Law Review. Is Law the Myth Before the Myth Began? Garrett Epps *

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1 Savannah Law Review VOLUME 4 NUMBER 1 Is Law the Myth Before the Myth Began? Garrett Epps * The legal fictions we have been talking about today are stories that we invent about the law to make it run more smoothly. This court has jurisdiction over the affray with swords and staves because Paris, France, is located in the county of Middlesex, England. My client, the Exxon Corporation, is a person and is present in this courtroom. There is a state called Delaware. I am going to talk about a very different meaning of the words legal fiction. For the past ten years, I have taught short story writing to law students. From that experience, I have begun to suspect a different possibility. At the very deepest level, I wonder: is it possible that we (lawyers, clients, police, judges, legislators) are the fictions and that the law tells the story? In his poem, Notes Toward a Supreme Fiction, Wallace Stevens, who was himself a lawyer, writes of what he calls the first idea. That is, what was it that had to come into existence in order to create art and human civilization? And he says: But the first idea was not to shape the clouds In imitation. The clouds preceded us. There was a muddy centre before we breathed. There was a myth before the myth began. Venerable and articulate and complete. 1 * Professor of Law, University of Baltimore; Contributing Writer and Supreme Court Correspondent, THE ATLANTIC (Online); LL.M., Duke University, 1994; J.D., Duke University, 1991; M.A. (Creative Writing), Hollins College, 1975; B.A. (English), Harvard University, 1972; author, The Floating Island: A Tale of Washington (1985); The Shad Treatment (1977), winner of the 1978 Southern Regional Council Lillian Smith Award for Best Work of Fiction About the South. I d like to thank the editors of Savannah Law Review for their work organizing the Conference of Legal Fictions and extending to me the chance to participate; to the faculty of Savannah Law School, particularly Professors Caprice Roberts and Andrew Wright for their warm welcome to Savannah Law School; and to the audience of participants, students, faculty, and community members who tolerated my delaying their dinner to deliver the speech that formed the basis of this article. 1

2 Savannah Law Review [Vol. 4:1, 2017] What was the myth before the myth began? What was the story before stories were told? What was the center of the human world, venerable and articulate and complete before that world even had humans in it? Was it this story? A man or a woman lives by society s codes, embodies all that is admired, lives a godly, righteous, and sober life and, yet, without warning becomes the victim of the law. Persecuted, hunted, accused, alone, defenseless: the law seeks her life. She discovers that the known world, the daylight world, the world of the upright is not the real world at all. There is an entire world below this one separated from it by the thinnest of crusts; the slightest false step or no step at all brings us crashing down into the lightless Gehenna of the law from which there is no escape. This of course is the plot of Franz Kafka s The Trial. 2 Josef K., as Kafka says, without having done anything really wrong, is by some sort of anonymous slander thrown upon the mercies of a secret legal system secret police, secret prosecutors, secret courts, secret laws, secret charges, secret verdicts, and secret punishments. For much of the book, he struggles even to know what the charges against him are. He is, by turn, angry, disbelieving, humble, supplicatory, resolute, and finally resigned. He begins the book as an upright bank manager and personal friend of the public prosecutor Hasterer. He is, by the end of the book a year later, not even really human offering his neck meekly to the executioner s knife with the last words, like a dog. Here is my thesis: this story is known to and has been heard by millions who have never heard of Franz Kafka. It is, among other things, the story of the other great twentieth century political parable Nineteen Eighty-Four. 3 It is in a sense (as a literary aside) the story of Lewis Carrol s Alice s Adventures Under Ground. 4 It is the story of Scott Turow s Presumed Innocent. 5 It is the story of John Grisham s The Firm. 6 It is the story of Lisa Scottoline s powerful thriller Mistaken Identity. 7 In some versions of the story, the protagonists live, and in other versions, they die. But in either case, it is a terrifying story; it fascinates readers. Readers and publishers constantly look for thrillers about the law. And I think it fascinates us in contemporary society the way the story of Grendel s mother fascinated the Anglo-Saxons huddled in their mead halls with torches against the night. It evokes but does not contain an unimaginable and inhuman fear. That story and that terror, which may seem very specialized, lurks in most of us when law touches our lives. My fiction writing seminar began as a misguided service to those law students (you know who you are) who came to law school secretly thinking, I don t need to practice, I will be the next John 1 Wallace Stevens, Notes Toward a Supreme Fiction, in The Collected Poems of Wallace Stevens (1955). 2 Franz Kafka, The Trial (1925). 3 George Orwell, Nineteen Eighty-Four (1949). 4 Lewis Carroll, Alice s Adventures Under Ground (1865). 5 Scott Turow Presumed Innocent (1987). 6 John Grisham, The Firm (1991). 7 Lisa Scottoline, Mistaken Identity (1999). 2

3 Is Law the Myth Before the Myth Began? Grisham. But it has endured because it serves a function important to practicing lawyers: training in basic narrative technique and training in what makes a story and what is the difference between a story and an anecdote or a chronicle or a fable. All of these things can be important and, in fact, I believe that (this is one of my few pieces of practical wisdom) in nine cases out of ten in a legal dispute, the side that tells the better story will win. But the course is about more than technique because I tell my students that the short story they write has to be about the theme of the law. It has to be about the world they have now given their lives to. It doesn t have to be about lawyers. It doesn t have to be about trials, but the theme of the law, the way law touches life is important for them to face. We read The Trial, and I make them repeatedly read Kafka s fable Before the Law. We consider other legal texts like parts of The Oresteia and the story of Susanna and the Elders in the apocryphal addition to the Book of Daniel. Over the years, I ve had some absolutely wonderful results that surprised me and surprised the students. Ten years ago, a female student came to me about halfway through the course and told me she needed to drop. She was a very good student, and I enjoyed having her in the class. Why do you need to drop the class; is everything all right? I asked. She said, Everything is fine but we have to write a story and I ve realized I m just not creative. I m not a creative person. I m not going to be able to write a complete story and I d rather withdraw than get a bad grade. Well, I said, You re welcome to withdraw if you want, but let s talk it through. The first thing I told her was that I didn t care a bit if she was creative or not because I don t know what that term means. But I knew she could write a complete story and this might be the only chance she d get to do it. So she might think through whether it was worth trying before she quit. She said, What can I write about? and I said, When has law touched your life? Does crime count? she asked. I said it did. Then she said, Well, when I was a teenager, a young teenager, I used to run wild in Central Park; it was the 80 s and there was a lot of crime and we witnessed a lot of bad stuff. I said, Did anything happen to you, were you the victim of crime? She said, No, but it was very dangerous. It came out during the course of the discussion that she had a teenaged daughter and was beginning to re-experience her own youth from the point of view of Oh my god, what did my parents let me get away with? I said, What if you base the character on yourself? Aristotle said man is his desire. What does your character want? She wants to be an adult. She wants to be free. She wants to feel that she is not constrained by her parents rules. And I said, What s the conflict? She said, It s dangerous, she s skipping school to go to a place where there s a lot of danger. What might she do that she would encounter this danger? We talked that through: What would she do next and what would she do next and what happened then and what happened then, what happened then? Those of you who have children know that you get asked these questions and the 3

4 Savannah Law Review [Vol. 4:1, 2017] fact that you may have no answers makes no difference to the person asking you. What could ve happened? After talking it through, she turned in her story let me quickly tell you what it was. The young girl ignores the advice of her friends and approaches a pot dealer of dubious reputation who clearly has an improper interest in her; but she s naïve and mistakenly thinks she can entice him without danger. They get high but he has laced her joint with something that renders her almost helpless. Glassy-eyed, rubber-legged, conscious but confused, she is dragged to an isolated section of the park. He begins to assault her, but as he does so he hears footsteps approaching and goes to divert whoever may be coming. Left alone in the clearing, the protagonist drags herself laboriously over to a patch of woods and hides. And then her would-be rapist comes back into the clearing, hustled there by two large men who have come because he s tried to cheat them out of drug money and they ve been looking for him. They re beating him to death and at the last moment he raises his head and sees her in the bushes and catches her eye and signals with his eyes, Help me! She looks at him and shakes her head, because if the assailants find she s there then they will kill her, too. They look at each other briefly and then he looks away and dies. The killers leave his body as a warning for others. After a time, still moving with difficulty, she emerges from the trees and crawls with difficulty over to the body of this man who drugged her, tried to rape her, and also in his last act may have chosen to save her life. After a moment, she lifts his head into her lap and looks up to heaven and recites the Kaddish, the Jewish prayer for the dead. Later she told me: At the end of the story, when she recites the Kadish, it is also about finding compassion when least expected and about instinctively and intuitively turning to heritage and tradition in times of crisis. In my head when writing this, the girl did not know she knew the words to the Kaddish or their meaning but intuitively the words, which were buried deep inside her, somehow came out of her when faced with such extreme fear, trauma, sadness, etc. Not bad for someone so uncreative. My point is that inside so many of us, inside this uncreative woman, inside so many of my students, is this powerful story of law and death, a story that ends with a human confronting God. That is the story of law. And that is why it s so frightening. Consider for a moment the story of the greatest judge in human history, according to Christian, Jewish, and Islamic tradition: Solomon the Wise, King of Israel. The first part of Solomon s story is a lot like Godfather 2. He settles scores with old enemies, chiefly by sending assassins against them. When Solomon becomes King, however, he prays to God for an interesting thing; not for victory in the battle, not for wealth, not for power. He prays, Give therefore thy 4

5 Is Law the Myth Before the Myth Began? servant an understanding heart to judge thy people, that I may discern between good and bad: for who is able to judge this thy so great a people? 8 A very humble and becoming prayer. The Bible implies at least that God answers his prayer. And we know that he s a great judge. How do we know that? How do we know what a great judge and understanding heart Solomon has? Two women are brought before him with a baby and both claim the child. How does Solomon respond, what does the great judge say? It s right there in the record. Bring me a sword. 9 Bring me a sword! The great judge, the wise man, the understanding heart threatens a baby with a sword. He terrorizes an innocent woman by threatening the death of an innocent child in order to force her to make an entirely false confession. We are, or were in my Sunday school anyway, taught that this was a bluff, Solomon was kidding. If the real mother hadn t done what she did, we would ve found some other way to discover the truth. But if that s true, it s not in the text of the Book of Kings. We don t know what Solomon would have done, but remember he s the one who brought the sword into it. Solomon s law, Solomon s judgment, is not grounded in love or mercy or justice; if it is grounded in an understanding heart, that s an understanding that is different from that of most of us in this earthly life. It is otherworldly, beyond space or time. It is life and death. That concept from the Old Testament carries over to the New. In the Gospel according to Matthew, Jesus tells his disciples a very remarkable thing: Verily I say unto you, till heaven and earth pass away, one jot, nor one tittle of the law shall in no wise pass until all be fulfilled. 10 The law waits for us in eternity. This may be the reason why the one figure of our earthly lives whom we fear to encounter beyond the grave is the judge. Human beings of women born are of few days and full of trouble. We come forth like flowers and we are cut down, we flee like shadows and we continue not. But law binds us forever. Before the Alpha was, after the Omega will be, law is. We hear a voice cry, Come and see! And behold, we see a pale horse. The name of him who sits upon it is Law. 11 And Hell rides with him. 8 1 Kings 3: Kings 3: Matthew 5: See Revelation 6:7 8. 5

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