ISLL Papers

- Essays

A TRANSDISCIPLINARY METHODOLOGY AND LITERATURE

FOR THE

RELATIONSHIP BETWEEN LAW

Maria Francisca Carneiro and Maria Fernanda Loureiro

Abstract In this article we consider some of the existing methodologies for research into the relation between Law and Literature. The possibility of investigating literary elements of Law implicit in popular culture leads us to inquire whether the media can also be an object of studies of juridical literature. After that, considering that the link between Law and Literature is transdisciplinary by nature, we propose a methodology for this type of investigation.

1. Some methodologies for the relation between Law and Literature Various relations between Law and Literature are already well known, starting with the trilogy Law in, as and of Literature, dealt with by a number of authors. In this article we will look at some methodologies that already exist for studying the relationship between these two branches of knowledge and, bearing in mind that it involves a transdisciplinary relationship, we will propose a specific methodology for investigating it. Let us begin by analysing the relationship between Law and the literary elements found in popular culture, citing Jos Calvo Gonzlez (2003) when he says that the connection between popular poetry and penal philosophy has received little attention. There are popular poetic forms present in folklore which focus principally on punishment or penalties, of interest therefore to criminal policies concerning and relating to the problems of identity and sociopolitical and cultural ethnicity. Calvo Gonzlez points out that, somewhat surprisingly, the study of folklore has given rise to certain

With thanks to Professor Michael A. Watkins for translating this article from Portuguese into English.

2010 ISLL - ITALIAN SOCIETY FOR LAW AND LITERATURE ISSN 2035 - 553X

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intuitions, predating institutional juridical normativism, which show the spontaneous juridicality which pervades songs, childrens games and folklore. This is why, according to Calvo Gonzlez, it is perfectly justifiable to speak of a cultural identity linking popular Literature with Law. There are various points of intersection between Law and Literature. According to Calvo Gonzlez (2008, 3-27) again, the intersections between the juridical and the literary are the result of the different routes and trajectories which they each follow. These intersections are articulated, Calvo Gonzlez believes, through grammatical classes which act as a bridge, organized in a concrete form by means of three prepositions: in, indicating place; of, denoting belonging; with, expressing the circumstances in which something happens; in addition there is the modal adverb how, which means in which way. According to Andrs Botero Bernal (2008, 29-39), there are various models for constructing the relationship between Law and Literature: the rhetorical model of relation, the expositive model of relation, the methodological model of relation, the analytical model of relation, the juridical model of relation, and the aesthetic model of relation. These classificatory models, which, the author says, are not pure, merge in the discourses of juridical studies related to literary works, and are useful for revealing the methodological and analytical paths of this field of study. Narrative, in turn, is a methodology common to Law and Literature. Gustavo Gonzlez Solano (2008) points out that the literature of Law is, within the genre of narrative, the clearest, most precise and most detailed, as it utilizes different styles and modalities besides narrative, such as the biographical and journalistic, the essay and the lecture. It is also important to remember the words of Paulo Ferreira da Cunha (2008), who says that rites or rituals, which abound in Law, are methodologies. For this author, the problem of ritual also becomes a problem of Law and Literature, where the judicial trial is like a literary work produced by various authors, which unfolds in various chapters, each one narrated by a different participant. Nor can we forget the links between Law, Literature and Hermeneutics, as Arnaldo Sampaio de Moraes Godoy (2008) emphasizes, explaining that juridical practice is an exercise in interpretation which goes beyond laws and contracts. Godoy says that, in order to improve our understanding of Law, it is necessary to use instruments that make it possible to compare juridical interpretations with interpretations from other fields of knowledge and from human experience, adding that juridical propositions are also interpretative judgments of the history of law, which contain indications of decision and evaluation. Because of this, he claims that Law is a subject of interpretation which is not carried out in isolation from other branches of knowledge. In the opinion of Germano Schwartz (2006), the construction of a new meaning for Law implies the basic premise that it is not an organism removed from the occurrences of the social system. On the contrary, it is part of it, acting and interacting with all the subsystems of society, whatever they are. For this author, Literature, a component of the system of Art, is important in the social system as it

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influences, by means of communication, the other subsystems of society. Godoy (2002) agrees with this point of view, saying that Law is an undeniable fact of the social milieu. It reaches all latitudes, longitudes, and times, past and present. 2. The media as yet another literary and transdisciplinary language of Law We have seen that it is possible to extract elements from popular culture for the relationship between Law and Literature. We will therefore examine the relationship between Law and the media, in order to see if it is possible to understand it as yet another transdisciplinary voice of society, which may be of interest for our study. It can be said that there is a certain tension between Law and the media. In certain cases, it is a question of a turbulent relationship. There can also be considered to be some concern on the part of judges about the fact that decisions and laws are broadcast and commented on by the media to the general public, who tend not to be experts in Law. What matters, evidently, is the way in which this broadcasting is carried out. The media provide the public with information and entertainment. In this context, it is important to analyze the role of the live transmission of trials, for example, by television. We are frequently confronted with sensationalism, news as a spectacle, which leads to the question of what the repercussion of these facts is on the understanding of Law by the population at large. The question is to find out the extent to which the medias representations of Law influence the daily life of people and how much it alters their behaviour. Traditionally, such studies are carried out from the viewpoint of social psychology and ethnography. However, the author Lieve Gies (2008) proposes a new type of research, of an interdisciplinary nature, which aims to analyze the impact of the media on Law in the day-to-day life of the population in general. The concept of legal awareness, which is to do with the identity of the people, is thus introduced. However, the situations in the media are not always spontaneous, but follow a previously established program, except for a few exceptions, such as, for example, reality-shows. Now this lack of spontaneity influences, to a certain extent, the development of the medias social perception of Law, and, consequently, also influences the so-called legal awareness on the part of the population. However, spontaneity is likely to increase in future relationships between the media and Law. For example, in European countries the Internet is being used more and more, in an interactive form, by people seeking information about laws and rights and about lawyers who offer services on the Internet. However, it is worth noting the difference between the search for self-help in legal matters and the provision of professional services. Both are available on the internet. The fact is that the media have a strong influence on human behaviour and, in the case of Law, they predetermine behavior, expound sanctions, authority and authoritarianism, amongst other terms. Evidently, in addition to inducing behavior, this can cause some kind of anxiety, which is why it is

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important to take into consideration the social complexity in which the media operate and the expectations they generate. We can see that the theme of Law and the media could give rise to future studies on Rhetoric, and, consequently, on the relation between Law and Literature. We believe that it is not possible to talk of distortions of communication by the media without taking into consideration the form of the arguments, analyzing their power of persuasion and their consequent impact on society. On this point, Rhetoric and Literature can contribute towards clarifying the issue further. As academics and scholars of Law in Brazil, we would like to mention that the topic of Law and the media is becoming more and more important in our country, with a succession of scandals, especially involving corruption, the majority of which are exposed by the media. This is why we understand the relation between Law and the media as being a social voice which should also be of interest for studies of popular juridical literature. 3. A transdisciplinary method for the study of the relationship between Law and Literature We know that the relation between Law and Literature, more than putting two disciplines together, weaves them together, so that they overlap in new fields of knowledge. This is why we understand that Law and Literature is not simply interdisciplinary, but transdisciplinary. This offers an appropriate methodology for its development, which is what we will suggest in this section. We would like to highlight the consolidation over the last ten years of transdisciplinarity, and of complexity in the field of the methodical investigation of Law (Carneiro 2009), a tendency which has already been preached for a good while, and which in effect has been brought to a conclusion. Transdisciplinarity and complexity, in juridical research, rather than being just a consequence of the transformations of society and science, signify a change of method. The transdisciplinary focus and complex thought imply a new facet of the themes, therefore called transversal, along restructured axes of knowledge. For this, it is first necessary to reach an agreement about this restructuring of themes, which it is up to each scholar to carry out in line with the understanding of their research supervisor. The themes termed transversal delimit different fields of observation, capable of permitting suitable evaluation, as well as the satisfactory description of the concepts and elements which constitute it. However, in the face of such complexity, it is necessary to integrate the transversal themes, in which the parts relate to one another and to the whole, as in an open web. There is no possibility of working with closed systems, applying transdisciplinarity and complexity to the method of Law. This process requires the updating and constant revision of the knowledge acquired by the researcher. One of the most common faults is that, in attempting to achieve thematic transversality and, as a consequence, complexity and transdisciplinarity in Law there is a lack of in-depth study or,

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if this is done, it tends to be isolated from the restructured axes of knowledge. Deepening knowledge and, at the same time, making it transdisciplinary, is also a question of method and not just systematization, as the organization of ideas. For this it is necessary to take into account the way in which interfaces occur between the themes, which we will call transversal, in the case of the relationship between Law and Literature. The transversal themes delimit different fields of observation. They thus require the idea of open systems, in which the interfaces fulfill the relevant function. Transversal themes, interconnected with longitudinal ones (or traditional disciplines) are better able to avoid vagueness and imprecision, common characteristics of transdisciplinary research. It should be noted that we are dealing with imaginative functions in the demarcation of knowledge, so that the transdisciplinary step can operate, and in order to obtain a broader potential for interaction between the disciplines. The interfaces in transdisciplinarity must make transitions without fragmenting knowledge, as well as having the cognitive function of facilitating understanding. Interfaces are a semantic relationship which intermediates meanings. It is a mental representation. Interfaces are what lies between structures, in the case of Law and Literature. However, there are criticisms of transdisciplinarity, such as, for example, that it generates superficial knowledge as, in going deeper, the researcher specializes and thus returns to traditional disciplines. Another common criticism of transdisciplinarity is the imprecision of the conclusion which, in the majority of cases, tends to be poly-, multi- or inter-disciplinary. We know that transdisciplinarity and complexity are the consequences of each other. Now societies, being complex, require transdisciplinary research, hence its importance for Law and Literature, since this relationship emanates from society and refers back to it. For this reason, it is our duty to consider transdisciplinary research and its problems, also in the field of Law and Literature. We stress the need for an integrating axis of transdisciplinary knowledge for Law and Literature, which can be an axis of diffusion, uni-, bi- or multi-directional. In short, transdisciplinary research in Law and Literature is always an open work and, as such can be understood not just as science, but also as a work of art. 4. Closing remarks We have seen that there are various methodologies applied to the study of Law and Literature, such as the study of popular literary culture, the organization of propositions of grammatical classes in sociolinguistic studies, and the organization of models to construct the relationship between Law and Literature. We have also seen that Law, as a social fact, reaches all the systems and subsystems of society, in which Literature has a communicative role. In view of these claims, we analyzed the problem of the relation between the media and Law, noting that it is part of social culture and that it can therefore be of interest in studies that investigate

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the links between Law and popular literature. In fact, the media can be part of the list of popular literary languages of Law. After this, observing that the relation between Literature and Law is essentially transdisciplinary, we proposed a methodology for this type of investigation, bearing in mind that Law is not just a science but, as Celso said, Ius est ars boni et equi. This is another strong reason for its link with Literature.

Universidade Federal do Paran Maria Francisca Carneiro mfrancis@netpar.com.br Maria Fernanda Loureiro fernanda@frm.adv.br

References Botero Bernal, Andrs. 2008. Derecho y Literatura: un nuevo modelo para armar. Instrucciones de uso. In Calvo Gonzlez 2008: 29-40. Calvo Gonzlez, Jos. 2003. El cante por Derecho. Las Carceleras y el krausofloclorismo andaluz. (Un estudio de Etnologa jurdica y Filosofa Penal). Mlaga: Ayuntamiento de Mlaga/rea de Cultura. ----. 2008. (Director). Implicacin Derecho Literatura. Contribuciones a una teora literaria del Derecho. Granada: Editorial Comares. Carneiro, Maria Francisca. 2009. Pesquisa jurdica na complexidade e transdisciplinaridade. Temas transversais, interfaces, glossrio. 2nd. Ed. Curitiba: Juru. Cunha, Paulo Ferreira. 2008. Do rito Literatura em Direito. In Calvo Gonzlez 2008: 253-263. Gies, Lieve. 2008. Law and the media. The future of an uneasy relationship. New York: GlassHouse. Godoy, Arnaldo Sampaio de Moraes. 2002. Direito & Literatura. Anatomia de um desencanto: desiluso jurdica em Monteiro Lobato. Curitiba: Juru. ----. 2008. Direito & Literatura. Ensaio de sntese terica. Porto Alegre: Livraria do Advogado. Gonzles Solano, Gustavo. 2008 La racionalidad o razonabilidad jurdica: una historia de ciencia ficcion. In Calvo Gonzlez 2008: 315-343. Schwartz, Germano. 2006. A Constituio, a Literatura e o Direito. Porto Alegre: Livraria do Advogado.