Law, Literature and Legal Conundrums

Law, not unlike the rules of games and sports, is about rules prescribed for the purposes of ensuring that the game of life is played in a peaceful and orderly manner. As one learned District Judge said to me recently at a CDR, while justice will ultimately be done in heaven, on earth we can only hope for peace and order. Hence law, in the light of its human limitations, deals primarily with the quotidian. It is concerned with the normally pedestrian, often mean, sometimes idiosyncratic and occasionally sublime everyday conduct of humanity.

For that reason alone, we find law both idealised and caricatured in sacred and secular literature. In regard to caricatures, who can forget the court scene in Lewis Carroll’s Alice’s Adventures in Wonderland, with the Queen insisting on ‘sentence first, verdict afterward’?

Or consider the famous graveyard scene in Shakespeare’s Hamlet. Here, Hamlet is reminiscing on a lawyer’s physical remains:

There’s another: why may not that be the skull of a lawyer? Where be his quiddities now; his quillities, his cases, his tenures, and his tricks? Why does he suffer this mad knave now to knock him about in sconce with a dirty shovel, and will not tell him of his action of battery? Hum! This fellow might in’s time a great buyer of land, with his statutes, his recognizance’s, his fines, his double vouchers, his recoveries: is this the fine of his fines, and the recovery of his recoveries, to have his fine pate full of fine dirt? Will his vouchers vouch him no more of his purchases, and double ones too, then the length and breadth of a pair of indentures? The very conveyances of his lands will scarcely lie in this box; and must the inheritor himself have no 
more, ha?

At the other end of the spectrum, one of the most idealised judgments in sacred literature is found in 1 Kings 3:16-28 of the Bible. Before King Solomon appeared two common prostitutes. One of them complained, ‘May it please my Lord, I and this woman dwell in the same house. We were alone in the house with no one else present, and both gave birth about the same time. The baby of this woman died in the night, and she swapped her dead baby with mine by laying her dead baby in my bosom and taking mine to hers. When I woke up in the morning to give suck to my baby, I realised to my horror that the baby was dead. I took a good look and immediately realised that the dead baby was not my baby.’

Immediately, the other woman responded, ‘No, the living one is mine, the dead is yours!’ To which the complainant retorted, ‘No, the dead is yours, the living mine!’

‘May it please my Lord’, pleaded the respondent, ‘I am falsely accused of swapping my baby with hers. My baby was always in my bosom since I delivered him. She is lying for her baby is dead and she is trying to exchange her dead for 
my living.’

Upon the testimonies of these two women, the King was to render a judgment. Here was a classic situation of two conflicting statements with no other corroborative evidence of any kind to support either the complainant or 
the respondent.

The King thoughtfully repeated their claims, and suddenly called for a sword and ordered the living baby to be cut into two, one half to be given to each of the women. One of the women immediately said to the King, ‘Please, my Lord, give her the living baby! Don’t kill him! But the other said, ‘Neither I nor you shall have him. Cut him into two!’

Upon hearing the women, the King immediately rendered his judgment: ‘Give the living baby to the first woman. Do not kill him; she is the mother.’ Thus the sword ordered by King Solomon was used to cut the Gordian knot and not 
the baby.

In Greek literature, the orator and philosopher Protagoras was the first of the Sophists of Athens in the 5th century BC. He was the one who posited that ‘man is the measure of all things’. He also enjoyed posing legal conundrums including the following:

A law professor made a contract with a pupil on a contingent basis. The professor was not to be paid until his pupil won his first case as a lawyer. When the professor deemed he had taught the pupil enough, he asked for his fee, but the pupil refused because he had not won his first case. The shrewd professor sued the pupil, since he thought he could not lose. If the professor won he would get a judgment against the pupil and thus get paid, whereas if he lost the pupil will have won his first case and the professor would be entitled to be paid, under the terms of the contract. At the trial, the pupil, in his first case ever, moved that there is a non-suit. The pupil explained that he could not lose because if he won the case he would not have to pay the professor, whereas if he lost he would not have won his first case and therefore would not have to pay, under the terms of the contract.

To his students, he asked: Who should win the lawsuit, and why?

In his autobiography, Walking on Water: A Life in the Law, Chester Porter, QC, shared about his experience in a criminal appeal to the Australian High Court from a murder conviction in the New Guinea Supreme Court. He was representing Sirinjui, a native of New Guinea, whose companion decided to throw four spears into the victim. Apparently for comity Sirinjui then threw a further four spears on the spur of the moment and not pursuant to any common purpose or pre-arrangement. The appeal was heard by Sir Owen Dixon.

Chester Porter presented Sir Owen Dixon with a conundrum. He submitted that the appellant could not be charged with murder since his spears may well have been thrown at a corpse nor could he be charged with mutilating a corpse because the victim may have still been alive. Sir Owen was very amused and in turn cited a famous Harvard puzzle: A man who was about to make a trip across a desert had two deadly enemies. One poisoned his water in his waterbag; the other slashed the bag so that it leaked. The man died of thirst. Who, if anyone, was guilty of murder?

Ultimately Sirinjui was acquitted. The conundrum apparently saved his life!

Whether in caricature or in idealisation, the law is part of universal life. Although it is always in a flux, it is here to stay. It is a dynamic universal that will continue to find its way into literature for its characterisation according to the whims and fancies of people of letters. Meanwhile, its conundrums will continue to fascinate and challenge the most brilliant legal minds. And most of all, we will continue to find that as there are laws of poetry, so there is poetry 
in law.

William Wan

Kelvin Chia Partnership

E-mail: william.wan@kcpartnership.com