10 October 2013

Sartre's Words: A Difference between Law and Fiction

Words by JP Sartre, Irene Clephane translation (pp 158, Penguin Books in association with Hamish Hamilton 1974)

This brief post explores a single remark made by Jean-Paul Sartre in his autobiography. I use the remark to show how inadequacies in fiction may be adequate in law.

The second half of Sartre's autobiography examines his early writing. He recalls receiving praise for his ideas, but he shrugs it off. He says his earlier fiction had
nothing to do with imagination: [he] did not invent the[] horrors; [he] discovered them, like everything else, in [his] memory.1
This self-deprecation about his early attempts to write fiction leads him to conclude he was undeserving of praise. He considers his imaginative faculties were poor to begin with. Fiction, he implies, is only praiseworthy if original in a very specific sense.

It seems to me, however, that an ability to recall and fuse legal memories is admirable. Such an ability would be very useful to a law student. Moreover, originality would not be precluded in law as Sartre suggests it would be in fiction.

2. High Marks

High marks are awarded for synthesis, originality, and creativity in undergraduate assessments. These three concepts inhabit the same realm and there is little difference between their meanings. Synthesis requires creativity and results in originality. Each of the three relevant words may replace the other two without too much grammatical stress in the previous sentence.2

To write an assessment that is later praised as 'original' or 'creative', one must have written with a concern for Bloom's Taxonomy--a hierarchy of mental development--with which the general criteria for awarding high marks is devised. Whether the concern was conscious or by accident is irrelevant: a conscious effort to employ synthesis is likely to be more successful than an unconscious slalom.

2.1 Conscious Requirements

Synthesis' features are present in work that discovers certain details: coincidences, similarities, and antagonisms exist in and between cases; good synthesis explains these as found relationships.

3. Back to Sartre…

The invention to which Sartre refers is something simpler in law; it is coherent propositions that follow topical ideas' juxtaposition. These ideas may be found in the arguments, reasoning, or dicta in cases, Hansard, or the media for example.

In exams it helps if these topical ideas are stored in one's memory, but for other assessments--timed essays, dissertations, etc--such ideas may be taken directly from sources. Just remember to reference them properly.

3.1 Conscious Application

The memories' or ideas' particular arrangements lend to the legal writer's originality. While Sartre is right to find the practice tedious in fiction, law, again, is quite finicky about originality. Without a basis in precedent there is little chance such creativity will become legally enshrined.

Praise for creativity in law is given for drawn conclusions' veracity; and for attempts at thorough and rigorous legal scholarship--though even then, only when coherent with other law. To 'discover' links within this rigid legal framework is to evidence synthesis and demand high marks: whoever created the horrors first is only relevant because those first writers must be given credit.

4. Conclusion

While Sartre criticised his rudimentary linking-together, the student-writer should not be so dismissive of that technique. Law does not praise the same originality that is praised in fiction.

To invent a four-winged, slimy creature for a legal argument will not convince others of your skill with the legal craft. But to weave old legal ideas in new arrangements will--this is all that originality in law asks for; those skilled in that craft will receive deservedly high marks because the technique, exercised well, is convincing.

Be creative. Synthesise sources together. Express with originality. But do not forget that common practices and legal conventions help preserve law's authoritativeness. So always bear in mind that originality must be framed by acceptable legal methods such as stare decisis--the idea that past decisions must stand. Unreasonable originality that breaks such principles will not be persuasive, and will destroy a legal text.

5. Further Reading

For those who like autobiographies, there are better ones than Sartre's. Even though this post cites his text somewhat favourably, I would recommend other autobiographies before this one. If determined to read Sartre, though, What is Literature? is a better place to start.

Steve Jobs by Walter Isaacson is inspirational. It is dark in places, and a little too long to squeeze in among all the other reading that law students must get through. Nevertheless it is entertaining.

For something relevant to law, Sir Geoffrey Robertson QC wrote a semi-autobiographical book, The Justice Game, that is worth reading. 'Semi-' is not to suggest it is partly fictional. Instead, I mean the text is well written and structurally flows like a good story, rather than a plain chronicle of the man's life.

Finally, if you fancy something that will inspire you to reach the upper echelons in your field, Peter Medawar's Memoir of a Thinking Radish: An Autobiography will do just that, in part because he achieved so much and is quite a good academic role-model.

1 JP Sartre, Words (Irene Clephane tr 1964, Penguin and Hamish Hamilton reprint 1974) 94.
2 This interchangeability means my text is tautologous but I do not consider that a problem in this instance. The tautology exists because definitions are distorted to be illustrative, rather than to be lyrical--which might have been a stylistic problem.

Created: 10 October 2013. Version 1.0.

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