Considered as a subspecies in the complex genre of crime fiction, the legal thriller strikes the reader as unique in two respects.
Crime fiction in the by now ubiquitous and genre-dominating manifestation of police procedural terminates its plot development when the culprit has been identified, with court proceedings only apparent when needed to sustain the investigation. The legal thriller, however, usually starts its business with the court proceedings following the closure of an investigation, often resulting in a new angle on the investigation, so as to bring about a final outcome different from the one originally devised by the investigators. In the legal thriller, court proceedings play a very active, if not to say decisive part in a case reaching its ultimate solution.
If this is one characteristic of the structure of the legal thriller narrative, another is to be found at the authorship end of things. Most crime fiction is written by authors with a nose for a good story and with the stylistic gift to handle it in an alluring and engaging way. Professionally, then, it comes as no surprise that journalists and, to a much lesser extent, academics with relations to text sciencesâphilology, literary criticism and theory, historiography, linguisticsâloom large at the productive end of crime fiction generally. Not so in the case of the legal thriller. In this subspecies of crime fiction we find a strikingly high proportion of authors with formal legal backgrounds, such as lawyers, judges, prosecutors, and others similarly professionally qualified. Again, this is surely not surprising taking into account the traditionally narrative nature of the proceedings of a court case, and the necessary interest on the part of the professional participants in such proceedings in textual scrutiny.
Legal thrillers constitute a crime-fiction subspecies focusing on the legal procedures in connection with crime. American writers John Grisham and Scott Turow are contemporary writers central to both form and content of the legal thriller. In countries building on the Anglo-Saxon tradition of jurisprudence and law enforcement, the court machinery is usually involved only after the police have handed over a case for trial (except for judgesâ authorizations of search warrants, for example), but then has a quite active role. In countries adhering to the tradition of Roman/Civil Law , the courtroom leads a less conspicuous life. It sometimes has a role during investigations prior to trial and the passing of sentenceâconsider Georges Simenonâs Paris-based police investigator Maigret, whose life with âjuges dâinstructionâ is seldom easy. But usually bench and bar in those countries constitute a termination of a criminal case with the meting out of punishment according to the law of the land, with courtroom infighting not expected to change much of the expected outcome.
In legal thrillers, the questioning of police procedures and the call for additional and/or revised investigative procedures take the drama of full-scale crime detection into the courtroom. In the USA especially the genre has found fertile soil, an effect no doubt of the centre-stage role played by law at every level in society. The legal system of the USA is characterized by an extended democratic or popular element reflected in the foregrounding of trials by jury, also in cases of civil litigation, and in both bench and prosecution positions in many instances are elective offices. One of the motifs of the western genre, whether in print or on screen, is the taming of the wilderness in the form of making the law apply to the new areas claimed by pioneers moving westwards. Judges, sheriffs, and lonesome cowboys are ever intent on curbing excesses of free initiative. In fact, all three agents of the lawâjudge, sheriff, cowboyâhave become archetypes in American culture, and their functions are, in various transformations, recognizable in the dramatis personae of the post-closing-of-the-frontier legal thrillers.
The Western world relies on two main law legacies, common law and civil law . The former is a matter of adhering to precedence, with law principles building up over the centuries in the form of court decisions. The latter is a matter of having law in the form of acts and statutes. The UK and the USA lean to the former, whereas countries on the European continent tend, in the wake of Roman law , to prefer the statute book. In practice, common and civil law both play a part within either system in the contemporary world. Legislative acts supplement precedence in a country without any central constitution like the UK, whereas the US Constitution and the Bill of Rights are regularly invoked in American court proceedings. But it is true that where there is a tradition of common law, the court seems to enjoy a more prominent role. This may be due to the need to examine the applicability of precedence, which gives to the discussants a central role. In the UK there is the additional feature that traditionally judgesâfor the higher courtsâhave been selected from the ranks of high profile and extremely competent procedural advocates. In the USA the fact that the officers of the prosecution are from an office depending on the public vote, has in that country a quite telling effect on the dynamics of life in the court.
In his bibliographical study Justice Denoted: The Legal Thriller in American, British, and Continental Courtroom Literature (2003), Terry White lists 1,842 titles of booksâmostly novels but also short story anthologies and dramaâwhich may be considered representative of the genre of legal thrillers, written by a lesser number of authors, around 1,200, as many have authored more than one title (it is a bit awkward that titles by authors who have more than one book listed are arranged alphabetically, not, more practically, chronologically, though). The compilationâs subtitle promises coverage on an Anglophone scale, supplemented by the rather vague âcontinentalâ, probably in the sense of European continental. Be that as it may, the compilation not surprisingly has a decidedly US dominance. Out of the approximately 1,200 authors, a rough count yields the result that about 180 are British (further subdivisible into English and Scottish), 8 are French, 7 are Canadian, 4 are Australian, 4 are German, 3 are Austrian, 3 are Irish, and there is a single Belgian, Czechoslovakian, Dutchman, Finn, Italian, and Swiss. The breakdown of the list, in addition to cementing the expectation of US dominance, shows the UK as next in line, followed by other Anglophone nations. The numbers have to be taken with more than a grain of salt, though, not only in view of the non-rigoristic generic criteria applied, which allow for quite a latitude of titles ranging from psychological or social novels with some law in them to regular thrillers, but also in view of the generous chronological sweep, and add to that all the crime fiction which cannot be justifiably included under the heading of legal thriller, but which has legal people and functions as part of the procedures covered. However, although different criteria might alter Whiteâs presentation at the margins, the substantial message will not be changed: there is a particularly literature-productive relationship between the law and lawyers in the Anglophone world with an apparent nexus between specific legal traditions and the specific kind of literature, the legal thriller, building on a suspense structure recognizable from that of the real courtroom.
Although there are strong ties between the legal systems in the Anglophone world, with especially strong ones between the UK and the USA despite a history of secession and revolt, there are limits to the transatlantic understanding. Even if the UK and the USA share the same legal common-law tradition, the two countries have, of course, developed different systems of law application. It is quite telling that D. W. Buffa in his The Defense has his narrator protagonist Antonelli react with ignorance when visiting a prospective witness in Canada learning that her husband âwas an attorney. He was one of the youngest attorneys ever called to the silkâ (Buffa 1998: 243). The fact that the phrase (âcalled to the silkâ) is not the usual one (the correct idiomatic phrase from UK law would have been âto have taken silkâ but is here probably confused with the phrase which is current in both the UK and UK law, âto have been called to the barâ, about a lawyerâs qualification to appear in a court of law) may be attributed to authorial unfamiliarity with the hierarchy of the British law system. Antonelliâs failure to rise to this bait, intended on the part of the wife to inspire respect, makes it quite clear that the transatlantic traffic in law systems does not necessarily mean thorough mutual knowledge of them.
The domain of legal thrillers is usually criminal law (providing âstandards of conduct as well as machinery (police, courts system) for dealing with those who commit crimesâ (Leach et al. 2011: 251)), as opposed to civil law (concerned with âlegal relations between personsâ (Leach et al. 2011: 251)). This opposition of criminal to civil law should not be confused with the way the term âcivil lawâ is also used by comparative law about âlaw familiesâ. In his condensed but still comprehensive The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America, John Henry Merryman reiterates the usual distinction between âthree highly influential legal traditions in the contemporary world: civil law, common law, and socialist lawâ (Merryman 1985: 1). But he hastens to emphasize that while the âlegal systems of England, New Zealand, California, and New York are called âcommon lawâ systemsâ (Merryman 1985: 1), it is âinaccurate to suggest that they have identical legal institutions, processes, and rulesâ (Merryman 1985: 1). Opposed to common law countries, civil law countries are such as âFrance, Germany, Italy, and Switzerland, [âŠ] Argentina, Brazil, and Chileâ (Merryman 1985: 1). Merryman delineates the civil law tradition by its historical development:
By comparison the heritage of common law:Of the three, the civil law tradition is both the oldest and the most widely distributed. The traditional date of its origin is 450 bc, the supposed date of publication of the XII tables in Rome. It is today the dominant legal tradition in most of Western Europe, all of Central and South America, many parts of Asia and Africa, and even a few enclaves in the common law world (Louisiana, Quebec, and Puerto Rico). It was the dominant legal tradition in Cuba and in the nations of Eastern Europeâincluding the Soviet Unionâthat have become socialist, and it continues to exercise an important influence on socialist legal systems. (Merryman 1985: 2â3)
Relating to the distribution of legal thrillers by national origins of authors, countries relying on the common law tradition lead by far in terms of the number of titles written and published. The common law view of the law as something flexible and subject to constant change is echoed in John Grishamâs âAuthorâs noteâ to The Last Juror : âVery few laws remain the same. Once enacted, they are likely to be studied, modified, amended, then often repealed altogether. This constant tinkering by judges and lawmakers is usually a good thing. Bad laws are weeded out. Weak laws are improved. Good laws are fine-tunedâ (Grisham 2004: 356).The date commonly used to mark the beginning of the common law tradition is ad 1066, when the Normans defeated the defending natives at Hastings and conquered England. If we accept that date, the common law tradition is slightly over 900 years old. It is sobering to recall that when the Corpus Juris Civilis of Justinian [âŠ] was published in Constantinople in ad 533, the civil law tradition, of which it is an important part, was already older than the common law is today. As a result of the remarkable expansion and development of the British Empire during the age of colonialism and empire, however, the common law was very widely distributed. It is today the legal tradition in force in Great Britain, Ireland, the United States, Canada, Australia, and New Zealand, and has substantial influence on the law of many nations in Asia and Africa. (Merryman 1985: 3â4)
It is a central observation in this study that the very nature of the âbattleâ in the courtroom as determined by the common law tradition has a built-in story and suspense potential absent from the systems of justice prevailing in civil law countries. The difference is conventionally seen as one of adversarial, or accusatorial, as against an inquisitorial process. The former kind is ânot a process to necessarily discover the truth of what happened but one to test the strength of the case against an accusedâ (Wilson et al. 2014: 35). In some civil law countries there is a special judge function, sometimes in English termed the magisterial functi on, by which it is within the responsibilities of the bench to see to the carrying through of an investigation and prepare it for the court, a function in other countries given over to the prosecutorâs office:
The judge who is eventually to preside over the court proceedings of the trial in the inquisitorial process, though, in most countries has no function or responsibilities during the preparation of the case. During the trial the judge is supposed to see to it that the law is followed, not to make the law, and so is not particularly prominent during courtroom proceedings. But when the case comes to the courtroom in common law countries, judges are given, and actually enjoy, much leeway in their conducting of the trial process. Also the status of the judge, because of the independent power invested in the bench, marks common law cultures from civil law ones. American author Scott Turow has the narrator who functioned as counsel in the court case he is now recollecting as a senior judge muse on the attractions of the bench: âlike many legal scholars, [he] had longed for the bench and the chance to make the law that heâd spent years studyingâ (Turow 1999: 79). The passivity mentioned by Wilson et al. in the common law courts should not be mistaken for a lack of power wielded by the bench. As the judge in Robert Traverâs Anatomy of a Murder instructs the jury:The adversarial process is often compared with the inquisitorial process practised in mainland European criminal justice systems, where responsibility for a criminal case is assumed by an investigating magistrate. The magistrate plays a much more active role in a case, unlike under the English model where the judge is largely passive, relying on the parties to present a case and certainly has no role in the investigation of a case. (Wilson et al. 2014: 35)
The present-day trial practice in common law cultures, relying on the matter being fought out within the courtroom, with a presiding and rather omnipotent judge and two also very vocal adversarial advocates, all in front of a jury of the accusedâs peers, is a role-functional set-up feeding immediately into the energy-economy pattern of most narratives. As suggested above, proceedings in the common-law-derived processes of criminal law have an inherent story potential, notably the polishing of a conflict into a deep shine and, due to the necessary prolongation of the careful hearing of evidence, for example, and a building up of suspense only often resolved with a whiplash effect, with the passing of the sentence. This explains why legal thrillers so frequently resort to step-by-step, apparently verbatim, rendering of the âactualâ courtroom proceedings.âLadies and gentlemen,â he began, âunder our law you are the sole triers of the facts, but I am the sole giver of the law. You will take your law not from the Sunday supplements, not from your favorite cops-and-robbers programs on television, not from the family almanac, not even from the attorneys in this case, but solely from me.â (Traver 1958: 414)
Narrative drama of this kind is if not wholly absent then at least rather subdued in countries relying on the civil law tradition. In the cases in which the court has a function in the crime fiction of such countries, it is either as a rather anonymous entity, only necessary when it comes to judgesâ decisions about search or phone-tapping warrants or decisions to remand suspects in prison, or in the person of the investigating judge or public prosecutor looming in the background.
Verisimilitude and authenticity a...