MODELS OF JUDGES IN LITERATURE

Resumo

Objective: This paper is a critical essay on the role of judges as shown in literary narratives. It is part of the Law and Literature movement. The paper includes previously-developed analyses of five literary representations of judges and their actions: (1) the character Bridoye, from the novel The Life of Gargantua and of Pantagruel, by François Rabelais; (2) the actions of Portia, from the play The Merchant of Venice, by William Shakespeare; (3) the story of Ivan Ilyich, from the novella The death of Ivan Ilyich, by Leo Tolstoy; (4) the character il piccolo giudice (the small judge), from the novella Open Doors, by Leonardo Sciascia; (5) Fiona Maye, from the novel The Children Act, by Ian McEwan. The purpose is to identify different standards of interpreting and enforcing the Law.

Methods: The analysis hereby developed is based on the theoretical and methodological assumptions of Law in Literature studies, also known as instrumental intesection, allied to the idea of “models of judges”, originally formulated by François Ost in the 1980s. This apparatus makes it possible to scrutinize the role of judges, their actions, and, their performances in justice-related institutions in general.

Results: This paper reaches the conclusion that the literary narratives from the sixteenth to the nineteenth centuries (Rabelais’, Shakespeare’s, Tolstoy’s) feature judges whose roles are driven by luck, by personal motivation, or by a supposed objectivity of the law. On the other hand, the novels from the late twentieth century (Sciascia’s) and early twenty-first century (McEwan’s) stand out for representing models of judges who had apparently assimilated all the advances of juridical hermeneutics. For them, the interpretation and the application of legal norms should preserve the autonomy of the Law.

Contributions: The argument hereby developed confirms the assumption that certain literary narratives are more important – as well as more interesting – than many traditional guidebooks, especially when it comes to generally understanding legal and social phenomena. Thus, this paper is a critical essay that accomplishes to reveal the power of literature for the discussion of the most important legal theory problems.