 So let me welcome you here, this is that guest former Dean of Charles. Good afternoon and welcome to the 37th annual Horssey Reed Lecture. I'm going to open the lecture by acknowledging and understanding the traditional way of the territory. I'm Kim Brooks, the Dean here at the Schulman School of Law. It's a great pleasure to be able to say a few introductory words about this lecture and about this year's speaker. The Reed Lecture was established to honor the memory of Horace Reed, who was Dean of the Law School from 1954 to 1964. The lecture was established as a joint project between the Reed family and the Law School. Dr. Reed's son, Dr. Robert Reed, is with us today and welcome. Horace Reed served this country in many ways. He served in the First World War, was chair of the Regulations Revision Committee, Royal Canadian Navy during the Second World War, was a longtime member of the Nova Scotia Labor Relations Board, a longtime member of the Conference of Emerging Bodies of the Legal profession, a longtime member of the Conference of Commissions on the Uniformity of Legislation, Honorary President of the Nova Scotia Barrister Society in 1966-67, and Canadian delegate to the Conference on Private International Law ahead in 1968. At the Law School, he's touted for his scholarly achievements, for his ability to teach, and for his superb administrative skills. In recognition of his exemplary life, Dr. Reed was appointed an officer of the Order of Canada in 1973. His other honors include honorary degrees from Acadia, Queens, Dalhousie, and Windsor. In commenting on his remarkable life, let me borrow from two paragraphs of a lengthy editorial of March 1st, 1975 in the Halifax Herald. Horace Emerson Reed, O.C. O.B.E. Q.C. B.A. L.L.V. L.L.M. S.J.D. L.L.D. Forward Dean of Dalhousie Law School and a legal scholar and legal teacher of international renown was in the great tradition of deans at Dalhousie. In many respects, he exceeded the talent and distinction of his predecessors. Horace Reed taught law certainly with all the authority of a profound and mature scholar of international renown, but he also brought to his teaching the benevolence and humanity which were among his most admirable qualities. Kindly and affable, readily available to students and colleagues alike, by whom he was held with great respect and affection, he presided as dean over a lengthy period of unparalleled expansion and the development of the faculty of law and marked it firmly with his personal philosophy and objectives. Welcome to the re-lecture. This year's re-lecture, the Utility of Law of Renovation to Legal Education, will be given by Professor Melanie Williams from the University of Exeter School of Law. Professor Williams went law in Cambridge. She has a post-graduate certificate in education and a master's in English literature. She's a fellow of the Higher Education Academy. Professor Williams has a long list of publications including among them two books, Secrets and Laws, Essays in Law, Life and Literature, and Empty Justice, 100 Years of Law Literature and Philosophy, Existential Feminist and Normative Perspectives in Literary Jurisprudence. She has a long list of articles and book chapters to her name, most of which draw on her interest in use of language and literary devices in law and that draw on her insights and the insights that interdisciplinary studies generally can offer. With that two brief introduction, let me turn the podium to Professor Williams. Please be quiet. Thank you very much. Thank you very much. I want to first of all thank you all very much for inviting me here today. Thank you to Dean Brooks and to the Reed family and to Shulik, all at Shulik and Dalhousie. I realise that being invited to give the Horace E. Reed Memorial Lecture is a real honour. He was clearly an inspiring man with a wide array of interests and a range of topics from law reform to conflict of laws, labour law and legal education. So I've been asked to speak to one of those interests and given my love of law and literature I thought maybe legal education was a clear connect. So I'm going to explain to you a little bit about how I understand law and literature and I'm drawing quite a lot on my own work, I have to say, rather than anybody else's. I teach a course in law and literature at XT University. There's only about five law and literature courses in the UK to my knowledge at different law schools and I think ours is the biggest, the most successful. I've spoken to other law and literature teachers elsewhere. I may be wrong, but we have around about 120 students out of... We have a student body of about a thousand students in our law school so it's not a big law school, it's not huge. We have an intake of around about 300 undergraduates per year and we had 120 take law and literature last year which is good for an optional subject and I've been encouraged to expand the course which I'm going to do and I might have a chance to tell you a little bit about that. So just to explain a little bit to you then about the field of law and literature you'll see in a lot of texts about it that some commentator suggests that the field is better understood as splitting into two distinct approaches, law in literature and the law as literature. I don't want to keep reading you the text but you can see for yourself in this slide legal writings as we all know can be read as literature. Legal writing is a rich source of linguistic creativity and you can see law itself as a source of literature and so that's true and it's also true that a lot of law and literature writing is about the law in literature so people tend to ask me whether I've written about Dickens Bleak House or Dostoyevsky's Crime and Punishment there are certain sort of flash point topics that people associate with law and literature and it's true that those things are there but this is limiting because there's a danger and this is a warning to anyone who wants to take law and literature research there's a danger that if you pick a text which is overtly a law and literature text that has an overt legal subject in it like the Court of Chancellery in Bleak House for example you run the risk of simply describing rather than analysing and critiquing the content of that text so you're sort of mirroring in some way rather than digging and in my experience it's much more helpful to look for the potential for triangulation by letting the text speak to you I have to say that most of my law and literature work has sprung from a very powerful and passionate love of literature that I have I mean good literature when it gets you, it's visceral a great poem or a great text absolutely grabs you with a truth that you probably can't find anywhere else and you might not find it in a legal text ever at all so triangulation is a way of thinking about it so you can combine a literary and a legal theme with legal philosophy, psychology, economics and then see how that draws out the critique I'm just going to get a bit of a red herring out of the way here and this tends to be more for non-lawyers rather than lawyers so maybe we can run over this quickly but people sometimes say oh law and literature that's thinking about legal fictions then and I'm sure you'll all appreciate that it's not about that at all legal fictions as I've said here in this slide are not very significant kind of artefact and as I'm sure you will know a common example of legal fiction is a corporation which ascribes personhood to corporate entities for matters of convenience there is, I found on the Wiki site, I'm quite unashamed of using a Wiki site there is a literary text that draws on the idea of a legal fiction by H.G. Wells and as this slide shows he actually misunderstood it anyway so he has this scenario where Peter's parents die in a sailing accident as it's not known which parent dies first a legal fiction is applied maintaining that the husband being a man and therefore stronger live longer this results in the father's will determining Peter's legal guardian however later in the novel a witness to the accident declares seeing the mother drowned first and so the legal fiction is overturned and the mother's will is followed by deciding Peter with a new legal guardian but actually English law presumes that the older person died first anyway so it's completely based on the wrong assumption about what legal fiction was but I thought I'd better just get that out of the way that's not what we're talking about so for me then the relevance of fiction in doctrinal law is not so much in relation to the idea of legal fictions but it's related to a fact not very well acknowledged in law at all if you think about how we use the doctrine of precedent how we use a line of cases to make associations and create a narrative of coherence and we often talk about law as having a kind of forensic scientific capability and actually the word narrative is a dirty word really to lawyers it sounds way too arty and vague so you don't hear judges talking about the narrative very much not in that sense and when you think about what happens with the doctrine of precedent it's often quite a crude and primitive process to draw together those precedents in that way another reason why I think there's a good connect between law and literature is because law often constructs an ideal subject talks about the reasonable man or the characteristics of the legal person for example and makes demands on the legal subject as a result of that construction but there's a nice quote here from a writer of Stanowski talking about Freud who said that the ethical demands made by society on the individual seemed to have little regard for whether it's possible for people to obey them and I think that's a really profound insight about what we do to people in the law we impose upon them a model of humanity that it's very very difficult sometimes to live up to and we may do that for pragmatic reasons but the fact is if in a deep sense of deep truth that's making a demand greater than an ordinary fragile human being can meet then that's clearly problematic from a moral point of view I've referenced here an article I wrote about this a couple of years ago called The Normal Man Hardly Exists where I looked at the constructions of the human being, the legal subject in cases and in popular culture as well and in literature but mostly looking at the way The Normal Man is construed through psychiatry, psychology and psychoanalysis which is very interesting because there's a kind of hierarchy of professions there clearly the law is very ready to acknowledge the authority of a psychiatrist but not quite so confident of a psychologist and for some good reasons very wary of psychoanalysis but there are great insights there that demonstrate the fragility of the human subject so the ideal subject and the actual factual subject there can be quite a mismatch there and the quote by the way The Normal Man Hardly Exists is from Dostoyevsky's Crime and Punishment it's the doctor at the end of the novel who is making a comment about something very profound for us as lawyers the fact that normality is actually rare so it turns on its head the kind of statistical associations we have with normality and peripheral behaviors here's another source that I've come across in my readings as well that helps to demonstrate why there's a connection between law and narratives and fictions this is actually a quote from a wonderful writer called Abbey Stein who is a psychotherapist working with convicted offenders and she talks about the difficulties of pinning down factual accounts the accounts that the law claims it can capture in legal cases I've referenced there the Sarchi case I don't know if you followed the Charles Sarchi case a few months ago where he grabbed hold of our rather beautiful television chefs face Nigella Lawson and stuck his finger up her nose and then put his hands round her throat in a public restaurant in London and he put a construction on that that was sort of very dismissive and it wasn't a problem at all that's just the way they playfully behaved one another but it was a very shocking piece of film and photography actually so just referencing the fact that when you talk about factual accounts you can have multiple accounts as we all know as lawyers and feeding into that the way people reconstruct their narrative accounts of their own behavior is often wildly at variance with what logic tells you about those circumstances so when Stein the psychotherapist working with convicted offenders makes this comment she's recognizing that people construct masks which they believe in I mean we construct selves all the time we construct selves that we feel are acceptable to our inner identity and to our public identity and then we will often have to make those marry up and alter our understanding of events and our actions particularly because it's actions in the end matter to the law more than anything which are wildly at variance and one of the points she makes too about these confabulating behaviors in offenders is that they are often meeting the gap between their vision of themselves and their actions when their actions have often resulted from a limited vocabulary and a limited education so the idea is that when you've had a disadvantaged background you may well act improperly act impulsively aggressively and so on because you simply don't have the words to find your way out of that situation and to reason your way out so some very interesting thoughts there on relationships with fiction from psychoanalysis as well but going back to literature you can think about reconstructive and deconstructive accounts of facts and looking at literature can help you towards thinking how that might be done I've referenced in this slide here the three trial narratives example which I might have a chance to tell you about later but I've written in the past about a text that we're going to be looking at in a minute Test of the Derbavills by Thomas Hardy and I looked at Test of the Derbavills and the Law of Provocation relating her story to the doctrine of provocation in the Law of Homicide and the Law of Murder and in order to understand that I mapped three different trial narratives onto her story so one would have mapped what we would have known that classical doctrine would have made of her facts the second trial narrative mapped onto her facts what our modern sort of contemporary doctrine would have made of her facts and then the third trial narrative allowed Hardy's narrative to dictate I mean I used myself as his kind of a manuensis allowing him to dictate what he was trying to tell us about the situation of someone so positioned and how we might reconstruct the narrative, the legal narrative of the doctrine from that point of view we might be able to catch up on that later there's been writing too in Canada there's a very good journal of comparative disciplines of literature called Mosaic which some of you may be aware of, I think it's based in Winnipeg and some writers have written there quite a lot about trial narratology as a discipline analysing the way narratives are constructed and deconstructed there's some very interesting work there the way advocates create kernel and satellite accounts of the same facts which are of course dramatically divergent and the way they also manage chronologies in presenting cases at trial so you will foreground certain facts but you'll also slow down your account of the facts if you want to foreground it and if you want to background it, if you're the defence lawyer and want to make less of that shooting incident, you'll speed it up so there's some very interesting work done on the narrative aspect of this my experience of teaching law and literature to students and of reading and thinking about it myself is that law and literature studies brings the actuality of doctrinal formulate and of their impact to life more effectively in case law as we all know as lawyers what tends to happen is that case law cleanses kind of anesthetizes us from the essential drama and emotive elements and sometimes a deep truth about the facts of the case I've mentioned Ed Walker's chain novel because of course his model of law's integrity suggests that the doctrine of precedent is like the building of a chain novel with people handing on very faithfully their account of how to read these certain sets of facts onto the next chapter writer and that's how precedents are built I would suggest to you the problem with that as we know law sometimes gets stuck in an account of how it understands a certain human behaviour it can get stuck for generations in fact to the detriment of the legal subject and so it's not so much in fact a genre I should have said a sub-genre you can get stuck in a certain sub-genre of artistic development and then it takes a revolution to break out of that so that's another thought to bear in mind about it I thought I'd just tell you a little bit about the course I teach in law and literature in case anyone here is interested in ever teaching it or thinking about how to teach it and I've actually been invited to a couple of other universities recently to spill the beans about how to teach it the universities in the UK who are looking to broaden their market I think and get in more students from other disciplines so I'm not proud I'm happy to sort of flog it on to have as interested in hearing about it so I've faced the course I've actually got a new younger colleague coming in now and teaching it with me but for years I've been teaching it on my own and we start with the children's book where the world things are which I show on the big screen there's wonderful big illustrations by Maurice Sendak and kind of almost tell the students to put their thumbs in and settle down and let me read to them and the choice of each text by the way is dictated by two things and now I've been teaching this as a 15 credit one term module so we have to get through it fast but deep as well so I choose texts that we can access very readily and manageably I don't expect people to read enormous tomes when they've got lots of other core law courses and I know law and literature is a bit of a fun kind of peripheral activity for many of them but so that's one factor the other factor that dictates the choice is to ensure that there is at least one published critical article that references that text that is a law and literature article so with where the world things are I don't know if any of you remember Des Manderson he was a research professor here in Canada until a few years ago and he's now back in Australia but he wrote a wonderful paper called From Hunger to Love all about critiquing where the world things are so I'll tell you a bit more about that in a minute and then the trial scene from The Merchant of Venice by the way I use DVDs a lot so we watch the trial scene from The Merchant of Venice and then the students have the transcript of the trial scene and of course we go over the overview of the entire play as well but we can go in quick and deep then into understanding the text and the article on that is by Stephen Cohen The Quality of Mercy that's another article that was in Mosaic from Canada so very powerful article How's End by Ian Forster and I've written about that, Only Connect Tessa Wills Thomas Hardy I've got two publications on that and The Reader by Bernard Schlink I don't know if any of you remember seeing the film of that but it's also an easy read and there's several articles on that it evoked a lot of passionate debate amongst academics and I've written about The Reader and Moral Luck on that so that allows us then to cover a lot of philosophical themes as well as looking at the texts we can think about the philosophical themes that they implicate so with Morris Sendak we look at legal philosophy and doctrinal themes generally such as positivism and natural law and particularly the idea of socialisation to law because actually what Maldison is doing in his article is demonstrating that children have to be socialised to law in a way that they can identify with and it really engages with the difference between positivist accounts of law, the Hartian accounts and the natural law accounts but with Howard's End we look at economic history oh sorry, no we do look at that with Howard's End but with the Merchant of Venice of course we're looking at economic history and the difference between common law and equity and Stephen Cohen's article on that is absolutely fascinating because he's a legal historian and he's drawing out how the history of common law and equity is very much dependent on the growth of the merchant classes and the kind of fabulous ideological power battle they then engage with against the sovereign and how the sovereign has to bow in the end to the merchant classes growing power because he's got an interest in the taxation that they can raise through their new commercial success so there's a very interesting take on the growth of common law there it takes you right into contract law and all the different debates about the virtue of money and so on with Howard's End, again we look at economic matters but essentially distributive justice the Rawls and Nozick kind of debate with Tesla Doverville's as we'll see in a minute we look at doctrinal constructions of rape and murder and with the reader we look at the individual responsibility the Nuremberg defence argument and also associated philosophy such as the idea of moral luck which I came across quite by chance and realised that the reader's a wonderful vehicle for thinking of this idea raised by Bernard Williams the philosopher of moral luck as well as looking at other ideas throughout all these texts ideas of free will and ideological trends and so on so we can cover a lot of jurisprudence by teaching law and literature and that's partly why I think I've been asked this year by our head of school to double the size of the course it's popular, the students love it and it's a great way to deliver jurisprudence actually it makes it much more engaging I think and although I had a wonderful jurisprudence tutor myself at Cambridge the great Nigel Simmons who also taught me contract law so I know the orthodox way can be good but this way really is very compelling I think so I'm hoping to move on then to quickly through a particular account of one of my favourite, possibly my favourite text Tessa Durgaville's and you've got an extract in front of you you should have an extract in front of you that relates to that there's a few spare bits of paper down here if you don't have it so she's taking over like a teacher like she's been here for years come along children, come along here and the text is an extract from a critical scene in the book which we'll look at in a minute just to give you an overview of I don't know how well you can see it from over there but here's a quick synopsis of the whole story so Tessa Durgaville's by Thomas Hardy published in 1895 a classic English novel of the late Victorian period a tragedy of urgent themes it's the story of the young peasant girl Tessa Durgaville ignorant and innocent of sexual matters who experiences a sexual encounter with Alec Durgaville a local member of the Nouveau Reich I've really truncated the whole thing there and I'm careful with the words I use she gives birth to an illegitimate child who subsequently dies later she falls in love and marries Angel Clair by the way the names are all symbolic he's supposed to be a clear thinking scientist who isn't taken in by a prejudice you know that's the whole irony of his name and on their wedding night he confesses that he had a little moment of madness in London with a woman of easy virtue and she says well I had something happen to me too and she says now I can tell you and she's tried to tell him several times that fate's Hardy's favourite force keeps intervening and stopping that happening so she tells him what's happened to her which I'm going to argue to you was a rape and he just says oh that changes everything I did love you but you're no longer the person I thought you were because under Victorian values that could well have been the case and it's not just Victorian values is it folks around the world still today the sexual purity of a woman can determine her fate very much so he insists that they part and she falls into total poverty as a result he goes abroad to South America and she falls into poverty destitute convinced that her husband is lost to her and hounded by Alec the man who first undertook this sexual encounter she allows him to establish her as his mistress he thinks her husband's gone forever partly because he's also sort of trying to put pressure on her but he can help her impoverished family but then her husband comes staggering back from South America a couple of years later and he's had an epiphany and realised what a fool he's been but of course it's all too late by then Alec the seducer rapist torts her with the inadequacy of her husband and she stabs him and then she and Angel run away together but they're caught in a wonderful scene on Stonehenge at dawn with the police surrounding the stones and she's lying there like a sacrificial offering and she's taken away in hand there's no trial scene in the book don't need it because that is what would have happened and in fact Hardy was very much influenced we think by the actual hanging of a woman called Martha Brown that he witnessed when he was 16 and there's an account of how she swung around in the pouring rain on the heath on the gibbits in a very clinging black dress that was more clinging because of the rain and how arousing this site was for everyone including the young 16 year old Hardy but also how disturbing it was knowing that she had been the victim of domestic violence and that's what had led to her actions it is alleged so some very interesting background to the story now I was also alerted to writing about this text because of a paper written by Professor John Sutherland who was then a professor of English literature at UCL he's retired now and he had written a book looking at great mysteries in English literature and he looks at the argument is Alec a rapist so I'm just mentioned in this slide I've looked at two aspects of Tess the rapal seduction and the provocation and murder discussion so we could say then that Tess is taken advantage of or we might say raped by her social superior Alec who taunts her and whose attention ruin her reputation and prospects we've heard with her true love and in his chapter is Alec a rapist Professor John Sutherland suggests that readings of the rape seduction scene which we have in front of us that's the text you have in front of you have been shaped by literary political fashions culminating for Sutherland and Sutherland was writing I think in the 1980s and 90s about this in a modern interpretation which favours rape and unfairly demonises the character of Alec Durbeville this is a quote from Sutherland she who was seduced in the 1890s is she who is raped in the permissive 1960s he argues in other words he's arguing that once the bloody feminists come along in the 1960s what we all have understood perfectly well to have been a seduction a kind of mutually enjoyable romp gets turned into rape that's really what he's arguing so he's looking at this text that you've got in front of you and he looks at the first couple of pages reviewing the account of the ride on horseback prior to the sexual act Sutherland concludes tests repulses his love making as they ride without ever distinctly denying that she loves him he is much encouraged by her lack of frigidity he says if you look at your first page um um I'm sure I'm much obliged to you and are you she did not reply tests why do you always like dislike my kissing you I suppose because I don't love you this is a a peasant girl and he is her employer and her social superior at the time so it's very difficult for her to say things outright you are quite sure I'm angry with you sometimes I half feared as much nevertheless he did not object to that confession he knew that anything was better than frigidity so this is what Sutherland is referring to but Sutherland's referencing of it is very um um um twisted when you look at the whole context why haven't you told me when I've made you angry you know very well why because I cannot help myself there in other words I'm a person of lowly position I can't go telling you what to think and what not to think and what I feel and what I don't feel Hardy as you saw from the slide with the picture of the front cover of the original text Hardy entitled his book Tessa DeVille's A Pure Woman he subtitled it A Pure Woman for a very particular reason he wants to tell you a story of a woman who is trapped by her gender by her social position in a way that is absolutely impossible to escape and even though she would be regarded as society as impure, having suffered the sexual encounter and later having engaged in a killing he describes her as a pure woman because he's trying to convey a very profound account of how a person can be a good person and get caught up in a concatenation of events that are completely out of their power so this is the power of this kind of text and there's, I mean actually I'll have to leave you to read because we haven't got much time I'll have to leave you to read those other pages but if you turn to the very last page so he's deliberately taken them into a wood in the night where they're lost because he hasn't maybe planned it but he's half thought this could be fun to get us both lost and see what happens and she gets in a panic well I'll find out where we are and I'll come back and sort it out and he leaves her lying in the leaves in the dark and she falls into a deep sleep if you see, Tess said there was no answer the obscurity was now so great that he could see absolutely nothing but a pale nebulousness at his feet which represented the white Muslim figure he had left upon the dead leaves everything else was blackness alike Durbeville stooped and heard a gentle he knelt and bent lower till her breath warmed his face and in a moment his cheek was in contact with hers she was sleeping soundly and upon her eyelashes there lingered tears darkness and silence ruled everywhere around above them rose the primeval use and oaks of the chase in which they're poised gentle roosting birds in their last nap I mean wonderful literature if nothing else and about them stole the hopping rabbits and hares but might some say where was Tess's guardian angel where was the providence of her simple faith perhaps like that other god of whom the ironical tishbite spoke he was talking or he was pursuing or he was in a journey or he was sleeping and not to be awake do you see how ironical Hardy is towards the idea of an omnipotent power that is supposed to protect us why it was that upon this beautiful feminine tissue sensitive as gossamer and practically blank as snow as yet there should have been traced such a course passion as it was doomed to receive doomed to receive why so often the course appropriates the finer thus the wrong man, the woman, the wrong woman, the man many thousand years of analytical philosophy have failed to explain to our sense of order Hardy was virtually self educated by the way dark as some of Tess Derbyville's mailed ancestors rollicking home from a fray at the same measure even more ruthlessly towards peasant girls of their time but though to visit the sins of the fathers upon the children may be a morality good enough for divinities it is scorned by average human nature and it therefore does not mend the matter as Tess's own people down in those retreats are never tired of saying amongst each other in their fatalistic way it was to be there lay the pity of it an immeasurable social chasm was to divide our heroine's personality thereafter from that previous self as hers who stepped from her mother's door to try her fortunate poultry farm so looking at that text Sutherland I'm jumping forward we've gone past this bit now showing that Tess doesn't love him looking at that text there's no mention of rape the word rape is not mentioned in the text at all and Sutherland charges hardy really with not having used the word rape and therefore we must assume it was seduction but the argument really is that rape was pretty unsayable in those times there are textual indications actually in the book to the idea of sexual ignorance so Tess makes it clear that she didn't really understand what was happening to her until it was too late and also the fact that she was sleeping soundly we're told and then kind of this encounter happens the whole argument mainly Sutherland's argument that a seduction turns into a rape the linguistic manipulation made me look back at the case law from the Victorian period of women who were sexually ignorant and didn't know what was happening to them there was a case where a doctor told his young female patient that he was performing a surgical operation on her when it was actually intercourse and she didn't know the difference there was another case where a singing master told a young singing pupil that he was performing an operation on her to improve her singing voice and there's case law concerning rape while the subject is asleep they're going right up to modern times there's American and British and other case law demonstrating that some people do sleep very soundly and they only wake up when halfway through something is happening to them we once had a babysitter like that we couldn't wake her up to save her life no no no we came home though and we had to virtually carry her home didn't we we didn't use her again the house could have been burning down she wouldn't have noticed but so there you are it's a nice demonstration this I think of how you can critique a text and it takes you back to thinking about the constructions the linguistic constructions the linguistic history and as I've mentioned here not only was the the word rape difficult to say but also it was pretty impossible for women to raise as well but also there's a long history of case law on seduction I didn't know that when I first started out on it and I don't know how many of you might know that but actual case law in Britain and America was down the crime and tort of seduction I think in 23 states in America it was a crime or a tort until the early 20th century but it would be a cause of action on behalf of home anyone want to offer who would be the victim the father exactly because his property and the daughter have been corrupted and ruined and there's a great quote here look an American case went and lent an action for seduction defendant had sexual relations with the plaintiffs previously chased 15 year old daughter and it resulted in her becoming incorrigible she was committed to a home which is funny until you realise that scores of women in Britain and in America were committed to mental homes fairly permanently I mean I can remember as I heard about in the 1970s of women who were old women who had been committed to mental homes in the 1920s and 30s because they were thought to be moral retrovates as a result of losing their virginity before marriage but look at the wording I just love the wording of this account the defendant's unauthorised interference with the plaintiffs interest was not negligent but intentional and it's commonly recognised both by the law and by public opinion that the risk even of exceedingly consecutive consequences of an unauthorised and unintentional interference should fall on the perpetrator rather than the sufferer if A tramples the valuable plants in B's garden it is no defence that he reasonably mistook them for weeds that's the girl in case you haven't noticed she's the weed who he mistook for a flower for a moment there so it beautifully actually there's some other wonderful case on this sort of point that we haven't got time to go into now but again it shows you how you can link up the law and literature and legal history and bring new insights into the matter we're getting short of time so arguably then Sutherland is simply unwittingly replicating the very prejudices that we're trying to move away from and using this opposition of the idea of rape and seduction linguistically is completely misleading when you look at the actual facts of what happens but it's a way of marginalising complainants and it's a common ploy used by defence council Canadian Criminal Code of course it's very relevant to your code because you got rid of the word rape some years ago and this is causing trouble I did a little bit of looking on the net before I came and it's still causing difficulty because by getting rid of the term there's just possible reasons to try to get over the taboo of the word and assist complainants you've actually got a reduction in successful charges at that level so look 98% of charges accounts for the least severe form of sexual assault and charge being brought so it's played into the hands of the opposition apparently look more into that I've got a reference if you want it and here's an article from just a few weeks ago in the Toronto Sun perhaps not the best source I don't know but long time criminal lawyer Gary Barnes remembers a day before the rape charge was replaced by sexual assault and you know he argues that benefits as well as disbenefits but there are others lobbying for the word to be brought back in Canada and it's all about the power of the word isn't it? It's all about the taboos and a good advocate needs to understand those things and I would argue to you that law and literature is a fabulous way to arouse people's sensitivities to the linguistic nuances as well as the philosophical nuances of words and concepts in law so there are complex linguistic and semiotic and cultural prejudices underpinning many crimes and there you are little homily there about the Canadian notion of assault to end on that point now we're not going to have time to look at tests and provocation and murder I don't think but I do make a connection in my writing about tests and provocation and murder if you're interested with a very famous English case, English law case of Kiranjit Alawalia who was sentenced and convicted of murder initially after she killed her abusive husband and those of you who are familiar with the problems with provocation law from a feminist perspective particularly will know that the problem with the doctrine around the world really and especially in Anglo-American law has been the artificial grafting of a masculine paradigm onto the feminine victim turned perpetrator which you can't live up to because women don't act in hot blood they have to wait because they're usually smaller and weaker than the man they often have to wait until he's asleep before they act they're often in a very disturbed state of mind anyway and the classical doctrine of provocation doesn't map well onto those sorts of circumstances hardy understood that I'm just trying to jump forward sorry we haven't got he understood about dissociative mental states look Angel had a vague consciousness of one thing that it was not clear to him till later that his original test had spiritually ceased to recognize the body before him as hers her own body allowing it to drift like a corpse upon the current in a direction dissociated from its living will that's a quote from Tess here's a quote from Alualia other neighbors rushed to the house this is after she set fire to her husband and she's in the burning house with her child inside the house they found the door locked and saw the appellant standing at a ground floor window clutching her son looking calm they shouted to her to get out of the house she opened the window and said I am waiting for my husband and closed the window again she was prevailed upon to hand the child out and later emerged herself she stood staring at the window with a glazed expression now after the first conviction of her for murder there was eventually a retrial of the case partly as a result of the fact that dissociative states dissociative mental states battered woman syndrome had become admitted to the clinical register and therefore could be recognised as evidence in the case so Hardy had kind of anticipated that concept and that linguistic association almost exactly a hundred years before which I think is pretty remarkable really and I see there's a slide there that explains the problems we're still having with that law although we've tried to reform it in England and Wales and I understand that you've got difficulties in the US, Canada and Australia with the same issue as well so I'm speeding up because we're running out of time but I just wanted to make the point really associating things with the Canadian law that visionary writers they're not just English they're not just American, they're Canadian as well and as you know you've got great writers Alice Munro, Margaret Atwood who manage to communicate otherwise unsayable gender and social territories and I've been drawn not just because of coming here but because of another thing that happened recently into looking at first nation writers such as Eden Robinson has anybody read any Eden Robinson powerful stuff on their face? I love her she's great and she is communicating some real difficulties again of that total powerless trap that people in certain social and economic circumstances can find themselves in which making the wrong choice is almost impossible to avoid and that's a very important philosophical point to recognise that's partly why that book is called Track Lines, it's a nice play on the word another writer I've been reading just over the last couple of days she's a North American writer who is a part North American Indian Louise Erdrich, The Roundhouse which is part of a tribal arrangement The Roundhouse is where they have tribal rituals and so on and that book is looking at a rape but looking at it where there is a conflict between tribal law and domestic state law so again a wonderful way in to rethinking about these problems of law I note that the web recounts that one of Dean Horace reads early female students Bertha Wilson went on to create the battered women's defence as well as being a notable judge so you've got a direct connection here in this law school with reforming that very difficult area of law so the main point I want to make to you then is the value of law and literature I believe is it allows you to engage with philosophical issues that jurisprudence may make rather abstract and removed from the direct understanding of how those ideas engage with real lives it helps you reconnect those things and it also allows you to think outside of the boundaries of normal doctrinal formulae to unsayable things that need to be said and allow us as advocates to perhaps rethink how we say them so conclusions then law is an artifact that's always a shocking thing for me to say to secondary undergraduates hey we just made it all up folks it's not real it's a cultural and political artifact there's an argument about whether it's political of course but you can't avoid the fact that it has political elements to it it's an elaborate edifice it's a valuable symbol it's a great institutional power it's a real entity I mean it's a real entity in that sense that it operates in our lives it has institutional buildings professionals and so on and has real findings which impact on lives but we must over over worship it because it is our creature after all for us to change it's not a forensic tool as much as it claims it's somewhere between a science and an art especially in the construction of rhetoric which is very much more powerful than lawyers would like you to believe and it's a combination of fact and value and the crossing between fact and value is often not properly referenced and it has readings of human nature and psychological characteristics and normative values which are often more fluid than they want to recognize literature is a series of thought experiments it's a good way to think about it actually that's how I got into writing about moral luck and the reader recognizing that literature is a series of thought experiments it's good tool for legal education because it expands the capillaries, it expands minds and recognizing links between philosophy and law doctrinal material and bigger ideas like justice, fairness, truth, what it is to know something or have willed something thank you very much everybody