ID-DRITT XXXVI – Legal fictions: The interrelationship between literature and the law

Setting the Scene

Our comprehension of law as a phenomenon that is more than just a set of rules has been significantly enhanced by interdisciplinary fields such as law and economics, law and history, and law and philosophy. These approaches have promoted a more thorough examination of the law’s interdependence with, and in relation to, other academic disciplines. In fact, Galanter and Edwards argue ‘that the legal world is not to be understood on its own terms, but requires the application of some method or substance provided by other disciplines.’¹ Before exploring the intersection of law and literature, it is important to define each field. Law is a normative system that regulates conduct through rules, principles, and institutions, focusing on prescribing rights, obligations, and enforcement methods. Literature, in contrast, is a cultural practice centred on representation and interpretation, using narrative and rhetoric to examine human experience without prescribing action or reaching definitive conclusions. While both disciplines depend on language, law values determinacy and stability, whereas literature embraces ambiguity and multiple meanings. Their interaction should be seen as a dialogue between distinct approaches to language rather than a merging of boundaries.

The union of law and literature may seem an unlikely marriage of two different disciplines; ‘companion duchies in the sovereign universe of thought’.² However, since the early 70’s, scholars have pioneered an interdisciplinary approach to law and literature, including Richard Weisberg, James Boyd White and Richard Dworkin. In fact, coursework is offered to students by law faculties across several American and European universities providing law students with a different way of thinking about law. Like any other school of thought, this movement comes with its own fair share of criticism. However, the object of this paper is not to present an analysis of the conflicts between scholars, but is aimed towards exploring the benefits of adopting such an interdisciplinary approach at a national level. It is a study of how literature can offer a better understanding of society, culture and values as well as provide legal professionals with tools for deeper analysis and criticism of the legal system.

The use of language is central to the legal profession, involving strategic choice of words and clean precise communication. Apart from knowing the law, a lawyer needs to be also well versed in the art of language and rhetoric in order to obtain and narrate the client’s story in a court of law. The same argument applies to the judiciary in their delivery of rulings. As Lord Burrows, Justice of the Supreme Court of the United Kingdom, so succinctly put it ‘Clearly a good judgment has to be a correct judgment on the facts and the law and in that sense style is secondary to substance. Nevertheless, the presentation of the judgment is of considerable importance’.³ Language is also essential for lawmakers and legislators when drafting laws. The process of drafting a law can be quite complex involving planning, dialogues, opposing interests and ultimately, compromise. It is possible that, when approving a legal text, the parties may each intend to convey different content, and such content can be implied through the use of particular linguistic forms. In his report, The Preparation of Legislation, Renton points out that even professional interpreters of the law, lawyers and judges, find that at times the way the law is drafted is ‘an impenetrable barrier to understanding it’.⁴ The report further adds that:

To the ordinary citizen the provisions in the statute book might sometimes as well be written in a foreign language for all the help he may expect to obtain there as to his rights and duties under the law. And this in an age … when the statute law has a growing effect on practically every sphere of daily life.

Literature is also a means of obtaining valuable insights into areas where the law may be ambiguous or lacking, particularly through its rhetorical strategies and exploration of ethical issues. It assists in delineating the limits of legal principles and identifying gaps within the legal framework. Additionally, interpretive approaches commonly employed in the analysis of fictional works can be effectively adapted for legal texts, while narrative techniques used to engage audiences in literature may enhance the construction of legal arguments.⁵ Together, law, with its specific structures and normative frameworks, and literature, with its creative and expressive aspects, provide a perspective for examining aspects of the human experience. In fact, Seaton maintains that ‘[L] iterature has the potential to broaden and deepen the individual’s understanding of ethics, politics, and human relations in general.’⁶ On the other hand, Finnis argues that:

law brings definition, specificity, clarity and thus predictability into human interactions, by way of a system of rules and institutions so interrelated that rules define, constitute and regulate the institutions, while institutions create and administer the rules and settle questions about their existence, scope and applicability and operation.⁷

Scholars such as West are of the view that laws should not only be considered as texts reflecting our traditions, but also as interactive instruments the can either cause harm and violence or as a tool of compassion or respect. Laws deeply affect individuals whether or not such individuals contribute towards the creation of such laws or interpretation. According to West, it is not until we can feel, empathise with and have awareness of the broader impacts, that we can have a true comprehension of the legal texts.8 At the same time, Finnis also questions the need for authority and how an individual, considering the nature of human freedom in moral decision-making, or examining fundamental values such as authenticity and autonomy within practical reasonableness, may be prompted to question how any person can possess the authority to mandate choices that one would not independently make.⁹

Classical times – How antiquity conveyed laws through literature

Prior to endeavouring the examination of the characteristics of law and literature, it is essential to consider the historical context that underpins the law and literature movement. The link between law and literary works can be traced to the origins of civilization. In classical times, laws, rather than being codified, were essentially expressed poetically or musically. In the Laws, Plato argues that:

And is our legislator to have no preface to his laws, but to say at once Do this, avoid that—and then holding the penalty in terrorem, to go on to another law; offering never a word of advice or exhortation to those for whom he is legislating, after the manner of some doctors? For of doctors, as I may remind you, some have a gentler, others a ruder method of cure; and as children ask the doctor to be gentle with them, so we will ask the legislator to cure our disorders with the gentlest remedies. What I mean to say is, that besides doctors there are doctors’ servants, who are also styled doctors.¹⁰

According to Plato, the law is responsible for defining our respective duties to relatives, friends, and fellow citizens, thereby ensuring the overall happiness and prosperity of the state. However, a legislator who seeks to both persuade and command should accompany laws with introductory remarks intended to encourage virtue among citizens. In Plato’s view, even minimal success in appealing to public sentiment is valuable, as individuals are generally not eager to pursue moral improvement. He therefore proposes that laws include preambles, comprising two components: one embodying authoritative directives (previously described through the analogy of the doctor), and the other providing persuasive reasoning, referred to as the preamble.

The ancient treatise Lacedaemonion Politeia by Xenophon¹¹ is based on the law-giver Lycurgus, who is attributed with Sparta’s social and political system that defined the city state’s military success. Distinct from other ancient Greek city-states, Sparta’s legal system was largely based on unwritten laws transmitted through tradition and custom, which promoted a culture of rigorous compliance. In his treatise, Xenophon examines the laws and institutions created by Lycurgus, composing these laws in verse.

Cicero wrote his De Legibus (On Laws)¹² imitating Plato’s Laws, however using a more practical approach based on his personal experiences as a statesman and lawyer. The treatise is set in the form of a dialogue taking place between Cicero, his brother, and Atticus in his villa in Arpinum. The narrative follows a straightforward structure: Cicero’s brother and friend propose that he is ideally positioned to author a work on The Law. Motivated by this suggestion, Cicero embarks on a journey to identify and articulate the foundational principles of legal philosophy. He used literary techniques to make legal discourse more relatable and approachable.

Comparing these teachings to the modern context, legislators often include preludes and preambles in their legislative process, particularly in European Union legislation. However, these preambles generally serve to outline the origins and purposes of the legislation, rather than reflecting Plato’s teachings or adopting the accessible language associated with Cicero.

The Contemporary Law and Literature Scholars

Reading literature as law and law as literature can provide insight into the roles of rhetoric and narrative in forming authority within legal reasoning. Analysing narrative in law, particularly intersections with rhetoric, power, and politics reveals how legal arguments operate not merely as neutral applications of rules but as structured forms of persuasion that shape and legitimise outcomes. Duncan Kennedy’s semiotic analysis of legal argument deepens this insight by showing how, in cases of ambiguity or conflict, legal reasoning operates through stereotyped ‘argumentbites’ and structured rhetorical operations that generate the effect of legal necessity.¹³ On this account, narrative is not ancillary to legal reasoning but integral to how ideology, power, and political choice are mediated and rendered authoritative within law. Framing law as a literary and rhetorical practice thus sharpens ethical analysis by exposing how claims of neutrality and objectivity are sustained through particular narrative forms, and by locating ethical responsibility in the interpretive and rhetorical choices made by legal actors.

The evaluation of the contemporary law and literature appropriately starts by referencing John H. Wigmore’s compilation of one hundred legal novels, which he recommended for those lawyers seeking both insight and enjoyment. In his essay, Wigmore offers a concise rationale for why his body of literature warrants the earnest consideration of professionals whose expertise is typically devoted to what are often regarded as the more tangible issues encountered in daily affairs. The novels portray and offer insights into the legal system or practice of law and are split into four categories:

1. Novels in which some trial scene is described – perhaps including a skilful cross-examination;
2. Novels in which the typical traits of a lawyer or judge, or the ways of professional life, are portrayed;
3. Novels in which the methods of law in the prosecution and punishment of crime are delineated; and
4. Novels in which some point of law, affecting the rights or the conduct of the personages, enters into the plot.¹⁴

The list of books ranges from Honoré de Balzac to Leo Tolstoy, Sir Walter Scott to Charles Dickens. Wigmore himself raises concerns about the relevance of such a list and questions whether legal professionals would actually consult these works to study the law. He suggests that lawyers should use their leisure time to read for relaxation and thus, views the list as a resource for selecting books that may hold particular interest for members of the profession. Wigmore argues that lawyers should be acquainted with these works ‘not merely because of his special professional duty to be familiar with those features of his profession which have been taken up into general thought and literature’.¹⁵

Wigmore’s list was later revised by Richard H. Weisberg¹⁶, including the updating of the four categories as follows:

1. Works in which a full legal procedure is depicted, sometimes exclusively a trial scene, but just as frequently, the preliminary investigations leading to the trial.
2. Works in which, even in the absence of a formal legal process, a lawyer is a central figure in the plot or story, frequently but not always acting as the actual protagonist.
3. Works in which a specific body of laws, often a single statute or system of procedures, becomes an organising structural principle.
4. Works in which, in an otherwise essentially non-legal framework, the relationship of law, justice and the individual becomes a central thematic issue.

Weisberg justified his effort of updating the list by arguing that

If, in fact, reading fiction leads to a more ethical and empathic understanding of law and its systems, all the better. To inspire the potential, though, it would have been absurd simply to recommend the of fiction-reading itself. Instead, the interpretive element just named had to be honed, and different interpretations of the movement’s canonical texts had to pass the test of challenges to those readings by antagonists claiming an opposite meaning for the same story.¹⁷

The argument that a legal professional should be well read can be well illustrated by a reply to a twelve-year-old boy who expressed interest in becoming a lawyer. This young man sought advice from a judge on the qualities of a lawyer and how he should start preparing himself to become a lawyer. Judge Frankfurter’s reply is often referenced as a model for achievement and thoroughness in both personal and professional contexts. Quoting Judge Frankfurter’s response verbatim would be most appropriate in this context:

My dear Paul:

No one can be truly a competent lawyer unless he is a cultivated man. If I were you, I would forget all about any technical preparation for the law. The best way to prepare for the law is to come to the study of the law as a well-read person. Thus alone can one acquire the capacity to use the English language on paper and in speech and with the habits of clear thinking which only a truly liberal education can give. No less important for a lawyer is the cultivation of the imaginative faculties by reading poetry, seeing great paintings, in the original or in easily available reproductions, and listening to great music. Stock your mind with the deposit of much good reading, and widen and deepen your feelings by experiencing vicariously as much as possible the wonderful mysteries of the universe, and forget all about your future career.

With good wishes,

Sincerely yours

[signed] Felix Frankfurter

(qtd. In E. London, Law 725)¹⁸

It is undeniable that Wigmore’s and Weisberg’s works were pivotal in uniting the traditional criticism of novels on explicitly legal subjects with an ethical perspective related to the problems in the use of language and law. Few works have so thoroughly captured the field’s fundamental concerns.

More importantly for the Law and Literature movement is James Boyd White. White’s The Legal Imagination is considered by many as the landmark for modern legal education. White’s approach to legal scholarship and education, involving the reading of legal instruments, rhetoric, and concepts in relation to literary works and criticism, introduced alternative methods for intellectual inquiry. White’s scholarship is regarded as integral to the field of law and literature as it proposes an interpretative framework that leverages the analytical approaches of both disciplines while also presenting an ethical and political perspective
intended to bridge them, at least conceptually. This work may be interpreted as an effort to reconfigure the relationship between law and literature, not through an abstract fusion of positive and natural law, but rather by advocating for a legal and political order grounded in equality among participants.

White’s The Legal Imagination offers broad insights that go beyond methodology, presenting a rethinking of legal education and practice. He critiques traditional legal focus on logic and technical expertise, advocating instead for reconnecting with core values and principles, and emphasising inclusive approaches to argument, writing, and judgment amidst legal complexity and ambiguity.

The law and literature movement of course had its own fair share of critics.¹⁹ According to Posner, being a lawyer does not inherently make someone better equipped than a layperson to interpret literature with legal themes. Posner suggests that the ‘legal’ aspects of these works are generally secondary to their main meaning and are often used metaphorically to explore broader issues such as the concept of ‘justice’, which is a more inclusive idea than ‘law’. Additionally, Posner notes that the specialised nature of legal education may limit a lawyer’s ability to fully appreciate the broader scope of significant literary works and recognise their relevance, such as the connections between Sophocles’ Antigone and professional legal practice.²⁰

Law and Literature

The intersection of law and literature is significant because literature offers valuable insights for interpretation, performance, and argumentation. Legal professionals are required to analyse texts with the same rigour as literary critics. Additionally, they must act strategically, discern underlying meanings within a text, and effectively apply this understanding in legal contexts. In order to better analyse the interdisciplinary relationship between law and literature, I will be focusing on three categories: (i) Law as literature; (ii) Law in literature; and (iii) Jurisprudential use of literature and law about literature.

i. Law as literature

White²¹ and Dworkin²² have maintained that law should be viewed as literature since the meaning of legal texts, such as the written law, can only be discovered through interpretation, like any genre of literature. According to West,²³ it is essential to comprehend our laws not merely as texts representing our traditions and cultural values, but also as dynamic instruments capable of exerting force, violation, compassion, or respect. Laws significantly influence individuals, including children, enslaved persons, women, and other living beings, irrespective of their involvement in the creation, interpretation, or critique of these texts. Sufficient understanding of legal texts requires us to recognise, empathise with, and assume responsibility for these impacts.²⁴

Furthermore, it is imperative to consider the perspectives of those excluded from prevailing legal discourse to foster communities that thrive, rather than merely persist. According to West, in the pursuit of improved communities, one should heed White’s suggestion to cultivate greater proficiency in interpreting classic cultural and legal texts that inform communal life.25 One’s attention must extend beyond evaluating the principles articulated or implied in legal texts to encompass the subjective experiences of those affected by legal decisions, decisions in which we participate. This necessitates an ability to reflect on the lived realities impacted by the content of legal texts.

ii. Law in Literature

The law has frequently been examined in literature, with numerous authors incorporating legal themes and motifs into their works. To begin with, law frequently mirrors the cultural, social, and political values prevailing at a specific period, making such texts valuable resources for understanding the historical and cultural context of a legal system. In The Merchant of Venice, Shakespeare examines the interplay between the rigid enforcement of contractual obligations and the broader application of principles such as equity and mercy during Elizabethan times. Notably, in Act 4 Scene 1, the audience finds itself in a court at Venice, where Shylock demands that the terms of his bond are fulfilled. A disguised Portia delivers her seminal speech, where Shakespeare tried to analyse the question of justice and moral fairness:

This bond doth give thee here no jot of blood.
The words expressly are “a pound of flesh.
Take then thy bond, take thou thy pound of flesh,
But in the cutting it, if thou dost shed
One drop of Christian blood, thy lands and goods
Are by the laws of Venice confiscate
Unto the state of Venice.²⁶

The Merchant of Venice is one example of the use of law in literature. Authors such as Charles Dickens, Franz Kafka, Jane Austen, Harper Lee, John Mortimer, and even more contemporary authors including John Grisham have explored legal themes, plots and settings for their literary works.

West advocates that one must also be attentive not only to foundational stories and canonical texts that shape our cultural and legal heritage, but also to the voices of lawyers, legal scholars, laypersons, poets, novelists, and others who narrate the experiences of those historically excluded from this tradition. By engaging both rational analysis and empathic understanding with diverse narratives and literary forms, we contribute to the expansion and enrichment of our interactive community, thereby fostering personal and collective development.²⁷

This also holds true at a national level, where Maltese literature has embarked on a journey of understanding and critiquing Maltese culture, politics and its legal system. Maltese literature has historically served to explore the nation’s evolving legal and social consciousness. Especially in post-War and post-Independence, Maltese authors have sought to address themes such as justice, authority, and resistance. One of the most famous works that deals with the legal system in Malta is surely Fil-Parlament ma Jikbrux Fjuri. In his authoritative work, Oliver Friggieri explores the conflict of two political parties and creates a character, Karlu Manju, representing a free nation. In a conversation between Karlu Manju and Ċerbru (his dog), Karlu Manju tells his dog:

You are privileged. While you have no written rights, on the other hand you also have no written duties. The best thing about having nothing written, is to take the rights into your own hands if you know they are yours and observe the duties that you know you should observe. Only then can the country be as it should be, by everyone like you being free without having to give an account to anyone else and by everyone obeying the sense of right that they were born with.²⁸

According to Friggieri, a country thrives when everyone is free and guided by their own sense of right.

Post-Independence authors struggled with the idea of national identity and the role of the authorities within society and the legal framework. In Samuraj,²⁹ Frans Sammut explores the breakdown of familial ties and the patriarchal society. He also critiques the role the Church plays with its moral dogmas. Samwel and his mother were subject to years of physical and psychological abuse from the patriarch of the family, with neither the law nor the Church protecting our protagonists. Even worse, we see how the Church tried to uphold the status of the patriarch and enforce obedience as the acceptable behaviour. Sammut uses his story as a metaphor to the post-Independence events in Malta, including the authority which the Church had over the State and its legislative framework and how the individual fitted in this system. This book, like many of its contemporaries, also sheds light on domestic violence and how this was seen by society and the law, where the patriarch was the head and authoritative figure of the family and that such behaviour was accepted by society and law.

A more contemporary novel, Taħt il-Kappa tax-Xemx, uses the confessions and satiric tone of a fictional journalist to deliver a commentary on corruption and the twisting and circumvention of law and conveys an effective critique of Malta’s society and politics. The book is also an account of journalists’ struggles in exposing and reporting situations that may eventually end up in lawsuits. In one of the scenes, when Mark Micallef, the journalist, is talking to a Minister, the Minister uses the phrase ‘As you know’. Our protagonist then goes into an internal dialogue musing about this phrase: ‘As you know… this phrase was bothering me. It was like he wanted to implicate me in something suspicious that was going on behind everyone’s back since I knew about it’.³⁰ The book is also a reflection of how laws can be used by those in power to influence others from carrying out their duties.

iii. Jurisprudential use of literature and law about literature

The purpose of this section is not to review or critique Maltese judgments. Rather, it aims to analyse the role of literature in case law, considering both its use as a reference and its presence as the subject matter of legal decisions.³¹ When law is examined within various contexts, it becomes more accessible, and its traditional mystique is diminished. This approach is not about contrasting law with literary prose, but rather about positioning legal discourse alongside other forms of communication. By doing so, it becomes evident that law represents just one mode of discourse, as opposed to being elevated in isolation above others. It is therefore not uncommon that judges and magistrates, in delivering their decisions, use literary references as analogy to help demystify the legal language.

Lord Burrows questioned what makes a good judgement and argued that:

[I]f we start off by treating a judgment as a type of legal writing that sits alongside other types of legal writing, such as a legal article or a law book or a doctorate or a law student’s essay, then we have to ask ourselves, what is it that makes any piece of legal writing good? Taking for granted the quality of the substance, the answer I think is that the writing must be clear, coherent and concise. All great lawyers have the ability to write in that way and the best judgments are those that exhibit those qualities.³²

In assessing how a written judgment can be useful and interesting, Lord Burrows argues that the judiciary needs to first and foremost asses who the potential audience is that is reading the judgment, and this is also dependent on the seniority of the judiciary delivering the judgment. In his view, the target audience of senior judges includes the parties to the case, legal advisors, other judges, academic lawyers and students, and finally the general public. Lord Burrows notes that (i) judgments need to be decisive; (ii) since judgments may be subject to appeal, the judiciary needs to write the judgment with any eye on avoiding it being overturned; and lastly (iii) that if the judgment is unclear or not concise, it may contradict the rule of law. Lord Burrows acknowledges that a judgment is not a law essay or legal article, and therefore judgment-writing may can present more difficulties as a form of legal writing.

In Il-Pulizija vs Mario Formosa,³³ the Magistrate used a reference from Shakespeare’s Merchant of Venice during his treatise and compared the court to the Shakespearean theatre. According to the case facts, police interviewed Ian Cauchi, the owner of the vehicle, who indicated that based on information provided by law enforcement, he suspected Mario Formosa hit his vehicle due to previous disputes. Police subsequently questioned Mario Formosa, who acknowledged ongoing issues with Ivan Cauchi arising from suspicions regarding an alleged affair between Cauchi and Formosa’s wife. Formosa stated that on the day of the incident, he received a phone call informing him that Ivan Cauchi had been at his wife’s apartment earlier. Upon investigating, Formosa observed Cauchi’s vehicle on Barda Street. He became distracted, accelerated, and accidentally collided with Cauchi’s vehicle.

The Court considered that in this case the parte civile was seeking a pound of flesh rather than justice. The Magistrate argued that the Court in this case is being set up as a Shakesperean theatre, citing The Merchant of Venice and referencing the parties before the Court as being Bassonio, Portia, Shylock and Antonio:

Go with me to a notary, seal me there
Your single bond; and, in a merry sport,
If you repay me not on such a day,
In such a place, such sum or sums as are
Express’d in the condition, let the forfeit
Be nominated for an equal pound
Of your fair flesh, to be cut off and taken
In what part of your body pleaseth me. (1.3.156-163)

The Court expressly affirmed that it will not permit itself to be placed in circumstances where its authority is invoked for purposes of retaliation related to prior or current romantic relationships.

In Andrew Azzopardi u Maria Carmela aħwa Azzopardi K.I. 24857G u 85445G rispettivament vs GlobalCapital Financial Management Limited, Judge Grazio Mercieca cited Charles Dickens’ Oliver Twist to illustrate the appellants’ request for additional compensation, despite a previous judicial body having already determined and awarded the amount owed to the appellant. By referencing Oliver Twist’s line, ‘Please Sir, I want some more’, the Judge appears to use this remark sarcastically as a lesson for the appellants to consider what they ask for. In the novel, Oliver Twist pleads for more food after being served a meagre portion at the workhouse. In the present case, the Court observed that the appellant was not entitled to seek additional compensation beyond what had already been received through restitution of the principal amount plus interest, as this accords with Article 1047 of the Civil Code³⁴, that is ‘The damage which consists in depriving a person of the use of his own money, shall be made good by the payment of interest at the rate of eight per cent a year’.

In Daphne Caruana Galizia vs Dr Aaron Farrugia³⁵ the Magistrate did not make specific reference to a text from a novel or play. However, he relied on the words of the eminent writer and philosopher Umberto Eco to explain the lasting damaging effects of social media and sharing of social media posts. Loosely translated, the decision states that ‘social media gives legions of idiots the right to speak, who previously only spoke at the bar after a glass of wine, without harming the community. They were immediately silenced, but now they have the same right to speak as a Nobel Prize winner. It’s the invasion of idiots.’

In Martin Degiorgio vs Daphne Caruana Galizia,³⁶ the Court of Magistrates made use of George Orwell’s writing in his The Collected Essays, Journalism and Letter (1968) to define the word ‘fascism’. During its deliberations, the Magistrate noted that the term ‘fascism’ nowadays, particularly in the aftermath of the Second World War and the terrible events that occurred during it, is recognised as having very negative connotations and are pejorative terms intended mostly as an insult. On the other hand, the Court also noted that the word ‘fascist’, as a political epithet, ‘has been used in an anti-authoritarian sense to emphasise the common ideology of governmental suppression of individual freedom. In this sense, the word fascist is intended to mean oppressive, intolerant, chauvinist, genocidal, dictatorial, racist or aggressive’. The Magistrate subsequently cited Orwell’s writings, noting his assertion that the term ‘fascism’ is nearly devoid of meaning and, in conversation, is applied even more indiscriminately than in published works, often describing any individual perceived as a bully.

Jurisprudence has also addressed matters which in themselves pertain to literature, especially those cases involving censorship:

1. How the law on censorship has impacted the content of literary works, with ongoing consideration given to both regulation of content and the preservation of free speech; and
2. How jurisprudence has treated cases of censorship whilst at thesame time preserving the right to freedom of expression.

One of the seminal cases on censorship and freedom of speech is undoubtedly the Stitching case in Adrian Buckle et vs Teresa Friggieri et.³⁷ The objective of this essay is not to evaluate the merits of censorship versus freedom of expression as it is beyond the scope of this work. However, it is noteworthy that this particular case ultimately served as the catalyst for comprehensive reforms in Maltese censorship law. Following an appeal from the decision of the Civil Court in its constitutional jurisdiction, the Constitutional Court upheld the first judgment and stated that in this particular play, the limits of decency have been exceeded not only in the case of blasphemy, which in Malta is in itself a crime, but also where in the same play there is more than one instance where the dignity of people, of a woman, of a child, and of a human being, has been violated. There is also language used that shows and extols in an extreme sexual perversion, and these are so strong that they affect the entire play taken as a whole, and actually prevail over any alleged, presumably genuine purpose of showing a couple who have gone through a great storm and find their way home.

On the topic of the regulation of literature by law, Posner states that:

[F]rom a literary perspective it is possible to argue-I think persuasively that judgments of artistic value are impossible to make with anything approaching objectivity, so that we should not fool ourselves that if we permit censorship, but allow an escape hatch for works that the jury agrees has redeeming social value, we can be assured of sparing the masterpieces of the future.³⁸

In Posner’s opinion, artistic value cannot be judged objectively, so allowing censorship with exceptions for works deemed to have social value doesn’t guarantee future masterpieces will be protected.

Substantiating Posner’s arguments, and directly related to the case at hand, Professor Aquilina noted that even though freedom of expression is here to stay, the Courts have a duty to forcefully safeguard the respect for human dignity which is ‘inherent, intrinsic and inalienable’, by ensuring prohibition of theatrical performance which render such rights insignificant.³⁹

Ultimately, the judgment in Malta was overturned by the European Court of Human Rights where the Court considered that the impugned measures constituted an interference with the rights to freedom of expression and that such interference should be only permissible if prescribed by law, in order to pursue one or more legitimate aims and be necessary in a democratic society for the pursuit of such aims.⁴⁰

Another noteworthy case involved criminal proceedings initiated by the heirs of Frans Sammut, a distinguished Maltese author, against the editors of the newspaper Malta Today. In Il-Pulizija vs Saviour Balzan and Mark Anthony Vella,⁴¹ the dispute primarily concerns an obituary published in the newspaper, which the heirs contend did not accurately represent the author’s life, even stating that the obituary was defamatory in nature. From a law and literature standpoint, this case presents particular interest due to its focus on an author and his literary works, as well as the Court’s ultimate interpretation of the obituary’s contents. In its decision, the Court noted that from the obituary, it does not appear that the extremes of defamation law exist in everything that was said by the defendant Mark Anthony Vella about the plaintiff’s husband, namely Frans Sammut, from the perspective of an ordinary reader. On the contrary, the Court observed that, from reading the article, it is certain that, for those who are not in touch with developments in the Maltese literary scene, the article, or rather the obituary that has been written, can only arouse more interest in the writings of the late Frans Sammut, given that the columnist mentions the themes of some of Frans Sammut’s main books in a way that certainly arouses the curiosity of readers to know more about his writings, something that certainly every writer would like to see happen. The Court further noted that the obituary written by the columnist and defendant Mark Anthony Vella appeared to have been a reflection of the opinion and image that Vella had of Frans Sammut, so much so that Vella, in his testimony in cross examination, asserted that he saw ‘Frans Sammut as a pillar of Maltese literature’.

Conclusion

During a panel discussion on law, literature and humanities, Professor Papke stated:

[W]hen you put law into these different contexts, you demystify law, and in that sense there is subversiveness vis-à-vis the traditional teaching of the law. It is not so much a matter of taking the law versus literary prose. It’s a matter of putting law in juxtaposition with other kinds of discourse. In doing so, you make clear that the law is only one kind of discourse. That’s different than when the law is on a pedestal by itself.⁴²

The intersection of law and literature offers a compelling lens through which legal professionals can deepen their understanding of the law’s societal, ethical, and human dimensions. In Posner’s opinion, courses in law and literature may have a role in law school curricula, as they offer a counterbalance to the highly technical legal studies in which students engage and which contribute to their professional development. Far from being an abstract academic exercise, this interdisciplinary approach equips lawyers with interpretive tools, rhetorical strategies, and cultural insights that enrich legal reasoning and advocacy. Historical precedents, from Plato’s persuasive preambles to Cicero’s practical reflections, demonstrate that the fusion of legal and literary thought is not novel but foundational. By embracing literature, legal practitioners can move beyond mechanical application of rules and engage more thoughtfully with the values and narratives that shape justice. In doing so, they become not just technicians of the law but architects of a more reflective and humane legal system.

Ultimately:

[A]s lawyers, we must learn to be moral, careful readers and listeners as well as writers, interpreters and advocates’.⁴³

Disclaimer: Ganado Advocates is responsible for contributing to this article but was not in any way involved as legal advisor for the parties discussed herein. This article was first published in ‘ID-Dritt’ in 2026.

¹ Marc Galanter and Mark Alan Edwards, ‘Introduction: The Path of the Law Ands’ (1997) Wisconsin Law Review 375, 376.
² John D Ayer, ‘The Very Idea of “Law and Literature”’ (1987) 85(5) and (6) Michigan Law Review 895.
³ Lord Burrows, ‘Judgment-Writing: A Personal Perspective Annual Conference of Judges of the Superior Courts in Ireland’ (Judicial Committee of the Privy Council, 20 May 2021) <https://jcpc.uk/uploads/judgment_writing_a_personal_perspective_lord_burrows_aa1b4f5676.pdf> accessed 25 August 2025.
⁴ Great Britain, The Preparation of Legislation (Report of a Committee Appointed by the Lord President of the Council, Cmnd 6053, HMSO 1975) <https://sites.createcdn.net/sitefiles/74/4/3/744393/RentonReportMay1975_Preparation-of-Legislation_compressed-6.pdf> accessed 26 August 2025.
⁵ Jane B Baron, ‘Law, Literature, and the Problems of Interdisciplinarity’ (1999) 108(5) Yale Law Journal 1059.
⁶ James Seaton, ‘Law and Literature: Works, Criticism, and Theory’ (1999) 18(11) Yale Journal of Law & the Humanities 479.
⁷ John M Finnis, Natural Law and Natural Rights (2nd ed, Oxford University Press 2011).
⁸ Robin West, ‘Communities, Texts and Law: Reflection on the Law and Literature Movement’ (1988) 1 Yale Journal of Law & the Humanities 129.
⁹ John M Finnis (n 7).
¹⁰ Plato, Laws (Benjamin Jowett tr, Project Gutenberg Ebook 2008) <https://www.gutenberg.org/files/1750/1750-h/1750-h.htm#link2H_4_0003> accessed 25 August 2025.
¹¹ Xenophon, Constitution of the Lacedaemonians (Edgar C Marchant tr, Harvard University Press 1925).
¹² Marcus Tullius Cicero, Treatise on the Commonwealth and Treatise on the Laws (Francis Barham Esq tr, Vol 2 Edmund Spettigue 1841-42).
¹³ Duncan Kennedy, ‘A Semiotics of Legal Argument’ (1991) 42 Syracuse Law Review 75
¹⁴ John H Wigmore, ‘List of One Hundred Legal Novels’ (1922-1923) 17(1) Illinois Law Review 26.
¹⁵ ibid.
¹⁶ Richard H Weisberg, ‘Wigmore’s “Legal Novels” Revisited: New Resources for the Expansive Lawyer’ (1976) 71(1) Northwestern University Law Review 17.
¹⁷ Richard H Weisberg, ‘Wigmore and the Law and Literature Movement’ (2009) 21(1) Law & Literature 129.
¹⁸ James Boyd White, ‘The Cultural Background of the Legal Imagination’ in Austin Sarat, Cathrine O Frank and Matthew Anderson (eds), Teaching Law and Literature (Modern Language Association 2011) 29.
¹⁹ See Richard Posner, ‘The Ethical and Political Basis of the Efficiency Norm in Common Law Adjudication’ (1980) 8(3) Hofstra Law Review 487; Richard Posner ‘The Ethical Significance of Free Choice: A Reply to Professor West’ (1986) 99(7) Harvard Law Review 1431; Richard Posner, ‘Law and Literature: A Relation Reargued’ (1986) 72(8) Virginia Law Review, 1351.
²⁰ Richard Posner, ‘Law and Literature: A Misunderstood Relation’ (1988) 11 (4) University of Arkansas at Little Rock Law Review 783.
²¹ See James Boyd White, ‘Law as Language: Reading Law and Reading Literature’ (1982) 60(3) Texas Law Review 415.
²² See Richard Dworkin, ‘Law as Interpretation’ (1982) 9(1) Critical Inquiry 179.
²³ Robin West (n 8).
²⁴ ibid.
²⁵ ibid.
²⁶ William Shakespeare, The Merchant of Venice (Cedric Watts ed, Wordsworth 2000) 318-325. 
²⁷ Robin West (n 8).
²⁸ Own translation of paragraph in Oliver Friggieri, Fil-Parlament ma Jikbrux Fjuri (Mireva Publications 2003).
²⁹ Frans Sammut, Samuraj (2nd ed, Merlin Library 1991).
³⁰ Own translation of paragraph in Karl Schembri, Taħt il-Kappa tax-Xemx (Merlin Publishers 2002).
³¹ James Boyd White, ‘Law, Literature and the Humanities: Panel Discussion’ (1994) 63(1) University of Michigan Law Review 387.
³² Lord Burrows (n 3).
³³ 44/2013 Il-Pulizija vs Mario Formosa, Court of Magistrates (Criminal Judicature) 3 November 2015.
³⁴ Civil Code, Chapter 16 of the Laws of Malta, Article 1047.
³⁵ 265/2014 Daphne Caruana Galizia vs Dr Aaron Farrugia, Court of Magistrates (Malta) 22 March 2018.
³⁶ 200/2006 Martin Degiorgio vs Daphne Caruana Galizia, Court of Magistrates (Malta) 9 December 2015.
³⁷ 12/2009 Adrian Buckle et vs Teresa Friggieri et, Civil Court (First Hall) 28 June 2010.
³⁸ Richard A Posner, ‘Remarks on Law and Literature’ (1991) 23(2) Loyola University Chicago Law Journal 181.
³⁹ Professor Kevin Aquilina, ‘Neilson’s Stitching: A Grave Affront to the Notion of Respect for Human Dignity’ (2010) 22 Law & Practice.
⁴⁰ 37326/13 Case of Unifaun Theatre Productions Limited and Others v Malta (ECtHR, 15 May 2018).
⁴¹ 1/2012 Il-Pulizija vs Saviour Balzan and Mark Anthony Vella, Court of Magistrates 24 July 2017.
⁴² James Boyd White (n 31).
⁴³ Robin West (n 8).