Since the 1970s, the interdisciplinary movement 'Law and Literature' has made an impressive growth. One of the leading motives behind this movement is that it opposes rationalistic and scientific approaches to law, which were dominant during the 20th century. An example of such an approach is utilitarianism, which is based on cost-benefit analysis and the criterion of utility. Here, 'the needs of the many outweigh the needs of the few', because the goal of utilitarianism is to maximize the good (i.e. utility) in the sense of the greatest amount of happiness for the greatest number of people. This means that the needs of the few - and the one - can be sacrificed on behalf of the many. The logical reasoning behind this idea might be exemplary, but it excludes a humane perspective on law and justice.
'Law and Literature' takes a critical stance towards this utilitarian discourse. It is in this context that one of the leading figures within 'Law and Literature', the American philosopher Martha Nussbaum (1947), states that literature has great importance for jurists. By reading literature, we experience emotions and feelings other than our own. We use our imagination to feel what it is like to live the life of another person and consequently, empathy and compassion are instigated. According to Nussbaum, by reading literature we can develop a sensibility towards the other and a humane perspective on law is established. This so-called 'narrative imagination' is important for public life and for everyone engaged with law. It is especially important for judges, because their judgments will be more empathic and therefore have more depth and meaning.
It is true that rationalistic and scientific approaches to law lead to conceptions of justice in which the need and existence of the singular person cannot be acknowledged. Principles like legal certainty and equality can suppress the most important principle that underlies law: the doing of justice towards the other as a person. However, we can question if Nussbaum's narrative imagination can actually acknowledge this. If it is true that we can experience what characters in a narrative feel and if we can understand them, then nothing is said of other (unique) persons. Is it even possible to know 'the Other'?
Faith in narrative as the remedy for a rationalistic forgetfulness towards the other is naive. Reality and man are always constructed through narratives by rules of logic. The credibility of narratives depends on their compliance to certain criteria, like a logical structure, an essence, a plot and events that are causally (or at least narratively) connected. The identification of life and reality through narratives testifies to veiled 'bad faith' (mauvaise foi). The idea that literature can mediate the development of empathy and compassion is primarily based on the idea that we, like characters in a play, are in essence much alike and as such easily recognisable. The person disappears in the framework of narrative, in which the focus lies on the emancipation of (repressed) essences and excluded groups in society. But then the problem is that the general still outweighs the singular.
In my thesis, I therefore suggest a different perspective on the missing person in law: starting with the philosophy of personalism and dialogue, I state that doing justice towards the other as a person demands a personal encounter. This encounter is not to be compromised by the preconceptions of narrative logic in which the singular person is caught and framed. From a personalistic perspective literature remains important and even becomes indispensable, but it plays a different role than Nussbaum claims. Literature should not be a monologue on ethics and how to do the morally best thing, nor an explanation of what and who 'the other' is; literature is important because of its dialogicity. It creates doubt. There are works of (existential) literature that do justice to the contingencies, ambiguities and uncertainties that are inherent to life - and to persons. If literature can teach us one thing, it is that 'the Other' stays unknown to us. For judges to decide with more depth and meaning requires that they have to recognise a personal responsibility towards the other on whom they have to decide. It also means that they suspend their decision by being receptive to the uniqueness which characterises every case - how simple it may seem legally. Our sense of judgment should be able to discriminate on the basis of the singular person. That is what doing justice demands.