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Le droit malgré tout

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Yves Cartuyvels
, 
Antoine Bailleux
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Diane Bernard
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et al.

Chapitre IV. Droit, langue et littérature

Reality, Veracity, and Probability in Law and Literature

Jeanne Gaakeer

Texte intégral

Introduction

  • 1 I started working on the latter topic when I had the pleasure to collaborate with François Ost in (...)

1In this essay I probe aspects of the narratives of truth and probability in law and literature by means of an analysis of the German jurist-philosopher-author Juli Zeh’s novel Dark Matter. Together with the topic of the legal imagination as discussed in, and promoted by the interdisciplinary strand in legal theory called Law and Literature, these are important for judicial practical wisdom and an understanding of the psychological phenomena at work in law, as elsewhere, such as cognitive dissonance, confirmation bias and belief perseverance1.

  • 2 E.g. Ost (F.), Dire le droit, faire justice, Brussels, Bruylant, 2007, p. 202.
  • 3 Rogan (C.), The Lifeboat, London, Virago, 2012, p. 222-223.

2Not least because Juli Zeh’s novel also asks us to consider other questions central to law, namely about the free will and an individual actor’s responsibility. These, I suggest, can be fruitfully connected to recent findings in cognitive narratology that are important for the future of the literary-legal project, the methodology of which interdisciplinary venture François Ost has so consistently argued throughout his distinguished career2. The topic of narrative as operative in how we, as examples of the species homo narrans, construct «the world as we know it» is even more important given the risk all humans run because of another trait of human psychological make-up: the human mind’s natural proclivity to structure reality by means of narratives to which coherence and probability are attributed. Narratives can easily become «set stories» that are used to reason away whatever argument that does not fit the story. So while obviously «In the telling of any story, it is possible to emphasize one particular aspect over another so that that aspect looms out of all proportion to the context»3, I hope that my own narrative in what follows has sufficient literary-legal probability to do homage to François Ost.

1. Juli Zeh as Dichterjurist

  • 4 The opening words of par. 2 of Grimm’s Von der Poesie im Recht, «that law and literature arose fro (...)

«Dass Recht und Poesie miteinander aus einem Bett aufgestanden waren, hält nicht schwer zu glauben.»4

  • 5 Ibidem, par. 3.
  • 6 Ricœur (P.), «Narrative Time», Critical Inquiry, 1980, p. 178.
  • 7 Cf. Olson (G.), «Futures of Law and Literature: A Preliminary Overview from a Culturalist Perspect (...)
  • 8 For the German oral tradition of Dichtung und Recht, see Kaufmann (E.), Deutsches Recht, Berlin, E (...)

3When Jacob Grimm observed that law and literature arose from the same bed, he also noted the class of Dichterjuristen, poets with a law degree. Grimm did so in connection to the advent of the strand of Germanists, a term he coined himself to indicate – in contradistinction to the Romanist Friedrich Carl von Savigny, founder of the Historical School of jurisprudence, whose assistant he was – the importance for the development of law of the Volksgeist, i.e. the spirit of the people as exemplified in medieval Germanic, rather than Roman, law. To Grimm, the contemporary importance of this historical connection of law and literature was found specifically in the medieval tradition of poet-jurists. He claimed that «Richter» (judges) are «finders», i.e. finders of their decisions just like «Dichter» (poets), are finders of the right words. In short, both are trobadores, trouveurs or poetai, the ancient Greek term for makers, here in the sense of constructors of texts, and they are narrators, tellers of stories who select the facts5. And since «To tell and to follow a story is already to reflect upon events in order to encompass them in successive wholes» as Paul Ricœur so aptly noted6, the «turn to literature», or, more specifically, the «turn to narrative»7 in the field of Law and Literature, has redirected our attention within legal discourse to a belief in the strength of the human need to tell stories. It also epitomizes the link between human beings and their products both of law and literature as cultural artifacts. In German Law and Literature the concept of Dichterjuristen has since Grimm taken hold and its rich tradition is by now widely documented8.

  • 9 Herminghouse (P.), «The Young Author as Public Intellectual: the case of Juli Zeh», in German Lite (...)
  • 10 Müller-dietz (H.), «Literarische Verarbeitung von Recht in Gegenwartsromanen», in Recht Populär, p (...)
  • 11 Zeh (J.), Alles auf dem Rasen, kein Roman, Munich, Btb Verlag/Random House, 2008, p. 115.
  • 12 Herminghouse (P.), op. cit., p. 277. See also Wagner (S.), Aufklärer der Gegenwart, Politische Aut (...)

4Juli Zeh, born in Bonn in 1974, is an author and a public intellectual with two law degrees to her name who combines her juristic and literary career also by a commitment to the public cause9. So it is more than fitting to call her a Dichterjurist10. Zeh locates herself too in the field of law and literature when she writes that given the ancient bond between literature and legal rhetoric it should come as no surprise that jurists-rhetoricians were often also prose writers11. Zeh firmly beliefs that «Literature per se has a social and, in the broadest sense of the word, political function»12, but a function different from, and beyond journalism with its supposedly objective view of reality that, precisely because of this pretense, itself runs the risk of being a distorted picture of the world if journalism becomes informed by a specific ideology.

  • 13 Trojanow (I.), Zeh (J.), Angriff auf die Freiheit, Munich, Carl Hanser Verlag, 2009, p. 131.
  • 14 Herminghouse (P.), op. cit., p. 275.

5That is also why Zeh urges scholarly and literary work on topics such as, firstly, freedom, on the view that contemporary man when viewed as a transparent man is no longer free, because he is under constant surveillance everywhere and he is nudged towards decisions by manufacturers and government institutions alike. Significantly, Zeh refers to Orwell in this context, when Trojanow and she note that in the street where Orwell used to live in North London, Canonbury Square 27b, the nightmare described in his novel 1984 has become reality with 32 CCTV cameras in this one street13. Secondly, paradoxically perhaps, Zeh thinks it her privilege as an author not to make any truth claim, while she foregrounds the Aristotelian notion of «mimesis, which differentiates between reality and its interpretation in artistic representation», as Herminghouse notes14. What is more,

  • 15 Ibidem, p. 276.

«As the reader becomes aware of the immanence of the author in the text, an opening is created for more conscious reflection on the deeper implications of the text. Such recognition of an author at work in her text is, however, something quite different from what Zeh, in a spirited essay entitled Zur Hölle mit der Authentiziät! (The Hell with Authenticity!), termed the "voyeurism" of readers who approach her novels with a mindsetformed by television "reality shows, docu-soaps, and ‘Big Brother’ formats".»15

  • 16 Fischer (W. R.), «The Narrative Paradigm: An Elaboration», Communications Monographs, vol. 52 (198 (...)
  • 17 West (R.) «Authority, Autonomy, and Choice: the role of consent in the moral and political visions (...)
  • 18 Kauffmann (M.), «Juli Zeh "das Projekt Aufklärung ist nicht zu Ende", das EXTRA-Interview», Wiener (...)

6In relation to reality, the representation of which in literary works that represent «not exactly our own world»16, as Fischer called it, but are nevertheless related to it, this also suggests that the Aristotelian concept of mimesis as representation as developed in the Poetics ties in with cognitive aspects. Thirdly, the topics of the free will and human responsibility are important to Zeh in their interconnection. They fit in with earlier discussions in Law and Literature, such as the debate between Robin West and Richard Posner on the free will under economically difficult circumstances17. Zeh asks what my «free will» actually means, if «I» change due to the influence of all kinds of hidden persuaders18.

  • 19 Cf. Arnold (S.), op. cit., p. 9.
  • 20 See Rudolf (M.) (ed.), Unerhörte Kriminalrechtfälle, Leipzig, Verlag Dieterich, 1980.

7The interplay between reality and possibility, one that Zeh already devoted attention to in her earlier novel Spieltrieb, connects the Aristotelian mimetic idea of literature as «what may happen» to the theme of veracity of the narrative that is presented. Yet it also questions the concept of the legal rule with its aim at providing the generality of its application to all, i. e. actual and future cases, while realizing that the just needs the equitable19. Thus Zeh’s novels can also be read with another literary-legal German tradition in view, that of the so-called Pitavalgeschichten in the early nineteenth century. This genre is based on François Gayot de Pitaval’s 1734 Causes Célèbres, the literary rendition of criminal law cases. Translated to the German setting, the Pitavalgeschichten dealt with both the facts of the case and the defendant’s personal circumstances, and were therefore used as study material for legal practitioners as well as a source of information for the lay public20. They are indeed an early product of the now emerging line of research on the topic of «Law and Popular Culture». This is also to say that it is important to look into law’s wider system of cultural significance through the lens of the humanities, more specifically literature, and the other way around.

8So against the background of the traditions mentioned here that Zeh is heiress to, all taken together, Dark Matter merits our discursive attention as a special Pitavalgeschichte offered by a contemporary Dichterjurist. Not least because, as Zeh pointed out in Spieltrieb

  • 21 Zeh (J.), Spieltrieb, Munich, Btb Verlag, 2006, p. 518 as cited in Arnold (S.), op. cit., p. 13, m (...)

«Law consists of codes, codes consist of words, and words can be many things, but certainly not just as such. How can a written rule thought to apply to an infinite number of factual cases ever make a just decision if anything that happens is a single happening?»21

9Why? Because Zeh’s view here fits perfectly with the Many-Worlds view that one of the novel’s protagonists holds, and with the view held by the eponymous inspector of the German title, Schilf, that one should always question one’s first impression of a case and then do the opposite of that first hunch.

2. The Art of Doublethink

  • 22 Orwell (G.), Nineteen Eighty-Four, in Orwell (G.), Animal Farm and Nineteen Eighty-Four, London, B (...)

«To know and not to know, to be conscious of complete truthfulness while telling carefully constructed lies, to hold simultaneously two opinions which cancelled out, knowing them to be contradictory and believing in both of them […] That was the ultimate subtlety.»22

  • 23 Zeh (J.), Dark Matter, transl. C. Lo, London, Harvill Secker, 2010. Pages references hereinafter i (...)
  • 24 Zeh (J.), Dark Matter, ibidem, p. 22: «A man who stands by the river and watches one thousand whit (...)

10The scene of Dark Matter is set in Freiburg23. The protagonists are Sebastian and Oskar, friends and former fellow students of physics. Their careers have diverged. Sebastian is «an experimental physicists in nanotechnology at the University of Freiburg» [20] while «Oskar’s goal is to unite quantum physics with the general theory of relativity» [19], at CERN in Geneva. Their professional views have diverged too. To Oskar, Sebastian’s interest in the Many-Worlds Interpretation is «[…] not a theory but a hobby horse. […] A dead end» [20], it is a subject left behind by serious physicists long ago. Sebastian who claims not to believe in causality, because that is «[…] like space and time, a theoretical problem of cognition» calls Oskar «[…] a despicable determinist.» [22] To Sebastian, whose outlook is Popperian24, «[…] Physics is ultimately the servant of philosophy.» [22]

11Yet on the first Friday of every month, Oskar travels to Freiburg for dinner and discussion of their scientific disagreements with Sebastian, his wife Maike and son Liam. One bone of contention between them is Sebastian’s article in the journal Spiegel on a murder case in which the murderer’s plea was that his act was a scientific experiment, not murder, because from his Many-Worlds view the victims were still alive in his world. «So many worlds […] Sometimes I wish I could find a way of diverting you from that path», says Oskar, «A slap in the face to bring you back to reality.» [28-29] When Sebastian defies Oskar to state what reality is, Oskar answers «Everything […] that is open to experiment.» [29] By way of response Sebastian then suddenly asks Oskar «Perhaps you’ve read Orwell’s Nineteen Eighty-Four. In Oceania, people learn under torture to see things as both real and unreal at the same time. They are forced to see only one possibility out of many. Do you know what Orwell called that?» but Oskar grabs Sebastian’s arm and replies «Do you?» [29]

12This seemingly casual question, spoken in jest, will prove to be determinant of the rest of the narrative and the plot, both of the novel and of the trick that Oskar plays on Sebastian, with devastating consequences. During dinner Sebastian remarks that their argument is current because «It’s ultimately about science versus morality. […] Think about that scandal with the doctor.» [32] This refers to the cardiologist Schlüter whose patients bled to death during surgery because of unauthorized drugs that were tested on them impeded blood coagulation. At least, so the story goes. The anaesthetist involved turns out to be Maike’s cycling friend, one Ralph Dabbelink who is thought to know «[…] something about suspicious contacts with pharmaceutical firms. And that if he talks, the entire hospital will collapse.» [35]

  • 25 Hegel (G. W. F.), Elements of the Philosophy of Right, transl. H. B. Nisbet, Cambridge, Cambridge (...)

13Much to Sebastian’s surprise, Oskar suddenly announces that they will go to Mainz on Saturday for a live TV interview on a popular science programme called Circumpolar that he has agreed to, also on behalf of Sebastian. It turns out to be a dramatic, fateful event because not only does Sebastian prove to be the loser in the debate, what is more, Oskar has particularly aimed at proving his friend wrong in order to show off his own victory. So we may ask whether the fact that Maike sees a tawny owl immediately after the announcement on Friday night alerts us to an ominous interpretation of Hegel’s remark at the end of the Preface to his Elements of the Philosophy of Right that «the owl of Minerva begins its flight only with the onset of dusk»25. On Sunday, Sebastian, in a state of intellectual despair and existential crisis, takes Liam to a scout camp because Maike is off to the mountains for a cycling holiday. When he stops at a petrol station, Liam is asleep in the back of the car. Sebastian goes to a restroom when his cellphone rings. The number is unfamiliar to him, as is the voice of one Vera Wagenfort who tells him he must keep calm and tell nobody. Anxious to find out what’s going on and what it is that he should not tell, Sebastian returns to the car, only to find it gone: «Wagen fort. Car gone?» [59]. Again his phone rings. Vera Wagenfort now instructs him: «Dabbelink must go. […] Then everything will be all right […] no police. Not a word to anyone. Not even to your wife.» [60-61] Recalling the earlier conversation on the hospital scandal, Sebastian, immediately and without further rational thought, even though he read Orwell, constructs a reason for the phone call: «A medical doctor has done something wrong, and now needs not only the person who knows about it to die, but the right person to kill him. They have found that person. Sebastian’s wife is close to the victim, and jealousy is one of the most common motives for murder.» [62-63]

14Back at the petrol station’s restaurant, the cashier tells him that a woman rang that he could return to his car when he wished. How this came about, again so suddenly and unexpectedly, Sebastian takes for granted. He then starts to act quickly. He finds Dabbelink’s address in his wife’s address book. He goes over all options to fulfill his special «task» and decides to span a steel cable over Dabbelink’s favourite mountain cycling route. It works, or so he thinks. Back at home, Sebastian switches on the TV but there is no «[…] news that a senior registrar at the university hospital has met his maker in mysterious circumstances. […] What if the body is not found? […] Or what if the accident had not been fatal after all? What if he got the wrong man?» [91] When the news is announced, however, Sebastian is not relieved because nobody is calling, neither the kidnapper, nor Liam, nor even Maike or the police.

  • 26 Free Fall is the title of the American edition of the novel.

15As a result, «Scarcely has Sebastian understood this, when the false floor is pulled away. Free fall begins. »26 [93] He calls Oskar to tell he killed a man. Oskar immediately asks «Dabbelink?» – and unsurprisingly Sebastian does not respond to this. Oscar advises Sebastian to go to the police to tell them that Liam has been kidnapped. At this point in the narrative the perspective switches to inspector Rita Skura and her former instructor Detective Chief Superintendent Schilf who told her to follow one simple rule: «[…] to assume the opposite of what she was thinking, and always do the opposite of what she felt», because «Coincidence is the name given to the greatest human error». [107 and 111] This lesson proves to be invaluable as Rita sets out to investigate the Dabbelink case. At the same time she has to deal with this odd kidnap case.

  • 27 The reader has been prepared for this earlier on, since Sebastian too met the butterfly collector: (...)

16Sebastian in the meantime undergoes the police search proceedings quietly. He does not divulge the instruction that Vera Wagenfort gave him. Then there’s a phone call. It is Liam apologizing for not having called earlier. Sebastian faints. Meanwhile detective Schilf is assigned to the case to help speed up the investigation. He is reluctant. The diagnosis of a brain tumor and a short life expectancy have made him rethink life’s values, especially now that he has a new girlfriend. Nevertheless, he takes the kidnap case off Rita’s hands. In his first interview with Sebastian, he talks about the Many-Worlds Interpretation that «[…] also leaves human beings their free will. For as long as we can call forth new worlds through our actions, it doesn’t matter how much we are affected by the cause and effect mechanisms within each world. We remain free in our decisions.» [177] After an interview with Maike, Schilf meets up with Rita and tells her: «By the way, I’ve found your cyclist’s murderer. […] I still have to check on one detail.» [203-204] At the crime scene he meets a butterfly collector who tells him that he saw a tall, blond man at that spot a few days ago27. Schilf realises that his suspicion of Sebastian was correct.

17In the meantime Maike has her own suspicions about the kidnap-story and Sebastian flees to Oskar in Geneva who suggests to construct an alibi which Sebastian refuses. Schilf informs Rita that Sebastian is the murderer but that he was blackmailed into it. When at the library Schilf downloads the TV programme of Oskar and Sebastian fighting about the contributions of physics, he understands what has happened when he hears Oskar say «In your double worlds […] you live a double life. And you pretend you can do something and also not do it at the same time. […] Let me put it in Orwell’s words» [255], but unfortunately the rest of what Oskar says is inaudible. Schilf travels to Geneva to confront Oskar.

  • 28 I assume this is a mistake in the English translation: «both of them» or «them both» would be gram (...)

18In the end, Schilf’s girlfriend Julia leads him to the solution. Puzzled that he is unable to hear what Oskar really says–«"That is Dabbelink"» [267] Schilf thinks he hears him say–Julia explains the Orwell quotation «"That is doublethink" […] "It means holding two contradictory beliefs in one’s mind simultaneously, and accepting both them28. In Orwell that is a practice of totalitarian systems."» [277] «Dabbelink must go» was actually «Doublethink must go». Schilf and Rita find out that Liam was brought to the scout camp by a tall man with dark hair: Oskar. Sebastian has confessed to Rita, but as yet there is no arrest warrant because Schilf, not unlike Dostoevski’s examining magistrate Porfiry Petrovich in the Raskolnikov case in Crime and Punishment, needs, and takes, more time. Rita and Schilf fight about the motive: is it a crime of passion or a «[…] silly school boy’s prank, thought up by a particularly dangerous boy»? [287]

19After having told Maike that Sebastian was blackmailed into killing Dabbelink, Schilf explains everything to Sebastian who then realises that «"Dabbelink must go" was the tragic command to destroy his own life.» [296] Surprisingly, Sebastian says he had recognised the voice of Vera Wagenfort immediately as Oskar’s secretary but rather than telephoning Oskar to tell him he’s a scoundrel «"Instead I murder someone. It’s true, isn’t it, that we always understand what we want to understand?"» [296] To Rita, Schilf explains that «"Oskar created a parallel universe […] in which Liam had been kidnapped and not kidnapped at the same time. Sebastian was supposed to recognise what it means not to be able to trust in reality."» [301] To which Rita replies «"You’re saying that he has fucked up his friend’s life in order to teach him a lesson about responsibility. And he’s sitting in Geneva pretending this has nothing to do with him."» [301] In the meantime the hospital scandal has dissolved. It was not the pharmaceutical scandal but the mistake of a trainee nurse who gave patients the wrong medication.

  • 29 In his Poetics Aristotle speaks of the literary work as a kind of thing that might be, so that lit (...)

20A trap is set up for Oskar: he is to be confronted with a replica situation of the bike accident including Dabbelink’s head, frozen for the occasion, and the steel cable. Oskar seems to anticipate the event and has already: «[…] prepared a reply for every possible question. It was simply a joke between friends. No one was meant to come to any harm. Everything else that happened could not, as the lawyers say, with all due and proper care, have been foreseen, so he could in no way be accused of it.» [317] Nevertheless, the trap works brilliantly. Once exposed, Oskar realises that he himself, and not only Sebastian, was the expert in doublethink: «"I’m afraid it was me."» [319] The case solved, Schilf dies, thinking «Goodbye, observer» [321], but then he is an observer of the only world that most ordinary people know. The Epilogue ends in truly Aristotelian vein29: «It went something like this, we say.» [322]

21So what does this narrative of «dark matter», set in the Heideggerian Black Forest of Freiburg mean? What do its deliberate events, or should we rather say odd coincidences, mean? The open ending – no closure is given in the novel, so we are left to wonder about the fates of Sebastian and Oskar – suggests not only the human being’s lack of insight in the all too often unintended consequences of his actions, but also that whatever can happen, be it ever so strange, will at one point in time happen, if the conditions are right. With this in mind, I offer some reflections to tie the novel to topics of legal theory and legal practice currently under consideration in Law and Literature, or, more broadly, in Law and Humanities.

3. In Search of Schrödinger’s Cat

  • 30 Shakespeare (W.), Twelfth Night, in The Norton Shakespeare, based on the Oxford edition, edited by(...)

«If this were played upon a stage, now, I could condemn it as an improbable fiction»30

A. Freedom and (In) determinism

  • 31 For another novel combining philosophy and physics, see Michel Houellebecq’s Les Particules Élémen (...)
  • 32 Waldow (S.), «Ich weiss, dass ich permanent über Moral schreibe. Juli Zeh im Gespräch», in Waldow (...)
  • 33 Arnold (S.), «Zwischen Nihilismus und Spieltheorie. Juli Zehs Roman Spieltrieb», Revista de Filolo (...)
  • 34 See Andrew Marvell’s poem «To his coy mistress», 2nd stanza, line 2.
  • 35 Nussbaum (M.C.), Poetic Justice, Boston, Beacon Press, 1995.

22The idea of parallel universes or Many-Worlds that Sebastian cherishes, is a despicable form of truth-relativism to Oskar. One that frees the individual of his (moral) responsibility. That is why Oskar wants the parallel universe, the «doublethink», gone, not least since Oskar is appalled by the fact that Sebastian believes in the Many-Worlds Theory in the same way that other people cherish their religious convictions, i. e. the theory controls all his actions31. In short, the dispute between Sebastian and Oskar rests on the difference between the Feyerabendian «anything goes» view and the view that no human act is without its consequences. What Juli Zeh wants with this contradistinction is to rattle the cage of our beliefs, as she also did in the novels Spieltrieb and Corpus Delicti, especially because she thinks the difference between fictional and factual, or documentary concepts hard to distinguish, and if at all, with hindsight only32. In this sense, Dark Matter as a novel is a deliberate combination of elements derived from actual discourses that undergo the transformation into literature33. Other than Sebastian, however, inspector Schilf because of his brain tumor already always hears «time’s winged chariot hurrying near»34. Down to the real earth, at least as most of us know it, Schilf exemplifies Martha Nussbaum’s methodology of trying to imagine what it is like to be in someone else’s situation35 before proceeding to give a judgment and arrive at a final decision in a specific case. It can be seen in his advice to Rita Skura to always do the opposite of one’s initial hunch. The very idea of a switching excercise would also be an antidote, i. e. a methodology to be used in order to preclude the risk of becoming a legal Orwelllian «doublethinker». In this sense Rita Skura is the oppposite of Sebastian in the novel who hears what he wants to hear, or rather, hears what his world view makes him hear. That is why Sebastian suffers from an intellectual confirmation bias, a psychological shortcoming that I turn to below.

  • 36 Cf. Zeh (J.), Dark Matter, op. cit.
  • 37 In this sense Arnold (S.), «Zwischen Nihilismus und Spieltheorie. Juli Zehs Roman Spieltrieb», op. (...)

23Is then the admonition that Oskar gives to Sebastian to «stop doublethink» also the answer to the determinism-indeterminism debate, comparable perhaps to theme of the «play» in the novel Spieltrieb? That is to say, does the novel Dark Matter transform a scientific topic into a nightmarish tale in which what initially seems a prank played on Sebastian by his best friend turns into (the consequences of) a serious crime?36 In other words, their intellectual wordplay at a certain point, after the TV programme, becomes serious in the real world. In this way, literature serves as the medium in which the experiment takes place37. Dark Matter thus foregrounds the legal philosophical topics of guilt and free will. Or, as Sebastian puts it, «One of the philosophical advantages of the Many-Worlds interpretation is that it can explain the free will of mankind. […] In linear time our fates are determined from the earliest past into the most distant future. Our decisions are nothing more that biochemical processes in the brain which are subject to the laws of cause and effect. […] Now imagine that every conceivable causal sequence exists at the same time in parallel universes. The way every individual universe develops may be predetermined, but our freedom consists in being able to choose one of these many worlds with every decision.» [253] To Oskar, there is only «one universe […] With no possibility for escape. […] That’s where you should be living. And where you should take responsibility.» [254] But when Oskar tries to teach Sebastian responsibility, ironically Sebastian proves to be the one who is determined, precisely because of his firm belief in his theory: «It’s true, isn’t it, that we always understand what we want to understand?» [296]. Or, as inspector Schilf puts it succinctly, when he gets his fatal diagnosis, the problem is that, «Without a reliable cure for doubt, there can be no cognitive orientation» [142] Thus, it does not mean a thing that Sebastian claims that what he believes «has been described by many reputable physicists: Stephen Hawking, David Deutscher, Dieter Zeh.» [252], the latter name of a well-known scholar and an intertextual pun on the author’s own name.

24Thus, when we accept Schilf’s view, also, as noted above, in combination with the fact that Sebastian is blackmailed into killing Dabbelink, the concept of the free will as traditionally the criterion for assigning independent (legal) personhood, should be looked upon in its interconnection to the epistemological distinction between subject and object, or if we follow physics, observer and observed. The latter topic is obviously closely related, on the metalevel, to the question after the position of disciplines on the disciplinary spectrum, i. e. firmly rooted in the natural-sciences paradigm (in-or excluding the social sciences), or belonging to the humanities (again, in-or excluding the social sciences). What is more, the free will in the sense of intent, criminal or not, is intimately connected to concepts such as guilt and culpability. The position we take on the subject has consequences for our views on retribution. That, too, makes Dark Matter an important novel for jurists.

  • 38 For an extensive treatment, see Gaakeer (J.), «"Sua Cuique Persona?" A Note on the Fiction of Lega (...)
  • 39 Bayle (P.), Dictionnaire historique et philosophique, Amsterdam, Compagnie des Libraires, 1734, To (...)
  • 40 Voltaire, Dictionnaire Philosophique, edited by Benda (J.), Naves (R.), Paris, Garnier, 1961, p. 2 (...)
  • 41 Scholten (J. H.), De vrije wil. Kritisch onderzoek, Leiden, P. Engels, 1859, p. 1, «het vermogen o (...)

25The free will was initially founded on the combination of the classical-philosophical view of the will as an ability in the sense of an attribute of the soul, and of religious views, roughly from Saint Augustine to Calvin who as champions of predestination (i.e. as far as the afterlife is concerned) thought in terms of the free will to do the right and abstain from what is wrong (both the mala per se such as murder, and the mala prohibita, i.e. what law prohibits).38 In the Age of Enlightenment, the topic becomes acute. To Pierre Bayle the subjective philosophical concept of the liberum arbitrium indifferentiae is the key: having a free will means that man, for example, is free to decide to go either left or right, even if there is no specific reason to do either. In other words, one has freedom to act if one is simply speaking able to do whatever one decides39. Or, as Voltaire put it Dictionnaire Philosophique, «Vous êtes libre de faire, quand vous avez le pouvoir de faire»40. Freedom of the will is when one is free in one’s decision to act at all. This is the precursor as well as the precondition of the freedom to act in that it presupposes the mental ability to decide whether or not to do this, that or the other at any given moment, unhampered by internal or external causes, as the nineteenth century the Dutch jurist J. H. Scholten defined the free will41.

26For lawyers, the interesting question is what it means that a decision is supposedly free, such as Sebastian’s decision to kill Dabbelink. That is to say, what are the necessary and sufficient conditions that enable such a decision, and what are the consequences. These are obviously essential questions too when dealing with the topic of the relation between subject and object. From a philosophical point of view, the Cartesian-ontological dualism of mind and matter is a necessary presupposition if one wants to assert the working of the free will and the freedom of human agency as contrasted to an all-encompassing determinism. The indeterminist presupposes volition per se, and reproaches the determinist for denying the option of attributing the criminal act to the individual. The determinist takes the indeterminist to task for his inability to give reasons for his actions, i.e. other than «I wanted it because I wanted it». This is the philosophical stalemate of the tertium non datur and the ontological and methodological problem of those fields of knowledge such as the humanities that take the human as both subject and object of inquiry, as noted above, so that they must ask «Do we try to understand human action?» or «Do we try to explain it?» Suffice it to say that the Cartesian worldview and methodology have long been dominant in Western thought. In law, the introduction of the concept of abnormality proved a way out of the determinism-indeterminism debate. Since the free will cannot be other than a postulate, the introduction of abnormality is necessary in order to be able to show that this state of exception of the individual defendant’s mind is not the case, so that as a consequence volition has been «free». Many defendants suffered the consequences of the psychiatric treatment that then became their fate. Applied to Dark Matter it would mean that Sebastian is the one who is determined because he lacks the free will in the sense of a rational deliberation of how to act when he gets the strange telephone call by Vera Wagenfort. That is to say, his decision to kill Dabbelink is not the result of his free will, for that could only be if (a) it was a decision made on rational grounds, that (b) could have been different if equally rational, but different grounds would have prevailed.

B. Psychological phenomena: cognitive dissonance, confirmation bias and belief perseverance

  • 42 See Gaakeer (J.), «"The Bloody Book of Law", some remarks on the interrelation of law, medicine, a (...)

27Sebastian is framed in more than one way. One of the causes can be found in his belief in the Many-Worlds Theory. I suggest that his adherence to this theory of interpreting reality eventually causes in him a form of cognitive blindness or dissonance, that increases the psychological defect of reasoning away opposites, e. g. «Liam is kidnapped, how can Liam be kidnapped?» at the same time. Sometimes we indeed misjudge what we see, or we miss part of the information before us. Biological and cognitive factors may cause illusions and delusions, and our expectations can lead to our experiencing stimuli that are not really «out there», as contemporary psychology and neurology have brought to light. The Dabbelink-Doublethink misunderstanding cannot be acoustic, because Sebastian is familiar with Orwell’s Nineteen Eighty-Four. What we do learn, is that Sebastian is unhappy with the friendship between his wife and Dabbelink42. Together with his belief in the Many-Worlds Theory, I suggest, this causes a cognitive dissonance that makes him hear the words «Dabbelink must go». As a psychological phenomenon, cognitive dissonance is the feeling of uncomfortable tension that comes from holding two conflicting thoughts in the mind at the same time. It is the feeling that occurs in the individual when he perceives an incompatibility between his cognitions in the epistemological sense, i. e. between elements of his knowledge: Liam cannot be kidnapped and not kidnapped at the same time, or can he? That is why Sebastian reasons away opposites. He is inclined to seek and interpret evidentiary elements in such a way that they confirm his existing conviction, and his subjective hypothesis about why Dabbelink must die.

  • 43 Cf. Kahneman (D.) et al. (ed.), Judgment under uncertainty: heuristics and biases, Cambridge, Camb (...)

28This is a form of confirmation bias in that Sebastian’s view with respect to the world around him becomes his sole guideline. Information confirming his preconceptions is accepted and contrary interpretations are actively avoided: the psychological phenomenon of belief perseverance now enters the fray, as Sebastian keeps believing what he has decided that he believes a priori even when disconfirming evidence occurs. The confirmation bias as a form of selection bias often takes the form of an active search by a decision maker for evidence that confirms his initial hypothesis, to which he then assigns more weight, while at the same time he tends to ignore evidence that disconfirms the hypothesis43.

  • 44 See also Gaakeer (J.), «Comprehending contraries or doublethink? Law, literature, and the dangers (...)
  • 45 Kafka (F.), «In the Penal Colony», in Kafka (F.), Franz Kafka, The Complete Stories, transl. N. N. (...)

29In short, there is no, or not enough revaluation of the evidence relevant to the belief that a person holds44. Contemporary neurological research suggests that when a person acts on an initial impression, this tends to last in his brain, so that the person is literally reluctant to «change his mind». So, comparable to Kafka’s officer in the novella In the Penal Colony who told us that guilt is never to be doubted, Dark Matter is a warning to jurists to keep free of bias45. Sebastian does not doubt Dabbelink’s «guilt» and acts on it. Do we not sometimes, especially when we are experienced legal practitioners, easily reason away discomfiting evidence when we can point to evidence that favors a direct and obvious solution? Dark Matter warns us against that. Sebastian proves his own point that «Everything that is possible happens» [251], in one world as much as in Many Worlds, and like many people when something tragic happens, who «[…] think that nothing worse can possibly happen, though the actual horror still lies before them» [89], Sebastian does not at first understand the consequences.

C. Narrative probability: plot, script and veracity

  • 46 Cf. Van Wezep (R. A.), «Many worlds and the appearance of probablity in quantum mechnics», Annals (...)
  • 47 Arnold (S.), «Zwischen Nihilismus und Spieltheorie. Jul Zehs Roman Spieltrieb», op. cit., p. 213. (...)
  • 48 Heydenreich (A.), Mecke (K.), «Juli Zeh im Dialog zu Schilf », in Physik und Poetik, edited by Hey (...)

30How then is Sebastian’s responsibility (further) affected? So much is certain, Oskar wants Sebastian to take responsibility not only for the world that he himself has decided to accept as reality46, but also in the world that he, i.e. Oskar, favours. Preferably, these will be the same worlds. Neither, however, can exonerate himself from responsibility, even though both think they are beyond judgment by others in that their intellect and scientific research makes them feel different, perhaps even Nietzschean Übermenschen in a higher stadium of development than the rest of humanity47. At the end of the narrative Oskar has to face the fact that he is at least morally guilty, because in planning the kidnap and the «Dabbelink must go» plot, he has not only caused great harm to his best friend, but has fallen in the trap of creating a parallel world, exactly the thing he reproached Sebastian for48. That is why Oskar must take responsibility, or, as inspector Schilf puts it to Sebastian, «His conscience is the only judge who can really exonerate you» [313].

  • 49 See Wagner (S.), op. cit., p. 58-60. Cf. Zeh (H.D.), «The role of the observer in the Everett inte (...)
  • 50 Heydenreich (A.), Mecke (K.), op. cit., p. 286. Cf. p. 289: the epistemological question to Zeh is (...)

31Zeh has conceded that the theory in physics in which the observer and the observed are interconnected, has driven her to the philosophical and authorial questions about who observes whom, then, and who creates the other49, not least because, «Life is a story with many floors.» [270]. To Zeh, physics nevertheless remains the handmaiden of philosophy, even though it seems that the natural sciences have taken over when it comes to questions of truth value and veracity50.

  • 51 Turner (M.), The Literary Mind, New York and Oxford, Oxford University Press, 1996, p. i, «Story i (...)

32This brings us to the topic of the narrative of «the world as we know it», as human beings, legal professionals and literary authors. Obviously, as noted above, all humans run the risk to fall into the pitfall of narratives becoming set stories and in the judicial environment of applying them as set rules, because of our psychological make-up, our natural proclivity to structure reality by means of narratives51. Knowledge of how narrative works, in the world and in us, is therefore of the utmost importance, lest the combination of misreading and professional biases about how things are, or should be done lead to miscarriages of justice.

  • 52 Zeh (H.D.), op. cit., p. 99, «The observer has always played an essential role in the empirical sc (...)
  • 53 Zeh (H.D.), op. cit., p. 97.

33In a judicial environment, I suggest, the role of the observer in quantum physics is taken over by the interpreter or hermeneut of what others have said that has happened. That is the judge. Especially in inquisitorial legal systems with a focus on written statements, the judge is the observer of what others have written down: the judge reads the files, the stories of what has happened, and then decides what the legally relevant facts are and what they mean in this specific case. By doing so the judge constructs the plot, comparable to the work of the literary author. The judge’s past experience of specific situations (and the people in them) can engender expectations with respect to human behaviour that will, in turn, guide the application of these expectations in the future, so that the risk of psychological errors of the kind noted above is acute. One might call this the legal form of Heisenberg’s «uncertainty principle» since it can never be ascertained to which degree the observer–be that a witness, a police officer, or a judge–influences the observed–be that a crime, a witness testimony, or the contents of the files–, and in addition procedural law also helps create the new legal reality (e. g. the unus testis rule)52. That is why the influx of, for example, Bayesian statistics in legal evidentiary environments should be viewed with great caution, for, as the physicist Zeh points out, «as a method to handle incomplete knowledge, but it does not help us to understand what this knowledge might be about»53.

  • 54 Heydenreich (A.), Mecke (K.), op. cit., p. 291-294.
  • 55 Cf. Van Peer (W.), «Literature, Imagination, and Human Rights», Philosophy and Literature vol. 19, (...)
  • 56 Aristotle, op. cit., 1451b5-b12, cf. supra note 29.
  • 57 Nussbaum (M. C.), Not for Profit, why democracy Needs the humanities, Princeton, Princeton, Univer (...)
  • 58 Zeh (J.), Die Stille ist ein Gerausch, eine Fahrt durch Bosnien, Munich, Btb Verlag, 2003, p. 144.
  • 59 Herminghouse (P.), p. 276; Ricœur (P.), Hermeneutics and the Human Sciences, transl. J. B. Thompso (...)

34The perspective from which to explain the world, or reality in the natural sciences, and the perspective from which the story in the literary work is told are comparable. What the literary text does extra is that it observes the observer, or rather, it has the reader observe the observer in the fictional world, e. g. inspector Schilf, and allows the reader to form her own opinion on what the literary text means. That is also the added value of literature for law54. What, then, makes a (literary) text and a plot convincing? This is not just a question after the literary aesthetics of the multiple layers of Zeh’s literary narrative. It is also a question after the function of the reader’s imagination in the project of humanity, in that according to Aristotle literature contributes to elevation of mankind–the paideic project of Law and Literature–and that it allows us to flee our limited world of space and time, and our personal restrictions, bodily and intellectually55. If Aristotle was right when he claimed that narrative not only tells us «what happened» but also what is probable56, then we would do well to learn why things happen by the skilful representation of events that the author offers, and do so by means of developing our narrative imagination as Nussbaum also calls it57. That is why for a subject as consequential as law, literature can be helpful also to probe alternative scenarios, and in this sense we can read literary works as unorthodox jurisprudential texts. There is a good epistemological reason to do so, while keeping in mind, as Juli Zeh puts it succinctly, «"But literature […] finds the truth? Or is it creating its own?"»58. And, as Herminghouse points out, «Zeh stresses the Aristotelian notion of mimesis, which differentiates between reality and its interpretation in artistic representation», so that what matters from a hermeneutic point, then, is not, or not merely, the search for the literary-legal intention behind the text, but to «[…] a world unfolded in front of it», as Paul Ricœur claims59.

35With respect to narrative itself, as Fischer claimed, what is important to note are the mimetic questions «Is this world possible?», and «Are these people possible?» and to Fischer this means that the rationality of narrative,

  • 60 Fischer (W. R.), «Narration as a Human Communication Paradigm: The Case of the Public Moral Argume (...)

«[…] is determined by the nature of persons as narrative beings–their inherent awareness of narrative probability, what constitutes a coherent story, and their constant habit of testing narrative fidelity, whether the stories they experience ring true with the stories they know to be true in their lives (narrative probability and narrative fidelity, it will be noted, are analogous to the concepts of dramatic probability and verisimilitude…).»60

  • 61 Ryan (M.-L.), Possible Worlds, Artificial Inteligence, and Narrative Theory, Bloomington, Indiana (...)
  • 62 See Walton (K.), Mimesis as Make-Believe, Cambridge (Mass.), Harvard University Press, 1990.

36Fischer’s view can be augmented for our purposes by attention to the principle of minimal departure endorsed by Marie-Laure Ryan, who claims «[…] that we construe the central world of a textual universe in the same way we reconstrue the alternate possible worlds of nonfactual statements: as conforming as far as possible to our representations of AW [the actual world]»61, and with Kendall Walton’s Reality Principle that says we should make fictional worlds in conformity with real ones, or its modified version, the Mutual Belief Principle with its focus on reception and perception in a given environment.62

  • 63 Fischer (W. R.), «Narration as a Human Communication Paradigm: The Case of the Public Moral Argume (...)
  • 64 Fischer (W. R.), «The Narrative Paradigm: An Elaboration», op. cit., p. 350 and 354. Cf. Ricœur (P (...)
  • 65 Weresh (M.), «Morality, Trust, and Illusion: Ethos as Relationship», Legal Communication & Rhetori (...)
  • 66 On the reader as decoder, cf. Prince (G.), «Reader», in The Living Handbook of Narratology, edited (...)

37Important for narrative in law, therefore, is to observe that the world requires both knowledge of agents (in order to find which is reliable and trustworthy) and knowledge of objects (in order to discover what has the quality of veracity)63. In a judicial environment especially what matters is that Fischer claims that, «Narrative rationality… is an attempt to recapture Aristotle’s concept of phronèsis, "practical wisdom"», on the view that it «[…] recognizes a contingent world, the particularities of practical existence and the possibility of wisdom – a virtue that involves an interest in matters that transcend immediate circumstances.»64 More recently, Melissa Weresh has pointed to another way to view narrative and that is as an organizational framework, because «[…] narrative frameworks rely in large part on establishing a bond with the reader», so that to her what matters is also that «Persuasive narrative relies on three psychological properties: coherence, correspondence, and fidelity.»65 So whether persuasion takes place on the basis of formal properties that are internal to narratives, of by way of the way in which the reader himself finds himself in the world, e.g. as a legal professional, one thing is certain: as readers we are all decoders. That is why we must study how specific forms of narrative transfer their stories, that is to say how they address their reader and are crucial in constituting the responses of their reader to the events that narratives tell. In short, the feature important for law and jurisprudence enters the fray, that of human agency and subsequently human responsibility, both with respect to the production and the reception of narrative, of text.66

  • 67 Herman (D), «Cognitive Narratology», in Handbook of Narratology, edited by Hühn (P.), Pier (J.), S (...)
  • 68 Ost (F.), «Towards a Critique of Narrative Reason», in Living in a Law Transformed: encounters wit (...)

38In this way our analysis of Dark Matter comes full circle. How did Sebastian «read» Oskar’s narrative of «doublethink must go»? How did the story of the medical scandal help frame this story? To Sebastian the script of the Many-Worlds Theory is influential from the start. Frames and scripts as «a type of knowledge representation that allows an expected sequence of events to be stored in memory»67 are always culturally defined. Therefore it is important to ask what, next to our psychological traits, the influence is of our own standard stories or scripts. How do we fill in the blanks as Sebastian mistakenly did? Our cultural-professional software is influential (including the question what it means to contribute to a liber amicorum of a respected colleague J) How do we structure the narrative into something we can deal with? In law, this is of the greatest importance to acknowledge. I mention all this to argue that if the way in which the facts of a case are narrated and the order in which they are narrated determines to a large part the outcome of that case, jurists need to develop and value narrative knowledge, not least because the events that did not become «facts» may be of equal importance. So we should fight the disqualification of narrative for law as François Ost eloquently argues68.

D. Reality Control?

  • 69 Orwell (G.), op. cit., p. 221-222 and p. 38.
  • 70 Cf. Cardozo (B. N.), «Law and Literature», Yale Review, 1925, p. 489-507.
  • 71 See Cole (D.), The Torture Memos. Rationalizing the Unthinkable, Oxford, Oneworld Publications, 20 (...)

39If we combine all this with the idea that, as noted above in paragraph 2, that «law consists of codes and codes consist of words, and words can be many things», and that «doublethink» as a «vast system of mental cheating[…]» is necessary under conditions in which power control is essential, because «reality control», by means of «doublethink» requires «[…]a deliberate act»69 to tamper with both language and reality, then one other point is clear: as jurists we should be alert to signs of «doublethink» as linguistic evasion of legal responsibility when it comes to interpreting legal texts. Here the importance of narrative knowledge and insight into the «how» and the «what» of a text, as Benjamin Cardozo already suggested, is obvious70. The infamous concept of «enemy-combatants» in Guantanamo Bay, used to keep prisoners away from a judge and a jury of their peers (the habeas corpus principle), and the equally infamous Torture Memos used to torture prisoners while evading legal and moral responsibility, are cases in point here71.

4. Coda

  • 72 Herminghouse (P.), op. cit., p. 274, translation of Zeh (J.), Spieltrieb, op. cit., p. 10, «Wenn d (...)

«If it’s all just a game, we’re done for. If not, then for sure»72

  • 73 Verbij (A.), «Interview Juli Zeh», Trouw, 4 September 2008, https://www.trouw.nl/home/heerseres-ov (...)
  • 74 As one such worldly judge I would not hesitate to judge Sebastian, given the severity of his act a (...)
  • 75 Kafka (F.), The Trial, transl. W. Muir, E. Muir, London, Penguin, 1978, p. 238-239.

40Dark Matter shows us that at the end of the novel we should still wonder whether this was truly a final, irrevocable version of what happened. While physicists may hold on to the idea that coincidence does not actually exist, Dark Matter teaches us that its role may be greater than we think, especially given our human mistake to all too often «read» what we ourselves already think. Thus we should reflect on whether we as legal professionals are Sebastians or Oskars. Whether we too perhaps tend to fool ourselves into irrational beliefs, doublethinkers that we may all be. Or are we supposedly rational readers like inspector Schilf who uses the intellectual controversy between Sebastian and Oskar to solve the crime? Much depends upon the epistemological position that we hold. To Schilf, whose Kantian outlook on reality73 makes him follow his empirical observations that he understands also help form reality–a reciprocal relation between observer and observed–, this paradoxically leads to his decision not to have Sebastian arraigned because he thinks that the worldly judge cannot decide this case, only the inner judge, either Sebastian’s, Oskar’s or the reader’s can do so74. Schilf thus follows Kafka’s point of view that, «The right perception of any matter and a misunderstanding of the same matter do not wholly exclude each other»75, and he acts on it in favour of Sebastian. Obviously we are not told what Rita Skura will do after Schilf’s death, since the novel rejects closure. To us as readers-jurists, then, Dark Matter shows the importance of our developing a literary-legal imagination and narrative knowledge, to foster the spirit of erudition of the humanities, the esprit de finesse as Pascal called it, that François Ost has shown throughout his long and distinguished career.

Notes

1 I started working on the latter topic when I had the pleasure to collaborate with François Ost in the field of Law and Literature when we co-organized a special workshop for the IVR conference held in Cracow in 2007. See Gaakeer (J.), «Comprehending contraries or doublethink? Law, literature, and the dangers of cognitive dissonance», in Crossing Borders, law, language, and literature, edited by Gaakeer (J.), Ost (F.), Nijmegen, Wolf Legal Publishers, 2008, p. 60-74.

2 E.g. Ost (F.), Dire le droit, faire justice, Brussels, Bruylant, 2007, p. 202.

3 Rogan (C.), The Lifeboat, London, Virago, 2012, p. 222-223.

4 The opening words of par. 2 of Grimm’s Von der Poesie im Recht, «that law and literature arose from the same bed is not hard to believe» (Grimm (J.), «Von der Poesie im Recht», in Grimm (J.), Kleinere Schriften, Hildesheim, Olms, 1965, vol. 6, p. 152-191).

5 Ibidem, par. 3.

6 Ricœur (P.), «Narrative Time», Critical Inquiry, 1980, p. 178.

7 Cf. Olson (G.), «Futures of Law and Literature: A Preliminary Overview from a Culturalist Perspective», in Recht und Literatur in Zwischenraum/Law and Literature in-between, edited by Hiebaum (C.), Knaller (S.), Pichler (D.), Bielefeld, Transcript Verlag, 2015, p. 37-69, for a fine overview of the «narrative turn».

8 For the German oral tradition of Dichtung und Recht, see Kaufmann (E.), Deutsches Recht, Berlin, E. Schmidt, 1984. For a discussion of Dichterjuristen, see Fehr (H.), Das Recht in der Dichtung, Bern, A. Francke, 1931; Wohlhaupter (E.), Dichterjuristen, Tübingen, Mohr Siebeck, 3 vols, 1953-1955-1957; Pieroth (B.), Recht und Literatur, Munich, Beck, 2015. For a general overview of research on Dichterjuristen, see also Frank (L.), «Digitales Fundheft Recht und Literatur», 2011, online, http://lorenzfranck.de/dokumente/litrecht.html, accessed 26 March 2018.

9 Herminghouse (P.), «The Young Author as Public Intellectual: the case of Juli Zeh», in German Literature in a New Century: trends, traditions, transitions, transformations, edited by Gerstenberger (K.), Herminghouse (P.), Oxford, Berghahn Books, 2008, p. 268. ZEH Not only contributes to debates on important societal issues. In 2008, for example, Zeh lodged a complaint with the German Constitutional Court against the German government because of new legislation introducing the biometrical passport (Zeh (J.) «Verfassungsbeschwerde Zeh», online, http://www.zeit.de/2008/06/Verfassungsbeschwerde28012008.pdf, accessed 25 april 2018). In Gaakeer (J.), «Control, Alt, and/or Delete? Some observations on new technologies and the human» in Human Law and Computer Law, edited by Hildebrandt (M.), Gaakeer (J.), Dordrecht, Springer, 2013, p. 135-157, I elaborate on the topic of new technologies and law in connection to Zeh’s Corpus Delicti that combines topics of science fiction and the dangers of the information society.

10 Müller-dietz (H.), «Literarische Verarbeitung von Recht in Gegenwartsromanen», in Recht Populär, populärkulturelle Rechtsdarstellungen in aktuellen Texten und Medien, edited by Stürmer (F.), Meier (P.), Baden-Baden, Nomos, 2016, p. 39; Arnold (S.), «Zur Beziehung zwischen Literatur und Recht in de deutschsprachigen Gegenwartsliteratur», Pandemonium, vol. 17, no 23 (2014), p. 4. Other contemporary German Dichterjuristen are Bernhard Schlink and Ferdinand von Schirach.

11 Zeh (J.), Alles auf dem Rasen, kein Roman, Munich, Btb Verlag/Random House, 2008, p. 115.

12 Herminghouse (P.), op. cit., p. 277. See also Wagner (S.), Aufklärer der Gegenwart, Politische Autorschaft zu Beginn der 21. Jahrhunderts-Juli Zeh, Ilija Trojanow, Uwe Tellkamp, Göttingen, Wallstein Verlag, 2015, chapter 4 dedicated to an analysis of Zeh’s works.

13 Trojanow (I.), Zeh (J.), Angriff auf die Freiheit, Munich, Carl Hanser Verlag, 2009, p. 131.

14 Herminghouse (P.), op. cit., p. 275.

15 Ibidem, p. 276.

16 Fischer (W. R.), «The Narrative Paradigm: An Elaboration», Communications Monographs, vol. 52 (1985), p. 347.

17 West (R.) «Authority, Autonomy, and Choice: the role of consent in the moral and political visions of Franz Kafka and Richard Posner», Harvard Law Review, vol. 99 (1986), p. 384-428; West (R.), «Submission, Choice, and Ethics: a rejoinder to Judge Posner», Harvard Law Review, vol. 99 (1986), p. 1449-1456 and Posner (R. A.), «The Ethical Significance of Free Choice», Harvard Law Review, vol. 99 (1986), p. 1431-1448.

18 Kauffmann (M.), «Juli Zeh "das Projekt Aufklärung ist nicht zu Ende", das EXTRA-Interview», Wiener Zeitung, 27 February 2009, p. 7-8, online, http://www.wienerzeitung.at/app_support, accessed 26, March 2018.

19 Cf. Arnold (S.), op. cit., p. 9.

20 See Rudolf (M.) (ed.), Unerhörte Kriminalrechtfälle, Leipzig, Verlag Dieterich, 1980.

21 Zeh (J.), Spieltrieb, Munich, Btb Verlag, 2006, p. 518 as cited in Arnold (S.), op. cit., p. 13, my translation of «Das Recht besteht aus Gesetzen, Gesetze bestehen aus Wörtern, und Wörter können manches sein, aber sicher nicht gerecht. Wie soll eine geschriebene Regel für unendlicht viel Fallkonstellationen gedacht, angesichts der Einmaligkeit eines Geschehens eine gerechte Aussage treffen?»

22 Orwell (G.), Nineteen Eighty-Four, in Orwell (G.), Animal Farm and Nineteen Eighty-Four, London, Book Club Associates, 1976, p. 38.

23 Zeh (J.), Dark Matter, transl. C. Lo, London, Harvill Secker, 2010. Pages references hereinafter in the body of the text within [ ]. For purposes of comparing the English translation to the original, I also used Zeh (J.), Schilf, Frankfurt am Main, Schöffling & Co., 2007.

24 Zeh (J.), Dark Matter, ibidem, p. 22: «A man who stands by the river and watches one thousand white swans swim by cannot conclude that there are no black swans.»

25 Hegel (G. W. F.), Elements of the Philosophy of Right, transl. H. B. Nisbet, Cambridge, Cambridge University Press, 2003, p. 23.

26 Free Fall is the title of the American edition of the novel.

27 The reader has been prepared for this earlier on, since Sebastian too met the butterfly collector: «It is only now that Sebastian realises who is standing before him: the witness who always materialises at the end of a murder case.» [82]

28 I assume this is a mistake in the English translation: «both of them» or «them both» would be grammatically correct.

29 In his Poetics Aristotle speaks of the literary work as a kind of thing that might be, so that literary works can be viewed as experiments of «what may happen» and as «the plausible» also in the rhetorical sense of what may convince an audience, the pedagogical importance of which notion is well-noted in the field of Law and Literature, in that both the poet and the jurist are comparable in their dealing with the description of the facts and the construction of the plot. Cf. Aristotle, Poetics, Cambridge (Mass.) and London, Harvard University Press, 1999, 1451b5-b12.

30 Shakespeare (W.), Twelfth Night, in The Norton Shakespeare, based on the Oxford edition, edited by Greenblatt (S.) et al., New York and London, W.W. Norton & Company, 1997, III. iv. 114-115. For a comprehensive overview of the physicist Erwin Schrödinger’s thought experiment about the cat in the box who is, and is not alive or dead, see Stanford’s Encyclopedia of Philosophy on «Everett’s Relative-State formulation of Quantum Mechanics», 2014, online, http://plato.stanford.edu/entries/qm-everett/, accessed 27 March 2018, esp. par. 7. See also Zeh (J.), Dark Matter, op. cit., p. 290.

31 For another novel combining philosophy and physics, see Michel Houellebecq’s Les Particules Élémentaires, 1998, translated in the UK as Atomised and in the US as The Elementary Particles (cf. Gaakeer (J.), «The Genetics of Law and Literature: What is Man?», in Bioethics and Biolaw through Literature, edited by Carpi (D.), Berlin, De Gruyter, 2011, p. 23-67 for an analysis).

32 Waldow (S.), «Ich weiss, dass ich permanent über Moral schreibe. Juli Zeh im Gespräch», in Waldow (S.), Autorinnen und Autoren über das Verhältnis von Literatur und Ethik heute, Bielefeld, Transcript Verlag, 2011, p. 56.

33 Arnold (S.), «Zwischen Nihilismus und Spieltheorie. Juli Zehs Roman Spieltrieb», Revista de Filología Alemana, vol. 19 (2011), p. 210.

34 See Andrew Marvell’s poem «To his coy mistress», 2nd stanza, line 2.

35 Nussbaum (M.C.), Poetic Justice, Boston, Beacon Press, 1995.

36 Cf. Zeh (J.), Dark Matter, op. cit.

37 In this sense Arnold (S.), «Zwischen Nihilismus und Spieltheorie. Juli Zehs Roman Spieltrieb», op. cit.

38 For an extensive treatment, see Gaakeer (J.), «"Sua Cuique Persona?" A Note on the Fiction of Legal Personhood and a Reflection on Interdisciplinary Consequences», Law & Literature, vol. 28, no 3 (2016), p. 287-317.

39 Bayle (P.), Dictionnaire historique et philosophique, Amsterdam, Compagnie des Libraires, 1734, Tome II, p. 466.

40 Voltaire, Dictionnaire Philosophique, edited by Benda (J.), Naves (R.), Paris, Garnier, 1961, p. 277.

41 Scholten (J. H.), De vrije wil. Kritisch onderzoek, Leiden, P. Engels, 1859, p. 1, «het vermogen om in elk ogenblik des levens al of niet, zóó of anders te willen […] onafhankelijk van eenige,’t zij uit- ’t zij inwendige oorzaak, iets te willen of niet te willen. »

42 See Gaakeer (J.), «"The Bloody Book of Law", some remarks on the interrelation of law, medicine, and the behavioral sciences in William Shakespeare’s The Tragedy of Othello the Moor of Venice », in Law and Literature, interdisciplinary methods of reading, edited by Simonsen (K.-M.), Tams (D.), DJØF Publishing Copenhagen, 2010, p. 21-32, for the Othello-Syndrome of jealousy.

43 Cf. Kahneman (D.) et al. (ed.), Judgment under uncertainty: heuristics and biases, Cambridge, Cambridge University Press, 1982; Festinger (L.), A Theory of Cognitive Dissonance, Stanford, Stanford University Press, 1957; Cover (R.), Justice Accused, antislavery and the judicial process, New Haven and London, Yale University Press, 1975.

44 See also Gaakeer (J.), «Comprehending contraries or doublethink? Law, literature, and the dangers of cognitive dissonance», op. cit., for an extensive treatment of the topic with other literary examples.

45 Kafka (F.), «In the Penal Colony», in Kafka (F.), Franz Kafka, The Complete Stories, transl. N. N. Glatzer, New York, Schocken Books, 1971, p. 145, «Guilt is never to be doubted.» Cf. how the protagonist of Zeh’s Corpus Delicti is respected as a free human being: «"The penalty honors the offender!"» (Zeh (J.), Corpus Delicti, ein Prozess, Frankfurt am Main, Schöffling & Co., 2009, p. 255).

46 Cf. Van Wezep (R. A.), «Many worlds and the appearance of probablity in quantum mechnics», Annals of Physics, 2006, p. 2440 on the objection to the Many-Worlds theory that it seems solipsistic, «"I don’t know about you, but I’m certainly in a definite state"» The irony is that Sebastian thinks himself capable to understand what is going on around him, but his fatal mistake about the supposed kidnap shows that he is not.

47 Arnold (S.), «Zwischen Nihilismus und Spieltheorie. Jul Zehs Roman Spieltrieb», op. cit., p. 213. The irony is that Schilf and Rita Skura are more Übermenschen, because they solve the case that looked impossible to solve.

48 Heydenreich (A.), Mecke (K.), «Juli Zeh im Dialog zu Schilf », in Physik und Poetik, edited by Heydenreich (A.), Mecke (K.), Berlin, De Gruyter, 2015, p. 300-301.

49 See Wagner (S.), op. cit., p. 58-60. Cf. Zeh (H.D.), «The role of the observer in the Everett interpretation», NeuroQuantology, no 1 (2013), p. 97 on the role of the observer and the «assumption that properties of microscopic objects are created in an irreversible act of observation. »

50 Heydenreich (A.), Mecke (K.), op. cit., p. 286. Cf. p. 289: the epistemological question to Zeh is the role of the observer in comparison tot he role of the narrator in a novel, precisely because this leads to questions of responsibility in the sense that we as subject are repsonsible for the worlds that we create. To Zeh, we are all captives of the subjectivity of our perception and objective truth is therefore illusory.

51 Turner (M.), The Literary Mind, New York and Oxford, Oxford University Press, 1996, p. i, «Story is the basic principle of mind. Most of our experience, our knowledge, and our thinking is organized as stories. »

52 Zeh (H.D.), op. cit., p. 99, «The observer has always played an essential role in the empirical sciences, simply because they are based precisely on observations performed by humans by physical means.» Cf. Clemens (M.), «Körper als Metapher bei Juli Zeh oder Warum die Germanistik einen populistischen Turn braucht», Jungle World, 36, 3, (September 2015), p. 16, online, http://jungleworld.com/artikel/2015/36/52627.html, accessed 26 March 2018, on the influence of the uncertainty principle on Ferdinand von Schirach, esp. Verbrechen and Tabu.

53 Zeh (H.D.), op. cit., p. 97.

54 Heydenreich (A.), Mecke (K.), op. cit., p. 291-294.

55 Cf. Van Peer (W.), «Literature, Imagination, and Human Rights», Philosophy and Literature vol. 19, no 2 (1995), p. 276-278.

56 Aristotle, op. cit., 1451b5-b12, cf. supra note 29.

57 Nussbaum (M. C.), Not for Profit, why democracy Needs the humanities, Princeton, Princeton, University Press, p. 95-120.

58 Zeh (J.), Die Stille ist ein Gerausch, eine Fahrt durch Bosnien, Munich, Btb Verlag, 2003, p. 144.

59 Herminghouse (P.), p. 276; Ricœur (P.), Hermeneutics and the Human Sciences, transl. J. B. Thompson, Cambridge, Cambridge University Press, 1989, p. 93.

60 Fischer (W. R.), «Narration as a Human Communication Paradigm: The Case of the Public Moral Argument», Communications Monographs, vol. 51 (1984), p. 1-22, at 8. To Fischer, the first, narrative probability «[…] refers to formal features of a story conceived as a discrete sequence of thought and/or action in life or literature (any recorded form of discourse); i.e., it concerns the question of whether or not a story coheres or "hangs together", whether or not the story is free of contradictions», and the latter, narrative fidelity «[…] concerns the "truth qualities" of a story, the degree to which it accords with the logic of good reasons: the soundness of its reasoning and the value of its values. », cf. Fischer (W.R.), «The Narrative Paradigm: An Elaboration», op. cit., p. 349. Cf. Bruner (J.), «The Narrative Construction of Reality», Critical Inquiry, vol. 18 (1991), p 4, that «[…] narrative constructions can only achieve "verisimilitude"», so that «Narratives, then, are a version of reality whose acceptability is governed by convention and "narrative necessity" rather than by empirical verification and logical requiredness». Cf. Ceccagno (D.), «Material Truth in Law and Fiction in Literature», Anamorphosis-Revista Internacional de Direito e Literature, vol. 1, no 2 (2015), p. 285-299, on the distinction between internal and external verisimilitude. For an extensive analysis of the role of narrative in law, cf. Gaakeer (J.), «The Perplexity of Judges Becomes the Scholar’s Opportunity» in Law’s Pluralities: Arguments for Cultural Approaches to Law, edited by Olson (G.), Reimer (F.), special issue of German Law Journal, vol. 18, no 2 (2017), p. 331-362.

61 Ryan (M.-L.), Possible Worlds, Artificial Inteligence, and Narrative Theory, Bloomington, Indiana University Press, 1991, p. 51.

62 See Walton (K.), Mimesis as Make-Believe, Cambridge (Mass.), Harvard University Press, 1990.

63 Fischer (W. R.), «Narration as a Human Communication Paradigm: The Case of the Public Moral Argument», op. cit., p. 18. Cf. Bex (F. H.), Arguments, Stories and Criminal Evidence, Dordrecht, Springer, 2011, p. 79 «one of the main dangers of stories is that a coherent story is judged as more believable than an incoherent story, regardless of the actual truth of the story.» See also Wagenaar (W. A.) et al., Anchored Narratives, the psychology of criminal evidence, Harvester Wheatsheaf, St. Martin’s Press, 1993 for an early study of narrative in evidentiary settings.

64 Fischer (W. R.), «The Narrative Paradigm: An Elaboration», op. cit., p. 350 and 354. Cf. Ricœur (P.), Time and Narrative, Chicago, University of Chicago Press, 3 vols, 1984-1985-1988, for the model of mimesis consisting of: mimēsis1 (denoting the temporality of the world of action), mimēsis2 (the world of the narrative emplotment of events, i. e. the world of poiēsis as making something or composition), and mimēsis3, (the moment when the text is appropriated by the reader, i. e. the stage of application in philosophical and legal hermeneutics, comparable to Gadamer (H.-G.), Truth and Method, New York, Seabury Press, 1975).

65 Weresh (M.), «Morality, Trust, and Illusion: Ethos as Relationship», Legal Communication & Rhetoric: JALWD, 9 (2012), p. 229-272.

66 On the reader as decoder, cf. Prince (G.), «Reader», in The Living Handbook of Narratology, edited by Hühn (P.) et al., Hamburg, Hamburg University, 2013, online, http://www/lhn.uni-hamburg.de/article/reader, accessed 27 March 2018.

67 Herman (D), «Cognitive Narratology», in Handbook of Narratology, edited by Hühn (P.), Pier (J.), Schmid (W.), Schönert (J.), Berlin, De Gruyter, 2009, p. 33. Script thus includes an expectation of how story in the sense of a sequence of events is supposed to unfold on the basis of prior experience.

68 Ost (F.), «Towards a Critique of Narrative Reason», in Living in a Law Transformed: encounters with the works of James Boyd White, edited by Etxabe (J.), Watt (G.), Ann Arbor, Maize Books, 2014, p. 38.

69 Orwell (G.), op. cit., p. 221-222 and p. 38.

70 Cf. Cardozo (B. N.), «Law and Literature», Yale Review, 1925, p. 489-507.

71 See Cole (D.), The Torture Memos. Rationalizing the Unthinkable, Oxford, Oneworld Publications, 2009, p. 152-224, and the United States Department of Justice, «Memorandum for John Rizzo, "Interrogation of al Qaeda Operative"», 1 August 2002, 14.

72 Herminghouse (P.), op. cit., p. 274, translation of Zeh (J.), Spieltrieb, op. cit., p. 10, «Wenn das alles ein Spiel is, sind wir verloren. Wenn nicht–erst recht.».

73 Verbij (A.), «Interview Juli Zeh», Trouw, 4 September 2008, https://www.trouw.nl/home/heerseres-over-recht-en-moraal~aa805ce9/, accessed 25 April 2018.

74 As one such worldly judge I would not hesitate to judge Sebastian, given the severity of his act and because Oskar may also be indicted as accomplice before the fact or as the joint author behind the whole event. I would be reluctant to leaves this to Schilf’s personal justice.

75 Kafka (F.), The Trial, transl. W. Muir, E. Muir, London, Penguin, 1978, p. 238-239.

Auteur

Professor of legal theory at Erasmus School of Law (Rotterdam, Netherlands)
Senior justice in the criminal law section of the Appellate Court in The Hague

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