TWO CONFLICTING CAMPS OF THOUGHT

Law and literature, a recent interdisciplinary approach, while analyzing their inter-relationships brought two camps of thought. One, the ‘law in literature’ and, another ‘law as literature’; both with merits, demerits and primacy-arguments on who is correct. Former is to find ‘law in literature’ from novels, short stories, poems or religious literature. Some examples are; Shakespeare’s Quality of Mercy where ‘mercy seasons justice’ appears as an element of justice, Franz Kafga’s Trial (Der Process) where concept of legality amidst changing times is questioned, Charles Dickens’s Bleak House with a court case (Jarndyce vs. Jarndyce) where court’s approach and inheritance laws are ridiculed when legal costs of dispute outweighed actual worth of property post-judgment, or Jane Austen’s Pride and Prejudice that deals with women’s rights, marriage and social status. Sanskrit Epics Ramayana’s and Mahabharata’s war over land and sovereignty, Homer’s Iliad of warring kings, Ten Commandments and Biblical verses of religious obligations, five great epics of Tamil literature’s duties among man, woman, society and State, couplets from Tirukural’s and Kabir Doha’s reconciling values or Bhagavad Gita’s deep psychospiritual understanding of human nature, daily duties (dharma) and universal values in individual and collective life, etc. What do we (Legislative-Executive-Judiciary, lawyers and citizens) get from these literary texts? These literary texts and writers show indirectly dimensions of justice, equality, liberty and fraternity through fictional, real or ideal social situations of life.

In case of ‘law as literature’, it is all about language, its styles and intended or overstretched interpretations of legal provisions outside Objective Aims and Clauses. A single word ‘only’ changed Indian arbitration jurisprudence with popular court cases of ‘Bhatia’ and ‘BALCO’ necessitating an Arbitration Ordinance in 2015 in addition to 246th Report of Law Commission of India in 2014. Vodafone case worth billions of US Dollars in Indian Supreme Court wrangled interpretations on Section 9(1)i of the IT Act, 1961, resulting in Government to constitute a committee to address this ambiguity. International Treaty interpretations (Article 31-33, VCLT, 1969) also give interpretative methods on international laws. Numerous interpretative canons affirmed in 100’s of courts cases and legal instances explain how ‘law as literature’ comes into legal scenes. Golden, Mischief, and Literary rules, Last in Time, In Pari Materia (upon same matter), Generalia Specialibus Non Derogant (general does not detract from specific) Ejusdem Generis (of same kinds, class, or nature), Noscitur a Sociis (a word is known by company it keeps), Expressio Unius est Exclusio Alterius (express mention of one thing excludes all others), Reddendo Singula Singulis (referring each to each), Avoidance, Deference, Lenity, National- Sovereignty, Fundamental, Surplusage many other interpretative rules, etc., show how human intention and imagination expressed through a body of words and phrases act like legal vestibules of juristic ideas.