From Discretion to Fictional Law

How and when can law be fictional ? I contend that there are situations of a legal nature in which the law invoked to justify an action follows a series of actions that are so discretionary as to render the law for which the punishment is eventually justified arbitrary. In these cases, law is no more real than the series of haphazard circumstances that led to its being invoked, so what characterizes the law is not any formal quality, but rather its arbitrariness; it is neither formalized, predictable nor linked to the actions that eventually occur, and so it is, for all intents and purposes, a fiction. Those of us interested in breaking down disciplinary boundaries by working on “law and literature” or “literature and law,” need to consider eliminating these sometimes arbitrary classifications altogether. We need to break new ground by suggesting that sometimes law isn’t like fiction, in the way it is interpreted or in the issues it raises, but is a fiction, and the real-world consequences that occur in its name are as arbitrary as the discretionary conditions that led to its being invoked in the first place.