INTRODUCTION

It is particularly appropriate in an issue of this Journal honouring its founding editor to offer a paper on law and literature – a theme close to the heart of Albert Kiralfy. It is worth remembering that into the mouth of one of his more attractive lawyers, Paulus Pleydell, Sir Walter Scott put the claim that the best editions of the best authors were his “tools of trade. A lawyer without history or literature is a mechanic, a mere working mason; if he possesses some knowledge of these, he may venture to call himself an architect” (Guy Mannering ch 37). If this harkens back to the ideals of the Legal Humanism of the Renaissance, rather than being the earliest known manifesto for the now-emerging discipline of law and literature, it nonetheless indicates a belief that law was not the autonomous discipline claimed by the positivism of the later nineteenth century.

Belles-lettristic essays by lawyers on legal themes in certain classic works of literature, almost in the spirit of light-hearted relief from more serious toils, are a moderately popular form; in recent years, however, there have been increasing attempts to map out a discipline of law and literature as a subject of scholarly and academic study. The increasing intensity of such endeavours can largely be dated from James Boyd White's work, The Legal Imagination, published over twenty years ago. There has been no agreement as to how this discipline is to be constituted. It is unnecessary here to engage with these debates, though there will be a few remarks below about literature and legal history.

Sir Walter Scott is one author who has understandably attracted attention for the use he has made of legal material in constructing the Waverley novels, especially the “Scottish” ones. He had a busy professional life as a member of the Faculty of Advocates, holding the offices of Sheriff-Depute of Selkirkshire from 1799 and Clerk of Session from 1806. David Marshall accordingly has fairly commented that “[a] lawyer writing of Scottish history and Scottish manners in or shortly before his own time must almost inevitably draw on his professional knowledge and experience for material for his literary products”. He then demonstrated how Scott drew on legal material in the construction of some of his early novels.