The sex murderer Moosbrugger, whose mental competence to stand trial is at the heart of Robert Musil's novel The Man without Qualities, attracts our attention to the scientific debate on determinism that has captivated legal scholars since the late nineteenth century. This debate raises the question of the dehumanization of scientific rationality in matters concerning the treatment of the criminally insane. The nineteenth-century concept of law as science led to a profound belief in the transparency of objective knowledge that Weber referred to as the disenchantment of the world. This article focuses on the blurring of the borders between fact and fiction by means of an analysis of The Man without Qualities. Its aim is to highlight the Erklären-Verstehen controversy that lies at the heart of the epistemological debate and the methodological struggle between the natural sciences and the humanities at the end of the nineteenth century, one that has had far-reaching implications for law and literature.
In literary-legal discussions of the subject of “voice” in law the focus is often on the voices of defendants and victims, on the view that for a variety of reasons their voices are the ones most often diminished or even totally “unheard.” On the view that voice and speech are connected and that one’s voice is therefore important for one’s identity, I aim to look in this paper at the judge’s voice in law and literature. While the metaphor “the voice of the law” is traditionally taken to refer to judicial impartiality and/or a formalistic view of law as distant from the actions or disputes it is supposed to govern, I want to take the words literally and, on the view that getting a voice of one’s own as a judge requires more than institutional authority and power, ask questions including, but not limited to: What if the voice of the judge is oppressed or even silenced, e.g. by undue influence of a third party? What if the judge is unable to find the right voice when she experiences cognitive dissonances between her institutional voice and her conscience? What space is the judge allowed in the public sphere to speak her voice on cases pending or on societal developments? What space is the judge allowed to show her emotions inside the courtroom? I hope to illustrate my point with emblemata for further discussion in the form of European Human Rights Court decisions and literary works including Lowell B. Komie’s short story “Ash,” Ernst Wiechert’s novella “The judge,” and Kiran Desai’s novel The Inheritance of Loss.