Law and Literature: Revised and Enlarged Edition [ペーパーバック]

For example, in attempting to make sense of "defamation in fiction" - a real tort for which many authors have been held liable, and thus a problem that requires real legal standards - Posner attempts to explain how novelists fashion their fictional worlds out of the materials they observe (and therefore to indicate what authors must be allowed to do if novels are to be written). Simplification, Posner explains, is the crucial process in that process: a good novelist will not bog down the story in particulars, but will try to capture "the *representative* life and the *representative* incident. Real people are too complicated, many novelists say, to be put into a novel without change." For this last proposition, Posner's footnote directs us hopefully to chapter 3 of E.M. Forster's *Aspects of the Novel*. One would look long and hard at Forster's book without finding anything resembling Posner's assertion - and that is not surprising, since Forster understood the craft of fiction. (Forster does, famously, develop a contrast between "round" and "flat" characters, but his point is that novels typically focus on a few characters whose thoughts and motives are probed at length, while the rest of the fictional world is filled out by characters who do not receive such attention. He nowhere suggests that either flat or round characters result from the simplification of real-life personalities, and it hard to see how anyone could imagine that he does). Posner, with his law-and-econ "maximize production at the lowest cost" mentality, may imagine that the simplest representation, with the most general application, will get the biggest marketplace bang for the smallest expenditure of literary energies and ink, but no sane novelist would approach the matter this way. To say that people are "too complicated" to be slapped down on the page "without change" simply misunderstands what fictional representation is - since that proposition assumes, first, that it even makes sense to speak of "putting" someone in a novel "without change," and second, that any change that occurs is a way of avoiding "complication." Yes, it would be absurd to say that anyone can simply be "put into a novel," but it is no less absurd to say that this is so because fiction is simple and humans are complex. To take that view is, first, to betray a sensibility so deadened and hollow as to sacrifice any credibility that might have been afforded for one's literary judgments, and second, to demonstrate such a complete misunderstanding about what novelists do as to prove oneself incapable of fashioning legal standards that will facilitate the creation of fiction at all, let alone in a way that will prevent liability for libel. In short, neither the literary nor the legal worlds can profit from this treatment.