Fiction in the Code: Reading Legislation as Literature

• Citation: Vol. 34 No. 3
• Publication year: 2018

Fiction in the Code: Reading Legislation as Literature

Thomas J. McSweeney
William and Mary Law School, tjmcsweeney@wm.edu

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FICTION IN THE CODE: READING LEGISLATION AS LITERATURE

Thomas J. McSweeney^*

Abstract

One of the major branches of the field of law and literature is often described as "law as literature." Scholars of law as literature examine the law using the tools of literary analysis. The scholarship in this subfield is dominated by the discussion of narrative texts: confessions, victim-impact statements, and, above all, the judicial opinion. This article will argue that we can use some of the same tools to help us understand non-narrative texts, such as law codes and statutes. Genres create expectations. We do not expect a law code to be literary. Indeed, we tend to dissociate the law code from the kind of imaginative fiction we expect to find in a narrative text. This article will take a historical example, the medieval Icelandic legal manuscript known as Konungsbók, and examine it for its fictional elements. This article will examine Konungsbók for the ways in which it creates an imagined world, populated by free, equal householders, a world that was very different from the Iceland in which its creator lived. Its creator may have created it less to tell his reader anything about the law as it stood in thirteenth-century Iceland than as an elegy to a world he thought he had lost. It therefore stands as a testament to the law code's literary potential.

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Introduction

One of the major branches of the field of law and literature is often labelled "law as literature."¹ Scholars who write in this subfield use the disciplinary tools of literary analysis to help us understand the law. Some legal texts are more clearly subject to literary interpretation and analysis than others. Scholars in the field tend to apply the techniques of literary analysis to texts that are written in narrative form, texts such as confessions, victim-impact statements, and, above all, judicial opinions.² These types of texts share quite a bit in common with the narrative texts—novels and short stories, for instance—that are at the core of literary analysis. Confessions, victim-impact statements, and judicial opinions use literary devices to create legally significant narratives out of the chaotic facts of daily life.³

Genres create expectations. Narratives invite us, through their very form, to think about their fictional, or constructed, elements.⁴ We can easily see the literary moves in the narrative aspects of a judicial opinion. It is much more difficult to see the literary moves that take place in a statute. We expect statutes and codes to be the truth. They are texts that speak with authority and tell us what "The Law" is.

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Indeed, some scholars have denied that literary theory can be applied to statutes at all. Richard Posner has argued that, although literary theory might be helpful in interpreting and crafting judicial opinions, it is of little use in the interpretation of statutes.⁵

This article will make the case that we can read statutes and codes as literature. Although these texts do not share the narrative form with the judicial opinion and the novel, they do many of the same things that narrative texts do, and use similar techniques to create characters and worlds. In their own, subtle ways, they can tell stories. The title of this article intentionally evokes Natalie Zemon Davis' Fiction in the Archives, a seminal work on the relationship between law and storytelling.⁶ Davis examined remission letters—letters sent to the King of France requesting pardons—for their fictional elements.⁷ By the word "fiction," Davis does not mean to imply that these remission letters told wholly fabricated or imagined stories.⁸ Rather, Davis demonstrates that the stories the repentant killers told in the remission letters were carefully crafted versions of actual events.⁹ Davis draws upon the work of Hayden White, who noted that the world does not "present itself to perception in the form of well-made stories, with central subjects, proper beginnings, middles, and ends," but instead is filled with facts that need to be connected to each other through narrative to be given meaning.¹⁰ In this sense, any narrative is fictional. It is an attempt to put the messy facts of life into some kind of order, according to an organizing principle determined by the narrator.

Davis's texts are narrative texts. Her scheme can be applied to non-narrative texts, however. In this article I will use a historical

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example, the manuscript of the medieval Icelandic laws known as Konungsbók, to help us understand how statutes and codes can be read as fictional, or constructed, texts. Medieval law is useful to us today in that it can serve as a mirror for modern legal practice. In the middle ages people's fundamental assumptions about law were, in many ways, quite different from our own. The study of medieval law can thus operate as a useful form of comparative law. In law and literature scholarship, the study of medieval law can be particularly useful because the lines between legal and literary genres were not as sharp in the middle ages as they are today.¹¹ Konungsbók breaks down the lines between law and literature. It is an excellent example of how one can apply literary analysis to a law code or a statute because it defies some of the expectations that the genre usually creates. When we pick up a law code, we expect to find a text that will tell us what the law actually was at the time of its writing. We expect it to be a text that would have been useful to someone who, say, wanted to know what his rights were and how to vindicate them. Not all of the provisions contained in Konungsbók can be explained in this way, however. Konungsbók is written in the form of a code—it claims to be an authoritative collection of actual laws—but it was written at a time when parts of the text would no longer have been good or accurate law. Its creator appears to have gone out of his way to include, in some places, provisions that were archaic at the time of writing. He even includes a few that were never the law in Iceland.

Why would someone create such a text? I will argue that Konungsbók's power lies less in the authority of its prescriptions than in its ability to create a very tangible world for its reader. The world created in Konungsbók is populated by small, independent, and roughly equal householders. The imagined Iceland of Konungsbók stands in stark contrast to the historical Iceland in which this text was

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written. When Konungsbók was written, the gap between the powerful and the weak had been growing for more than a century, marginalizing the small householders in favor of a class of strongmen. The value of Konungsbók to its creator may, therefore, have been less about telling his readers anything about legal practice and more about reminding himself of a world that no longer existed. Konungsbók shows us that we can read statutes and codes, as well as judicial opinions, for the characters and worlds they create. In this sense, we can think of the law code as a work of fiction.

This article will proceed in four parts. Part I discusses the ways in which we might apply the tools of literary analysis to nonliterary texts, such as law codes and acts of legislation. In part II, I turn to the text under discussion, the Konungsbók manuscript. I will examine the historical context in which Konungsbók was created and demonstrate that it was created at a time when some of the most important aspects of the legal system it described were quickly disappearing. Part III describes the legal tradition of medieval Iceland. Konungsbók itself suggests that the law of the medieval Icelandic Commonwealth was not so much a set of laws as a legal tradition composed of many different sources, oral and written, that could be combined in different ways by different authors. The creator of Konungsbók appears to have made conscious decisions about what to include and what to exclude. Part IV looks at the ways in which he may have crafted his manuscript, arguing that Konungsbók's creator chose to include certain material because it painted a vivid picture of medieval Iceland as a land peopled by free and equal householders. This was not the case by the time Konungsbók was written, in the middle of the thirteenth century. Iceland was dominated by powerful territorial lords and was coming under the power of the King of Norway. The creator of Konungsbók therefore may have been creating this text for a purpose other than the dissemination of the law. The writing of the text may have been a cathartic exercise, an expression of grief at the world its creator thought he had lost. The conclusion discusses some other medieval legal texts that share these attributes, and the strange

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phenomenon that legal genres were used, throughout medieval Europe, to serve purposes that had little to do with the law.

I. The Legal Text as Fiction

The statement "Among them [the Icelanders] there is no king, but only law," written by the eleventh-century German cleric Adam of Bremen, appears in virtually every work on the medieval Icelandic Commonwealth—the name given to the period of Icelandic history between the settlement of the island in the ninth and tenth centuries and the Icelanders' final submission to the King of Norway in 1264.¹² Iceland's status as one of the few places in medieval Europe that had no king and no nobility has led to a great deal of modern interest in medieval Iceland, an interest disproportionate to its population or relative influence on European society, culture, and politics. Medieval Iceland is touted as an exemplar of the rule of law, and modern Icelanders hold up their national assembly, the Alþingi,¹³ which dates to the early tenth century, as the world's oldest democratic body.¹⁴ Adam's quote encapsulates this...