On Literature as Legal Authority

Abstract

This Note surveys the courts' use of poetry, fiction, and drama to develop substantive law. Combining premises of legal realism and literary criticism, the Note rejects the position held by Judge Posner and other critics that literature is too subjective to offer the law legitimate substantive guidance. As caselaw examples demonstrate, the subjectivity of great writing can provide judicial opinions with a unique view to the complexity of life.

Keywords: Law, Literature, Classics, Literary Authority, Poetry, Fiction, Drama, Aristotle, Lon Fuller, Dickens, Shakespeare, Rhetoric, Logos, Pathos, Ethos, Narrative, Legal fiction, Maxim, Literary criticism, Jurisprudence, Posner