Literary references for nonthematic comparison refer to a literary work, such as metaphors, in order to draw a comparison between persons or events in a legal case and characters or scenes in a literary work. Michael R. Smith, Advanced Legal Writing 253 (2d ed. 2008). The nonthematic metaphoric comparison has three key components. Id. First, the reference must have a comparison of a case and a literary work. Id. Second, it must contain a symbolic or figurative characteristic. Id. Lastly, the aspect of the literary work referred, either is not a major theme of the work, or does not support a major theme of the case. Id. For example, in In re Timmermann, 26 F.Supp. 600 (1939), District Judge McColloch made a metaphoric comparison of a legal case with the biblical story of Cain and Abel. This case was brought before the district court on a counter motion for an order staying foreclosure proceedings. In Timmerman, two brothers (John and Ernest) inherited a body of valuable wheat land from their parents. Id. at 600. Ernest borrowed $12,000, on the same property, solely to foreclose on a mortgage of $16,500, which John was unable to pay his share off in full. Id. This mortgage was then held by Ernest, but John offered to pay interest at the rate of 7% a year to keep taxes from becoming further delinquent. Id. John also assigned one half of the gross yield in grain to Ernest. Id. This assignment was reported by the county to yield to Ernest more than twice the usual and reasonable rental of the mortgaged premises. Id. To avert foreclosure, John tendered a cashier’s check and one year’s taxes. Id. Nonetheless, Ernest demanded the full amount of the mortgage and directed foreclosure to proceed with additional costs and charges. Id. In his opinion, Judge McColloch incorporates a literary work from the Bible.
One must travel a long ways to find another such exhibition of unbrotherly greed and obstinacy. The debtor brother values his real estate at $43,000, and he obviously has ample resources, after allowing for substantial shrinkage in values, with which to pay the mortgage debt, as well as all other indebtedness, and obviously, as found by Commissioner Johnson, he has acted in entire good faith throughout. Like Abel, whom Cain slew when they were in the field, John in this case has been stricken from a quarter where men normally may expect support, sympathy and affectionate cooperation. Id. at 600-601
Judge McColloch’s reference to the Cain and Abel story from Genesis 4:1-16 in the King James Bible is a nonthematic metaphoric comparison. He compares the brother characters of Timmerman, John and Ernest, to the biblical brothers, Cain and Abel. He uses a simile by applying the term “like” to make this comparison. Furthermore, the reference is nonthematic. Cain and Abel was a story of jealousy and consequences where Cain killed his brother Abel because God rewarded Abel for his animal sacrifices and did not reward Cain for his land sacrifices. This is not a major theme in the case of a debtor and a mortgage owner. Neither is the theme of greed and obstinacy a major one in the Cain and Abel story. Cain and Abel did not work in the same field or own the same land. Neither did Cain want his brother’s land or rewards to himself; he wanted to receive the same blessings as his brother did and was jealous because he was not favored. Undoubtedly, the literary reference does not contain the same major theme. The function of logos was not persuasive; alternatively, the functions of pathos and ethos served their purpose. The reference comparison in the form of a simile was not persuasive in the logos function. The reference was quick and referred to how Cain slew Abel in the field. Surely a logical analysis of this case would not yield a conclusion that Ernest slew John through his conduct of allowing the foreclosure to proceed. Neither is it a rational argument to compare murder to foreclosure proceedings. On the other hand, there was persuasion through the pathos function. As a reader, thinking of how Ernest’s taking of this property away from John was similar to Cain taking away Abel’s life, invoked an emotional substance of empathy for John and a sense of offense towards Ernest. Finally, employing a biblical reference invoked credibility in the eyes of a reader. It was a creative and entertaining reference that many are familiar with. A comparison of a person to Cain, in any aspect, automatically invokes a sense in the reader that the person being compared committed a shameful crime to his very own blood. The majority of readers would be led to draw the same conclusion, that this person’s conduct is wrong. The reference was effective. Because the pathos and ethos functions were so persuasive, the logos function did not seem wholly necessary. In addition, because both the characters in the legal case and in the literary work were brothers, it incorporated a deeper analogy. The Judge’s use of the term “unbrotherly” in the opinion was almost as valuable as including the Cain and Abel story itself. It made it very hard to separate the different major themes and easier to focus on the minor incidental themes at hand. IV. Creative Variation
A literary reference for creative variation is used for stylistic purposes to allow the writer to state a point using a clever and memorable way. Smith, supra, at 283. Using this reference places emphasis on the point the writer is attempting to make. The variation is created when the writer alters a well known quote without losing its original meaning.
Judge Vaughan uses a creative variation in the case of Johnson v. State, 267 S.W. 1057 (1925). Johnson was brought before the District court by the state of Texas to restrain Johnson from unlawfully practicing medicine and from pursuing such occupation in the state of Texas. Id. at 1057. The court below found for the state, and the Civil Court of Appeals affirmed. In his dissent, to emphasize that the courts do not always have to follow the majority opinion, Judge Vaughn uses a variation of a memorable biblical quote, which says, “[T]he race is not to the swift, nor the battle to the strong . . . but time and chance happen to them all.” Ecclesiastes 9:11 (King James). In his dissenting opinion, Judge Vaughn alters this variation: The constitutionality of the Medical Practice Act has been quite often before the courts of this state . . . and as often its constitutionality is sustained; and it is only in view of the fact that the constitutionality of the act of the Thirty-Eight Legislature, or at least some provisions, have not been passed upon by the higher courts of the state . . . . Furthermore, he is reminded that, as to the swift is not always the race, or to the strong the battle, so neither is right with the majority always to be found. This is clearly recognized by one of the cardinal principles of constitutional government, to wit, that Constitutions are made more for the protection of the weak against the strong, or the minority, and this must be upon the ground that it is not to be expected that right and justice will always be found in the camp of the majority. Johnson, 267 S.W. at 1062-1063. The logos, pathos, and ethos functions of this reference translate persuasively. For logos, Judge Vaughn invokes a logical theory by supporting his reference with an analysis of one of the cardinal principles of constitutional government. No other analysis could be better than one with the supreme law of the land. For pathos, it serves a medium mood control function by generating a positive feeling that everyone has a fighting chance at life and at the rules of the court, not just those who have been on top. For ethos, the variation was altered craftily where the reader can easily decode it and has shared a common knowledge with the writer. This function, of course, may be lost for those who have not read or heard of this scripture. Nonetheless, the quote is one that is easily understood without having to read the literary work it came from.
This creative variation is effective. It does not alter the meaning of the original text. The scripture lends the message that even if one may excel in a particular area, there is always a possibility of running into an unpredictable element in life. So the champion may not always be on top of his throne. Judge Vaughn clearly articulated that majority rulings may not always be majority. There may come a time that it is overruled and the constitution, i.e. life, provides for that.
