"billy budd" and the untold story of the law

Cardozo School of Law

"Billy Budd" and the Untold Story of the LawAuthor(s): Brook ThomasSource: Cardozo Studies in Law and Literature, Vol. 1, No. 1 (Spring, 1989), pp. 49-69Published by: Taylor & Francis, Ltd. on behalf of Cardozo School of LawStable URL: http://www.jstor.org/stable/27670190 .

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_f_

Billy Budd

and the

Untold Story of the Law

Brook Thomas

It is a story told fairly often in our literature: this untold story of the law. Poe tells it in his detective stories. Unable to solve a crime,

agents of the law have to wait for Dupin to piece together a coherent

story ? a task that often involves the ability to recognize what counts

as evidence. Twain tells it in Puddn'head Wilson, when Puddn'head

introduces fingerprints as evidence in order to clear up the mysterious events in Dawson's Landing. And Susan Glaspell gives it one of its

most articulate expressions in "A Jury of Her Peers," when the sheriff

and county attorney accompanied by the sheriffs wife and another

woman travel to a lonely prairie home where a farmer has been found

strangled in his bed. The wife has been arrested, but the attorney feels

that he needs to find a motive to clinch his case. As he and the sheriff

search for evidence, the two women privately reconstruct the scene of

the crime from the details of the wife's domestic chores, finding the

motive for her crime in the life she was forced to lead. Having recon

structed how her husband had strangled the life out of her as he had

strangled the pet bird that they discover, the two women tacitly con

spire to repress the evidence they have found, evidence that the

county attorney would need to convince a jury.1 "Some definite

thing," he says, "something to show. Something to make a story about." The wife is eventually acquitted by a jury of her peers who are

aware of a story that will never be heard in court.

Of course this story of the untold story of the law is not con

fined to American literature. It is told and retold in many of the great works of world literature. In Antigone. In Michael Kohlhaas. In The

Stranger. It is told so often that we could call it a universal story. But

as universal as the story seems, it is a story with a history. Not all laws are the same; not all legal systems leave the same stories untold.

Indeed, my three examples from American literature point to impor tant differences, differences that could allow us to sketch a short his

tory of critiques of our legal system. In Poe the critique centers on a

lone individual who uses his analytical genius to reconstruct a chain

-49?



of events officers of the law cannot. In Twain it also involves an out

sider, but one who has been professionally trained at an Eastern law

school and one who relies on science more than genius. In Glaspell it

is conducted by representatives of an unrepresented group in Ameri

can society, who rely on the authority of their experience of marginal ization to understand the causes of crime that people lacking that

experience would not recognize. Those involved in the increasingly popular activity of apply

ing recent literary theory to the law would be wise to pay attention to

the history of this story because it has implications for their project. Much attention has been paid to the effect theories of textual indeter

minacy have on the law. Legal scholars who believe in the possibility of establishing a method to arrive at correct interpretation feel com

pelled to combat the deconstructive argument that any effort to estab

lish a full interpretation of a text will be disrupted by the tropological nature of language, that all interpretation is inevitably errant. One

legal scholar, for instance, spouts charges of nihilism, while another

wonders, "What does one do, then, when studying opinions, if one

gives up the enterprise of determining whether or not they are 'cor

rect'?"2 At the same time, some radical legal scholars welcome the

notion of textual indeterminacy because, for them, it illustrates the

arbitrariness of the system by reminding us that the rules of legal

interpretation are set not in stone but social constructs.3

Unfortunately, much of this debate takes place in a historical vacuum. Argue all we like about textual determinacy or indeterminacy, the social function of the law demands that it render judgments, in

evitably errant or not. Indeed, judges did not need deconstruction to

tell them that no matter what judgments they render, they risk error.

Furthermore, the decisions they render are not arbitrary. They are

determined, within a set of institutional constraints. But if someone

like Stanley Fish seems to think we have solved the problem by rec

ognizing that interpretations take place and that they always take place within a set of institutional constraints, it seems to me that our task

has just begun.4 Why, we need to ask, are certain institutional con

straints accepted rather than others? Why are some modes of interpre tation granted authority while others are not? This is an important

question to ask because to try to answer it is to recognize the possibil ity that at particular moments in history some modes of interpretation serve the interests of some segments of society at the expense of

others. In other words, to raise this question is to begin to explore the

question of social justice. And it is at this point that the story about the untold story of

the law takes on added importance because what that story implies is

that there is, after all, an official story to the law, a narrative that allows

50



the legal system to determine what is admissable and inadmissable

evidence. An official story that excludes other possible stories. As the

late Robert Cover argued, "No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning."5

Whereas we normally consider a judicial opinion to be the product of

legal reasoning, Cover's insight into the inseparability of law and nar

rative reminds us that the persuasiveness of a decision depends upon an implied narrative that makes its reasoning seem logical. To try, as

Cover proposes, to understand law "in the context of the narratives

that give it meaning" is to try to reconstruct the cultural narratives that

grant the law its authority. That reconstructive task is not so easy, however. Even though

I have referred to an official story of the law, this story is never explic

itly spelled out, since, as we have already seen, part ofthat story is the

belief that legal logic, not a convincing story, determines the outcome

of a case. Paradoxically, then ? Poe's, Twain's, and Glaspell's stories

are examples ? it seems easier to tell what stories are excluded than

it is to reconstruct the narrative that excludes them. So I touch on a

second meaning of my title: the really difficult story to tell about the

law, the one most likely to be untold, is the one that defines the legal

system. To examine the history of the untold stories that are told is

one way to try to reconstruct aspects of this story that is left untold. It

is not, I can assure you, a simple story. In fact, it might be more accu

rate to say that it is made up of many stories, often in conflict with one

another. Because of this complexity, the story I am about to tell will,

unfortunately, leave a lot untold.6

I.

Billy Budd is ideally suited to exploring the untold story of

the law. First of all, few texts leave us with a stronger feeling that the

formal demands of the legal system inevitably exclude some impor tant aspect of human existence. It is the legal system's failure to

respond to Billy's story that causes so many readers to question its

justice. Equally important for my purposes, Melville's narrative

expresses what many take to be a story that any consideration of jus tice must consider ? a story shaped by two related conflicts. One is

between the desire for individual freedom and the need for social

order. The other is between the authority of natural law and that of

manmade law. To understand precisely how Billy Budd interweaves a

narrative bounded by these two conflicts is to understand better an

important aspect of the untold story that shapes our sense of justice. To tell that story I will be forced to deviate from some of the

standard procedures that I was trained to follow as a literary critic. For

instance, while it is fascinating for Melville scholars to try to uncover

51



Melville's intention, as far as questions of justice go his intent or non intent is nothing to the purpose. Whether Melville sided with Vere or

not, whether he intended an ambiguous work or not, his intention has no bearing on the justness of Vere's position. My attention, therefore,

will be directed to other questions. Billy Budd gets so much attention in discussions of law and literature because we continue to consider

questions of justice in the space bounded by its narrative. Rather than

join the debate taking place within that space, however, I will argue that Billy Budd dramatizes the limitations of posing questions of jus tice the way we do. The ragged edges of Billy Budd suggest that the

space bounded by its symmetrical conflicts is not the only space in

which questions of justice can be posed. As a first step, I want to establish that the narrative of Billy

Budd does indeed define a space in which we consider questions of

justice by showing how even recent efforts to go beyond traditional

readings remain bounded by the assumptions they claim to replace. The most obvious example is the ironic school that challenged the notion that Captain Vere was Melville's spokesman. Ironic readers turn

Melville's testament of acceptance into a testament of resistance.7 Even

so, the ironic school does not challenge the terms by which traditional critics pose questions of justice. The terms of the conflict remain the same. The ironic school merely chooses different sides, favoring the

individual over society, natural law over manmade law. A variation on the ironic reading comes in the work of Prof.

Richard Weisberg. In The Failure of the Word,8 Weisberg explores the failure of the legalistic approach to reality. He links that failure to the ressentient character, someone who prefers "the safety of wordiness to

the risks of spontaneous human interaction," who employs "complex narrative structures to avoid relatively simple central realities." (xi) For Weisberg Vere is such a ressentient character, whose envy of

Admiral Nelson is displaced onto Billy. By turning Vere into a ressen

tient character Weisberg changes the terms of the conflict as tradition

ally seen. Vere's condemnation of Billy is not the result of his choice of social order over the claims of the individual, but the revenge of one individual enacted on that of another. To substantiate his claim that Vere uses the forms of the law "to serve formless, subjective ends" (153-54), Weisberg refers to the actual laws of the time and

discovers that Vere commits eight procedural errors. For instance, Vere

should have waited until the ship regained the fleet and then referred the case to the Admiral. Vere can get away with these deviations from the forms of the law he claims to honor because, like the typical ver

balizer, he uses words falsely.

Weisberg's criticism of Vere raises questions about the rela

tionship between history and fiction. Is his application of a historical

52



set of laws to a fictional text admissible evidence? Certainly, it raises

problems for those trained in formal methods of literary criticism. Yet there are hints in the text that Melville wanted us to catch Vere's devia

tions, such as when he has the ship's surgeon question the captain's actions. But, as I pointed out in a review several years ago,9 even if we

accept Weisberg's evidence, there are problems, problems demonstrat

ing how his spirited challenge to the traditional terms of the book's

conflict also subscribes to a narrative framed by the conflict between

individual and society, natural law and manmade law.

Weisberg opens his book with the example of a Parisian law

yer in 1943 who published a learned treatise arguing for a humane

interpretation of the Vichy government's racial laws. Although con

cluding that the lawyer "was clearly not a villain," Weisberg uses him as a model for the legal mentality that uses language to avoid central realities. The lawyer's learned treatment of the laws avoids the simple truth that they are rotten at the core. By explaining Vere's actions in

terms of ressentiment Weisberg reveals an important shift from this

model. Rather than arguing for a humane interpretation of unjust laws, Vere misuses law for purely personal reasons. This reading not only comes close to turning Vere into a villain, it implicitly legitimates laws

whose foundation needs questioning. If Vere's acts are illegitimate because they deviate from the existing code, that code must be legiti mate. Thus, while Vere might indeed deviate from the procedures laid down by the Articles of War, in basing his case against Vere on his

procedural deviations, Weisberg diverts our attention away from the

important question of whether the Articles themselves are fair.

Instead, in a move typical of lawyers, he concentrates on technicali ties. I, for one, am left wondering if Billy's fate would have been better if Vere had waited for the Admiral to try the case. I also wonder

whether Vere himself would have been punished even if his procedu ral errors were uncovered. If we rely on the historical case of the Somers mutiny that Melville refers to in his text, chances are he would not.

When the Somers' Captain Mackenzie faced court-martial for

hanging three suspected mutineers at sea (not even during wartime), he was acquitted of all charges, even though he admitted that he

deviated from accepted procedures by, among other things, not post

poning the trial. Of course, Weisberg could point to Mackenzie's

acquittal as an example of the institutionalized corruption of the legal system. But his narrative of personal resentment remains inadequate to explain those institutionalized inequities. To stick with the Somers case for a moment, we could perhaps explain Mackenzie's hanging of the sailors in terms of personal resentment, but what are we to do with

his defenders, who included lovers of liberty like the anti-slavery

53



lawyers Charles Sumner and Richard Henry Dana? While there are cer

tainly cases in which individuals use the law for resentful revenge, it is

hard to explain these people's support of Mackenzie by Weisberg's contention that "literary lawyers frequently seek to institutionalize their purely personal resentments."

My point here is not to "trash" the law or the desirability of rule by law. Quite the contrary. I prefer rule by law to the alternative

that Weisberg seems to suggest, which is the charismatic example of Admiral Nelson. Melville has already given us a case-study of a captain who controls questions of justice through his charisma. His name is

Ahab. My point is merely that Weisberg's narrative, which blames

injustice on cases of individual resentment, too easily distracts our

attention from questioning the justice of particular legal codes. From

my perspective, Weisberg's reading of Billy Budd anticipates the prob lem I will find with the narrative so many of us subscribe to in order to weigh questions of justice. Traditionally critics pose the question of

justice in Billy Budd in terms of the conflict between the individual and society, between natural law and manmade law, and then choose one side of the conflict. Weisberg avoids the conflict altogether by

choosing one side before the conflict is even established. For him the

story's drama is reduced to a narrative about individuals ? innocent

Billy and ressentient Claggart and Vere. This is not to say that Weis

berg does not implicitly raise the traditional conflict between natural individuals and manmade law. As I have pointed out, his implicit legit imation of the existing code of law demonstrates that for him social

justice must be achieved through appeal to a legal code.10 Indeed,

condemning current trends in literary theory that question textual

objectivity, Weisberg asserts early in his book that social justice results

from "the communal establishment of universal values" embodied in an "enduring body of law" (at p. 18)Justice "exists because an objec tive notion of textuality also exists. Indeed, justice derives from an

unchanging, impersonal text rather than from a private and idiosyn cratic urge for revenge."

So the traditional opposition powerfully surfaces in Weis

berg's overall argument. On the one hand, he champions the romantic ideal of naturally innocent individuals, like Billy, whose spontaneity resists efforts to impose a narrative structure on them. On the other, he champions the neoclassical ideal of justice derived from "an

unchanging, impersonal text." To avoid facing the potential contradic tion in his assumptions, he offers an individualistically based reading

of Billy Budd that allows him to ignore the conflict with which tradi tional critics have been forced to grapple.

As my criticism of Prof. Weisberg should make clear, in urg

ing us to consider an alternative space in which to pose questions of

54



justice, I am not urging us to misread Billy Budd by ignoring the con

flicts that it invites us to ponder. I am, however, arguing that we will never achieve a critical perspective on the text so long as we uncriti

cally accept the framework it offers. Another trend in recent criticism

would seem to help us to achieve such a perspective. I refer to the recent return to historical analysis. To situate Billy Budd historically

would seem to place its narrative in perspective. Before turning to two

recent historical readings ? and their limitations ? I want to pause

for a moment to reflect on what it means to historicize a literary text.

To historicize a fictional text like Billy Budd raises problems not posed by the effort to historicize a legal decision. To situate a case

like Santa Clara County v. Southern Pacific RR. Co., we would clearly turn to the historical conditions of the United States in 1886, the year it was decided.11 What, however, do we do with Billy Budd?. Do we

focus on its moment of representation ? the dispute between Eng

land and France at the end of the eighteenth century ? or on its

moment of production ? the time when Melville wrote, but never

completed his story, in late nineteenth-century America? Traditionally critics have focused on its moment of representation. The renewed cry for historical analysis, however, has resulted in a variety of readings that focus on its moment of production. These readings are not

unproblematical, as a brief look at two critics ? John P. McWilliams12

and Michael Rogin13 ? will reveal.

Both claim to give us a perspective on Billy Budd by situating it historically. But in trying to do so they construct narratives of history that are products of the very narrative that they are supposed to be

putting in historical perspective. For McWilliams, Billy Budd registers the change in American legal history from natural law philosophy to

realism and its attack on natural law. Thus he compares Vere to Justice Oliver Wendell Holmes, Jr. "Like Captain Vere," McWilliams asserts, "Holmes is prepared to argue that 'Public policy sacrifices the individ ual to the general good'" (at p. 74). Vere is like "many thoughtful men

of the 1870s and 1880s" who began "to suspect that natural rights, if

they existed at all, must give way to the general welfare" (79-80).14 Whereas McWilliams' focus on postbellum legal thought appears to

give a historical dimension to his reading, in fact it greatly simplifies history. First, the notion that natural rights must give way to the

general welfare did not suddenly arise in the 1870s and 1880s. Melville could have heard his father-in-law Justice Lemuel Shaw make

exactly the same argument in his fugitive slave law decisions in the

1850s.15 And as traditional critics of Billy Budd have noted, similar

arguments can be found in Edmund Burke and other conservatives in

their response to the French Revolution and Paine's The Rights of Man.16 Second, McWilliams also simplifies postbellum legal history.

55



Far from sharing Vere's belief in measured forms, Holmes, whose

thought was influenced by and influenced pragmatism, disputed the

period's dominant formalism. It was, in fact, this formalism, not real

ism, that ruled legal thought when Melville wrote Billy Budd. In effect, what McWilliams has done is to take the structure of

a synchronie conflict and project it into a diachronic narrative about

history, turning a conflict that appears within a variety of periods into one between two periods. But such simplistic periodization should no

longer be allowed to masquerade as historical criticism. It certainly does not help us understand what Billy Budd can tell us about ques tions of justice.

Michael Rogin offers a much more sophisticated reading of

Melville's story, but even he constructs a historical narrative similar to

McWilliams'. He, too, turns the antebellum period into the representa tive of natural law philosophy and the postbellum period into the

representative of secular, manmade law. He also compares Vere to

Holmes. That comparison is interesting because it hinges on the ques tion of intention, which Walter Benn Michaels treats elsewhere in the

symposium.17 A brief look at where Rogin's argument goes wrong

might provide further historical background for Prof. Michaels'

discussion.

Using Holmes' famous attempt to separate law from morality to establish his similarity with Vere, Rogin argues that, like Holmes,

Vere "split apart the realms of law and morals, appearance and inte

rior, which antebellum Americans had tried to connect ... The law, as

Vere insisted, avoided intent; it remained in the realm of appearances. Morals addressed intentions, wrote [Justice] Holmes; the law had to

do with external signs and deeds." To make his point about the

change in notions of intention, Rogin compares Billy Budd to the

Somers affair in 1842. According to Rogin, Vere's declaration that

"Budd's intent or non-intent is nothing to the purpose" directly con

tradicts the Somers' Capt. Mackenzie's defense of his hanging of three

sailors accused of mutiny by appealing to the purity of his intentions.

For Rogin, Mackenzie's appeal to intention is a perfect example of the

antebellum effort to connect the realms of law and morals, appearance and interior, that Holmes, like Vere, split apart.

But Rogin, like McWilliams, is guilty of oversimplistic period ization. He is able to make his "historical" point only through a false

comparison. When Vere declares that "intent or non-intent" is irrele

vant, he refers to Billy's act of striking Claggart, not his own hanging of

Billy. To compare Vere's and Mackenzie's appeal to intention we

would need to compare Vere's comments with Mackenzie's on the

relevance of the sailors', not the captain's, intention. Here we find that

Mackenzie's view is identical to Vere's. A major question at

56



Mackenzie's court-martial was whether the three sailors actually intended to commit mutiny or were only pretending to do so. Mack

enzie's most eloquent defender, Charles Sumner, argued that the

question of the sailors's intention was irrelevant. Their actual intent, even their guilt, he argues, was not important. What mattered was the

appearance of their actions and the appearance of their guilt. Because

mutiny poses such an immediate threat and because the captain's duty is to save his ship, Mackenzie could not be expected to sort out inten

tions from appearances. All that mattered was that his intentions were

pure, that he acted according to his duty to save the ship. Thus, Rog in's effort to establish a historical difference based on intent is, at least

for this particular case, as flawed as McWilliams'. In both cases the

transformation of a synchronie conflict into a diachronic narrative

does not withstand close scrutiny. In questioning McWilliams' and Rogin's attempts to historic

ize Billy Budd I might seem to support traditional readings that clas

sify the story's conflicts as timeless. Indeed, as I have demonstrated, its

conflicts are not confined to one period of history but persist from

period to period. Nonetheless, as I have already suggested, the con

flicts have a history; their significance can change over time. It is time,

therefore, for me to turn from a criticism of the story others have told to a narration of my own.

ii.

Let's start with the conflict between natural law and manmade

law. When Captain Vere declares that someone cast in a judicial role

should decide a case according to the logic of the law, not an appeal to nature, he affirms a principle of Anglo-American justice with a long

history. It achieved one of its most articulate expressions in Chief Jus tice Coke's response to James I's assertion, based on philosophical

expertise, that as King he had the power to remove cases from the

courts to try them personally. Tactfully admitting the King's extraordi

nary capacity of natural reason, Coke went on to argue that, even so, the King had not acquired professional training in the laws of England.

Therefore, cases "that concern the life, or inheritance, or goods, or

fortunes of his subjects are not to be decided by natural reason but by the artificial reason and judgment of law, which law is an act which

requires long study and experience, before that man can attain to the

cognizance of it."18

Like Vere, Coke opts for the authority of artificial, manmade

law over that of natural law, a choice that many Billy Budd critics con

sider conservative. But within the specific historical situation of early

seventeenth-century England, Coke's position was by no means con

servative. His appeal to manmade law was an important weapon in the

57



rising middle class's battle with the crown. The middle class appealed to rule by law to protect its individual rights and property against the

arbitrary power of the King.

By the late eighteenth century, the setting for Billy Budd, the

conflict between natural law and manmade law persisted, but its polit ical significance had changed. Vere does not appeal to rule by law as a

weapon in the middle class' battle with the crown. Instead, rule by law

and the King are aligned in a struggle against those who would violate

established manmade law in the name of the natural rights of man.

"Do these buttons that we wear attest that our allegiance is to Nature?" Vere asks, and then answers, "No, to the King."

It is important to point out that this alliance between the

monarchy and rule by law does not mean that the original progressive force of rule by law had, as it were, been co-opted by the King, so that

by the late eighteenth century it was a tool for his arbitrary use of

power. In fact, it is more accurate to say that the opposite occurred.

Increasingly, the King's power had been subordinated to rule by law. Which is not to say, as Captain Vere tries to argue, that the laws

governing England were disinterested. On the whole they represented the interests of the propertied classes, so that in that context an appeal to artificial manmade laws no longer signaled a progressive defense

against the monarchy, but a conservative defense against the appeal of the French revolution.

This brief historical comparison helps to explain why critics

of Billy Budd associate Vere's positivistic appeal with conservatism. In

the context of the late eighteenth century it was. But the conflict

between Coke and James I should alert us to the danger of making an

inevitable connection between appeals to manmade law and conserva

tism or appeals to natural law and progressivism. Nonetheless, if my

comparison indicates that the tendency inevitably to align natural or

manmade law with particular political positions is incorrect, our his torical investigation should not rest content with the generalization that in political terms the sides of the conflict are infinitely reversible, for to do so is not to do justice to the full story of either Billy Budd or

the legal history related to it. We have, for instance, looked historically at only one of Melville's conflicts. We also need to look at the conflict

between individual freedom and social order. When we do, we can see that Billy Budd continues to intrigue us, not only because it is framed by two conflicts that shape our determination of justice, but also because of the particular way in which those conflicts interrelate.

Too often critics of Billy Budd match the twin conflicts sym

metrically, aligning individual freedom with natural law and social order with manmade law. To do so is to fall prey to the common error

of conflating the doctrines of natural rights and natural law. As the

58



example of Coke's dispute with James I demonstrates, an appeal to

natural law need not be an appeal to a doctrine of natural rights. Assuming that it is, Vere's critics too often simplify the complexity of

his position. To restate that complexity is to see more precisely what

Melville's narrative brings into dispute.

Although Vere's unquestioning submission to military duty confuses some, he is not a totalitarian dictator who would inevitably subordinate individual rights to the state. Serving the "flag of founded

law and freedom defined," Vere does not dispute the desirability of

guaranteeing individual rights. His dispute with proponents of the

revolutionary spirit is how best to protect them. That dispute hinges on a disagreement over the origin of individual rights.

Believing that individuals in nature possess rights, Vere's

opponents feel that those rights can be denied by manmade law. In

contrast, Vere does not subscribe to natural rights doctrine. Envision

ing individuals in the state of nature akin to the wild denizens of the

wood ? remember the numerous comparisons of Billy to animals ?

Vere believes that rights emerge only after freedom has been defined

through an individual's entrance into an ordered society. Because they

disagree over the origin of individual rights, Vere and his opponents take opposite sides in a conflict between seemingly naturally innocent

individuals ? like Billy ? and manmade law. Natural rights advocates

side with the individual. Vere sides with manmade law, not because

he is insensitive to individual rights but because, in the same honored

Anglo-American legal tradition as Coke, he feels that individual rights can be protected from arbitrary violations by the state only through

maintaining rule by law. Vere, then, would agree with Melville's

famous father-in-law, Lemuel Shaw, who in upholding the fugitive slave law declared that even a bad law "so long as it remains in force ... is to be respected as the law, and because it is the law, not grudg

ingly and reluctantly, but with honesty and sincerity, because any

departure from this fundamental rule of conduct, would put in jeo

pardy every interest and every institution which is worth saving."19 For citizens of the United States Vere's choice is so difficult

because we are raised to honor both sides of the conflict with which

Melville presents us. On the one hand, we respect the long tradition in

which individual liberty has been defined, maintained, and guaran teed ? a tradition forged by judges like Coke and upheld by those like the honorable judges contributing to this symposium.20 This tradi tion has taught us the value of having a system ruled by laws not men.

On the other, we also honor a tradition, embodied in our own Decla ration of Independence, that appeals to the authority of nature to

combat a system of laws that threatens the rights of individuals. No

wonder, then, that when Melville confronts us with an imaginary situa

59



tion in which these two beliefs come into conflict we enter into a

spirited debate, a debate all the more spirited for some of us, no

doubt, because we are waging a debate within ourselves. From my perspective, however, the very intensity of this

debate keeps a different story from emerging ? the story of what the

opposing sides have in common. For the remainder of my paper I want to concentrate on this untold story by suggesting that the very terms of the debate are determined by a shared narrative about how

individuals relate to society. To understand how this shared narrative

shapes the terms of the conflict in Billy Budd is to start to see how

engaging in an unresolvable debate about the origin of individual

rights limits our consideration of social justice.

in.

The narrative shared by Vere and his opponents is that of the social contract. Present in the thought of Hobbes, Locke, and Rous

seau, this narrative posits a presocial state of nature inhabited by autonomous individuals who then join together in a contractual

agreement to form society. How does the social contract model shape the way in which questions of justice are presented in Billy Budd?

First, the very way in which individuals are said to relate to society makes a potential conflict between the natural individual and society

inevitable. Second, it produces an irreconcilable conflict over the

origin of individual rights. They exist either prior to the social contract in the state of nature or after the social contract, a product of the

manmade laws binding individuals together. (I should add that the social contract model makes it possible to deny individual rights alto

gether, since someone like Hobbes does not include them in the con tract that constitutes society. While some associate Vere with this posi tion, to do so, as I have argued, is to simplify his position and the

complexity of Melville's work.) A third effect of the social contract model has to do with our concept of natural rights. Since nature is

inhabited by individuals, an individual is the only entity capable of

being endowed with natural rights. It may be a shock to some for me to imply that natural rights

could belong to something other than an individual. To demonstrate that this is not the case, that our almost inevitable identification of natural rights with individual rights is tied to the modern social con tract model, I want to turn to a work of literature that invites compari son with Billy Budd but was written before the rise of modern social contract theory

? Sophocles's Antigone. This brief look at Antigone

will put us in a better position to return to our topic of justice, for it will help to suggest one kind of story about law excluded by the social

contract model.

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In Antigone, as in Billy Budd,21 natural law is pitted against manmade law, and an individual, aligned with natural law, threatens to

disrupt social order. Only a modern misreading, however, would iden

tify Antigone's appeal to natural law as an appeal for individual rights. Antigone defies manmade law, not in the name of individual freedom, but in the name of a social group

? the family and its right to bury its

dead. No more believing in the possibility of individual freedom out

side society than is Creon, Antigone still has a concept of nature and natural law. The natural state for her is, however, not prior to society, but already social, inhabited by social groups, like the family. It is

these natural groups, not individuals, who have natural rights. Judge Posner, in his review of Professor Weisberg's book,

defines the conflict in Billy Budd as between "Nature personified by Billy Budd" and "Culture and Society personified by Captain Vere."22

By associating nature with Billy, Melville encourages us to identify it with individual freedom, and we often hear critics speak of the time

less conflict between natural individuals and society. Our brief look at

Antigone should remind us that, even though the conflict between

Antigone and Creon resembles that between Billy and Vere, it has a

different significance. To be sure, Antigone and Creon engage in a

conflict between natural and manmade law. But to say that their con

flict personifies a conflict between Nature and Society would be to

imply that nature is not social. Their conflict does not illustrate a time less conflict between natural individuals and society. Instead, it regis ters an important historical transformation as the rule of Greek society transferred from established families to a new form of state.

Indeed, there are a number of ironies involved in those read

ings that too simplistically see the play depicting the tyranny of the state against the rights of the individual. The form of the state against

which Antigone struggles is very similar to the version of the state that we celebrate as the precursor to modern democracies. Challenging family privilege, it asserted the equal rights and obligations of all citi zens. (Not all individuals, mind you.) Creon's inaugural address even

echoes concepts and phrases from the speeches of Pericles. This is not to deny that in Creon Sophocles has given us the character study of a

tyrant. Nonetheless, even though we have turned Antigone into a sym bol of the courageous individual resisting the tyranny of the state, we

should keep in mind that our modern version of the conflict between the individual and society would be unthinkable without the rise of the Greek concept of a society comprised of individuals equal in the

eyes of the state, a concept of society compatible with the social con tract model.

The story of how Western democracies came to accept such a

model for society is, of course, extremely complex. Nonetheless, I

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want to look at one aspect of that story with direct bearing on our

discussion of Billy Budd and justice: the debt modern theories of

social contract owe to one aspect of Roman law. Roman law recog nizes two distinct types of group associations ? the societas and the

universitas. The societas was a form of partnership ? a group made

up of contracting individuals. The universitas corresponds to a corpo

ration, although clearly I do not confine myself to business corpora

tions, which did not exist in Roman times. Instead, a universitas

simply meant a group that has an identity of its own more than the

sum of its individual members. In the middle ages these two types of

associations had essentially the same status. By the end of the medie

val era, however, the Roman word for partnership ? the societas ?

began to enter the field of political theory. As often was the case, polit ical thinkers developed their theories from legal concepts, and when

they did they used the model of the societas to describe the rise of the

modern state. As a result, our models of "human society" and "civil

society" were established from the model of the partnership ? a

group of contracting individuals.

It is beyond the scope of this paper ? and my scholarly

expertise ? to try to explain why the model of societas was chosen

over that of the universitas. Nonetheless, the importance that choice

has for our concept of justice should not be minimized. Once we

realize that the way in which our choice between nature and society has been defined by the narrative of the social contract, what seems to

be a choice is, in an important respect, no choice. This is not to deny the serious consequences of Vere's judgment, especially for Billy. But

it is to argue that to choose one side of the conflict is to confirm the

narrative that determines the terms of the conflict in the first place. What I am asking us to do, therefore, is to shift the ground of

our criticism. The significance of Billy Budd for those interested in

justice may not be the choice it confronts us with between manmade

and natural law, but its poignant illustration of the impossibility of any

satisfactory resolution to that conflict, so long as we pose questions of

justice in a certain way. If this point sounds similar to the type of

deconstructive strategies I criticized in my opening remarks and,to the

brilliant deconstructive reading of Billy Budd by Barbara Johnson,23 I

should point out a crucial difference. The conflict as posed in Billy Budd may not have a satisfactory resolution, but through a historical

examination of Billy Budd's narrative I have shown that it is not inevit

able that we adopt the social contract model. To do this, I have, so far, focused on the story's moment of representation in the late eighteenth

century when the social contract model was most influential. I now

want to turn to the story's moment of production in the late nine

teenth century when the social contract model was seriously ques

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tioned, if not replaced. For instance, Sir Henry Maine in Ancient Law, a

work Holmes read twice in the 1860s, asserts that, "Theories, plausible and comprehensive, but unverified, such as the Law of Nature or the

Social Contract, enjoy a universal preference over sober research into

the primitive history of society and law."24 My turn to the book's moment of production is not to privilege it over the moment of

representation, but to suggest our need to place the two in a dialecti cal relation. And just to keep that opposition from becoming a binary

opposition vulnerable to deconstruction, I want to offer a third tem

poral moment ? the moment of the book's reception; that is, our

present. By triangulating these historical moments we can gain a pers

pective that will first reinforce my claim that the choice of one side of the conflict presented in Billy Budd is in an important sense no

choice, and then point to an alternative way of posing questions of

justice.

IV.

We have already seen that in late nineteenth century America

people like Holmes were questioning natural rights doctrine. That

questioning did not, however, make Holmes' thought identical to

Vere's.25 In the late eighteenth century, the French appeal to natural

rights threatened established order. In late nineteenth century Amer

ica, those appealing to natural rights were often defenders of the sta

tus quo. Fearing "socialistic" governmental interference in the eco

nomic realm, they appealed to the natural right they called "liberty of contract." At times the judiciary listened to their pleas and overruled social welfare legislation. In this context Holmes' attack on natural

rights should not be construed as a defense of the established social order. Instead, by appealing to a social standard of justice, Holmes advocated his own version of judicial restraint, which in his famous Lochner dissent was directed against judicial appeals to individual

rights as a way of overruling legislative acts.

The alliance between natural rights doctrine and social order is perfectly illustrated by a legal writer, Christopher G. Tiedeman. In an influential textbook, Tiedeman defines "the private rights of the

individual" as belonging "to man in a state of nature; they are natural

rights, rights recognized and existing in the law of reason."26 A notor

ious defender of laissez-faire constitutionalism, Tiedeman used these

rights to check the threat of "Socialism, Communism, and Anarchism" that is "rampant throughout the civilized world." In an address to a

select group of lawyers in 1887, however, Tiedeman was quite frank about the actual existence of natural rights. Sounding almost like

Holmes, he points out that natural rights are themselves a social con

struction. There is, he argues, "no such thing even in ethics, as an

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absolute, inalienable, natural right. The so-called natural rights

depend upon, and vary with, the legal and ethical conceptions of the

people." Nonetheless, he continues, these rights have been written

into our Constitution; therefore, fellow conservatives should appeal to

them. "In these days of great social unrest," he adds, "we applaud the

disposition of the courts to seize hold of these general declarations of

rights as an authority for them to lay their interdict upon all legislative acts which interfere with the individual's natural rights, even though these acts do not violate any specific or special provision of the

constitution."

There is an obvious historical explanation for why Tiedeman can use natural rights doctrine the way he does. The very people who

used natural rights to challenge the authority of manmade law in the

late eighteenth century recognized the desirability of having their

conception of natural rights written into law. For people living under a

legal system that has included natural rights within manmade law, the

conflict between natural and manmade law that Billy Budd forces us to

face has been either eliminated or greatly complicated. What, for

instance, are we to do with those who celebrate the bicentennial of

the Constitution by praising this product of manmade law for guaran

teeing our natural rights? One thing such statements should let us see

is the weakness of the position of those who attack Vere's defense of

manmade law by appealing to natural rights. Our present situation, as

well as the one in which Melville wrote his story, shows how easily the

ground of their critique can be taken away. For once a doctrine of

natural rights has been included within manmade law, any criticism of

manmade law through an appeal to nature turns into a social dispute over what is natural (and what is manmade). As Tiedeman points out,

what is considered natural is the product of a social sense of right. What is natural for one culture may not be for another.

Tiedeman's position points to the bankruptcy of most of

Vere's critics in another way, for it helps us to understand the curious

situation in which the figure we are supposed to take as the hero of

the story ?

Billy ?

aligns himself with one of the supposed villains ? Vere. I would like to suggest that Billy's blessing of Captain Vere is

not merely proof of his innocence, but that it also alerts us to the

possibility that from a certain perspective the choice between Billy and Vere is no choice. To question Billy's natural innocence may seem

unfair, but after all, if we are going to read the story ironically, why

stop our irony with Vere? Isn't it only fair to turn it on Billy as well?

When we do, we see that the choice Melville offers us between

"Nature personified by Billy Budd" and "Culture and Society personi fied by Captain Vere" is not much of a choice at all. If it is true, as

Vere's critics point out, that justice is not served by a system that uses

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impressed sailors and released criminals to protect the measured

forms of the law that Captain Vere evokes only to deviate from, it is

equally true that justice is not served by championing a naturally innocent individual whose response to a false accusation is to strike

out and kill the accuser. We should not forget that Billy's "heroic

form" is as flawed as Vere's measured forms are ragged. Nor should we forget that Billy's and Vere's forms are not the only ones flawed.

Melville's tale also has its ragged edges, and those ragged edges sug

gest the need to tell a story that even Melville's inside narrative leaves

untold.

For instance, describing how British warships were manned

by people released from prison, the narrator speculates on why such accounts are not well known. For one, "such sanctioned irregularities"

would prove embarrassing to a government claiming to uphold rule

by law. Furthermore, these events, "affecting the least influential class of mankind, have all but dropped into oblivion." Clearly, one reason

why we sympathize with Billy is not just because he is a naturally innocent individual but also because he reminds us of that class of

mankind impressed into service to man the British navy's warships. Nonetheless, almost all critical debates focus on the violation of Billy's individual rights, not on the rights of the sailors as a group.

This focus on the individual is in part due to the very form

Melville uses to tell his tale, the novel. Indeed, the novel, which devel

oped around the same time as the social contract model, is the genre most clearly associated with individualization of character. While the

form's ragged edges can suggest the story of the least influential class of mankind, that story, for the most part, remains untold as we transfer our attention to the conflicts between individuals. Nonetheless, we

should remember that at the time Billy Budd was written, the form of the novel itself was starting to be stretched by writers whose works

called into question standard notions of individual agency.27 Further

more, in the political realm all sorts of groups ?

including labor unions and business corporations

? were challenging the individual

ized basis of the legal system. As a way to suggest an alternative to the

social contract model, I want to look at a figure whose work made its

way into the legal discussions of the period ? the German legal histo

rian Otto Gierke.

Introduced into the English-speaking world by Holmes' pro lific friend, the British legal scholar Frederic William Maitland, Gierke advocated what he called Genossenschaftrecht, a law of associations, that challenged a formalism in late nineteenth-century German law similar to the Austinian formalism that dominated Anglo-American law. The social theory implied by such formalism will sound familiar to any reader of Billy Budd. Conceived within the framework of the

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social contract model, it concentrates all political power in the sover

eign state, which for Captain Vere is embodied in the king. As a result, the state becomes the exclusive representative of the common inter est. Endowed with the function of maintaining order and justice, it

declares itself to be the sole source of social rights and thereby dis misses as illegitimate all rival centers of authority between it and the

individual.

By now the problem inherent in such formalism should be

clear, but let me restate it in a slightly different manner. Not only does

this formalism posit the existence of a presocial autonomous individ

ual; it also totalizes the notion of society. Captain Vere's defense of British rule by law against the French demonstrates how this totalized notion of society serves the interests of a centralized power that wants to declare all rival social systems illegitimate. Vere would have us

believe that our choice is between the established sovereign or the

dissolution of society and a return to a chaotic state of nature. But the

choice is not between maintaining social order and reverting to a state

of nature. It is between competing notions of social order. By ground ing their criticism of Vere in a presocial individual or a presocial state

of nature, Vere's opponents accept the same totalized notion of

society and absolute theory of the state that he does.29 While Gierke was no radical, his work offers a model by which the justness of the

law can be criticized without a Thoreau-like withdrawal from society.

Refusing to posit a presocial, autonomous individual, Gierke also refuses to totalize society. By claiming that all forms of social

organization between it and the individual are legitimate only when

recognized by the state, modern theories of the state try to eliminate rival centers of authority within society. Gierke, however, insists on

the legitimacy of intermediary forms of social organization between the individual and the state. Through his careful study of medieval

German law, he demonstrates that free associations, such as guilds and

boroughs, preceded the establishment of a centralized state. Having their own form of organization and identity that could not be attrib uted to a higher sovereign, they retained an independent life of their own even when they became units of a larger composite structure. As

capable of bearing rights as individuals, they did not derive their

rights from the state, nor were they formed to guarantee the presocial rights of individuals. Indeed, these associations, in which member's

rights were integral with those of the group, indicate the error of locat

ing the origin of rights prior to or after a mythical social contract.

Rights do not originate in a presocial state of nature, nor do they derive from the authority of the state. Instead, they are inherent in

membership in social groups, which are themselves a natural mode of human existence.

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Clearly, Gierke's research into the medieval law of German

associations is not completely applicable to systems that have estab

lished a centralized state. Nonetheless, it offers an alternative to the

simple binary opposition we establish between the individual and

society and between natural and manmade law. As he insisted, a legal

system that does not recognize the reality of intermediary social

groups between the individual and society-at-large is extremely limited. Indeed, it seems to me that, unless we do so, we will not do

justice to the complexity of multi-ethnic societies like the United

States. Put slightly differently, in order to distribute the justice of our

legal system, we need not escape to a transcendental position outside

society but rather to base our critique on a careful study of the actual

conditions of society. Abstractions, and reified notions of society-at

large, do not lend much guidance to this quest. Of course, as the case of Antigone makes clear, attention to

group rights need not lead to full justice, since they can be used to

establish an inequitable hierarchy between groups. Nonetheless, there

is no logic that says such a narrative must be hierarchical. Similarly, the recognition of group rights need not displace a recognition of

individual rights. Gierke, for instance, works out a system that recog nizes both, which is not to say that the two will not come into conflict.

Indeed, there is ample evidence ? Bork's attempted confirmation is

one ? that, to an extent, they are already in conflict. This conflict

indicates that I would not do justice to our legal system if I did not

acknowledge that, although limited by its individualistic foundation, it

has not been totally unresponsive to alternative narratives of justice. In

the first decades of this century many lawyers listened when people like John Dewey and Harold Laski urged us to cease thinking of politi cal problems solely in terms of a conflict between the individual and

society.30

The legal system's responsiveness only serves to highlight the

need for the type of historical analysis that I am advocating. Although there will always be untold stories of the law, the ability of the legal

system to respond to those stories is clear proof that the terms of the

story must consistently be adjusted. Furthermore, precisely because

we are lucky enough to have a system that responds to exposures of

injustice, we should remember that our task is not only to use works

like Billy Budd and Antigone to place our present historical situation

in perspective but also to continue, as Sophocles and Melville did, to

construct compelling narratives of the untold story of the law, narra

tives that the legal system finds very hard to ignore. And so I come to the final meaning of my title. It refers not

only to that which the law excludes and to the unarticulated narrative

that legitimatizes the existing legal order, but also to the quest: the

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need to imagine and construct a just, more representative story of the law for the future. As I see it, the challenge that Billy Budd poses to its

critics concerned about justice is not to stay confined within the

framework of the story that Melville presents but to follow its ragged

edges in search of a narrative that neither Melville nor his culture

could yet articulate.31

1. For more on the legal aspects of this story, see, e.g., Richard Posner, Law and Litera

ture: A Misunderstood Relation (Cambridge: Harvard, 1988), 112-113.

2. Owen Fiss, "Objectivity and Interpretation," 34 Stanford L. Rev. 739 (1982); Sanford

Levinson, "Law as Literature," 60 TexasL. Rev. 373 (1982), 386.

3. Clare Dalton, "An Essay in the Deconstmction of Contract Doctrine," 94 Yale L.J. 997

(1985); Gerald E. Frug, "The Ideology of Bureaucracy in American Law," 97 Harvard L.

Rev. 1276 (1984), 1288-89.

4. For one of many examples see Stanley Fish, "Fish v. Fiss," 36 Stanford L. Rev. 1325

(1984).

5. Robert M. Cover, "Nomos and Narrative," 97 HarvardL. Rev. 4 (1983), 4-5.

6. For a necessarily different, but nonetheless related story about Billy Budd, one which

I leave untold here, see my Cross Examinations of Law and Literature (London: Cam

bridge University Press, 1987), chs 9 and 10.

7. Joseph Schiffman, "Melville's Final Stage, Irony: A Re-examination of Billy Budd Criti

cism" 22 Am. Lit. 128 (1950); Phil Withim, 'Billy Budd: Testament of Resistance," 20

Modern Language Quarterly 122 (1959).

8. Richard Weisberg, The Failure of the Word (New Haven: Yale, 1984).

9. Brook Thomas, "Legal Fictions," 18 NovelZJA.

10. See Richard Weisberg, "Text Into Theory: A Literary Approach to the Constitution," 20 Georgia L. Rev. 939 (1986), 962-68 (on Nietzsche's approach to codification of the

just will to power). See also Richard Weisberg, "On the Use and Abuse of Nietzche for

Modern Constitutional Theory," in Sanford Levinson and Steven Mailloux, Interpreting Law and Literature (Evanston: Northwestern, 1988), 181-192.

11. Santa Clara County v. Southern Pac. R.R. 118 U.S. 394 (1886). See infra note 31.

12. John P. McWilliams, Jr., "Innocent Criminal or Criminal Innocence: The Trial in

American Fiction," Carl S. Smith, John P. McWilliams, & Maxwell Bloomfield, Law and

American Literature (NewYork: Knopf, 1983)

13. Michael Paul Rogin, Subversive Genealogy (New York: Knopf, 1983).

14. See also, Richard Posner, "Comment on Richard Weisberg's Interpretation of Billy Budd" 1 CSLL 76.

15. See Robert M. Cover, Justice Accused: Antislavery and the Judicial Process (New Haven: Yale, 1975), 1-7.

16. Edmund Burke, Reflections on the Revolution in France and The Rights of Man

(Garden City, NY: Anchor, 1973).

17. See Walter Benn Michaels, "Intentionalism, Again," 1 CSLL 89.

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18. Prohibitions Del Roy, 12 Co. Rep. 63, 64-65, 77 Eng. Rep. 1342, 1343 (K.B. 1655).

19. Cited in Leonard Williams Levy, The Law of the Commonwealth and Chief Justice

Shaw (Cambridge: Harvard, 1957), 329.

20. In addition to Judge Posner, Justice David Saxe, Acting Supreme Court Judge, New

York County, was a panelist at Washington & Lee.

21. For another comparison of these two texts in terms of the same jurisprudential prob

lem, see Cover, Justice Accused, supra note 15, preface.

22. See Posner, Law and Literature, supra note 1, at 164; "From Billy Budd to Buchen

wald," 96 YaleL.J. 1173 (1987), 1186; Posner, "Comment on Richard Weisberg's Interpre tation of Billy Budd," supra, note 14.

23- Barbara Johnson, "Melville's Fist: The Execution o? Billy Budd," The Critical Differ ence (Baltimore: Johns Hopkins, 1980); and Brook Thomas, "Billy Budd and the Judg

ment of Silence," Literature and Ideology (Lewisburg, Pa.: Bucknell, 1982).

24. Sir Henry Maine, Ancient Law (London: John Murry, 1916), 3.

25. Pace Posner; see alsoFosner, "Comment on Richard Weisberg's Interpretation o? Billy

Budd," supra, note 14.

26. Tiedeman, Limitations of Police Power (St. Louis: Thomas Law Book, 1886), vii.

27. Frank Norris, The Octopus (Baltimore: Penguin 1986). Stephen Crane, The Red Badge

of Courage (New York: Norton, 1982).

28. O. Gierke, Political Theories of the Middle Ages (Cambridge: Cambridge U. Press,

1900).

29. Responsive to this point (and essentially agreeing with it), see Weisberg, 1 CSLL 27,

30.

30. Dewey, "The Historical Background of Corporate Legal Personality," 35 Yale L.J. 655

(1926); and Harold J. Laski, "The Personality of Associations," 29 Harvard L. Rev. 404

(1916). See also A. Soifer, "'Toward a Generalized Notion of the Right to Form or Join an

Association:' An Essay for Tom Emerson," 38 Case Western L.R. 641 (1980).

31. Just to disrupt any sense of closure that I might have created, let me add a supple ment of two points. (1) The groups given the most rights in American law seem to be

corporations ever since the Supreme Court declared in Santa Clara (see supra note 11)

that a corporation was a legal person and entitled to 14th Amendment rights. The prob lem here should be obvious. Lacking a way of dealing with group rights, the Court grants a particular group rights almost (not quite) identical to an individual's. (2) The "untold

story of the law" is by no means always a progressive one. The Ku Klux Klan also

responded to a story that it felt Reconstruction law left untold.

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"billy budd" and the untold story of the law

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