Law and Literature Part 19

Lest the crowd tumble to the fact than Antony is playing on its emotions, he becomes ever more emphatic in denying any inflammatory design on them or breach of faith with those who gave him leave to speak (III.2.211231): Good friends, sweet friends, let me not stir you up To such a sudden flow of mutiny. They that have done this deed are honorable. What private griefs they have, alas, I know not, That made them do it. They are wise and honorable, And will no doubt with reasons answer you. I come not, friends, to steal away your hearts. I am no orator, as Brutus is, But, as you know me all, a plain blunt man, That love my friend, and that they know full wel*That gave me public leave to speak of him.

For I have neither wit, nor words, nor worth, Action, nor utterance, nor the power of speech To stir men's blood. I only speak right on.

I tell you that which you yourselves do know, Show you sweet Caesar's wounds, poor poor dumb mouths, And bid them speak for me. But were I Brutus, And Brutus Antony, there were an Antony Would ruffle up your spirits and put a tongue In every wound of Caesar that should move The stones of Rome to rise and mutiny.

Almost everything in this pa.s.sage is false. Brutus and the other conspirators will not be able to answer Antony with reasons if, as Antony hopes, by the time he finishes his speech the mob will be in a frenzy-and anyway Brutus left before Antony began to speak. Antony is not a plain (in the sense of artless) speaker, and if Brutus were Antony he would not stir the mob to violence on Caesar's behalf, as Antony is doing. Antony did come to stir the crowd to mutiny and does not think the rebels honorable. Caesar's wounds are not "dumb mouths"; Antony makes them speak.

At last Antony lets the other shoe drop and tells the crowd what Caesar has left the citizenry of Rome in his will, ending his oration by shouting, "Here was a Caesar! When comes such another?" (III.2.252). The crowd rushes off on cue to burn down the conspirators' houses. Yet Antony has not tried to refute the charge of ambition that Brutus laid against Caesar, except by misleadingly reminding the audience that Caesar had three times refused the crown that Antony had offered him the day before the a.s.sa.s.sination. Antony omits to add that Caesar had been lured to the Capitol on the morning of the a.s.sa.s.sination by a message that the Roman Senate would offer him a crown that day.

Antony's speech has been called "an exhibition of the destruction of reason by rhetoric."67 That is too harsh an appraisal. It ignores the limited 67. Nicholas Brooke, Shakespeare's Early Tragedies 157 (1968).

*understanding of Antony's audience-the Roman citizenry, depicted in the play as an invulnerably stupid mob. Antony has a case; the irony of the conspirators' honorableness is genuine. He must pitch his case to the level of his audience's comprehension. That is something lawyers chronically fail to do in presenting cases to appellate courts. They think the judges know as much about the case as they do, and this is usually wrong. Almost all judges in our legal system are generalists, whereas lawyers tend to be specialists in particular fields of law and to invest a large amount of time in each of their cases, especially ones that reach an appellate court. An appellate judge may have heard dozens or even hundreds of cases in the time the lawyer spent on the case that he is appealing.

A law school course in trial or appellate advocacy could be built on a comparison of Brutus's and Antony's speeches. The weaknesses in the former, which are equally weaknesses in an oral argument to an appellate court or a closing argument to a jury, are its overtly rhetorical character (which is likely to put the audience on its guard), its failure to engage the audience in dialogue, its lack of detail and anecdote, its failure to appeal to the concrete interests of the audience, and the decision to waive reb.u.t.tal. Antony, in contrast, ingratiates himself with an audience predisposed to be hostile to him, ticks off three arguments against Brutus's charge of ambition (they are weak arguments, but since Antony knows that he will have the last word he doesn't have to worry that they will be picked apart), displays emotion, brandishes Caesar's will (Antony's first use of a prop- and how judges and juries love physical evidence, so welcome a relief from lawyers' endless rushes of words!), tells an anecdote about Caesar, displays Caesar's shrouded body (the second use of a prop), shows the gashes and bloodstains in Caesar's toga and then dramatically unveils the naked, mutilated body (the third prop, consisting of wounds more eloquent than words), disclaims oratorical ability in a successful effort to disarm the audience, uses the terms of the will to appeal to the audience's concrete interests and sense of grat.i.tude, invites frequent interruption to create the illusion of conversational give-and-take, and ends in a state of high excitement. Antony's speech is concrete, vivid, personal, colloquial, versatile, dramatic, eloquent, blunt, and emotional. It is a model of forensic oratory, though obviously not one to be imitated slavishly by lawyers in an American court.

I emphasize Antony's use of visual effects-showing Caesar's body, with its wounds, and brandis.h.i.+ng the will before reading it aloud. This is a form of concreteness not available to the purely literary writer but open to the lawyer (as to a dramatist) and too rarely exploited by him.68 A literary sensibility, attuned to the concrete, appreciates visualization. Lawyers who have such a sensibility exploit the opportunities that the litigation process offers to provide the judges and jurors with visual images. Such lawyers are few. Like most judges, most lawyers are content to glide on the semantic surface of legal doctrine.

68. "The appellate lawyer's adage might be, a word is worth a thousand pictures." United States v. Barnes, 188 F.3d 893, 895 (7th Cir. 1999).

chapter 12.

But Can Literature Humanize Law?

Aesthetic versus Moralistic Literary Criticism

scar Wilde remarkedin the preface to The Picture of Dorian Gray that "there is no such thing as a moral or an immoral book. Books are well written, or badly written. That is all." He was echoed by W. H. Auden, who said in his poem in memory of William Butler Yeats that poetry makes nothing happen (though the poem as a whole qualifies this claim), and by Benedetto Croce and other formalist critics, such as Cleanth Brooks, the doyen of the New Critics, who insisted that edification was the function of religion, not of poetry.1 George Orwell, although himself a didactic writer (that of course is not all he was), also believed that literature should not be judged by its moral uplift.2 It is a position

1.Brooks,"A Note on the Limits of 'History'and the Limits of 'Criticism,'"in Seventeenth-Century English Poetry: Modern Essays in Criticism 352, 357358 (William R. Keast ed. 1962). But we saw in chapter 8 that the New Critics were not always successful in maintaining the distinction between the moral and the aesthetic responses to literature. On T. S. Eliot's views concerning this issue, which involve the same equivocation as that of the New Critics, whom he inspired, see Malcolm Budd, Values of Art: Pictures, Poetry and Music 9899 (1995).

2. "The durability of Gulliver's Travels goes to show that, if the force of belief is behind it, a world-view which only just pa.s.ses the test of sanity is sufficient to produce a great work of art." George Orwell, "Politics vs. Literature: An Examination of Gulliver's Travels," in 456.

that can be traced back to Kant's aesthetic theory and that almost all literary critics embrace when the issue is censors.h.i.+p.

I accept Wilde's dictum-the creed of aestheticism, of art for art's sake. As Helen Vendler puts it, "Treating fictions as moral pep-pills or moral emetics is repugnant to anyone who realizes the complex psychological and moral motives of a work of art."3 The morally beneficial effects of literature, Denis Dutton explains, "are so obscure, so diffuse and self-contradictory, that they are very poor evidence for the claim that moral edification is the main achievement of literature . . . Moral or legal systems essentially ask that people be good . . . Art's most essential requirement is not that the characters it fictively portrays be good but that they be interesting."4 This is not to deny that reading literature can have consequences, including moral and political ones. Information and persuasion affect behavior, and literature, as we know, both informs and persuades.5 Think of the role that novels by Turgenev (Fathers and Sons), Dostoevsky (The Possessed), Conrad (The Secret Agent, Under Western Eyes), Koestler (Darkness at Noon), Orwell (Animal Farm, Nineteen Eighty-Four), and, of course, Solzhenitsyn played in bringing to light the true character of anarchism and communism. Of A Pa.s.sage to India it has been said that "as an account of the social conditions of British India it was powerfu*The Collected Essays, Journalism and Letters of George Orwell, vol. 4, pp. 205, 222223 (Sonia Orwell and Ian Angus eds. 1968).

Vendler, "The b.o.o.by Trap," New Republic, Oct. 7, 1996, pp. 34, 37. Compare Benedetto Croce, Guide to Aesthetics 5758 (1965 [1913]): "The artist is always unblamable morally and un-censurable philosophically, even though his art may have for subject matter an inferior morality and philosophy. Insofar as he is artist, he is not a man of action and does not reason, but poetizes, paints, sings." Roger Seamon argues in a similar vein that moral values in works of literature are a.s.sumed by the author and help us make sense of the story, rather than being supported by evidence or argument that might persuade the reader that they are sound. Seamon, "The Story of the Moral: The Function of Thematizing in Literary Criticism," 47 Journal of Aesthetics and Art Criticism 229 (1989). I have argued against moralistic criticism in my book Public Intellectuals: A Study of Decline, ch. 6 (paperback ed. 2003) ("The Literary Critic as Public Intellectual").

4. Denis Dutton, The Art Instinct: Beauty, Pleasure, and Human Evolution 231 (2009).

See, for example, Peter M. Marzuk et al., "Increase in Suicide by Asphyxiation in New York City after the Publication of Final Exit," 329 New England Journal of Medicine 1508 (1993).

*enough to have influenced events."6 Upton Sinclair's novel The Jungle led to federal regulation of food processing-and who doubts the effect of Uncle Tom's Cabin (1852) on the abolitionist cause?7 To Kill a Mockingbird may have played a role in improving race relations, though this is speculative. Think of the history of censors.h.i.+p and recall that the n.a.z.is burned All Quiet on the Western Front. (I give additional examples in the next chapter.) Notice, though, that the political or other behavioral influence of a literary work is at its zenith when or shortly after the work is published, when it is not yet a cla.s.sic but instead a contribution to popular culture. Especially today the cla.s.sics command only a small audience.

The aesthetic school makes three claims. The first is that immersion in literature does not make us better or worse people. A few works of literature may, as just suggested, have such an effect because of the information they convey or the emotional wallop they deliver, but they are a skewed sample of the great literary works. Second, we should not be discountenanced when we encounter morally offensive views in literature even if the author appears to share them; a work of literature is not maimed by expressing unacceptable moral views and a mediocre work of literature is not redeemed by expressing moral views of which we approve. Third, the author's personal moral qualities or opinions should not affect our evaluation of the work.

The opposing tradition in literary criticism originates with Plato and insists upon the importance, in some versions to the exclusion of anything else, of the political and (what is often not sharply different) the moral content and consequences of works of literature, and less commonly the importance of the author's own morality. John Gardner states: "Nothing could be more obvious, it seems to me, than that art should be moral and that the first business of criticism, at least some of the time, Frank Kermode, "Forster and Maurice," in Kermode, The Uses of Error 265, 268 (1991). Yet the numerous factual errors in A Pa.s.sage to India-on which see P. N. Furbank, E. M. Forster: A Life, vol. 2: Polycrates' Ring (19141970) 126130 (1978)-suggest the need for caution in using novels as a subst.i.tute for history and social science and even for journalism, as I suggested in chapter 10 they can sometimes properly be used.

See Leon Harris, Upton Sinclair: American Rebel, ch. 7 (1975); Thomas F. Gossett, Uncle Tom's Cabin and American Culture 183184 (1985); Gregg D. Crane, Race, Citizens.h.i.+p, and Law in American Literature, ch. 2 (2002). Actually, Gossett does doubt it. See chapter 10 of his book.

should be to judge works of literature (or painting or even music) on grounds of the production's moral worth."8 Martha Nussbaum cla.s.sifies Greek tragedies and Anglo-American realistic novels as works of moral philosophy9 and argues that reading novels "develops moral capacities without which citizens will not succeed in making reality out of the normative conclusions of any moral or political theory, however excellent."10 Wayne Booth, though disagreeing with his ill.u.s.trious predecessor in the edifying (that is, morally improving) school, Tolstoy, who denounced King Lear, asks rhetorically: "Do[es] not King Lear . . . depend upon and reinforce, among other fixed norms, the enormous value of simple kindness and the awfulness of gratuitous cruelty?"11 Booth reports that he does not enjoy Rabelais as much as he once did, having been awakened by feminism to Rabelais's misogyny.12 For "everyone who has read much narrative with intense engagement 'knows' that narratives do influence behavior."13 "Almost everyone-except for a few theorists-would agree not only that we read for instruction but that the instruction often works."14 But his only evidence is introspective.

The edifying tradition is diverse. Plato, Tolstoy, Bentham, and the Puritans, among others, were deeply suspicious of literature and the arts and unwilling to grant any value to literature that contained immoral ideas. Devotees of the "naked truth," whether religious, philosophical, or scientific, these eminences despised surface and figuration and hence found no redeeming value in immoral literature.15 Plato thought the physical world a pale copy of the world of the immortal Forms, which he thought Gardner, "Premises on Art and Morality," in Ethics, Literature, and Theory: An Introductory Reader 3 (Stephen K. George ed., 2d ed. 2005).

See Nussbaum, Love's Knowledge: Essays on Philosophy and Literature (1990).

Nussbaum, Poetic Justice: The Literary Imagination and Public Life 12 (1995).

Booth, The Company We Keep: An Ethics of Fiction 152 (1988) (emphasis added). Compare Leo Tolstoy, Shakespeare and the Drama (1903), discussed in George Orwell, "Lear, Tolstoy, and the Fool," in The Collected Essays, Journalism and Letters of George Orwell, note 2 above, vol. 4, pp. 287, 290. Wittgenstein, like Tolstoy, criticized Shakespeare on the ground that his plays lack a moral compa.s.s. Peter B. Lewis, "Wittgenstein, Tolstoy, and Shakespeare," 29 Philosophy and Literature 241 (2005).

Booth, note 11 above, at 383418.

Id. at 227.

Id. at 229. See also id. at 232235.

Russell Fraser, The War against Poetry, ch. 7 (1970).

*accessible only to philosophy-and literature was just a copy of the copy. Martha Nussbaum is at the opposite end of the edifying school in a.s.similating literature to moral philosophy rather than ejecting it. Booth, the professional literary critic, being more systematic and wide-ranging in his ethical criticism than Nussbaum, is also more censorious. He discusses works that do not meet his high standards for ethical literature as well as ones that do; Nussbaum confines herself to the latter. Ironically, Oscar Wilde, despite the epigram with which I began this chapter, belonged to the moralistic school. The Picture of Dorian Gray is a criticism of aestheticism and of the view that books cannot corrupt.16 The narrator states flatly: "Dorian Gray had been poisoned by a book."17 Some ethical critics want a work of literature to have a tidy moral, as in Aesop's fables, while others think the moral value of literature lies in a more diffuse influence on thinking and action. Booth and Nussbaum liken the reading of imaginative literature to friends.h.i.+p and claim that a friends.h.i.+p can have an effect on one's character and outlook. But they do not want to stop with that claim. They want to extract a moral lesson from each work. They want the reader to be friends with edifying books.

One can imagine these critics preparing lists of such works for judges to read. If poets are the unacknowledged legislators of the world, should not judges pay attention to the moral lessons in poetry? Should they not look to them for guidance in deciding cases in the open area where precedent and other conventional guides to legal decision-making run out?

The edifying school has struck a responsive chord with legal scholars of literary bent. No surprise there. The ratio of normative to positive scholars.h.i.+p is higher in law than in most fields. Law is not a contemplative discipline, and the aesthetic outlook does not come easily to its disciples. They bring literature to law to advance the normative mission of legal scholars.h.i.+p. Thus Robin West: The human capacities to which study of the humanities gives rise might const.i.tute a set of moral capacities, and hence a sphere of consciousness, sufficiently removed from the influence of law to serve as a vehicle for moral criticism of it . . . A tremendous amount of canonica*Richard Ellman, Oscar Wilde 317318 (1988).

Oscar Wilde, The Picture of Dorian Gray 246 (1946 [1891]).

literature is highly critical of law, and of the arguments typically put forward to support its moral authority . . . Literature helps us understand others. Literature helps us sympathize with their pain, it helps us share their sorrow, and it helps us celebrate their joy. It makes us more moral. It makes us better people.18 Anne Goldstein claims that "lawyers can learn how to represent lesbian clients better by studying books with lesbian characters," specifically novels "argumentatively engaged in portraying, explaining, justifying, and apologizing for the lesbian."19 Richard Weisberg interprets the novels he discusses as bulwarks against another Holocaust.

The edifying school has a lot to explain, such as the twentieth-century behavior of Germany, a highly cultured nation, as ill.u.s.trated not only by its distinction in literature, cla.s.sics, music, philosophy, and history but also by the emphasis that the German academic high school, the Gymnasium, placed on Greek, Latin, and German literature. Culture did not inoculate Germany against Kaiser20 or Fuhrer. Thomas Mann was an outspoken supporter of Imperial Germany during World War I, and the German judges who served Hitler21 were Gymnasium-educated and therefore steeped in Goethe, Schiller, and Kant. Professors were notable by their absence from the cells of resistance to Hitler that developed within Germany during his rule.22 Noting that "National Socialism used aesthetic 18. West, Narrative, Authority, and Law 7, 13, 263 (1993) (footnote omitted).

Goldstein, "Representing the Lesbian in Law and Literature," in Representing Women: Law, Literature, and Feminism 356, 358 (Susan Sage Heinzelman and Zipporah Batshaw Wiseman eds. 1994) (footnote omitted).

"The Imperial German experience cautions that the humaneness of humanism in higher education should not be taken for granted." Konrad H. Jarausch, Students, Society, and Politics in Imperial Germany: The Rise of Academic Illiberalism 425 (1982). "The elite [of the German legal profession ] consisted of highly competent lawyers steeped in an idealistic conception of their profession and, strange perhaps in a[s] mundane [an] occupation as the law, in ideals of Bildung, of literary culture and a refined personality." Dietrich Rueschemeyer, Lawyers and Their Society: A Comparative Study of the Legal Profession in Germany and in the United States 178 (1973).

See Ingo Muller, Hitler's Justice: The Courts of the Third Reich (Deborah Lucas Schneider trans. 1990); Richard A. Posner, Overcoming Law 145159 (1995).

Alice Gallin, Midwives to n.a.z.ism: University Professors in Weimar Germany 19251933 45, 100105 (1986). Cf. Philippe Burrin, Living with Defeat: France under the German Occupation, 19401944, chs. 2022 (1996).

*pleasure to gild aggressive and transgressive ambitions," the literary critic Geoffrey Hartman concludes that "there is no hard evidence that the altruistic personality is enhanced by exposure to higher education or 'culture.'"23 Art, including literature, has often flourished in undemocratic societies, and indeed is in some tension with democracy: "Art and beauty require exaltation, ecstasy, extremes; political life is more comfortable with collaboration, consensus, and compromise."24 Modern democracies are notably philistine.

And "despite their familiarity with the cla.s.sics, professors of literature do not appear to lead better lives than other people, and frequently display unbecoming virulence on the subject of one another's shortcomings."25 Immersion in literature and art can breed rancorous feelings of personal superiority, alienation, and resentment.26 Those were not characteristics of Oliver Wendell Holmes, probably the best-read Justice in the history of the Supreme Court,27 and yet his numerous critics think Buck v. Bell typical of his outlook on life.

What holds for professors of literature holds also for the cla.s.sics they teach and write about. They are brimful of moral atrocities-as they appear to us today, and sometimes as they appeared to the more enlightened members of the author's own society-depicted with uncritical acceptance and often with relish. Rape, pillage, murder, human and animal sacrifice, concubinage, and slavery in the Iliad; misogyny in the Oresteia and Hartman, "Is an Aesthetic Ethos Possible? Night Thoughts after Auschwitz," 6 Cardozo Studies in Law and Literature 135, 139 (1994). On the attraction of intellectuals, particularly literary intellectuals, to fascism, see, for example, Dan Stone, Responses to n.a.z.ism in Britain, 19331939, ch. 4 (2003); George L. Mosse, The Fascist Revolution: Toward a General Theory of Fascism, ch. 5 (1999).

Tzvetan Todorov, "Poetry and Morality," Salmagundi, Summer 1996, pp. 68, 71. "Hitler is the very model of the Arts President." Tobias Siebers, "Hitler and the Tyranny of the Aesthetic," 24 Philosophy and Literature 96 (2000).

K. K. Ruthven, Critical a.s.sumptions 184 (1979). See also John Carey, What Good Are the Arts? chs. 4, 7 (2006).

Recall from chapter 3 Ian Watt's interpretation of Faust as an intellectual disappointed with the world because it fails to live up to the extravagant hopes of an imagination stimulated by extensive reading.

And yes, he did read Jane Austen. See Letter to Frederick Pollock, Aug. 2, 1923, in The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions, and Other Writings of Oliver Wendell Holmes, Jr. 10 (Richard A. Posner ed. 1992).

countless works since; blood-curdling vengeance; antisemitism in more works of literature than one can count, including works by Shakespeare and d.i.c.kens; racism likewise; h.o.m.ophobia (think only of Shakespeare's Troilus and Cressida, Mann's "Death in Venice," and Sartre's chilling "The Childhood of a Leader"); monarchism, aristocracy, fascism, Stalinism, caste systems and other illegitimate (as they seem to us) forms of hierarchy; colonialism, imperialism, religious obscurantism, militarism, gratuitous violence, torture, mutilation, and criminality; alcoholism and drug addiction; stereotyping; sadism; p.o.r.nography; machismo; cruelty to animals; sn.o.bbism; praise of idleness; and contempt for the poor, the frail, the elderly, the deformed, and the unsophisticated, for people who work for a living, for the law-abiding, and for democratic processes. The world of literature is a moral anarchy; if immersion in it teaches anything in the moral line it is moral relativism.

Nussbaum argues that "inegalitarianism is in a degree of tension with the structure of the genre [the novel], which invites concern and respect for any story to which it directs the reader's attention."28 But since a story need not be egalitarian, there is nothing inherently progressive in the form or the content of the novel, even the subset of novels that Nussbaum particularly values-realistic novels.29 Most of the best-known English, French, Russian, German, and American novels can be sorted into one or more nonegalitarian cla.s.ses: novels that are preoccupied with private themes (as they now strike us) often archaically conceived, such as adultery and manliness (for example, Lawrence, Hemingway, Ford Madox Ford, and Joyce); adventure novels (a cla.s.s that overlaps the first); and novels that despite surface appearances are disengaged from any serious interest in the social or political arrangements of society (which, as we Nussbaum, note 10 above, at 129 n. 34. "The novel, while permitting and even suggesting certain criticisms of its characters, promotes mercy through its invitation to empathetic understanding." Id. at 130 n. 45. In other words, tout comprendre c'est tout pardonner.

Robin West, "Law and Fancy," 95 Michigan Law Review 1851 (1997). West's essay is a powerful criticism of Nussbaum's position, as is James Seaton, "Law and Literature: Works, Criticism, and Theory," 11 Yale Journal of Law and the Humanities 479, 483491 (1999). See also Oliver Conolly and Bashshar Haydar, "Literature, Politics, and Character," 32 Philosophy and Literature 87, 93 (2008); Simon Stow, "Reading Our Way to Democracy," 30 Philosophy and Literature 410 (2006).

*have seen, may largely be true even of Kafka and Camus), that disparage the modern project of liberty and equality (for example, Dumas, Scott, Dostoevsky, Waugh, at times Conrad and Faulkner), that presuppose an organization of society in which a leisured, t.i.tled, or educated upper crust lives off the sweat of the brow of a ma.s.s of toilers at whose existence the novelist barely hints (for example, Austen, James, Wharton, Proust, Waugh, Fitzgerald), that are preoccupied with issues more metaphysical than societal (Beckett, Hesse, Melville, Tolstoy, Mann, and, again, Kafka and Camus), that defend bourgeois values (Defoe, Galsworthy, Trollope), that deal with public themes yet whose take on them is equivocal or inscrutable (Melville, Twain, and Faulkner), or that deal with both social and private themes but the latter predominate (Stendhal, Flaubert, Bulgakov).

Granted, some works by these novelists do not fit the pigeonholes in which I have placed their authors-for example, Edith Wharton's best novel, The House of Mirth, has pointed criticisms of sn.o.bbery and wealth, as do many of Henry James's novels, though he seems to have thought that the only cla.s.s in society worth writing about was the leisured upper cla.s.s; no character in The Golden Bowl works for a living except the Jewish shopkeeper who sells Maggie the bowl. Many novelists of distinction have had the kind of social conscience that Nussbaum admires, such as Zola, Gissing, Dreiser, Melville to a degree, Conrad also (Heart of Darkness), Woolf, and Forster. But the possession of such a conscience is not a defining characteristic of the novel as a genre.

It is true that the novel is a more bourgeois medium than Greek, Elizabethan, or French tragedy, genres preoccupied with the activities and sensibilities of kings and aristocrats. The rise of the novel coincided with the rise of the middle cla.s.s, the expansion of literacy, and the growth of science and philosophical realism-developments that stimulated demand for a form of literature that would depict realistically the activities and experiences of ordinary life.30 But "bourgeois" and "egalitarian" are not synonyms.

The prestige of a work of literature generally is little damaged by the discovery that it advocates or condones a morality that later readers find 30. See Ian Watt, The Rise of the Novel: Studies in Defoe, Richardson and Fielding, chs. 12 (1957).

monstrous, though radicals have tried to change this, as we glimpsed in earlier chapters. As only the most disciplined reader can will himself to ignore the moral dimensions of what he reads, great literature must somehow lull the reader into suspending moral judgment. It can do this because the moral content of a work of literature, like the legal content of most of the legal literary works discussed in Part I of this book, is merely the writer's raw material-something he works up into a form to which morality is no more relevant than the value of the sculptor's clay as a building material is relevant to the artistic value of the completed sculpture. Do we stalk out of Hamlet at the end of the first scene when we discover that there is a ghost in an ostensibly adult play? Why then should we stalk out of Oth.e.l.lo when we discover that it depicts racially mixed marriage as p.r.o.ne to catastrophe? Or out of The Merchant of Venice when we discover that it traffics in ugly stereotypes of Jewish greed and blood l.u.s.t? Or slam Oliver Twist shut when we encounter f.a.gin? Or Huckleberry Finn and Sartoris when we encounter the word "n.i.g.g.e.r" used matter-of-factly? Don't we feel downright sorry for a critic who calls Homer "problematic" because although he "sees war as miserable and humiliating," he "also sees it as glorious," he "censors out many of war's uglier or more sordid characteristics," the Homeric "poems are strongly aristocratic in their values . . . and the Iliad at least is intensely masculine," and "all this should be uncomfortable for most of us"?31 Readers learn to accept the presence of obsolete ethics in literature with almost the same equanimity that they accept the presence of obsolete military technology, antiquated diction, and vanished customs, as things both inevitable given the age of so much literature and collateral to the purpose for which we read it.

Moral content is irrelevant even when it conforms to our current moral opinions. That is one more implication of the test of time. No reader of The Red and the Black is apt to take up the cudgels on behalf of the monarchists and clerics whom Stendhal attacked. But the sociological issues that preoccupied him in what has been called the first great novel of social and political criticism32 are pa.s.se, and his novel survives only because it is 31. Richard Jenkyns, "Rosy Fingering," Times Literary Supplement, May 2, 2008, p. 13.

32. Erich Auerbach, Mimesis: The Representation of Reality in Western Literature, ch. 18 (1953).

*a great novel about love, ambition, and living an authentic life. It is a great realist novel still, but the realism we now value it for is realism about human character rather than about conditions in Restoration France. Uncle Tom's Cabin has not survived as literature-the only interest it holds for us is historical-even though its author's opposition to slavery now commands universal a.s.sent.

Yet ideologues of the Left tell us that "the ideology which saturates [Shakespeare's] texts, and their location in history, are the most interesting things about them,"33 and those of the Right believe "that Jane Austen is a greater novelist than Proust or Joyce" and "T. S. Eliot's later, Christian poetry is much superior to his earlier."34 The first statement is bizarre in its willingness to subordinate aesthetic to political values in evaluating the greatest poet and playwright in history. But the second is unacceptable too. And not only because the effort to rank Austen against such different writers as Proust and Joyce-a true example of incommensurability-is misguided, or because "The Waste Land" is not inferior, let alone "much" inferior, to "Ash Wednesday" or "Four Quartets," and indeed is for most readers the summit of Eliot's art. To devalue a work of literature because of its politics, morality, or religion is not only to cut off one's nose to spite one's face. It is philistine, illiberal, and, when it expresses itself in a sense of moral superiority to our predecessors, the form of ethnocentrism that has been dubbed "temporal parochialism."35 Orwell, that most politically engaged of imaginative writers, put it well when he defended T. S. Eliot, an Anglo-Catholic royalist, against Eliot's left-wing critics, though Orwell himself was a democratic socialist and an atheist: To dislike a writer's politics is one thing. To dislike him because he forces you to think is another, not necessarily incompatible with the first. But as soon as you start talking about 'good' and 'bad' writers you are tacitly appealing to literary tradition and thus dragging in a 33. Jonathan Dollimore and Alan Sinfield, "History and Ideology: The Instance of Henry V," in Alternative Shakespeares 206, 227 (John Drakakis ed. 1985), Irving Kristol, "Reflections of a Neoconservative," 51 Partisan Review 856, 859 (1984).

By Stephen Holmes in conversation.

totally different set of values. For what is a 'good' writer? Was Shakespeare 'good'? Most people would agree that he was. Yet Shakespeare is, and perhaps was even by the standards of his own time, reactionary in tendency; and he is also a difficult writer, only doubtfully accessible to the common man. What, then, becomes of the notion that Eliot is disqualified, as it were, by being an Anglo-Catholic royalist who is given to quoting Latin?36 To politicize literature also breaches the wall that separates culture from the state-what is properly private from what is properly public. To a.s.sign literature the task of promoting political and moral values is to a.s.sociate it with public functions, such as the inculcation of civic virtue, as Plato proposed in the Republic. It makes literature an inviting candidate for public regulation and bolsters the radicals' claim that everything is politics.

The strongest advocate of a literary education for lawyers is James Boyd White, who writes mostly about literature that has no legal subject matter.37 He is the founder of the "humanist" school of law and literature, which views "the human as an ethical corrective to the scientific and technocratic visions of law that had dominated most of the twentieth century George Orwell, "Literature and the Left," in The Collected Essays, Journalism and Letters of George Orwell, note 2 above, vol. 2, at 292293. On Orwell's fondness for Eliot's poetry and critical principles, see Patricia Rae, "Mr. Charrington's Junk Shop: T. S. Eliot and Modernist Poetics in Nineteen Eighty-Four," 43 Twentieth Century Literature 196198 (1997). Rae points out that Orwell later turned against Eliot, perhaps because, as an editor of the publis.h.i.+ng house of Faber and Faber, Eliot refused to publish Animal Farm. The refusal occurred during World War II, and Eliot did not want to offend the Soviet Union (Britain and America's ally), savagely satirized in Orwell's novel. Rae argues that Orwell used Eliot as the model for Charrington in Nineteen Eighty-Four, who we recall from chapter 10 is an Inner Party villain second only to O'Brien. Yet Orwell shared Eliot's distaste for many aspects of modernity, and Eliot-Charrington betrays Winston Smith by catering to Winston's treasonable taste for pre-Revolutionary artifacts. Id. at 200214.

See White, Living Speech: Resisting the Empire of Force (2006). His project has been described sympathetically as not literature in law, or law as literature, but literature alongside law. Shulamit Almog, "Windows and 'Windows': Reflections on Law and Literature in the Digital Age," 57 University of Toronto Law Journal 755 (2007).

*. . . At the center of this humanist vision [is] the notion that literature could somehow bring the real to law" and serve as "an antidote to the sterile technicality of the social sciences."38 White is in the tradition of Matthew Arnold, for whom "art had a clear function within society, especially after the scientific challenges to religion. It was an antidote to a mechanistic and materialistic world, a source of spiritual sustenance and a balm for the disenchantments of modernity."39 White wants lawyers and judges to have a literary education so that they will be both morally and professionally improved-in particular by being armed to resist the siren song of the social sciences.He has no interest in mining literary works that are about law for the jurisprudential insights they might provide.40 His exemplary novelist is Jane Austen; and let us consider how he fits her "dark" novel, Mansfield Park, into the law and literature canon.41 f.a.n.n.y Price, a poor girl, is taken into the home of wealthy and aristocratic relatives to be brought up properly but also to be patronized and even abused, Cinderella-fas.h.i.+on. At first she accepts and indeed internalizes the false values of her grand relatives. But gradually she sees through them and is rewarded at the end of the novel with marriage to the most decent-and through contact with her much improved-member of the family. The point interestingly emphasized by White is that f.a.n.n.y is handicapped both by being poor and oppressed and as a result deficient in self-esteem and a sense of autonomy and by having to think as well as speak in the vocabulary of her upper-crust relatives-she has no other vocabulary. It is a vocabulary that, Newspeak-fas.h.i.+on, inverts the proper Julie Stone Peters, "Law, Literature, and the Vanis.h.i.+ng Real: On the Future of an Interdisciplinary Illusion," 120 Proceedings of the Modern Language a.s.sociation of America 442, 444 (2005). The humanistic school is anthologized in Literature and Legal Problem Solving: Law and Literature as Ethical Discourse (Paul J. Heald ed. 1998).

39. Ronan McDonald, The Death of the Critic 70 (2007).

See, for example, White, From Expectation to Experience: Essays on Law and Legal Education, chs. 67 (1999); White, "What Can a Lawyer Learn from Literature?" 102 Harvard Law Review 2014, 2028 (1989). For an example of the approach commended by White, see John Denvir, "'Deep Dialogue'-James Joyce's Contribution to American Const.i.tutional Theory," 3 Cardozo Studies in Law and Literature 1 (1991), using Joyce's story "The Dead" to argue that literature shows how shame can lead to the creation of community.

See White, Acts of Hope: Creating Authority in Literature, Law, and Politics, ch. 6 (1994) ("Austen's Mansfield Park: Making the Self out of-and against-the Culture").

sense of words, subst.i.tuting the language of good manners for the language of good morals and thus r.e.t.a.r.ding f.a.n.n.y's rejection of the false values of her grand relatives.

White makes Mansfield Park an allegory of the process by which an oppressed minority struggles for emanc.i.p.ation. Central to that process, in White's view, is the minority's achieving enough fluency in the language that the majority has imposed upon it to turn that language right side up so that it will express the minority's needs and aspirations. Language is both the prison and the key to the prison. White believes that literature and law are both centrally about language and that by learning to use language properly one becomes a decent person and a decent lawyer or judge. In his words, What the habitual reading of literature offers, then, is not a set of propositions or a method leading to a set of results, but the experience of directing one's attention to a plane or dimension of reality that is normally difficult or impossible to focus upon, namely the ethical and linguistic plane, where we remake in our texts both our languages and ourselves. To the literary mind language is not simply transparent, a way of talking about objects or concepts in the world, but is itself a part of the world; language is not simply an instrument that 'I' use in communicating ideas to 'you' but a way in which I am, or make myself, in relation to you.42 White thus "conceives [of ] rhetoric as restorative."43 Can this be correct? Wasn't his point about Mansfield Park that f.a.n.n.y (much like the Newspeak-speakers of Oceania) was denied the use of an instrument for communicating ideas? The rhetorical skill exhibited by Mark Antony in his funeral oration for Julius Caesar is unsurpa.s.sed; did that make Antony a good man? And if, therefore, it is not rhetorical or communicative skill that White values in literary works, what is it that he values in them? What does he mean when he says that language is "a way in which I am, 42. White, "'Law and Literature': No Manifesto," in White, From Expectation to Experience, note 40 above, at 52, 71.

43. Guyora Binder and Robert Weisberg, Literary Criticisms of Law 352 (2000).

*or make myself, in relation to you"? Binder and Weisberg argue that "White's literary rhetoric aims to evoke in the hearer an att.i.tude of devotion to principle, an att.i.tude that might be jeopardized by confrontation with any particular principle . . . Pa.s.sions will be sublimated in art, and opponents will be soothed by the complex symmetry of the discursive world they make together. Aesthetic self-discipline will replace moral self-discipline, and righteous indignation will give way before gracious gestures."44 But it is not an att.i.tude of devotion to just any old principle that White wants to evoke. He mines literature for support for his political views. The moralist has a vision of what is good, and any literature that supports the vision is good and any literature that cannot be made to support it is bad and should not be read.

We encounter this approach in Martha Nussbaum's a.n.a.lysis of Henry James's novel The Golden Bowl. Maggie Verver, an immensely rich young American, marries a penniless Italian prince (Prince Amerigo) who unbeknownst to her is in love with Charlotte Stant, a penniless American woman who happens to be Maggie's best friend. Maggie eventually discovers that her husband is committing adultery with Charlotte, and she manages deftly to send Charlotte (now married to Maggie's widowed father) packing. Nussbaum argues that the novel is "about the development of a woman. To be a woman, to give herself to her husband, Maggie will need to come to see herself as something cracked, imperfect, unsafe, a vessel with a hole through which water may pa.s.s, a steamer compartment no longer tightly sealed."45 This is what a reader is expected to take away from one of the twentieth century's greatest novels? A homily at once trite and perverse, for can't you be a woman without forgiving your husband for committing adultery with your best friend? Maggie did neglect her husband for her father, but Id. at 353. For other criticism of White's project, see Gary Minda, "Cool Jazz but Not So Hot Literary Text in Lawyerland: James Boyd White's Improvisations of Law as Literature," 13 Cardozo Studies in Law and Literature 157 (2001)-an article better than its t.i.tle.

Nussbaum, note 9 above, at 133134. Cf. Daniel Brudney, "Knowledge and Silence: The Golden Bowl and Moral Philosophy," 16 Critical Inquiry 397, 431 (1990), commending Maggie's "tact" in resolving the crisis created by her husband's adultery with minimum damage to the people involved.

that did not drive the Prince from her; it merely gave him the opportunity he craved to begin (or continue, or resume-it is unclear which) a s.e.xual liaison with Charlotte. What Maggie experiences is not recognition that she has been a bad wife but loss of innocence, a literary theme since the Iliad and a recurrent one in James's novels. The future of Maggie's relations.h.i.+p with her husband is left unclear at the end of the novel; I should think it rather grim. I do not see why we should want her "to give herself to her husband," who had married her not for love but for money, though he is impressed by the skill with which she breaks up his relations.h.i.+p with Charlotte and banishes her to America.

Nussbaum is right that moral dilemmas are more vividly rendered in works of imaginative literature than in books about ethics, which tend to be pious, predictable, humorless, and dull, Nietzsche's ethical writings being a stupendous counterexample-but then he's against morality, at least as the word is usually understood. But I disagree that The Golden Bowl can help us navigate the moral dilemmas in our own lives; that "in the war against moral obtuseness, the artist is our fellow fighter, frequently our guide" (p. 164). Maggie is not morally obtuse, though marrying a fortune hunter for his aristocratic pedigree and Continental suavity was imprudent, perhaps immature.

The Golden Bowl can accommodate incompatible moral responses, which is typical of great literature. You don't have to condemn the adulterers. You can side with them, finding Maggie the insufferable rich daddy's girl and social sn.o.b from start to finish46 and thinking it wrong that Charlotte should lose out to her merely because Maggie is rich and Charlotte poor. You can look down on the Prince as a gold digger, since he married Maggie for her money-his excuse being that his aristocratic status obligated him to support his relatives in Italy and renovate his 46. "If our sympathies are anywhere they are with Charlotte and (a little) the Prince, who represent what, against the general moral background of the book, can only strike us as decent pa.s.sion; in a stale, sickly and oppressive atmosphere they represent life." F. R. Leavis, The Great Tradition: George Eliot, Henry James, Joseph Conrad 160 (1962). Nussbaum may be coming around to this view, for in an essay written after Love's Knowledge she criticizes Maggie and her father for treating their spouses "as fine antique furniture," thereby "denying them human status." Martha C. Nussbaum, "Objectification," 24 Philosophy and Public Affairs 249, 288 (1995).

*crumbling ancestral palazzo-and think Maggie poor-spirited both for marrying him in the first place and for forgiving his adultery. Noting that the Prince traces his ancestry and t.i.tle to Amerigo Vespucci, the rather minor explorer after whom the Americas mistakenly were named, you can regard Prince Amerigo as a fraud. You may be made uncomfortable by the intimacy between Maggie and her father, so much greater than their intimacy with their spouses, and detest their condescension, as rich people, to the prince and Charlotte, the hustlers.

The novel may be warning readers that it is a mistake for women to make marriage their whole career, that men and women alike should work rather than live off inherited wealth like Maggie and the Prince. It may even be presenting a "grim parody" of the marital ideals of nineteenth-century England and America and of the capitalist system in which those ideals are embedded and which they reflect.47 Nussbaum and Brudney, liberal moral philosophers oddly aligned with the rich girl and her obscenely rich father, are insensitive to the moral ambiguity of Maggie's station in life and of the marriage system that she upholds.

The different takes on the novel can coexist quite happily. The Golden Bowl is richly ambiguous and exerts no pressure on the reader to select the one "right" reading. Moral readings of works of literature tend to be reductive, and thus to commit the same sin of which the moralistic critics accuse the social scientists. To focus on the moral issues in The Golden Bowl is to risk losing sight of the prurient and Gothic vein in James's imagination-his fascination with the lurid, the unnatural, the quasi-incestuous (Hamlet would have considered s.e.x between the Prince and Charlotte, after she becomes his stepmother-in-law, incestuous), and the voyeuristic: the wife committing adultery with her stepson-in-law, the daughter condoning her husband's adultery with her stepmother, the husband committing adultery with his stepmother-in-law, the daughter aware of and managing the adultery, the father s.e.xually impotent (this is clearly implied) and emotionally closer to his daughter than to his wife, his daughter closer to him emotionally than to her husband, the whole weird 47. Joseph A. Boone, "Modernist Maneuverings in the Marriage Plot: Breaking Ideologies of Gender and Genre in James's The Golden Bowl," 101 Publications of the Modern Language a.s.sociation 374, 380 (1986).

menage seen through the eyes of the fascinated middle-cla.s.s squares, the a.s.singhams, with f.a.n.n.y a.s.singham (a name richly derisive)-the female counterpart to Pandarus in Shakespeare's play Troilus and Cressida-the facilitator of the adultery.

Henry James was not a moralist, but something stranger and more interesting. I do not think a moralist can understand The Golden Bowl, or another of his great late novels, The Wings of the Dove (1902). Again we have the hustlers juxtaposed with the rich. Kate Croy and Merton Densher are young, enormously attractive, and penniless-she burdened with a horrible family (a father, a sister, and a brother-in-law-all losers), almost like a character in d.i.c.kens, he a modest journalist. Kate's wealthy Aunt Maud takes Kate under her wing and promises to make her rich- provided Kate marries well, and that means to someone like the odious Lord Mark, and absolutely not to Densher, though Maud likes him (everyone likes him). But now Milly Theale, an immensely wealthy and good young American woman, appears in London, becomes best friends with Kate Croy, and falls quietly in love with Merton Densher, whom Milly had met in New York when he was on a journalistic a.s.signment. Milly is dying of a mysterious disease, as Kate guesses, and Kate hatches with Densher a plan whereby he'll pretend to fall in love with Milly in the hope that she'll agree to marry him and her death after they are married will make him rich and then he and Kate, who are already secretly engaged and have consummated their relations.h.i.+p (Densher's price for agreeing to her plan), can marry and live in style. Living in style is very important to the supremely elegant Kate, who in addition would like to be able to support her f.e.c.kless relatives.

Densher begins courting Milly, but the plan falls apart when Lord Mark, learning of Milly's affliction and hoping to supplant Densher, tells Milly that Densher is engaged to Kate. Milly, in despair, "turns her face to the wall," and soon dies. n.o.bly she leaves a great deal of money to Densher, but he refuses to take it, and Kate leaves him, though less because of the money than because she realizes that he has fallen in love with the memory of Milly, though he never loved the living Millie.48 48. This is a little strange. Why couldn't he, by a.n.a.logy to a widower who remarries, love Kate and Millie's memory?

*The simple-minded moralistic take on the novel is that Kate Croy is a devil and Milly Theale an angel. A subtler moralistic a.n.a.lysis would note that if Kate's plan49 had worked (as it would have if Lord Mark hadn't spilled the beans to Milly), everyone except Lord Mark, including Milly and Aunt Maud, whose only concern about Kate's marrying Densher is his lack of money, would have been better off (and even Lord Mark wouldn't have been worse off)-just as all the disasters in King Lear would have been averted if only Cordelia had been less stiff-necked and given her father the extravagant verbal a.s.surances of love that he craved. There was a risk that Kate's plan wouldn't work, in which event Milly at least would be worse off. The risk materialized. But from an ex ante utilitarian perspective Kate's plan could be thought on balance morally justified.

A deeper understanding of the novel begins with recognizing that Kate Croy is the star character in point of intelligence, beauty, consistency of aim, ingenuity, daring, and even (this is much emphasized, by contrast with Milly) health. She is Nietzsche's over[wo]man, rendered desperate by the moral arbitrariness of the distribution of wealth in her social set. Milly is a fine person, but would be insignificant in comparison to Kate were it not for the accident of her inherited wealth. Merton Densher, like most men in James's novels, is weak, his falling in love not with Millie but with her memory is maudlin, and his giving up Kate and money is poor-spirited. Aunt Maud and Lord Mark are despicable schemers. Kate cannot afford to be good50 like Milly, and the reader cannot fail to admire Kate's strength and pluck and determination (what in 1902 would have seemed her "masculine" strength and determination). She is beyond good and evil.51 Kate's "despicable plan," as Wayne Booth predictably calls it. Booth, "Why Ethical Criticism Can Never Be Simple," in Ethics, Literature, and Theory, note 8 above, at 23, 34. In Booth's hands it is very simple.

50. Leavis, note 46 above, at 157.

See Michael R. Martin, "Branding Milly Theale: The Capital Case of The Wings of the Dove," 24 Henry James Review 103, 128, 129 n. 11 (2003). Henry James "invests a great deal of s.p.a.ce convincing us that she [Kate] is likely the most complex, socially capable, and intelligent character in the novel." Robert B. Pippin, Henry James and the Modern Moral Life 6 (2000). See also id. at 21 n. 6.