UofT Law faculty authors: 

Simon Stern, "Literary Analysis of Law," in Markus D. Dubber and Christopher Tomlins, eds., The Oxford Handbook of Legal History (OUP, 2018), 63-78


Legal historians often turn to literary examples to show how doctrines, practices, or institutions were perceived at a certain a time. Imaginative works sometimes serve as representative illustrations of legal phenomena, sometimes as alternatives to dominant legal ideas or assumptions (voicing dissent or presenting figures and perspectives that escape the law’s comprehension), sometimes as evidence for the dissemination of legal thought or folk wisdom about the law, and sometimes as a kind of parallel formation that uses, or reflects on, legal methods and modes of explanation, even if the work does not expressly address legal issues. This chapter focuses primarily on the last two approaches, by way of two case studies.

The first case study uses text-mining to show how earlier versions of the Miranda warning appeared in nineteenth- and early twentieth-century fiction, and to ask what we may infer about how these writers understood the warning's purpose and effect. In the second case study, I consider how Oscar Wilde’s novel The Picture of Dorian Gray (1890/91) reflects on contemporaneous obscenity law. The aim in this section is to show how literary interpretation can inform legal historical inquiry by taking us beyond what the text depicts, focusing attention instead on how the text operates. This kind of inquiry can bring out connections between law and literature that we would miss, if we attended only to what the text explicitly says or describes.

The chapter ends with a short bibliography of recent scholarship on law and literature that focuses specifically on the historical dimensions of the inquiry.