Subproject A01

Who Owns a Text? – Law and Literature in Disagreement on Censorship

Legal cases involving literary works are ubiquitous in German and European lawcourts. Even after the apparently censored ruling prohibiting the circulation of the novel Esra in 2007, debates on the topic will not cease despite the historical judgment issued by the Federal Constitutional Court. In another controversy, the German publishing house Verlag Droemer Knaur had to be informed about the unmistakable irony implied in the book title Die schönsten Wanderwege der Wanderhure by the Higher Regional Court of Düsseldorf – they ruled accordingly that the title was therefore protected by artistic freedom. In an even more recent instance, the French politician D. Strauss-Kahn sued – successfully, at first – against the book Ballade de Rickers Island by R. Jauffret, because the literary representation seemed to accuse him personally of having raped a woman.
In legal theory, these cases revolve around the collision of artistic freedom (Art. 5 Abs. 3 GG) on the one hand and personality rights, even human rights, on the other hand (Art. 2 Abs. 1 and Art. 1 Abs. 1 GG/Art a. Abs. 1 GG) The theoretical focus of this project, however, constitutes a conflict between law and literature. Literary works find themselves involuntarily as subjects of the law and the writers in question consider this subjectification a transgression into their personal legal space. There are many voices within literary studies and the law that deny literary texts the potential to violate personality rights and therefore demand that judges be supplied with interpretative information in order that literature be acquitted. Such attempts to provide a truthful or literary interpretation of literary texts aim at infiltrating the legal procedure for justice with literary expertise.
It is possible to interpret this ongoing debate on such truthful interpretations of literary works as a conflict between law and literary studies over who owns fictional texts. Such an (external) view point demonstrates why both sides in the debate find themselves arrested in mutual reproaches of naivety even years after cases such as Esra: on the one hand, literary scholars and so inclined legal scholars claim that the juridical interpretation of literary texts does not pay tribute to the complexity of literature. Legal practitioners, on the other hand, blame the former for being too blind towards the consequences, when people interpret a literary representation as an actual criminal offence, for instance.
In light of such a situation, the project aims at finding ways of comparing the specific discourses rather than trying to establish another dogmatic position on either side of the dichotomy of personality rights vs. artistic freedom. A comparative discourse analysis shall demonstrate how both literary studies and the law argue over the question of who owns the text, which positions, misunderstandings and disagreements arise in either camp. What insight from literary studies become the subject of the law and vice versa? What criteria does either side apply in their selection of material? At the same time, one has to keep in mind established approaches in both disciplines and their respective positions towards each other. The project therefore sets off from a basic human-rights approach, but moves in analysis towards sociology of law and legal theory in order to find how both disciplines provide answers for this difficult question.