Putting Words Upon the Silence
War in Law and Literature
The anguish of war is often unspeakable: those who have experienced it may be reluctant or unable to share what they’ve seen—and those who haven’t lack the reference points to fully explore the implications. The brutality of armed conflict, in fact, exists so far outside norms and reason that it can be difficult to navigate the accompanying legal questions; it isn’t easy to make, argue, or think about law when one is struggling to fully comprehend the underlying experience.
And this is one reason literature matters in society, US Supreme Court Justice Stephen Breyer told members of the University of Chicago Law School community last month during the plenary panel of the four-day War in Law and Literature conference. Written works, he said, can broaden one’s own perception of the world by offering access to the unfamiliar—a useful exercise for lawyers and judges.
“The lives that we know best are our own,” Breyer said via live video near the beginning of the conference, a biennial tradition that combines faculty scholarship, student papers, robust debate, and a theatrical performance to examine a single topic through the dual lens of legal thought and classic writing. “If you want to find out about … people who aren’t you, study literature. Learn a foreign language—let your eyes open up.”
The evening discussion was moderated by Professor Martha C. Nussbaum, who co-organized the conference with three colleagues: Professors Alison LaCroix, Laura Weinrib, and Jonathan Masur. It followed a performance by faculty and students of Euripides’ “The Trojan Women,” an ancient Greek tragedy depicting the Trojan War’s toll on the women of Troy.
“One aspect of war is that people don’t discuss it—it’s too terrible,” said Breyer, who was joined on the panel by Senior Lecturer Diane Wood, Chief Judge of the Seventh Circuit Court of Appeals, and Paul Woodruff, a philosophy professor from the University of Texas at Austin. “And what Euripides does here, it seems to me, is to put words upon the silence. … [T]he experience of what’s happening to these women is so awful.”
In the hour-long performance, Nussbaum portrayed the dethroned Trojan queen, Hecuba, as she endured an assortment of agonies: a daughter driven mad by the trauma of rape, another sacrificed at the tomb of a Greek warrior, a son killed in battle. The Greek herald Talthybius (played by Professor Richard McAdams) haltingly delivered much of the bad news: Hecuba was to be taken as a slave by Odysseus, the King of Ithaca, and Hecuba’s grandson, Astyanax, was to be killed. In one of the show’s more heartbreaking scenes, Hecuba’s daughter-in-law, Andromache—portrayed by Jennifer Nou, a Neubauer Family Assistant Professor of Law—pleaded for the life of her child, who was ultimately thrown to his death from the walls of the city.
It’s the power of words like Euripides’—and in some cases, the theatrical interpretation of those words—that allows people to not only experience a sliver of an unfathomable situation, but experience it from a variety of perspectives, Wood said.
“In some ways that can only be done through literature,” she said. “Because how, after all, can you get inside someone else’s head? You really can’t, unless you are almost in the dramatic format. With this particular play, [the live performance] actually enhances the ability to send the message to you. You’re not just sitting there reading and wondering whether it’s time to go write an opinion or something. You really engage: you are that person, you are Hecuba, you are Cassandra, you’re Talthybius—I mean, what a role! He’s uncomfortable with what he’s doing, but he’s doing it.”
Added Woodruff, who served as a captain in the US Army during the Vietnam War: “Of all the different kinds of experiences that can be illuminated by literature, war has to stand out, simply because very few of us have the experience of war. And even those who do, experience just a narrow slice of it and aren’t aware of how it affects other people.”
This was a theme that emerged throughout the conference as students and scholars employed literature as a vehicle for understanding different aspects of war, law, and human behavior. The conference was the sixth in a series that began in 2009, when participants explored Shakespeare and the Law; in subsequent years, the event focused on money, masculinity, crime, and “Gender, Law, and the British Novel.”
“The Law and Literature conference has become a proud tradition at the University of Chicago Law School, and one that celebrates our culture of rigorous inquiry and interdisciplinarity,” said Dean Thomas J. Miles, the Clifton R. Musser Professor of Law and Economics, who portrayed Poseidon in the “The Trojan Women.” “This year’s outstanding conference was no exception.”
This year, scholars discussed a variety of works, from James Fenimore Cooper’s The Last of the Mohicans (set during the French and Indian War) to Ambrose Bierce’s An Occurrence at Owl Creek Bridge (set during the Civil War) to Joseph Heller’s Catch-22 (set during World War II) to Robert A. Heinlein’s Starship Troopers (set in a fictional future society ruled by the military). Each work—and the scholarship that explored it—opened up new ways of thinking about complex topics, participants said. (A full list of the sessions and papers can be found here.)
“The success of the conference was a remarkable team effort: from the emotional integrity and professionalism of the faculty actors and our amazing student directors, Julius Carter and Josh Davids [both ’18], to the unprecedentedly high quality of the student papers, and finally the variety and quality of the faculty papers, so many of them by members of our own faculty, though they were joined by an impressive team of visitors,” said Nussbaum, the Ernst Freund Distinguished Service Professor of Law and Ethics.
“Participating in this conference is one of the many great privileges of teaching at Chicago,” added Masur, the John P. Wilson Professor of Law. “Every two years, it provides an opportunity to stretch one’s mind and think about new topics and ideas.”
The discussion of scholarship began with three papers by Law School students: “Military Camptown Prostitution and Women's Choice: Law and Culpability Analysis,” by Janice Han, ’18; “Federalism, Slave Resistance and Ballet in the Italian Risorgimento,” by Luke Sperduto, ’18, and “Reasoning in Alternative Worlds: What Legal Scholarship Can Learn from Counterfactuals in World War II Novels,” by Julia Bradley, ’19.
“The Law School generally encourages an interdisciplinary approach to our legal studies, but as someone who's taken exclusively doctrinal courses this year, I felt especially lucky to get to spend a lot of time thinking about law through the prism of the humanities," Bradley said. "Presenting was a valuable experience that reminded me how much fun it is to be a part of UChicago's academic community. The papers that were presented throughout the conference were really imaginative and showcased the incredible range of our faculty here.”
The second half of the conference, which was devoted to papers by faculty from the Law School and other institutions, was organized around a variety of themes: Early America, Race and Citizenship in the Civil War and Reconstruction, Race and Citizenship in Contemporary (and Future) America, World War I, and World War II.
“Legal thought has difficulty addressing war, precisely because war is a phenomenon that seems to exist outside of law and reason,” said LaCroix, the Robert Newton Reid Professor of Law. “Yet of course we know that wars happen, frequently, and that lawyers play an important part in framing how leaders and soldiers alike approach war—for instance, in terms of what rights are due to prisoners of war or what punishments will be meted out to those who desert, spy, or commit atrocities. Literature, by its immediacy and specificity, can help correct this tendency by giving lawyers—and all readers—a visceral sense of how individuals experience war.”
Added Weinrib: “There’s a great deal of scholarship on the incapacity of both law and language to adapt to the brutalities of war. Taken together, the conference papers pursue a range of exciting avenues for thinking through these and other problems. They use literature as a tool for exploring the very difficult challenge that war poses for our peacetime conceptions of rights, representation, and justice.”
During the plenary session, Nussbaum noted that writers can also inform readers by shining a light on often-neglected truths about war, pointing to Euripides’ decision to honestly portray the suffering of Trojan women at the hands of the Greeks. It was a choice, she said, that both highlighted the story of war’s toll on women and demonstrated literature’s role in self-reflection.
“Andromache says, ‘You Greeks, you really are barbarians,’ which is what the Greeks typically called everyone else,” Nussbaum said. “So the tables are turned. It’s informing the Greeks about what they have done, and might do.”
For Breyer, a favorite example of the relationship between literature and the unspeakable came not from a story of war, but from a speech Senator Robert F. Kennedy gave in Indianapolis in the immediate wake of Martin Luther King, Jr.’s death. Kennedy—whose own brother, President John F. Kennedy, had been assassinated several years earlier—quoted the ancient Greek writer Aeschylus as a way of offering clarity as people struggled to process the act of violence.
“My favorite poet was Aeschylus,” Kennedy told the crowd. “He once wrote: 'And even in our sleep, pain, which cannot forget, falls drop by drop upon the heart until, in our own despair, against our will, comes wisdom through the awful grace of God.'
"What we need in the United States is not division,” Kennedy continued, “what we need in the United States is not hatred; what we need in the United States is not violence and lawlessness, but love, and wisdom, and compassion toward one another, and a feeling of justice toward those who still suffer within our country, whether they be white or whether they be black.”
That night, Breyer said, there were riots in many places—but not in Indianapolis, where Kennedy had used poetry to help address an unthinkable act.
“In part Bobby Kennedy did that,” Breyer said. “And in part Aeschylus did that, through what he wrote.”