in the 1920s, sought to connect comparative law to the reading of poems and novels. Wigmore’s contribution to law and literature movement is acknowledged, yet this feature is not highlighted in comparative law circles. More recent connection between comparative law and law and literature can be found in William Ewald’s comparative jurisprudence, in which he provides insights into the use of literature for the understanding of the intellectual origins of German legal thought. Notwithstanding, law and literature normally plays at most a walk-on part in the comparative law scene. Studying law culturally opens new points of view towards basic questions about law: what is law, how does it work, how do we acquire information about it and – most importantly – how are the answers to these jurisprudential questions reflected in contemporary culture? Despite the inevitable difficulties, the very thought of cultural legal studies is rooted in the idea that the law possesses cultural power. In this sense, cultural legal studies also implies study of culture. In consequence, it is difficult to outline cultural legal studies without reflecting its relation to cultural studies in general. This brings even more difficulties because the notion of culture is notoriously challenging to define and indeed remains somewhat elusive even for those who engage in cultural studies. Moreover, legal scholarship has struggled in its attempt to define the notion of legal culture. The cultural turn in legal studies has certainly broadened the scope of research in law but it is has not provided a panacea.
By and large, cultural studies as a scholarly arena refers to an interdisciplinary field of research and teaching that delves into how culture produces and modifies the experiences of individuals in their ordinary life, social relations and society as a whole. Cultural legal studies, in turn, addresses and highlights the diverse ways in which law and culture interact and mutually enrich one another. To be sure, cultural legal studies is not a mature field and can perhaps be described as an emanation that has ‘thus far been a relatively sporadic legal movement’. More specifically, cultural studies combine many fields including communication studies, literary studies, sociology and history, to mention but a few neighbouring disciplines. Cultural legal studies seeks to amalgamate legal and cultural studies by working across the porous boundaries among these fields. Arguably, we may regard cultural studies as a field that seeks to understand certain societal phenomena – such as music, cinema, literature or photography – through which societies, communities and individuals learn to live with history, the surrounding reality and possible future events.
From the above it follows that cultural legal studies can be perceived as a rising field that seeks to understand cultural phenomena through the prism of law. This endeavour concerns an attempt to see law in culture. To simplify a great deal, cultural legal studies is essentially about studying law in cultural contexts. This means reaching outside the mainstream view of law as a normative discipline. Clearly, this kind of definition leaves a great deal open qua definition but, paradoxically, that is part of the attraction. The fact that there is something intellectually unfinished residing in the phrase ‘cultural legal studies’ makes it appealing. If cultural legal studies were a lock, stock and barrel kind of discipline, then it would arguably not be the inherently enticing unorthodoxy that it is. The endeavour to understand law culturally exceeds the limits of black letter law in a way that stirs our scholarly imagination.
This paper discusses comparative law and literature as an approach to studying law culturally. The focus is on analysing how the study of fiction in literature, from a comparative law standpoint, may identify and highlight a way of coding legal cultural knowledge in literature. The interaction between the worlds of law and culture is addressed through what might be coined as an imaginary legal transplant. However, this paper excludes the educational/pedagogical aspect of comparative law and literature even though combining these fields may contribute to the teaching of law. A further caveat is in order before proceeding, because of the fields covered. Numerous journals, handbooks, collections, encyclopaedias and Festschrifts have been penned on both comparative law and law and literature. This means that one cannot aim for exhaustiveness in this paper, but merely seek to review and advance our incipient understanding of cross-cultural legal studies in the field of literature. That is to say, this paper outlines the nascent field of comparative law and literature.
