Legal counterfactuals: a method of contrastive discourse

Based on the longer-established American law and literature movement, the interdisciplinary research field of `law and literature` is also beginning to hesitantly establish itself in Europe, whereby the Münster Collaborative Research Centre (SFB) 1385 Law and Literature has provided an important impetus for this development. The present work builds on the latter and aims to develop a contrastive interdisciplinary research method called `legal counterfactual` that claims to offer a methodological basis for the further development of the young research field of `law and literature`. The particular focus is on law in literature, neglecting `law as literature` and the `law of literature`. Taking shortly the American law and literature movement as a starting point, an overview of the heterogeneous research approaches in Italy, France, Belgium, and Germany is provided before moving on to a theoretical examination of the methodological concepts of interdisciplinarity and counterfactuality on the one hand, and the specific approaches to the text namely discourse and hermeneutics on the other. Based on these theoretical `building blocks`, the dividing lines between legal and literary studies are drawn in the first step, in order to identify the resulting intersections as a common working basis in the second step: the written text and the inseparable link with human society on the one hand, and hermeneutics and discourse as a means of accessing texts on the other. This realization makes it possible to access literary texts from which the fictional legal discourse is methodically extracted and contrasted with the real- world text in a counterfactual manner. The aim of this counterfactual contrast is to determine the degree of correspondence between diegetic and real law. Such an approach enhances the quality of the interdisciplinary understanding between literary and legal scholars and also leads to an improved understanding of both the literary text and the legal discourse it addresses. To consolidate this method of legal counterfactuals, five works of contemporary literature are tested and demonstrated in practice: Diese eine Entscheidung (2022) by Karine Tuil, Hana (2017) by Elvira Dones, Unorthodox (2012) by Deborah Feldman, Repenti (2017) by Claude Chossat, and Ohrfeige (2016) by Abbas Khider. The selection of these works is motivated by an interest in touching on different areas of law that have received little attention in interdisciplinary law and literature research to date, such as French anti-terror law, Albanian customary law of the Kanun, Talmudic law, Corsican feudal law of vendetta, and German asylum law. The analysis of these works, using the counterfactual method of investigation, reveals the numerous points of intersection between law and literature and opens up positive perspectives for further interdisciplinary research approaches in the field of `law and literature`.