Comparative law, literature and imagination: Transplanting law into works of fiction
| DOI | 10.1177/1023263X21995337 |
| Published date | 01 June 2021 |
| Date | 01 June 2021 |
| Author | Jaakko Husa |
| Subject Matter | Articles |
Article
Comparative law, literature
and imagination: Transplanting
law into works of fiction
Jaakko Husa*
Abstract
This paper discusses comparative law and literature as an approach to studying law culturally,
addressing how the study of literature from the standpoint of comparative law identifies one way
of coding legal cultural knowledge in literature. The interaction between the worlds of law and
culture is addressed through imaginary legal transplants. By transplanting legal ideas from the real
world to literature, authors imagine worlds as they construct legal meanings in their storytelling.
Whereas a legal transplant is a notion filled with problems and paradoxes, in literature it is far less
problematic. Imaginary legal transplants are different from real-world transplants because in the
real world legal diffusion takes place in mutant form, transforming transplants into irritants. The
legislator never controls the world completely, whereas in fictional literature the creator of a
written work controls the created world. In this sense, it is argued, imaginary legal transplants are
perfect transplants.
Keywords
Comparative law, law and literature, legal transplant
No set of legal institutions or prescriptions exists apart from the narratives that locate it and give
it meaning.
1
* University of Helsinki, Faculty of Law, Yliopistonkatu 3, 00101 Helsinki, Finland
Corresponding author:
Jaakko Husa, Professor in Law and Globalisation, University of Helsinki, Faculty of Law, Yliopistonkatu 3, 00101 Helsinki,
Finland.
E-mail: Jaakko.Husa@helsinki.fi
1. R.M. Cover, ‘Nomos and Narrative’, 97 Harvard Law Review (1983–84), p. 4.
Maastricht Journal of European and
Comparative Law
2021, Vol. 28(3) 371–389
ªThe Author(s) 2021
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DOI: 10.1177/1023263X21995337
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1. Introduction
Comparative law demonstrates that laws, legal institutions and legal doctrines do travel regardless
of obstacles erected by borders between countries, legal systems, languages and even time.
Demonstrating and tracing how law travels is part of what comparative law scholarship is about.
For instance, the history of Roman law teaches, if nothing else, that legal ideas travel through time
and space. Importantly, the issue of transplantability of legal norms and institutions across differ-
ent legal traditions is not only a thing of the past, but very much a relevant issue today as well.
2
Along similar lines, it should not come as a surprise that laws and legal ideas travel from reality
into the realm of imagination, for instance into imaginary literature, although a similar phenom-
enon may also happen in film or theatre.
3
This suggests a connection between comparative law and
the study of law and literature.
At first glance, the fields of comparative law and law and literature seem to have very little in
common. The deceptively distant relationship appears intuitively correct on the surface because
comparative law focuses on the differences and similarities between diverse legal traditions
whereas law and literature examines the relationship between law and literature.
4
However, as
we know: appearances may be deceptive. Both fields entertain a cultural view towards law but they
do not share the same theoretical assumptions as a nationally oriented doctrinal study of law. This
paper discusses comparative law and literature as an approach to the study of law culturally,
addressing how the study of literature from the standpoint of comparative law may identify one
way of coding legal cultural knowledge in literature. This, in turn, tells us about law as a cultural
phenomenon.
The connection between comparative law and law and literature is not, however, non-existent,
even though it is not well known today. Famous comparative law scholar John Henry Wigmore,
who authored the massive three-volume Panorama of the World’s Legal Systems in the 1920s,
sought to connect comparative law to the reading of poems and novels. Wigmore’s contribution to
law and literature movement is acknowledged, yet this feature is not highlighted in comparative
law circles.
5
More recent connection between comparative law and law and literature can be found
in William Ewald’s comparative jurispru dence, in which he provides insights into the us e of
literature for the understanding of the intellectual origins of German legal thought.
6
Notwithstand-
ing, law and literature normally plays at most a walk-on part in the comparative law scene.
2. See, e.g. G. Mousorakis, ‘Legal Transplants and Legal Development: A Jurisprudential and Comparative Law
Approach’, 54 Acta Juridica Hungarica (2013), p. 219.
3. One can also find a comparative legal angle in cinema/film studies, see G. Samuel, ‘The Paradigm Case: Is Reasoning
and Writing in Film Studies Comparable To (or With) Reasoning and Writing in Law?’, 13 No Foundations (2016), p.
17.
4. In fact, it is not always clear what is meant by ‘literature’. For the sake of clarity, in this paper the concept of literature
refers simply to ‘the collective noun for the category of verbal art that includes poems, plays, novels, and short stories’,
T. Ross, ‘Literature’, in D. Scott Kastan (ed.), The Oxford Encyclopaedia of British Literature, 3 vol. (Oxford Uni-
versity Press, 2006), p. 314.
5. See R. Weisberg, ‘Wigmore’s Legal Novels: New Resources for the Expansive Lawyer’, Northwestern Law Review
(1976), p. 17 and R. Weisberg, ‘Wigmore and the Law and Literature Movement’, 21 Law & Literature (2009), p. 129.
6. W. Ewald, ‘Comparative Jurisprudence (I): What Was it Like to Try a Rat’, 143 University Pennsylvania Law Review
(1995), p. 1889. In a key passage, Ewald notes: ‘I wish to argue that, in order to understand the rules of modern
European private law, it is not enough merely to know the black-letter doctrines embodied in the civil code. One must
also understand the intellectual background to those doctrines, and grasp the underlying principles that give them their
372 Maastricht Journal of European and Comparative Law 28(3)
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