New challenge on “Law and Literature”!

Dear students,

our last guest speaker, Dr. Alessio Baldini, has prepared for you a very interesting exercise! Add your comments below as usual.

“Read the following article written by the acclaimed contemporary English novelist Ian MacEwan. Here, MacEwan talks about his conception of the relationship between literature, morality, and the law.

Try to answer one of the following questions:

  1. How would you characterize MacEwan’s conception of the relationship between literature, morality, and the law?
  1. Which arguments and examples do you find convincing? And which do you find unconvincing?
  1. Would you subscribe to or reject MacEwan’s conception? Give some reasons for subscribing or rejecting it.

I am looking forward to reading your comments!”


15 thoughts on “New challenge on “Law and Literature”!

  1. Cedric Conboy says:

    1. How would you characterize MacEwan’s conception of the relationship between literature, morality, and the law?

    I believe he sees law and morality, like I do, as inextricably linked. One cannot go without the other because of the human condition. He mentions explicitly that judges are humans too therefore there is an inevitable difference in the application of values. This is at the very centre of law. MacEwan sees judges as people, perhaps as a result of his elevated status as novelist, who has been lucky enough to dine with them. People have morals. People who apply the law in the Supreme court must therefore apply their morals when making difficult decisions. I would characterize his relationship as entirely normal.
    Anyone is the position of a judge should channel values into their judgments.
    As for literature, I do think he romanticises literature in the law. Making judgments out to be award winning prose when in fact they are very dull. This is precisely why they are “only read by law students and fellow judges.”

    2. Which arguments and examples do you find convincing? And which do you find unconvincing?

    There aren’t so many arguments as anecdotes. I found the one about the women wrongfully accused of murdering her two children when they had an infection, very moving. It is true that some people unfortunately fall victim to the law. The problem, also one of the highly beneficial points of the courts, is that they do not apply morals, they apply the law. Although Mac Ewan speaks largely of family courts, the point above still stands. It is a shame that parents can be so quarrelsome that the courts must become involved in cases to decide the minutiae of daily lives. “that couples in love would decide in seconds”. But that is the way it is. I find this anecdote convincing.

    I don’t find his romanticising of the written law very convincing. As I mentioned before, judgments are not meant to be personal. They are meant to be informative and readable. Although in most cases they are neither. In English law one is compelled to find the Ratio and the Obiter in cases. These are not obvious to anyone. They are complex and hidden. So the law is not a novel. Case law judgments are long, dull and extremely complex.

    3. Would you subscribe to or reject MacEwan’s conception? Give some reasons for subscribing or rejecting it.

    I would subscribe to his conception as much as the law is how he sees it. Cases are meant to contain judgments which are to the point and comprehensible but inevitably judges put their own personality wit and humour into the judgments. Otherwise they wouldn’t be at all readable. The law is as he describes but I am concerned at the level of joy one senses in the article. Nobody should be able to enjoy reading judgments. Unless they are by Lord Denning who writes wonderfully funny and compelling judgments. Shocking judgments which shook the established way one is used to reading law. Otherwise one would have to be a novelist to see the feelings of the judges reflected in the judgments. Because usually they are read rather reluctantly.


  2. Valentina Ertola says:

    How would you characterize MacEwan’s conception of the relationship between literature, morality, and the law?
    I think that MacEwan’s article has been structured from two points of view, from an objective one and an abstract one. I have the idea that he gives us a good example of how a thing that is real can be considered by a practical way and, at the same time, by an ideological one. It is clear that he agrees with the fact that, on the practise and in the real, a judge, a lawyer, has the duty to literally apply law, without feelings’s interference,but at the end he also reflects about how it could be beautiful if a man of law could do the legal thing taking the rightdecision, right as common moral understand it. He has written “The character of the judge, who was so compassionately and rationally intent on a good outcome, seemed inseparable from the story”.
    With the expression “intent on a good outcome” I think that he means that the judge only wants to do his job, correctly applying law, but even if he does it, he is still human, and his feelings are still there. “Seemed inseparable from the story” is, in my opinion, one of the most romantic definitions to describe a legal proceeding that I have ever heard. Literature can’t influence law, but it should influence men. Someone could reply that law is made by men and so MacEwan wants to say that literature influences law, but this is not true. MacEwan says that “It follows that the judge and his or her character, moral sense, background, mood swings and attention span have great consequence for the destinies of those who come before them.” and this is true, but this doesn’t mean that we will have two different judgements n the same case by two different judges only because one of them read Kafka and the other read Robinson Crusoe.


  3. Christian Gatto says:

    Which arguments and examples do you find convincing? And which do you find unconvincing?

    Two cases in particular mentioned in the article striked me and let me reflect about relationship between moral and law, because they have the same content, but I draw different and opposite solutions, and I can’t explain myself why.
    The case of the conjoined twins have to be treated with tact. I think that for a judge could be easy to apply the “moral premise: one rescued and flourishing child is better than two dead”, but this is not easy for a father and a mother.
    Parents believe that “God gave life; only God could take it away” and they don’t have to be forced to choice a strong son instead of the weak one. I think that they loved their sons in the same way, and I think that a decision like this is understandable (and maybe for sure not acceptable).
    But if in this case I arrive to this conclusion, in the case of the young Jehovah’s Witness I think very different.
    Although in this case too the life of a young person is fighting against death, in my opinion judges made the right decision forcing boy’s parents to accept blood transfusion.
    Maybe because, as a blood donor, I think that Jehovah’s Witnesses believe about blood transfusion doesn’t deserve consideration by the law, and I can accept a decision like the one taken by the first couple of parents.
    But, as I said, I can’t explain why I think like this.


  4. Anael Souffir says:

    How would you characterize MacEwan’s conception of the relationship between literature, morality, and the law?
    According to what I read in his article, I think his perception of the relationship between these three notions is mitigated. Indeed, in his first sentences I would have said he was merely depicting the status of the law in an optimistic fashion comparing it to the novels on several points but then when he comes to join the morality to his words it appears to me that it was a fairer way to describe the relationship between these notions because he started to bring nuances which brought a hint of pessimism but was way more realistic and in accordance with our current society.
    In fact, Ian McEwan used the comparison he made between the law and literature to demonstrate how both were intrinsically bounded with morality and so by bringing several examples of cases where we could spot the existence of morality in the application of the law but also by emphasizing the disparities between these two.
    Actually, it is quite obvious that the law is made of morality and is a kind of literature and inversely and the author attempted to illustrate how these three kind of coexist in the law field and how they also can be in conflict.
    That’s the reason why I would say that McEwan’s conception is mitigated but fair at the end because he was clear about the fact he thinks these are linked in multiples ways even if sometimes we can not notice it but the way he refers to others judges thoughts describing the straight distinction between the law and morality for example lead me to believe that this relationship can be contentious and needs boundaries more than connections.

    Which arguments and examples do you find convincing? And which do you find unconvincing? Would you subscribe to or reject MacEwan’s conception? Give some reasons for subscribing or rejecting it.
    I think it is smarter to answer these two questions together in order to explain you why I would subscribe to McEwan’s conception by bringing you the arguments and the reasons which convinced me.
    On one hand, I admit that the very first argument which convinced me regarding the link between law and literature is his comparison between the bench of judges to a group of novelist. Actually, I found that this comparison was just the perfect mean to start to depict how law and literature were bounded notions.
    Further down in his comments, he started to integrate some cases as examples in the aim of showing the implication of morality in the law and how we could establish a parallel between the cases and the novels. Then, he used a very appropriate expression to qualify the judge in the cases in the family division : “the judicial reasonable parent”.
    Indeed, it’s for me the more adapted definition for the judge in these situation, because the law takes over our personal issues when we feel we’re not able to handle those anymore and this is the moment where we decide to refer to the court and let the judge decide for us, hence this designation.
    I would also subscribe to his perception because he did not just described the law as the “magic” tool we use to fix the conflict we encounter but he also portrayed it pointing out the flaws which often led to disasters..
    Moreover, I would subscribe to his perception because he referred many times to Ward’s opinion which I completely agree with.
    I totally upheld and agree with Ward’s opinion about the role of the court of law which is not a court of moral even though the law has been built on moral principles and is also subjective on its very application because each case has its particularities.
    And it is a well know certainty that the law is not always what seems right for the general public which is the very paradoxe of the law : what’s the aim of the law if it’s not right ?
    Several answers could be given because it depends on the perception of the law each person has.
    Here is thus an argument which accentuates the existing holes between the law and morality and which also convinced me. Lines after lines he continues to use several similar examples of cases in the family division to show how the law gets into our deepest personal matters and tries to find arrangements and how it could sometimes displease the general public.
    But here again when he refers to Lord Hoffman to support his words I agree because even though the law could be too harsh or too lenient, its application relies on the judge who’s also a reasonable person so it seems pretty normal that other people can disagree with it.

    However, I would remain sceptical regarding his words about the Jehova cases. We have the impression he feels tormented and marked or even on edge about these tragic stories but still balances its opinion with the fact we could admire those people as we admire those who sacrificed themselves during the WW2 to save the victims.. It was unclear to me, his opinion wasn’t straight on this point.
    Otherwise, I think I have many similarities with his reflexion about the perception of the relationship between literature, morality and the law.


  5. annearoma says:

    Anne van Pagée:

    2) In my opinion, Ian MacEwan talks about a very interesting issue: should law pay attention to morals or not. MacEwan makes a lot of convincing statements in this article,

    I think law should have morals because judges have feelings, beliefs and ideas of their own. And that is why judges judge according to their own standards; every judge sees judges a case differently. And that is completely normal because we can not expect from a judge or lawyer to leave their feelings behind when they work on a case, it is human to have an opinion or judge according to your background or the way you were raised. So I think law should have morals. If not, a lot of people would be locked up (in prison) for no reason – like in the case of Sally Clark in this article. A judge must not judge on the facts only, it also has to deal with the moral component to try to find out if there is more behind the story. The way I see it even a little difference in the background or gender of the judge can change the whole outcome of a case. I don’t know if the judge in Sally Clark’s case was a woman and a mother herself, but if she had been it could have changed the outcome.. she could have sympathized with her (even though I know legally she is not allowed to do so) in a way a man could not. So I find MacEwan very convincing when he states that the judge has great consequences for the destinies of those who come before them.

    I do not understand that all the people MacEwan mentions in this article are send to prison while they turn out to be innocent. How is this possible? This means that there is something lacking in the judicial system. And as MacEwan states, this might be the lacking of morality, but it might be something more. I think the fault might be the fact that we expect from a judge to make decisions on matters which are impossible to judge about: family matters and religion. Since everyone has a different family and a different religions are accepted, a judge simply can not make decisons on such private matters. The family itself should come to a decision since it’s their family and their issues and a judge can not fully know what is going on until he is part of the family himself. And since freedom of religion exists it is impossible for for example a catholic judge to judge and islam family since he does not fully know what islam is. We expect the impossible from judges.
    I agree with MacEwan when he says we have to see the law as a tool to get to know the ‘truth’, but we can not see law as the solution.


  6. Eugenio Carucci says:

    3) Would you subscribe to or reject MacEwan’s conception? Give some reasons for subscribing or rejecting it.

    I think that MacEwan’s perfectly caught the dramas of family law cases and he has opportunely stressed the fiction that it’s possible to find behind them. He says that “if these judgments had been fiction, they would have belonged in the tradition of moral exploration that includes Jane Austen, Leo Tolstoy, George Eliot, Henry James, Joseph Conrad” and it’s true because if we have a look at a judgment we can read behind the written words the difficulties of everyday people’s life, plots of individuals suffering their own experiences. In fact it can be a real source for a novelist because every case is a story of life, sufferance, family’s relationships and struggle. Many times we are fascinated by crime’s stories but more often we get intrigued by family scandals or other people private life gossip. So I agree with MacEwan’s conception about the attractive force of judicial case for a novel. I personally found family law one of the most interesting branch of law because it’s easy to achieve the emotions of people. Law gives a juridical form to the the most relevant steps of the human life as the wedding, the birth of children, the difficult task of growing and giving an education to them. Everything gets more complicated but at the same time more compelling when in these aspects of life we find moral and religious issues. So everybody become part of stories like the ones wrote in the MacEwan’s article and try to take a position, trying to get in the shoes of those people. We suffer for them or we get hungry if this stories had a tragic end like in the combined twins’ story on the contrary we enjoy if they end well. Sometimes it’s difficult to explain the relation between the moral and the law, they have to be separated in a secular state but often in the courts we can find cases involving religious beliefs. People are moved by values and the religious ones are sometimes the strongest ones, but judges have to apply the law and don’t have to be influenced by the belief of men. Law aspires to be fair and right but sometimes it speaks a language that doesn’t include feelings and emotions of people. This is the powerful strength of the private life of people that we can find in a family division and that can be a real plot for an attractive novel.


  7. Riccardo Ciarlone says:

    I agree with Ian McEwan, because I believe that every area has limits that if they were exceeded, would lead to unreasonable choices. Everyone has the right to believe and profess any religion but, in my opinion, it shouldn’t exceed certain limits, otherwise the irrationality would take over. An example of recent years is Islamic terrorism: men and women destroy our daily lives, for religious faith.
    Instead there are many examples narrated by McEwan, concerning the relationship between science, religion and law.
    Among them, the source of inspiration of his novel is just one of the “judicial” episodes, told him the magistrate Alan Ward: he tackled a case where a pair of parents, because of strong religious belief, refused treatment and blood transfusion to sick child. Thanks to direct intervention of magistrate, that child began blood transfusions, against the advice of parents. That child began to live a life worth living. However the boy when he was 18 years old, was mature enough to take an independent decision but he refused to continue medical treatment and died for his religious beliefs, supplied by his parents.
    I think that these episodes establish the defeat of Medicine and Law. I don’t think this is possible! In these conflicts, I believe that Law exists to establish limits and to make rational and reasonable choices. Yet we know that the law, personified by the judges, is not perfect! The same judges, human beings, often fall into error and the “case Clark” is a symbolic example! However, Law, in such cases, has an obligation to condemn the inhuman decisions of parents that in the name of religion, badly indoctrinate their children and leave them to die, because of a “biblical order”.
    For example, the choice of Jehovah’s Witnesses to refuse blood transfusions is a risky attitude, not only for couples but also for their children. In fact, parents risk to influence, in path of growth, the children’s ideals but especially they risk to compromise the children’s lives, despite laws look for stopping, in every way, these tragic events and the “Children Act” is an emblematic example.
    In 1588 Albercio Gentili said “silete theologi in munere alieno”, in other words, he advised to theologians to be silent in areas that don’t concern them. If we had applied this principle completely, how many innocent victims would have saved because of religious extremisms?


  8. Margot Laurent says:

    1) How would you characterize MacEwan’s conception of the relationship between literature, morality, and the law?
    It is obvious that the writer thinks that there is a strong connection between law and morality; one doesn’t go without the other. In this text, the writer explains that judges, as we know, are not robots: they’re humans, with feelings. Consequently, their decisions are not 100% objective. But is one above the other? When there is a conflict between law and morality, which one should the judge prefer? The author exposes several difficult cases, and two of them show a very strong battle, in the judge’s mind and in the public opinion, between law and morality: the one with the conjoined twins, and the one with the JW parents. In both cases, the judge can’t apply the law in a “mathematical way”; he has to make the balance between everyone’s interests, morality and the law, exactly like the image we have of Lady Justice.
    It is still very important to point out that the State’s justice system is the system of the law, not the morality. Sir Alan Ward said it, in a very clever way, in the twin babies’ case: “This court is a court of law, not of morals, and our task has been to find, and our duty is then to apply, the relevant principles of law to the situation before us (…)”.

    About the relationship between law and literature, the author says that those two fields have a lot in common: strong characters, different points of view, sympathy towards some characters, etc. I really love the link he makes between those two worlds, especially because I had never thought that those fields could be so related.
    However, not all judgements are so well written.

    2) Which arguments and examples do you find convincing? And which do you find unconvincing?
    The author, to make his point, uses different anecdotes and stories. I think it is a very good way to make the law field accessible to the public.

    I must say that I find this text, as a whole, very convincing; I think it is well written, well balanced between real anecdotes and the author’s opinion.
    The only little story that I don’t find very convincing is the one about the man, sent to jail for two and a half years, that MacEwan knows very well. Maybe the decision of the judge was to harsh, or maybe not; but the fact that the author is a close friend to the 23-year-old man makes it too subjective.

    3) Would you subscribe to or reject MacEwan’s conception? Give some reasons for subscribing or rejecting it.
    Again, I must say that I find this text very convincing, and that I subscribe to MacEwan’s conception.
    However, I’d like to point out that he had the great luck to meet incredible judges, with a lot of experience and a lot of good sense, that would make very good decisions. Maybe not all judges are that good. Don’t get me wrong, I strongly believe in the judicial system, but that’s not a reason to idealize it; yet, in some parts of the text, the author might.


  9. Federico Baffa says:

    I think that the link between law and literature is clear and well motivated: MacEwan talks about the language used in judgments saying it’s very similar to the language used in novels and stories. At the same time he says that the judgments talk about stories and issues of everyday life: behind a judgment there are always events, circumstances, emotions which primarily interest the novelist. The struggle between different points of view, different cultures, different positions always leads to a battle of words, which is the a battle field shared by both judges and novelists.

    However I miss MacEwan’s point about criticizing the administration of the law. He criticizes how law is applied, talking about people who were condemned for crimes they never committed: at the same time he’s the first to admit that the administration of the law, as any human thing, can’t be perfect. Than he criticizes how sometimes judges inflict too severe punishments, as in the case of his friend who was punished for partecipating in a pub brawl which endend in a split lip: but he also agrees with Sir Alan Ward, who affirms that judges don’t have to decide what is moral in a case, but what represents the best application of the law. MacEwan seems surprised when he asserts that the decision of the trial often depends on the judge’s background and way of thinking; but this problem cannot be solved unless you imagine the justice as a pure mechanism and the judge as a machine, and we have said a lot of times that this is very dangerous. As long as law is language, it needs to be interpreted and the interpretation is always made by a person and can lead to different meanings depending on how well the law is written and on the judge’s background. Obviously this is more difficult to happen in civil law systems, but it still happens. Maybe this is why I’m too severe with Ewan MacEwan’s arguments: it’s just because I read his article from the perspective of a civil law student.

    Also I partially agree with MacEwan when he speaks about the link between religion and law. There is a ground where religious and personal beliefs meet the system of values that found our system of laws, as the most shared in a certain period of time by a certain community. The examples of the blood transfusion for Jehova’s Witness and also the separation of cojoined twins are great examples in order to understand the ethical issues that are involved in such cases. However I think he doesn’t explain well what is the real issue: the incompatibility between law and morality is due to the fact that a system of law is based on a system of values which sometimes is incompatible with the personal beliefs of some of the people who live in the same country. When a different system of values collides with the law system, there are only two possible answers.
    The first one is to say that the judge must not take into account different cultures: the danger here is it will lead to punish as crimes behaviours that are not considered as crimes by the person who is punished, leading to a purely objective notion of a crime; this also can be an ostacle to the integration of different cultures.
    The second one is to say that different cultures and values have to be respected: so if an African family living in Italy practice infibulation on her young daughter, that crime cannot
    be punished bucause “there is no offence”. This second answer is also dangerous, according to me it’s even more dangerous than the first because it causes that a law will be applied or not depending on the culture and personal beliefs of the person who committed the crime, which leads to legal uncertainty. Also it’s dangerous because it prevents a real integration between different cultures: in fact the result is an African child will have “less rights” than an Italian child.
    Obviously there right solution is neither of the true and lies in the middle, taking into account the particularity of the single cases. However I personally think that a judge can never put his background before the law that he has to apply in the single case: beyond that there is
    no law and no justice.


  10. Sophie Schaaps says:

    3. Would you subscribe to or reject MacEwan’s conception? Give some reasons for subscribing or rejecting it.

    MacEwan sees similarity between literature (short stories) and law, particularly when it is not possible to make a clear difference between good and bad (criminal court) – which is often the case. Especially concerning family law, he makes a parallel with law.
    He sees a parallel in the narrative composition and certain characteristics of a novella.
    I think we cannot generalize his point of view, because he only read the judgments, incidentally written in prose, of one single judge. But it may be true when we are considering some of the characteristics of a novella: the novelist’s omniscience, coincidences or conflicts between chaos and order.
    In the same way, in a novella there is often a leitmotif and certain symbols inserted by the author and which are not findable in court cases. Additionally, novellas are clearly structured and this is not always the case for court cases, which can be sometimes hard to solve.
    Furthermore the author makes understandable that in both domains the morality is an inwardly preoccupation. He explains these “non black and white” cases in a very interesting and narrative way, so that you can comprehend the inner struggle of a judge between morality and the right judgment. This struggle and a certain area of conflicts are possible to regain in short stories and are even, for giving an example, a central subject in the Heinrich von Kleist’s novella “Michael Kohlhaas”: moral against inglorious behavior, self justice against crime, freedom against suppression. When you read this novella, you start to struggle with your morality and own definition of being right or wrong.
    I would not limit this parallel between law and short stories. When the judge condemns a convict, so then the author can figure as a judge for his own created characters, independent of the literary type. An example could be Goethe’s tragedy Faust. The main female character Gretchen kills her child. And Goethe decides to let her die. The decision is connected to his carrier, his experiences as an advocate and his own ideal of right and wrong.
    Finally, I think that the effect of a juridical case and a novella is different: the one is a fictional story (even if it can be based on a true story) and the other one is the reality. Therefore a juridical case feels closer because something really happened.


  11. Luigi Rocca says:

    I think I’ve answered both the first and the last question, since I tought they had to be treated together.

    It’s obvious that there is a deep connection between law and morality, both from an historical perspective and from a judicial one.

    Law has always been about crystallising a given code of ethics and morality in a given time.
    It is really nothing more than a set of commonly accepted moral principles: pacta sunt servanda, neminem leadere, unicuisque suum, and so on.
    Even the foundation myths of most societies are a complex union of law and morality: from the Ten Commandments (both prescriptions about law and morality), to the murder of Remus (which shows us how violating limits given by society is an act so reprehensible that it must be punished with murder to restore both social order and moral order).
    To establish what it’s permitted and what it’s banned means also to establish the degree of social acceptability of a given action.
    Even when we are are demarking the single penalties, we are defining a moral pyramid.

    When we say that a thief doesn’t deserve the same penalty of a murderer, we’re giving a strong moral description of our common values and moral guidelines.

    Thus, we must face a simple truth: the Elinghtment lawmakers’ idea of the judge as an automa who just syllogistically applies the law is a wishful thinking at best.

    The judge is a man, with his own beliefs.
    You can’t wipe clean years of personal history, family education and inputs given by the social background.
    We will always bring our personal biases with us. The worst thing is that often we will not even be aware of them – such is deep the rooting that cognitive biases take.

    The common novella is that a good judge is impartial, which is somewhat true from a judicial perspective.
    Nevertheless, no one is truly impartial, or at least not in a complete and impersonal way.
    I argue that there is no thing as an “impersonal judgment”, since each given judgment is the direct (and more often indirect) result of a series of stratified biases.
    No matter how much you strive: deep down your lizard brain there’re multiple stratifications of knowledge, stereotypes and biased opinions, that will affect each and every judgment of yours.
    The most incredible thing is the one I mentioned before: we are not even aware of most of our biases; they are just there, too entrenched to be spotted by our rational ego.
    Even the author of the article has a bias, which is very clear while you read him: he finds absurd some moral choices made by religious people and he think that the judge did the right thing in ruling in favor of the hospital.

    This is not a “neutral” judgement since Ian McEwan is an atheist. I’d like to highlight this: not an agnostic, an atheist.
    He publicly said that he finds that Islam and some streams of Christianity are “absurd”, so his position in the article is not a neutral one. It’s a position influenced by years of biases and personal studies and ideas.
    That said, I don’t think something like “a neutral position” has ever existed.
    Even the reviews of his book, the Children Act, have been influenced by bias: leftist newspapers, such as the Guardian, praised it, while conservative ones, such as the Spectator or the Telegraph, did not.

    By the way I totally agree with him, since I’m an atheist too.

    And here we come to the main problem: the article is not just about the relationship between morality and law; but between religious morality and law.

    I argue that modern law is a product of morality, not a religious, but a secular one.
    Since the Enlightment (and in some degree even before that, if we think of the Peace of Westfalia), there was a strong battle between religious and secular law.
    In time, laic morality has won the cultural battle against religious morality.
    There have been many stages and many battlefields: the French revolution and the Jacobin government; the secularization of the modern State in the XIX century; the cultural battle of Feuerbach, Marx and Freud; the evolutionism; the Bolshevik revolution; the students protests in the ’68; and more in general the cultural predominance of the left in the last century.
    All these things replaced a religious morality with a laic one.
    In United States, before the Roe vs Wade case, abortion was illegal and it was so because the abortion law was inspired by religious principles.
    With the withdraw of religious morality, law had to adapt to the new laic paradigm.

    Until 2003, in United States many States still enforced sodomy laws, which forbade sexual approaches which were not considered legit in the Bible.
    Today, such a law would be seen as an absurd legacy of a forgotten world, lost in history, because moral changed.

    This is why I’m quite sure most people would agree with the judge of McEwan’s article: the judge applied the law according to the modern moral, and this is why I, just as McEwan, find absurd the whole leukemia case.
    Refusing life-saving treatments is beyond any my reasonable grasp.

    Regarding the relationship with literature, it’s interesting that even that has changed in time.
    In the past literature, the strife between religious ethics and laws where resolved in favour of religious moral.
    Let’s just think about “Antigone”: Creonte, king of Thebes, has banned Antigone to perform the death rite in honour of his dead brother, Polinice, since Polinice has fought against the law of the city, declaring war to his brother Etoecle.
    Creonte does not hold the law of the gods in the same regards of the law of the city. For that, he is condemned to a tragic destiny, since in ancient times the religious moral was on a higher position than the law of city.
    Another example.
    Cicero said about the eternal law (which is a moral law) that “Huic legi nec obrogari fas est neque derogari ex hac aliquid licet neque tota abrogari potest”.
    Moral law cannot be derogated, or replaced with any other law.

    Today is different. The Children Act is clearly on the other side of the barricade.
    As he says in the article

    “To embrace death, or allow one’s child to die, for a questionable reading of certain biblical dietary restrictions will seem to most a pointless pursuit of grief. To die for one’s beliefs is not always noble, and sincerity is not necessarily a virtue.”

    In conclusion, I completely embrace McEwan’s stance on the relationship between law and religious beliefs.
    Truthfully, I can’t even imagine a different stance.


  12. Alessio Baldini says:

    I would like to thank you for writing such thoughtful and interesting comments. Unfortunately, I will not be able to reply individually to all of you, as I would like to do.

    Let me however write some reflections starting from your comments. Most of you see the relationship between law, literature and morality as fraught with danger, and yet unavoidable, at least, at some level.

    I think that this is the appropriate attitude. For better or for worse, the law cannot be made immune from moral controversies and the vagaries of cultural change. But this exposure of the law to morality and culture should not be a licence to moral self-indulgence or to aestheticize the law. In my view, it is quite the opposite. Reading and reflecting on literature is one way of exercising one’s own imagination, detaching oneself from one’s own moral horizon, venturing into unfamiliar moral territories, and exploring some crevasses in and sources of morality without being in real danger. And this might help us recognize a plurality of moral landscapes, including one’s own, and better define their boundaries.


  13. martinabernardini says:

    1. How would you characterize MacEvan’s conception of the relationship between literature, morality and the law?
    “If these judgements had been fiction, they would have belonged in the tradition of moral exploration that includes Jane Austen, Leo Tolstoy, George Eliot, Henry James, Joseph Conrad”. I guess this quote is the crucial sentence to understand the conception of MacEvan. He found that literature and law judgements speak the same language: a clean, serious, precise prose, because they feed themselves with the same human emotions, feeling, but also moral conflicts. Law and literature act at the same terrain made by familiar quarrels, personal drama, and human issues, but the novelist has a great advantage: he is not required to come to a verdict; judge he have to. Paramount purpose of the judge should be to apply the principles of law without any influence of personal believes or feelings, but the “law is human” and as every human it cannot act without making mistake and cannot act without influence of own character, moral attitude, background or mood. Thus each verdict are tremendously difficult. It is a struggle between principles of law and human nature. Between what is lawful and what is right. Unfortunately several time these two has not aligned. MacEvan, we do not forget, is a novelist, and as all novelists are attracted by every human struggle. Thus by exploring the law he starts digging in the human nature. Law judgments born in a courtroom but they grow-up as literature in the real world.

    2. Which argument and examples do you find convincing? And which do you find unconvincing?
    A large number of examples has been provided by MacEvan in its essay. Its purpose was to demonstrate that the application of the law may be difficult because of the “humanity” of the judge. Judge cannot avoid completely its own character, moral attitude or social background, thus the application of the law may be difficult and sometime flawed. Most of the examples reported, aim to demonstrate that judges make mistake (case of Sally Clark, the cyclist, the pub crawl). Even they are right to the purpose I guess is a limited overview of the judgment process that give a quite distorted scenario of the problem. Error happens but readers has not been provided by complete details of each cases making difficult to understand what was the real origin of the judgment flaw. Conversely the case of the young Jehovah’s Witness is more convincing. It perfectly explain the struggle suffering by the judge facing off a so complex situation. To get a verdict, the Judge meet the young boy at the hospital, thus using all its own ethical, moral and cultural background to take the decision. Morality and law can not easily separate.

    3. Would you subscribe to or reject MacEvan’s conception? Give some reasons for subscribing or rejecting it.
    I cannot subscribe or reject at all the MacEvan’s conception. I guess that authors is not trying to get a conclusive point but he is trying to explain how several cases taken from courthouse work can be an inspiration to generate literature. Judge face of with critical situation that cannot avoid moral or ethical concerns, leading in some cases to flaws or inappropriate decision. I believe that MacEvan perfectly achieve this target giving us a clear and complete overview about how judgment process may inspire novelist because law deals with all human feeling or emotions


  14. Corinna Canale says:

    3. Would you subscribe to or reject MacEwan’s conception? Give some reasons for subscribing or rejecting it.

    MacEwan’s conception considers the fact that literature, moral and law are linked altogether. Indeed, he defines the judges’ sentences as works of literature, even if the ones who are most interested in it are for sure law students or anyway jurists. We saw in some classes this semester that different authors (also jurists themselves) think the same about this “thorny” topic: every judge, especially in the USA culture (or at least in common law countries), uses to write his own sentence putting a little bit of him in that, because he’s a human beings well, and it’s impossible to think that his experiences and his lives wouldn’t reflect at least for a bit in his decisions (even if of course there are boundaries imposed by the law that the judge can’t overtake). This could lead to a different verdict, always respecting the law limits. So about this point I agree, law must be linked with literature, because there are different ways, styles and “strategies” to act in the law world (I’m talking also about the lawyers’ closing statements), to persuade the judge/jury on the one hand and to write an effective and precise sentence to the other.
    Moreover, as MacEwan says, an interesting link with literature and law is particularly evident in the family law topic: he affirms that “the family division is rooted in the same ground as fiction, where all of life’s vital interests lie”. I completely agree with this statement because in a family lawsuit (I have in mind the reported case of the Jehovah’s Witness) everyone acts like a novel character, representing different morals and point of view, and the whole fact must be summed up by the judge, who represents kind of the final of the book, the conclusive moral.
    Besides, I agree also with the link between moral and law. MacEwan said that the judge must decide (in the example of the couple with the conjoined twins) as a “reasonable parent”. He also added, for instance talking about the case of the Jehovah’s Witness boy, that the law must operate according to what concerns “legal facts”. Indeed, even if the verdict could be extremely harsh, because of the different reasons that necessarily cohabit in such episodes, the judge, and more generally, the jurist, must follow what’s the correct according to a law created for the wellness of the whole country. But law and moral necessarily need to cohesist. What if the
    moral of the community conflicts with the
    moral of the law, or better, with its ratio
    Again, I need to use the Jehovah’s Witness
    example, because in that case what
    happened was exactly what I mean. The
    boy wasn’t a grown-up yet, which means
    that his parents had to decide for him. He
    was suffering of leukemia and the Court
    decided for the blood transfusion (which is
    a great issue according to that religion).
    Here it was the ratio of the law that won
    against another moral, the one of that
    confession, which, for the legal order, was
    weaker and wasn’t the paramount interest
    because the child one was. Of course, if the
    boy has been a grown-up, things would
    have changed (as they actually did after he
    celebrated his 18th birthday). And that’s
    completely fair, since an adult must take
    his decision by himself and must not be
    obliged to receive medical treatments if he
    doesn’t want to.
    But it’s also true that what law says not
    necessarily coincides with what’s right. The
    law tries to pursue the “biggest wellness”
    for the whole population of a country, but
    not always succeeds in doing this and it’s
    not so remote the possibility of hurting
    one’s private moral. So, it could be really
    difficult to have a precise and stable
    opinion according to the “moral” issue,
    even if it’s not deniable that law and
    moral, in one way or another, need to
    coexist. To me, a glaring example is the
    civil union law case: here in Italy it has
    been finally approved after an unbelievable amount of years; before, law forbade same sex couples to unite in a civil union, and at least to me this is a clear example of what I’m trying to point out, because what to us is “the correct moral” (or at least for a huge part of the Italian population) wasn’t been respected by the Italian law itself since this year.


  15. Francesca Ginese says:

    How would you characterize MacEwan’s conception of the relationship between literature, morality, and the law?

    As we can read in this article full of example of law cases, MacEwan always links law to morality and to fiction. I would like to start the analysis from the volume of Sir Alan Ward’s judgments, whose “clean, precise, delicious” prose reminded macEwan of a novelist’s omniscience and whose judgments reminded him of short stories or novellas: “If these judgments had been fiction, they would have belonged in the tradition of moral exploration that includes Jane Austen, Leo Tolstoy, George Eliot, Henry James, Joseph Conrad” (macEwan).
    However, in the judgments
    The author believes that the judgements are stating more than solely deciding whether a man is a villain or the unlucky victim. He thinks that there is always something more than that for all those cases full of stories, family problems, religious disputes and so on, for which the judge would rather take the least harmful decision than the best one. As we can read in his introductory remarks, Ward had offered a reminder to the general public: “This court is a court of law, not of morals, and our task has been to find, and our duty is then to apply, the relevant principles of law to the situation before us – a situation which is unique”. Ward’s judgment is comprehended in a collection of more than 80 pages that run together. It is beautifully written, delicate and humane, philosophically astute, ethically and scholarly sensitive, with a wide range of historical and legal references. The author shows that judges have to deal with more than only what is right, and they try to find it in every subject they can. I am convinced that the judges cannot be impartial and are not just robots, they are humans and had to be more humans than the others. As we can see from the final argument, when Ward was hearing his blood transfusion case, at some point, in the process he decided to go and meet his ward in person and to talk to him. He “put aside” the desires of both the ward and his parents, who refused the blood transfusion. The child’s welfare was his paramount consideration, showing his deep humanity. Trying to do the best thing as a human being.


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