Martha C. Nussbaum’s article primarily focuses on discussions on literary imagination and the pivotal role it plays in the interpretation of several novels such as Dickens’s Hard Times^[1], E.M Forster’s Maurice^[2], and Richard Wright’s novel, Native Son^[3]. Furthermore, it discusses how literary works have the potential to mold judges who display empathy as well as technical expertise.

In his masterpiece dialogue, The Republic^[4], Plato advocates for a ruler who possesses both power and wisdom. This ruler additionally possesses the ability to discern among the many forms of the universe and see the truth; he further guides his citizens toward this truth. Plato calls this ideal ruler a ‘Philosopher-king’ as he combines great knowledge with the authority to transform a city-state into an ideal state.

Very similarly, Prof. Martha in her article makes her case for a poet-judge. A poet-judge, very simply put, marries the imaginative capacity and emotional range of a poet with the technical expertise of a Judge to birth a method of poetic judging that waver from the traditional models of adjudication of justice. A poet-judge or literary judge exhibits character traits of literary values and imagination which help garner the rare qualities of fairness, equality, and ultimately justice.

Martha begins her argument by citing Walt Whitman’s poem “By Blue Ontario’s Shore”^[5] wherein Whitman describes in detail the desirable qualities of a poet-judge. Whitman’s poet-judge is an equable man rid of whim and caprice. He is able to provide true justice as he gives both fairness and history their due importance when pronouncing judgments. Whitman further goes on to boldly state the poet-judge to be “the equalizer of his age and land” as he adheres sincerely to the tenets of equity and equality. The latter half of the poem appears to be somewhat ambiguous but can be interpreted to mean and convey the following.

The line “He judges not as the judge judges but as the sun falling round a helpless thing…” can be understood to mean that the poet-judge leaves no stone unturned in his quest for every piece of information that will ultimately culminate in justice. He perceives a case from every possible angle and point of view, thus employing a holistic approach. The line compares a judge to sunlight which can further be interpreted to signify the poet-judge’s unwavering commitment to judicial neutrality, negating any room for bias. The use of sunlight as a metaphor also means that the judgments delivered by judges can at times be harsh if necessary.

The final most important characteristic of Whitman’s poet-judge is his recognition of men and women not as mechanical beings or pseudo-mathematic creatures but as eternal beings who are capable of emotion. This gives a sympathetic side to poet-judges, allowing them to pronounce judgments that are compatible with the complexities of human nature. This is in most cases contrary to what we see in real life where judgments are often impersonal in nature.

This author personally believes Whitman’s portrait of a poet-judge to be rather unrealistic and utopian, or at the very least, far from what reality presents. Furthermore, this author disagrees with the absolute discretion that is possessed by Whitman’s poet-judge. Prof. Martha goes on to counter that unbridled power by highlighting the fact that in reality, the literary imagination of judges can only be exercised within the barriers posed by institutional constraints, namely statute, and precedent. These institutional limitations thus are able to successfully preclude arbitrary decisions, for the most part.

Martha’s conception of literary imagination is composed of three aspects – qualitative differences, individual separateness, and appropriately constrained emotions. Qualitative differences entail the recognition of similarities and differences between oneself and another individual. The similarities instill empathy whereas the differences act as a reminder of non-involvement in the life of the individual, precluding bias. Individual separateness puts the reader in the position of the audience which filters the emotions of the reader, thus fulfilling the third criteria. Prof. Martha stresses these ideas to convey how crucial it is for a judge to be unbiased and neutral.

Incidents throughout the history of the world prove that failure to individualize leads to large-scale prejudice. For instance, the dehumanizing Nazi depiction of the Jews generated widespread group hatred against the latter, resulting in gruesome irreversible acts. Thus, individual separateness proves essential to preclude such events of oppression and group hatred.

Prof. Martha gives support to Adam Smith’s theory of ‘judicious spectatorship’. A judge who is a judicious spectator is able to feel sympathetic and empathetic in an appropriately constrained manner while remaining uninvolved in the case. Martha builds onto this theory by believing that an ideal judge is one who adheres strictly to the principles of judicial neutrality and has no incentive or sentiment to pronounce biased judgments. The emotions of such a judge are relevant and controlled. Such a judge is a fair judge.

Weschler’s conception of a poet-judge or judicious spectator^[6] is premised upon the negation of facts of social and historical significance that ought to influence a judge’s perspective. Professor Martha refutes the same on the grounds that historical complexities must be taken into consideration to ensure equal and principled application of the law.

In summary, Martha supports a literary judge capable of detached evaluation. She reiterates the metaphor of Whitman’s sunlight to strengthen her assertion that judges ought to be rational, neutral, and sympathetic.

Martha elucidates Whitman’s claim that poet-judges are the equalizers of their land and age by explaining the key role played by empathy in the presentation of judgments. Poet-judges are inherently empathetic which paves the way for judicial assessment of a situation and establishment of a judgment required to ameliorate an adverse situation. Prof. Martha discusses this role played by empathy with the help of her compelling and unique insights from Richard Wright’s novel Native Son and E.M Forster’s Maurice.

Although this particular author has not read either of the novels mentioned above, the narration of events of each respective novel by Martha was sufficient to evoke feelings of empathy for the characters and develop a stronger conviction toward social equality, thus strengthening Martha’s contention that developing an empathetic imagination has the potential to dismantle prejudice and discrimination. In developing a literary understanding of Bigger’s character from Native Son, a reader is able to empathize with the racial oppression and hatred Bigger is faced with while simultaneously being a judicious spectator of his violence. The novel brings the reader’s attention to the misfortune and hardship faced by an individual other than themself. The resultant compassion for the protagonist allows for the dismantling of stereotypes in the mind of the reader – this is how the novel produces an “equalizing” effect. Literary understanding of a judicial spectator is developed when they evaluate the acts of an individual as a result of their circumstances and experiences. Furthermore, a sympathetic judge would also have the ability to identify with a character such as Bigger based on any similarities they may share.

Stories like Maurice teach us to be more empathetic to people we might know in real life who have faced circumstances similar to the protagonist. Especially in the day and age that we currently live in, one can hardly afford to be obtuse about something as pertinent as sexual orientation.

Moving towards the final section of her article, Martha presents examples of judicial opinions and examines the virtues of a poet-judge in said judgments. In the case of Hudson v. Palmer^[7], the Supreme Court of the United States held in the year 1984 that the privacy rights of prison inmates are not protected by the Fourth Amendment to the United States Constitution. Justice Stevens in his dissenting minority opinion was vehemently opposed to the unrestrained and unreasonable search and seizure undergone by the prison inmate Palmer. In doing so, he exhibited sympathy for Palmer without compromising on his duty to act with technical mastery. By individually recognizing Palmer as a human being having undergone an unfortunate event, Justice Stevens avoids making a stereotypical comment toward prison inmates as a whole. Justice Brennan, Marshall, and Blackmun concurred with Justice Stevens’s dissenting opinion. By seeking to protect Palmer’s dignity as well as his rights, Justice Stevens acts as a literary judge as envisaged by Prof. Martha.

Martha devotes the entirety of her article to vouching for the benefits of literary understanding in the legal profession. The law and legal system indubitably stand to gain from literature and vice versa. The two disciplines overlap on the grounds that they depend on the deft use of language to flourish. By means of advocacy, both fields have generously and efficacious acted as a means for social reform. The use of the practice of law as a subject matter for literary works has become an excellent and oft-used means for artists to explore human nature.

That being said, we must not fail to overlook how incongruous the overlap between the fields can sometimes be. Professor Wendy Nicole Duong of the University of Denver Sturm College of Law discusses in her article^[8] this divergence of the fields. Firstly, she propounds that the fields differ in the mental process of creation and the utilization of facilities. The creative processes employed by the fields are at variance with one another – the law’s use of rationality and logic could prove detrimental if applied to the creation of art. Furthermore, the fields also differ in the nature of the work product or output. The objective of the law is to ensure a certain degree of certainty to future outcomes whereas any attempt to ensure certainty in the field of art could interfere with the creative process.

A well-rounded argument in a court of law is usually composed of history, philosophy, and economics. There are, however, instances where said fields do not suffice in conveying a compelling argument. It is in such instances that literature plays an instrumental role, especially when one traverses through the complexities of human nature.

In conclusion, it is imperative that the law engages with literature as the law stands to benefit from said engagement. By studying the law alone, one is able to gather a general understanding of the concept of equality and why equality is important in society. What distinguishes an ordinary judge of the legal system with little literary inclination from a poet-judge is the ability of the latter to undertake an assessment of a case by placing themselves in the shoes of the aggrieved party. A judge with the knowledge of literary works such as Native Son develops an understanding not only of the concept of equality but also of how essential it is by gaining a first-person account of what life can be like in the absence of the same. It is such a judge who can be truly trusted to be committed to providing justice. Justice Stevens’s dissent is an instance that proves the above statement right. He empathizes with Palmer’s personal experiences while not encroaching upon the necessary distance that is to be maintained between the two. He employs a holistic approach, leaving no room for prejudiced comments against prisoners, and treats Palmer as a human being. His dissent is a mark of a judge who is equable and fair – a poet-judge.

^[1] Charles Dickens, Hard Times (1854)

^[2] E.M Forster, Maurice (1971)

^[3] Richard Wright, Native Son (1940)

^[4] Plato, The Republic (c. 375 BC)

^[5] Walt Whitman, By Blue Ontario’s Shore, Leaves of Grass (1856)

^[6] Herbert Wechsler, Toward Neutral Principles of Constitutional Law (1959)

^[7] Hudson v. Palmer [1984] 468 US 517

^[8] Wendy Nicole Duong, ‘Law Is Law and Art Is Art and Shall the Two Ever Meet? — Law And Literature: The Comparative Creative Processes’ (August, 2010) <https://gould.usc.edu/why/students/orgs/ilj/assets/docs/15-1%20Duong.pdf.> accessed 29 January 2022.

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ABOUT THE AUTHOR

Nysha Nathan

Nysha is a second-year law student pursuing BA LLB, Hons. from School of Law, Christ University (SLCU), Bangalore and an intern at TS Suresh + Associates. Myriad facets of the law fascinate her. She enjoys reading and writing about the same.