Law in Literature

There is a real Law and Literature movement – as of this year, they’ve got a journal and everything. It is mostly composed of Real Academics, who work in universities. The movement is about the connection between law and literature (oddly enough) – although there isn’t any actual agreement regarding what the connection is, or should be.

For myself (not being a Real Academic, or even a fake academic) one of the things I love is the way law shapes society, and society shapes the law. And in books, you can see this interaction pinned out for your delectation, like a butterfly on a card in the British Museum.

Here is a list of books where a legal concept or case is part of the story, or in some cases, is the reason for the story.

Bleak House by Charles Dickens
A running theme through the book is the case of Jarndyce v Jarndyce – an inheritance case that has been going through the Courts of Chancery for generations; the case only ends when the entire estate has been eaten up by legal costs, and so neither party gets anything. The moral is obvious… get your will written by a good lawyer who will make it watertight!

The Children Act by Ian McEwan
This is the story of a high court judge called upon to decide – under the provisions of the Children Act 1989 – on whether a 17-year-old boy should be allowed to refuse blood transfusion due to his religious (Jehovah’s Witness) beliefs. The book also makes reference to several real court cases (although the author doesn’t mention it so if you don’t alread know the cases are real ones, you can’t tell). The cases are, as far as I can tell:

A Civil Campaign by Lois McMaster Bujold
This is a fantastic sci-fi romp, but if you can stop laughing long enough to pay attention, it deals with all sorts of interesting socio-cultural – and legal – issues. One minor subplot concerns a character who has used new technology to do something completely unethical yet not illegal; how can the existing law be used to penalise his conduct – or can it? Other plotlines concern competing legal precedents regarding inheritance, and how new issues – such as a person who undergoes gender reassignment – should be dealt with in law.

Clouds of Witness, by Dorothy L. Sayers
A detective story in Sayers’ Lord Peter Wimsey series. Lord Peter’s older brother, the Duke of Denver, is accused of murder and as the story is set in the 1920s, the Duke’s trial will be held in the House of Lords. The Magna Carta in 1215 gave every Englishman the right to trial by his peers. For commoners, this is is trial by jury, but until 1948 (when the privilege was revoked), peers of the realm had the right to trial by their peers – i.e., other peers of the realm – in the House of Lords. The last peer to be so tried was Lord de Clifford (for manslaughter) in 1935.

The Firm by John Grisham (film version)
The film version of the Firm is slightly different to the book version; personally, I prefer the film. The main character, Mitch McDeere, has got his first job as a lawyer with a small Memphis firm, which pays him a huge salary and gives him a car and a low interest mortgage etc… all very wonderful. Then he finds out it’s run by the Mob, and lawyers who object to working for the Mob tend to die. The film is about Mitch’s realisation of what his dream job really is, and then his plan to get out alive and still able to practise law. The solution he comes up with (eventually) is inspired. Not content with working for the Mob, the firm has also been defrauding its clients by overbilling and (as Mitch is told by a savvy client), when the bills are put in the post, this becomes ‘mail fraud’, a federal offence punishable by hefty fines or a jail term. Thus this legal wrinkle becomes the method for bringing down the firm and allowing Mitch to get out from under.

Frozen Charlotte by Priscilla Masters
A detective story in which the whole plot rests on a misconception by the author. She appears to think that surrogacy is illegal in the UK; in fact, it isn’t.

Harry Potter and the Order of the Phoenix, by J.K. Rowling
Although, as far as I am aware, J.K. Rowling did not intend to illustrate the importance of the separation of powers within the state (legislature, executive and judiciary), Harry Potter’s trial in this volume demonstrates it quite handily, as is demonstrated by Colette Spanyol here.

Holy Deadlock, by A.P. Herbert
Published in 1934, this is a satirical attack on English divorce law as it stood before the passing of the Matrimonial Causes Act 1937. At that point, a couple could not divorce amicably: if neither of them had committed adultery (or some similarly heinous crime) one of them – usually the husband – would have to fake it (thus committing perjury). However, if the other one committed (real) adultery, or the perjury was detected, between the first hearing and the decree absolute, the divorce would fail and they would be stuck with each other.

Jane Eyre, by Charlotte Bronte
Although this is, in some ways, a classic romance, the ‘difficulty’ which keeps Jane and Mr Rochester apart is the existence of Mr Rochester’s first wife. As she is still living, though mad, marrying Jane (which Rochester is fully prepared to do!) would be bigamous – bigamy being a criminal offence under the Offences Against the Person Act 1828 (now an offence under the OAPA 1861). Additionally, since the events in the book take place prior to the passing of the Matrimonial Causes Act 1857, Mr Rochester would not be able to divorce his wife without a private Act of Parliament.

The Late Scholar by Jill Paton Walsh
This is a detective story featuring Lord Peter Wimsey, Dorothy L. Sayers’ character. The book also mentions the Crichel Down case, but unfortunately the mention is taken no further.

Magna Carta, by Marriott Edgar
A comic monologue which tells you all you need to know about the most famous document in English legal history. The fulltext is available here.

The Mayor of Casterbridge by Thomas Hardy
The basis of the whole story is the sale by young labourer Michael Henchard of his wife and baby daughter to a sailor (Newman). Although such sale of wives appears to have been a custom at the time, the legality of it was ambiguous, thus provoking the tragedy and confusion that follows in the book.

Pride and Prejudice by Jane Austen
A story of manners, morals, and inheritance law. The fact that Mr Bennet’s estate is entailed away from the female line, so on his death his land will go to a distant cousin rather than any of his daughters, is a major plot point.

Sebastian St Cyr books by C.S. Harris
The hero of these books is Sebastian St Cyr, son of the Earl of Hendon (fictitious). Sebastian is the third son, and during the series we find out that although he is the son of the Countess, he is not the son of the Earl. However, since he was born during the marriage (and the Earl was not unavailable at the time conception would have taken place), legally he is regarded as the Earl’s son and – as his two older (half-) brothers have died, will inherit the title. This ambiguity of relationship between Sebastian and the Earl is a running theme through the books.

Unnatural Death by Dorothy L. Sayers
This is a detective story featuring Lord Peter Wimsey, and also the Administration of Estates Act 1925 – although the Act is never named in the book.

Waxwork by Peter Lovesey
A detective story featuring Sergeant Cribb and the doctrine of Autrefois Convict. Once a person has been convicted of a crime, they cannot be re-tried for it. So if a person is convicted, then pardoned because the conviction becomes unsafe… then even if further evidence comes to light to the effect that they were guilty after all, they cannot be re-tried for the same offence. This loophole in the law has now been closed. Since 2003, the Criminal Justice Act 2003 has stated that a retrial can happen under exceptional circumstances.

Why Mermaids Sing by C.S. Harris
This is one of the Sebastian St Cyr books; men are being killed, butchered – flesh removed from parts of their bodies – and their corpses left with strange objects in their mouths. The hero (St Cyr) soon discovers that the men’s fathers are all linked to a ship that sank, the fathers being the sole survivors of the wreck. We eventually find that the circumstances of the wreck are those of the nineteenth century legal case R v Dudley and Stephens.


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