Judicial Fiction and Literary Fiction

Abstract

From the late seventeenth century through the eighteenth century in France, the factum, a literary genre between judicial writing and fiction, on the border between law and literature, was widely read. This article gives the example of a 1752 judicial case: what we know of it issues from three texts published in 1216 in the town of Lyon, which constitute, it seems, the first collection of facts (factums) and reports (mémoires) that had ever been published in this manner. The case opposes a noble count to a bourgeois widow, and the chief accusations are slander, subordination of witness, and murder. The judicial dossier is as such civil—request upon damage and interests—but comes from a penal case, the domestic theft of a large sum. This “exemplary case” in three factums gives the ideal observation point for a researcher, somewhere between the reality of the facts or conduct and the symbolic, literary, and fictional images that we have of a case. This paper shows that factums—and precisely this one—are in contact with reality and fiction and that they mix both to convince. The lawyers relate the facts and guide the judge in his decision; therefore, they must at the same time appeal to him and imagine him in the position of the reader. From this, it becomes possible to determine the definitions of the legal, judicial, and literary fictions, and to see their interrelation within the legal and literary texts. And, at the same time, we can see that in these factumjudicial texts, and in the literary ones, the spectator and the reader have a fictional place, given by the author: that of the judge. This place, which occupies the reader, is the fictional place of the absolute judge above all jurisdictions, superior not to the life of the hero over whom he has no power, but to the case and to justice.