Matthias Mahlmann, last semester you held a seminar at the Faculty of Law together with the writer Lukas Bärfuss. What do you expect from the dialogue between literature and law?
Matthias Mahlmann: Literature has always been concerned with the law. Novels tell stories of hope for justice, trust in the law, legal struggles or disappointment in judicial processes. For rule-of-law countries, the opportunity for open critical discussion of the law and its foundations is a vital as the air people breathe.
Lukas Bärfuss, as a writer, what interests you about the law?
Lukas Bärfuss: At the Louvre in Paris I recently saw the Code of Hammurabi, which was written in Babylon 3,800 years ago. It is not known whether it is actually a legal text or a poem. This is jarring, as we are used to making a strict distinction between the spheres of law and literature. But in fact there are many points of contact and overlap, and I find it fascinating to tease them out. At base, law and literature are both linguistic in nature.
Many dramas and novels portray individuals rebelling against the constraints of the social order. Aren’t literature and law also antithetical?
Bärfuss: There were and always will be reasons why one might suffer under the social order of one’s time and class. But the human suffering caused by chaos, despotism and violence is much greater. People have a fundamental need for order and predictability, that’s why the rule of law exists. And I believe literature exists for the same reason.
Could you explain why?
Bärfuss: It is vital for us to be able to assess probabilities and risks. What is the lion lurking in the bushes going to do? How trustworthy are the people on the other side of the river? Stories convey and illustrate human experiences and save us from repeating all the missteps others have already made. We don’t need to experience every disaster ourselves to learn lessons from them. For example, to prevent our children from getting hit by a car, we tell them what could happen if they cross the street when the light is red.
And where is the connection to law?
Bärfuss: By telling each other stories, we create a common set of expectations. Stories make life more predictable – and thus serve a similar function to laws and rules. Stories and laws form a foundation for any kind of human society.
Matthias Mahlmann, you said earlier that countries with rule of law need to be able to have lively public debates about the law. Why is that?
Mahlmann: Our rule of law is the result of centuries of dispute. Today, we take it as almost a given. It seems self-evident that we protect the freedoms of those who are weaker against the violence of those who are stronger, that we do not break contracts and that we resolve conflicts through an orderly legal process. However, the autocratic tendencies that can currently be seen in many countries show that rule-of-law principles are much more fragile than we think. The rule of law is only as strong as the will of its citizens to stand up for it.
What can literature do for the rule of law?
Mahlmann: It can vividly demonstrate to us why it is in our own basic interest to protect the law. People who live in Switzerland seldom experience what it means to be exposed to despotism and violence. Literature can help us grasp what it is like to experience violence. Take Lukas Bärfuss’ book One Hundred Days, for example; the novel tells the story of how the former model state of Rwanda sank into the chaos of genocide in 1994.
Lukas Bärfuss, your novel shows how even well-meaning individuals can get caught up in the maelstrom of violence. How much do the social and political circumstances around us determine whether we can live a good life in ethical terms?
Bärfuss: Our individual way of life is much more closely linked to legal relationships than we are normally aware of. Rousseau says that everyone is born free. But he also says that this freedom can only be lived if it is protected by a law that applies to everybody. If this protection is lacking, it is very difficult or even dangerous to lead a good life in the moral sense. In Switzerland or Western Europe, we tend to regard the relative predictability of our social conditions as a natural state. But for centuries, only a privileged minority of the population enjoyed the full protection of the law. The majority of people were excluded from the law’s protection and thus exposed to the arbitrary decisions of those with power. And this is still the case today in many parts of the world.
But oppression and discrimination also exist in states that do have rule of law, don't they?
Mahlmann: Yes, laws have always been used to organize oppression and secure privileges for individual groups. At its core, however, law is a project for justice. The democratic constitutional state is designed to constantly improve the existing legal principles in respect of fundamental values such as freedom, solidarity and human dignity.
Justice is a big word. Can the law ever really be just?
Bärfuss: This question has been with us ever since it was raised in the Greek tragedies some 2,500 years ago. It is breathtaking how Sophocles in his play Antigone allows the demand for equal treatment of all citizens before the law to collide with the principles of family loyalty and preserving customs. Antigone places higher value on the family and the old customs and is prepared to die for it. But the really tragic figure in the play, in my opinion, is her uncle, King Creon, who is also the chief judge. Because he doesn’t want to corrupt the principle of equality before the law in the polis, he is forced to condemn his niece. Within philosophy of law there are some controversial attitudes towards Creon. I have great sympathy for his position. Nevertheless, Sophocles’ multifaceted depiction of the case makes it uncomfortably clear that Creon’s decision in favor of legal equality is not entirely just after all.
So seeing legal matters represented in literature encourages us to reflect on them from different angles?
Mahlmann: Exactly. Unlike a court of law, which must at some point reach a verdict, literature can afford to let conflicting points of view coexist and hold the tension of the conflict. Literature can show us where the law is unfair, and push us to make it fairer. Antigone’s demand for humane treatment leaves a lasting sting.
Is empathy a prerequisite for justice?
Mahlmann: Our judgment of what is just becomes more accurate when we can put ourselves in other people’s shoes. Literature can help us do that. It poses uncomfortable questions, introduces us to other points of view, puts certainties into perspective, and jolts us out of our self-righteousness.
Bärfuss: We often fail to realize how unjust we ourselves are in our actions and judgments. A cautionary example for me is Thomas Jefferson. He was the main author of the United States Declaration of Independence and a great champion of the idea of universal human rights. But at the same time, he defended slavery and even owned slaves himself. He believed in the superiority of whites, but he had children with one of his slaves. From today’s perspective, this seems incredibly arrogant and contradictory. But he was probably no less empathetic than me, and certainly no stupider. In many ways he was a visionary, but he was nevertheless trapped in the conventional beliefs of his environment and his time. As we all are. You can see from this example how conventions dominate our thinking, and how difficult it is to get past them.
Has any progress been made in the history of law?
Mahlmann: Many things have been achieved, but they can be undone at any time – and this is a very real threat in some countries, where authoritarian populists are attacking the constitutional state.
Bärfuss: Backward steps do keep happening, but I think that on balance they are outweighed by progress. But there’s still a long road ahead. A huge number of people around the world have no legal protections, and far too many people are still exposed to despotism and violence. Many countries do not recognize habeas corpus, for example. You could simply be arrested on the street at any time and taken away with no chance of having a court assess whether your detention is legal.
To what extent is police and military force necessary for the enforcement and observance of human rights?
Mahlmann: Threat of violence is by no means the only means to ensure human rights are enforced. Political pressure can also be very effective, especially when it comes from within civil society. A good example of this is the European Convention on Human Rights. In general, European countries do observe rulings by the European Court of Human Rights in Strasbourg even though it has no army.
Why is that?
Mahlmann: Because enough citizens of these countries are convinced of the principles of the rule of law. The philosopher Ernst Cassirer said that the only safeguard against totalitarianism is the citizens’ state of mind. I share this view. The rule of law is a cultural asset that has evolved over time. It is sustained by citizens’ commitment to common values such as democracy, freedom, justice and human dignity.
Bärfuss: As far as values are concerned, I disagree. I think they are less significant for the rule of law. As a citizen of a country, I don’t really care what values my neighbors have, for example. I just want to be judged by the same laws and have the same duties as them. The advantage of laws over values is that people are judged by what they do, not by what they think. We are free to think whatever we like. As long as we have reliable laws, we don’t need to reassure each other of our common values to get along with the neighbors.
Mahlmann: But values and laws are not so easy to separate, they’re closely related. Many laws were enacted to give binding force and validity to certain values such as freedom, justice and human dignity. In interpreting the law, one must always refer to the values behind the law.
Bärfuss: And yet it often remains vague what is meant by terms for different values. The term “dignity” for example, which features heavily in the Swiss constitution, has many layers of meaning, and some of them seem to me rather suspect. The German word “Würde” originally meant control of the body. And the Latin “dignitas” can also refer to a pain-free death.
How do you interpret the concept of human dignity, Matthias Mahlmann?
Mahlmann: In essence, it means that human beings must not be used as a means to an end and that the person must be protected and respected. The concept is firmly anchored in law. It would be disastrous to abandon it, because then the law based on it would lose much of its humanizing power.
Bärfuss: This legal-pragmatic argument makes sense to me. And I can’t think of any alternative to the term “dignity” off the top of my head. But the topics that this difficult term touch on are very dear to me. Since the beginning of the coronavirus pandemic, for example, there have been alarming tendencies to measure the value of human life by its economic productivity. This contradicts the principle of not valuing people as a means to an end.
How should we deal with the ambiguity of words for values such as dignity, freedom and justice?
Bärfuss: We should always talk specifically about what we actually mean by these concepts that are so fundamental to our communal lives. If we treat these concepts like sacred vessels, they become hollow over time.
Mahlmann: That’s right, we must keep breathing new life into these terms. Law can learn a lot from literature, but literature can also learn something from law.
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