Law and Literature Part 8

The negativity of the picture of equity in Bleak House is in striking contrast to the rosy hues in which equity jurisprudence is painted in The Merchant of Venice (though in the guise of mercy rather than of positive law). The English equity jurisdiction had arisen in the Middle Ages in response to the rigidity and hypertechnicality of the common law courts, which, like many primitive adjudicators, were unable to render substantive justice in a large cla.s.s of cases. The Lord Chancellors, originally Roman Catholic cardinals (such as Becket and Wolsey), dispensed justice according to conscience rather than strict legal forms. Later the rules and remedies of equity jurisprudence, as the jurisprudence developed by the Lord Chancellors came to be known, were inst.i.tutionalized in the Court of Chancery. The irony exploited by d.i.c.kens in Bleak House is that the court of conscience became the nation's worst example of legal abuses. This made it an irresistible target for a moralist who believed (very much 30. George Orwell, "Charles d.i.c.kens," in The Collected Essays, Journalism and Letters of George Orwell, vol. 1, p. 413 (Sonia Orwell and Ian Angus eds. 1968); Joseph I. Fradin, "Will and Society in Bleak House," in Critical Essays on Charles d.i.c.kens's Bleak House 40, 63 (Elliot L. Gilbert ed. 1989); Robert A. Donovan, "Structure and Idea in Bleak House," 29 English Literary History 175 (1962).

in the spirit of the Romantic movement) that inst.i.tutions pervert the inborn goodness of people.

A lawyer would point out that equity had the weakness of its strengths, just as law had the strength of its weaknesses. It is the old dilemma of rule versus discretion. Equity started out as a font of discretionary justice. This proved intolerable,31 and rules of equity emerged; nevertheless equity procedure remained relatively informal, and this promoted delay and uncertainty. Proceedings at law were full of crotchets and traps but at least moved along at a smart pace. The underlying dilemma may be inescapable.

Wallace Stevens Wallace Stevens was a lawyer, like Kafka. Indeed, both practiced insurance law. But while Kafka often worked law into his fiction, Stevens never worked law into his poetry. Until law professor Thomas Grey wrote a book about Stevens, no one thought his poetry had anything to do with his day job as a lawyer and executive.32 Grey argues that legal thought oscillates between unrealistic extremes -the "official" position that legal conclusions follow deductively from general principles and the "opposition" line that law is really just politics-and that Stevens in his poetry is "a kind of therapist for the habitual and inst.i.tutional rigidities of binary thought" that generate this oscillation (p. 7). I agree with the first point; it is silly to think that the issue in jurisprudence is whether law is all logic or all politics-all the left-hand side of Table 1 in chapter 3 or all the right-hand side. I also agree that law and literature scholars who believe that the choice is between conceiving of This was well recognized by the sixteenth century, if not sooner. See, for example, Andrew J. Majeske, Equity in English Renaissance Literature: Thomas More and Edmund Spenser 9698 (2006).

Thomas C. Grey, The Wallace Stevens Case: Law and the Practice of Poetry (1991). Relatively few short poems take law as their theme. But Lawrence Joseph, a contemporary poet who, like Stevens, was trained and practiced as a lawyer, has made law a princ.i.p.al subject of his poetry. See David A. Skeel, "Practicing Poetry, Teaching Law," 92 Michigan Law Review 1754 (1994), reviewing Lawrence Joseph, Before Our Eyes (1993). Emily d.i.c.kinson, from a family of lawyers, used many legal terms in her poems. See Robert G. Lambert Jr., Emily d.i.c.kinson's Use of Anglo-American Legal Concepts and Vocabulary in Her Poetry (1997).

*the judge as a poet and conceiving of him as an economist, and choose the first, are embracing a precious and irrelevant aestheticism.33 I further agree that to the extent that Stevens is a "philosophical" poet, the philosophy is pragmatism; this enables Grey to draw interesting parallels between Stevens and Oliver Wendell Holmes. But I disagree that Stevens's poetry (even apart from its difficulty) is a useful corrective for the type of dichotomous thinking of which Grey rightly accuses major schools and figures in jurisprudence.

In "The Motive for Metaphor"34 Stevens contrasts the world of metaphor ("The obscure moon lighting an obscure world / Of things that would never be quite expressed") with the "real" world: "Steel against intimation .../The vital,arrogant,fatal,dominant X."The algebraic symbol is a metaphor of the efficient, Gradgrindian, "bottom line" orientation that characterizes the world of "primary noon,/The A B C of being,/The ruddy temper, the hammer / Of red and blue, the hard sound." Grey thinks Stevens is contrasting the poet with the hard-headed lawyer who disdains ambiguity and metaphor. So read, the poem "cleanly separates- as Stevens did in his life . . .-the realms of poetry and law" (p. 59).

But Grey thinks that the poem is actually trying to blur the dichotomy between the metaphorical world and the real world. He notes that while spring, a transitional season, is an apt metaphor for the nuanced, elusive (and allusive) world of poetry or metaphor, Stevens chose as his symbol for the clear-eyed world of quotidian reality not summer, as the reader is expecting, but a moment-noon-that lasts only an instant and occurs in every season. The contrast between the world of metaphor and the world of action is further blurred by the fact that the poem's opening lines ("You like it under the trees in autumn,/Because everything is half dead"),while describing the world of metaphor, are uncharacteristically (for Stevens) flat, clear, and literal. Grey concludes that Stevens is denying that the metaphoric world is all a dreamy mist and the real world all hard-edged masculine clarity (life according to Henry Wilc.o.x). Both are a mixture of 33. "Strategically, to accept the separation of heart and head and align with the heart in the ensuing party struggle [with, for example, the law and economics movement] is to relegate oneself to marginal, weekend, after-hours status-and to losing." Grey, note 32 above, at 89. I return to this issue in the last section of chapter 9.

34. The Collected Poems of Wallace Stevens 288 (1954).

hard and soft, clear and blurred, masculine and feminine. "The Motive for Metaphor" is a "warning of the dangers of lawyers' locating their subject too much in literature's obscure world of rustling leaves and melting clouds, too little in the harsh smithy of noonday sweat and violence. The secondary reading, the other side that Stevens brings us to hear after resisting our intelligence almost successfully, warns of an opposed jurisprudential danger" (p. 64).

This is ingenious; but a reader is ent.i.tled to be skeptical about the a.s.sociation of the world of "primary noon," "the ruddy temper," "steel against intimation," "X," and so forth, with law, as where Grey says that "'Steel against intimation' then juxtaposes two aspects of law: its sharp rigidity . . . and its flexibility before the imagination" (p. 67). Stevens's text lacks the clues that enabled us to read Henry Wilc.o.x's arguments against Helen's being permitted to stay overnight at Howards End as legalistic. Stevens was a lawyer, but people can play multiple roles with bulkheads separating them.35 Grey acknowledges that Stevens succeeded in dichotomizing the practice of law and the writing of poetry.36 Since poetry is a metaphoric medium, any "statement" that it makes is likely to be couched in metaphoric terms. And since a fresh metaphor implies the yoking of dissimilar terms, it is easily taken ironically-as was done by the New Critics, for whom irony was a pervasive feature of the poetry they most admired. But this tells us more about poetry than about law. The specific examples that Grey uses to demonstrate the inescapably metaphoric character of daily reality are unconvincing. An example is the subst.i.tution of noon for summer (or winter) to signify that reality. The word "summer" has complex a.s.sociations; "noon" brings straight to mind the sun's brightness37 and thus complements the "harsh sound" and "sharp flash" with which Stevens extends the image of the real world in the next stanza.

I doubt that "The Motive for Metaphor" will lead judges, lawyers, or law students to find "binary thought" in jurisprudence uncongenial. If 35. Erving Goffman, The Presentation of Self in Everyday Life (1959).

This conclusion is questioned, however, in David A. Skeel Jr., "Notes toward an Aesthetics of Legal Pragmatism," 78 Cornell Law Review 84, 94104 (1992).

That is why the t.i.tle of Arthur Koestler's novel Darkness at Noon is so arresting even for readers who do not recognize the allusion to the Crucifixion.

*Stevens could separate the practice of law from poetry, should we expect his readers to be less successful in doing so? Might not the reading of poetry be a relief from practicing or writing about law rather than a source of professional guidance? Lawyers might be able to derive some professional utility from studying Stevens's poetry simply because it is difficult; that is what tempts the reader (it tempted Grey) to seek aids to understanding in the poet's biography. Reading a poem by Stevens requires the reader not only to attend carefully to every word but also to consider the extent to which guides to meaning can appropriately be sought from sources outside the text itself, and to make use of the linguistic and cultural competence that Stevens would have expected his readers to bring to their reading of his poetry. To be a good lawyer one must be a careful and resourceful reader, and immersion in poetry and other difficult imaginative literature is therefore not the worst preparation for the study and practice of law.

chapter 5.

Literary Indictments of Legal Injustice

y focus inthis chapter is on Billy Budd, the literary work that

has received more attention from law and literature scholars than any other, and The Brothers Karamazov (though I briefly discuss several other works of literature as well), and on the romantic and neoromantic (including Nietzschean) currents in literary and legal thought that have influenced law and literature scholars.h.i.+p. My jumping-off point is Richard Weisberg's book The Failure of the Word,1 which, building on Nietzsche and romanticism, offers unorthodox readings of both Billy Budd and The Brothers Karamazov.

Law and Ressentiment The ruling concept in Weisberg's book is ressentiment. A word whose currency is due to Nietzsche,2 it means the rancorous envy of the natu Weisberg, The Failure of the Word: The Protagonist as Lawyer in Modern Fiction (1984). Unless otherwise indicated, page references in the text of this chapter are to Weisberg's book. For penetrating early criticism of the book, see John D. Ayer, "The Very Idea of 'Law and Literature,'" 85 Michigan Law Review 895 (1987).

See, for example, Friedrich Nietzsche, On the Genealogy of Morals 7375 (essay II, 11), 121129 (essay III, 1416) (Walter Kaufmann and R. J. Hollingdale trans. 1967). For varied 195.

*rally weak toward the naturally strong. "Slaves, unable to take physical action against the sources of their misery (their masters, their oppressors), are driven by their stewing hatred of their masters to do the only thing they can do, create new values, values that devalue the masters, that invert the masters' valuations: their valuations are, in effect, projections of these powerful reactive emotions."3 The new values include Christian values, legal justice, and the verbalizing of experience, which falsifies the experience. The second and third values are Weisberg's variations on Nietzsche's theme.

Let us first consider how Nietzsche himself had related ressentiment to law. He was on both sides of the issue. The side congenial to Weisberg is summarized in the sentence "And when they say, 'I am just,' it always sounds like 'I am just-revenged.'"4 Ressentiment is to psychology what revenge is to action. The person who seeks to vindicate his legal rights, like the revenger, is deformed by ressentiment. Shylock thus exemplifies ressentiment. (Hamlet, too, according to Weisberg, as we saw in chapter 2.) The Nietzschean "master"5 is above envy, takes no notice of slights, and therefore has no use for revenge and presumably none for a revenge subst.i.tute, such as law. Shakespeare's Coriola.n.u.s, in his candor, valor, modesty, refusal to politick, and seeming lack of an interior life, resembles the Nietzschean master, though imperfectly, because of his rage. (The tribunes who tie him in knots with their cowardly lies exemplify ressenti perspectives on the Nietzschean concept, see R. Jay Wallace, "Ressentiment, Value, and Self-Vindication: Making Sense of Nietzsche's Slave Revolt," in Wallace, Normativity and the Will: Selective Essays on Moral Psychology and Practical Reason 212 (2006); Robert C. Solomon, Living with Nietzsche: What the Great "Immoralist" Has to Teach Us 8993, 101105 (2003); Robin Small, Nietzsche in Context, ch. 10 (2001).

3. Brian Leiter, Nietzsche on Morality 203 (2002).

Friedrich Nietzsche, Thus Spoke Zarathustra: A Book for All and None 95 (pt. II) (Walter Kaufmann trans. 1966). The translation is an attempt to render a pun. The German is: Und wenn sie sagen: "ich bin gerecht," so klingt es immer gleich wie: "ich bin geracht." Recht means justice, Rache revenge.

On the difference between "masters" and ubermenschen, see John Richardson, Nietzsche's System 5272 (1996). The master belongs to the world before the priests came to dominate it and is naturally n.o.ble; the ubermensch ("overman" or "higher man") is a latecomer who nevertheless manages to overcome the slave morality within himself. The typical higher man is the creative genius, such as Goethe. Leiter, note 3 above, at 115123.

ment.) The historical Julius Caesar, with his famous clemency-his refusal, unique among Roman leaders, to hold grudges-is a better example than Coriola.n.u.s, and better still is Caesar as depicted by George Bernard Shaw, a Nietzschean, in Caesar and Cleopatra and by Thornton Wilder in The Ides of March.

Yet in places Nietzsche suggests that law is an effort to overcome res-sentiment. 6 Weisberg does not take up that suggestion. He wishes to exhibit law as an instrument of ressentiment. He pushes the point very hard, arguing that the legalistic conception of law, for example, Angelo's conception in Measure for Measure, leads straight to the n.a.z.i extermination of the European Jews. Although Shylock, br.i.m.m.i.n.g over with ressentiment, personifies murderous legalism, Weisberg rejects the personification because it would blur the connection that he is trying to draw between ressentiment and antisemitism.

The legalistic cast of mind can indeed be exasperating and, worse, lead to, or more commonly blind one to, injustice. But the suggestion that it fosters genocide is sufficiently outre to require evidence. Little is forthcoming, and the opposite thesis could be argued from Weisberg's own a.n.a.lysis of Billy Budd. For we shall see that if Weisberg is right about eighteenth-century British naval law, Billy Budd would not have been executed (not so soon, anyway) had Captain Vere been a stickler for legal niceties. And recall what I said in chapter 3 about legalism being the pariah's friend. Furthermore, the insinuating style of the European examining magistrate, whose methods Weisberg deplores, ill.u.s.trates not the operation of legal technicalities but the power of informal, discretionary procedures. A system of criminal justice like the American one, which throws greater protections (many highly legalistic) around the criminal suspect, would have made it harder for a jury to convict Meursault.

Romantic Values in Literature and Law Behind the concept of ressentiment lies an opposition between two human types-"natural" man and "social" or "civilized" man (for Nietzsche, 6. See, in particular, Nietzsche, note 2 above, at 7376 (essay II, 11).

*resentful man). The first type approximates the Nietzschean master, whose prototype is Achilles,7 the heroic individual whose devotion to personal honor and indifference to the claims of the community place him on a collision course with the herd of ordinary men living in supine conformity to collective norms. Although Achilles himself expresses doubts about the heroic code, the claims of society in the Iliad are weak; his placing his own honor above the welfare of the Greek cause in the Trojan War is depicted as admirable rather than treasonable.

The Greek and Elizabethan tragedies temper admiration for individualism with a sharp awareness of the competing claims of society (Prometheus Bound and Tamburlaine the Great are exceptions) and often present the great protagonists as deluded (Oedipus, Lear, Brutus, Oth.e.l.lo, Coriola.n.u.s) or immature (Hamlet). The excesses of individualism are especially marked in Edmund in King Lear. In works of Christian literature, such as the Divine Comedy and Paradise Lost, great individuals often are consigned to h.e.l.l, and the social virtues (what Nietzsche called the herd instinct or slave morality) are celebrated.8 The First Part of Tamburlaine the Great by Christopher Marlowe depicts the triumph of an indomitable will that carries a Scythian shepherd to the heights of power. Tamburlaine explains his philosophy to the Persian king whom he has just defeated (II.7.1229): The thirst of reign and sweetness of a crown, That caus'd the eldest son of heavenly Ops To thrust his doting father from his chair, And place himself in the imperial heaven, Mov'd me to manage arms against thy state.

What better precedent than mighty Jove?

Nature, that fram'd us of four elements On Achilles as Nietzsche's "blond beast," see W. Thomas MacCary, Childlike Achilles: Ontogeny and Phylogeny in the Iliad 249 (1982). Yet Achilles' wrath, like Coriola.n.u.s's, would seem to disqualify him.

C. S. Lewis, A Preface to Paradise Lost, ch. 11 (1942). On Milton's Satan as an inversion of the epic hero, see John M. Steadman, Milton and the Renaissance Hero (1967); and on Renaissance ambivalence about the heroic, see Concepts of the Hero in the Middle Ages and the Renaissance (Norman T. Burns and Christopher J. Reagan eds. 1975).

Warring within our b.r.e.a.s.t.s for regiment, Doth teach us all to have aspiring minds.

Our souls, whose faculties can comprehend The wondrous architecture of the world, And measure every wandering planet's course, Still climbing after knowledge infinite, And always moving as the restless spheres, Will us to wear ourselves and never rest, Until we reach the ripest fruit of all, That perfect bliss and sole felicity, The sweet fruition of an earthly crown.

Tamburlaine's precedent is successful rebellion and his goal the possession of an earthly, not a heavenly, crown. It is a subversive as well as a blasphemous goal; the suggestion that all of us can aspire to an earthly crown is a frontal thrust at the divine right of kings. And notice how Tamburlaine relates pride and worldly ambition to scientific curiosity. The vision is of the individual's taking control of his destiny instead of accepting the place allotted to him in a hierarchical universe. Not even on his deathbed, in The Second Part of Tamburlaine the Great, does Tamburlaine display awareness of human finitude.

The hero of Marlowe's other great drama of self-a.s.sertion, Doctor Faustus, is at first as aspiring as Tamburlaine. But like Macbeth he dies a wiser man, having discovered the resistance that reality puts up to the transformative efforts of the human imagination. Macbeth, with the help of the witches, and Faustus, with the help of Mephostophilis, get most of what they ask for, but it turns out not to be what they want.

Whether the audience of Doctor Faustus was intended to take an orthodox Christian view of the pact with the devil or to identify with Faustus's Promethean aspirations has been much debated.9 The best charac 9. Wilber Sanders, The Dramatist and the Received Idea: Studies in the Plays of Marlowe and Shakespeare, ch. 11 (1968). George Santayana argued in Three Philosophical Poets: Lucretius, Dante, and Goethe 133135 (1910) that Marlowe's play marks the beginning of the rehabilitation of the Faust figure's image, a process that culminates in Part II of Goethe's Faust. See also Ian Watt, Myths of Modern Individualism: Faust, Don Quixote, Don Juan, Robinson Crusoe, ch. 2 (1996).

*terization of Faustus is Robert Potter's: "magnificent villainy."10 By his pact with the devil Faustus seeks to annul the limitations that G.o.d imposes on human aspiration; when made forcibly aware of those limitations he refuses to bow to them even at the cost of d.a.m.nation.

Tamburlaine's "aspiring minds" speech could serve as a manifesto of Romanticism, except that the Romantics lacked the Renaissance enthusiasm for science. William Blake, who thought Satan the real hero of Paradise Lost, inverted the conventional values, just as Marlowe's Tamburlaine had done and Nietzsche would do (and Richard Weisberg tries to do, as we shall see). Natural man is good and society and religion are evil, as Blake explains in "The Garden of Love": I went to the Garden of Love . . . That so many sweet flowers bore; And I saw it was filled with graves, And tomb-stones where flowers should be; And Priests in black gowns were walking their rounds, And binding with briars my joys and desires.

The word "Romanticism," if it is to be used with precision, has to be confined to a cl.u.s.ter of literary, artistic, and philosophical movements in the late eighteenth and early nineteenth centuries.11 But the romantic impulse or temperament-the residue of the boundless egoism of early childhood, the sense of loss that accompanies growing up, and the nostalgia for lost youth which that sense produces-is one of humankind's fundamental moods.12 For example, both it and its rejection figure prominently in the Odyssey.

Potter, The English Morality Play: Origins, History and Influence of a Dramatic Tradition 128 (1975). The same description could be applied to Satan in Paradise Lost.

Arthur O. Lovejoy, English Romantic Poets: Modern Essays in Criticism 3 (M. H. Abrams ed., 2d ed. 1975). Even so confined, the term conceals tremendous diversity. Byron's Romanticism, for example, is more realistic than Sh.e.l.ley's. I shall generally ignore these nuances. Rousseau is the most consistent exponent of Romanticism in the sense in which I'll be using the word.

The continuity with twentieth-century neo-Romantic poets, notably Yeats, is well discussed in George Bornstein, Transformations of Romanticism in Yeats, Eliot, and Stevens (1976), esp. chs. 1 and 2. See also Frank Kermode, Romantic Image (1957). I use "Romantic" to denote the movement, "romantic" the mood.

After 20 years of war and wandering, Odysseus returns to Ithaca disguised as a beggar and tells the following tall tale to his swineherd, Eumaeus (Odyssey 14.199359). He was born in Crete, the b.a.s.t.a.r.d son of a wealthy man who had many legitimate sons. The father honored him equally with his half-brothers. But when the father died, the arrogant sons divided his property by lot, a.s.signing only a small holding to the narrator. He was nevertheless able to get a wife from a wealthy family because of his prowess-he was good at the ambush, loved to charge the fleeing foe, and so forth. Farming and domestic management were not for him; his world was that of s.h.i.+ps and battles and the like, things other people dreaded. Before the Trojan War he had led nine sea raids against foreigners and won a lot of booty, and he was feared and respected by his fellow Cretans.

Then Zeus decreed that awful journey-as the narrator calls the Trojan War-that killed many men. The people kept urging the narrator and Idomeneus, the leader of the Cretan contingent in the allied Greek force, to sail for Troy. There was no way to get out of it, so harsh would the verdict of public opinion have been. After Troy fell, the narrator managed to reach home. But he remained there for only a month before his spirit moved him to sail to the Nile. He anch.o.r.ed and sent some men out as scouts, ordering the rest to stay by the s.h.i.+ps. They were c.o.c.ky, however, and trusting to their strength ravaged the Egyptians' fields. The Egyptians sallied forth from their town and routed the Cretans, sparing only the narrator (who interrupts the story at this point to say, "Would that I had died there in Egypt!"). He clasped and kissed the Egyptian king's knees in supplication. The king pitied him and s.h.i.+elded him from the angry populace.

The narrator spent seven years in Egypt and gained wealth. But in the eighth year he was persuaded to accompany a deceitful merchant to Phoenicia, who after a year sent him with a cargo to Libya ostensibly to trade but actually intending to sell him into slavery when the s.h.i.+p arrived. The s.h.i.+p was wrecked in a storm, and after floating for ten days clinging to the mast the narrator was washed ash.o.r.e in the land of the Thesprotians. The son of Pheidon, their ruler, found him, exhausted from his ordeal, and led him to his home and clothed him. Pheidon asked the crew of a Thesprotian s.h.i.+p that was sailing in the direction of Crete to take the narrator with them. As soon as they were out of sight of land the crew took away his *clothes and gave him beggars' rags. When the s.h.i.+p stopped that evening at Ithaca the crew bound him in the hold while they went ash.o.r.e to eat, but he slipped his bonds and swam to sh.o.r.e.

The false tale both exalts Odysseus by contrasting his career with that of the narrator and brings Odysseus down to earth by retelling his life, and reinterpreting his character, in terms appropriate to the comparatively realistic setting and events of the poem's denouement. The Odyssey has many romantic elements-the tale of Odysseus's adventures at Troy and of his wanderings before he lands in Ithaca is shot through with them. But the movement of the poem is antiromantic. The significance of Odysseus's rejection at the beginning of the poem of Calypso's offer of a sensual and luxurious immortality on the island of Ogygia in favor of his minor kings.h.i.+p, mortal span of years, grown son, and middle-aged wife is underscored by the fact that the Ogygian idyll was for Odysseus the culmination of a career of near-superhuman achievement at Troy and adventures of mythic proportions afterward (with the Cyclops, with Circe, in Hades, and so on). Ogygia is a one-man Valhalla and thus a fitting climax, one might think, to Odysseus's doings at Troy-which have already pa.s.sed into legend and song-and his subsequent wanderings. Nevertheless Odysseus leaves Ogygia, and the end of the poem presents him as a hero on a human rather than superhuman scale. He has been outwitted by his wife and, disguised as a beggar, has suffered intolerable indignities at the hands of the suitors. He finishes the suitors off neatly, but they are a poor lot compared to his fabulous adversaries in the first half of the poem, and he needs the help of his son and several faithful retainers to come into his own as the restored king of his small realm and as husband, son, and father. We are made to understand that reintegration into human society, though not itself a heroic destiny, is the best culmination of a heroic career.

This lesson is reinforced by references to the unhappy fate of Agamemnon and other heroes of the Trojan War and by the everyman character of Odysseus. Neither the strongest nor the n.o.blest of the Greek heroes, he is merely the most intelligent. His skill at instrumental or practical reasoning is emphasized throughout the Odyssey. Intelligence is the defining trait of the human animal. Odysseus is the most representative human figure in Homer, which makes him a plausible model (among cla.s.sical heroes) for Joyce's Ulysses.

The parallels between the "true" story of Odysseus's life before he returns home from Troy and the false tale are numerous,13 though the latter is the story of an average, restless, disappointed, and unlucky man-a minor and now soured adventurer. The narrator's service at Troy was apparently without distinction, and his subsequent wanderings were certainly no more so. Instead of being rescued like Odysseus by a beautiful princess (Nausicaa of the kingdom of Scheria) who promptly falls in love with him, he is rescued by a prince. Instead of returning to Ithaca on a s.h.i.+p that rows itself, supplied by the king of a magic kingdom, he is conveyed by thugs who rob him, and he must scramble furtively ash.o.r.e and hide in a thicket. And he is not really home; supposedly he lives in Crete, not Ithaca. He is stranded far from home.

The false tale thus accentuates a basic movement in the Odyssey, which is to make Odysseus more distinct and, correlatively, more recognizably human. At first he is a vague offstage presence, and although we know that he's alive most of the characters in the poem do not. When he first appears he is quasi-human, eating ambrosia in Calypso's cave; then, after his rescue by Nausicaa, he is shown in the Scherians' banquet hall telling the fabulous story of his wanderings. Back in Ithaca at last, dealing with the members of his household, attending to domestic ch.o.r.es, recalling his life before the Trojan War, he is a more fully realized human character, and the Odysseus of the earlier books becomes a memory.14 Often one can acquire a deeper understanding of a work of literature by distinguis.h.i.+ng between foreground and background stories. In one sense the Odyssey is the story of Odysseus's career after the Trojan War, just as the Iliad is the story of the Trojan War, Oedipus Tyrannus the story of Oedipus, and Hamlet the story of the murder of Hamlet's father and Hamlet's efforts to avenge the murder. But in all four works the foreground story is a truncated version of the entire story.15 In the Odyssey it is 13. See Irene J. F. de Jong, A Narratological Commentary on the Odyssey 353355 (2001).

See Pierre Vidal-Naquet, "Land and Sacrifice in the Odyssey: A Study of Religious and Mythical Meanings," in Myth, Religion and Society: Structuralist Essays 80, 83 (R. L. Gordon ed. 1981) (discussing "Odysseus's return to normality . . . [and] his deliberate acceptance of the human condition"); Charles Paul Segal, "The Phaeacians and the Symbolism of Odysseus' Return," Anon, Winter 1962, pp. 17, 25, 29 n. 13.

In both Oedipus and Hamlet this is because they are plays of discovery-precursors, in a sense, of the detective story-and would lose their drama and suspense if the horrors discovered were revealed to the audience at the outset.

*the story of Odysseus's return not from Troy but from Ogygia. He moves from west to east, from immortality to mortality, from a life of ease to one of struggle, and he does so through a liquid medium (the sea) and is symbolically reborn in a cave in Ithaca. He chooses life over death, reality over imagination, earth over paradise (Ogygia is a pagan counterpart of Eden), work over retirement.

An intersecting movement in the poem is the maturing of his son, Telemachus. At the beginning of the poem father and son are worlds apart. Their physical separation symbolizes the emotional gulf between the shallow youth of Book 2 and the hero of the Trojan War. The rapid maturing of Telemachus through a series of adventures const.i.tuting, much like the false tale told to Eumaeus, a scaled-down version of Odysseus's career-coupled with the redefinition of Odysseus as a human hero-enables father and son to join as approximate equals in the three-generation tableau that ends the poem. Family continuity is presented as an alternative form of immortality both to fame-Achilles' way in the Iliad-and to personal immortality, which Odysseus rejects in leaving Ogygia. The contrast between the world of the Iliad and that of the Odyssey is ill.u.s.trated by Achilles' pleasure when Odysseus tells him, in the course of the visit to the underworld, of the exploits of the dead hero's son.16 In contrast to the critical perspective on attempts to transcend human finitude that the Odyssey offers, Romantic literature laments the loss of the child's sense of unlimited, even superhuman, potential. Wordsworth's "Ode: Intimations of Immortality from Recollections of Early Childhood" tells us that Our birth is but a sleep and a forgetting: The Soul that rises with us, our life's Star, Hath had elsewhere its setting, And cometh from afar: Not in entire forgetfulness, And not in utter nakedness, 16. "So I said and / off he went, the ghost of the great runner, Aeacus' grandson / loping with long strides across the fields of asphodel,/triumphant in all I had told of him of his son,/his gallant, glorious son" (14.612616).

But trailing clouds of glory do we come From G.o.d, who is our home: Heaven lies about us in our infancy! Shades of the prison-house begin to close Upon the growing Boy . . .

Thou [six-year-old], whose exterior semblance doth belie Thy Soul's immensity; Thou best Philosopher, who yet dost keep Thy heritage, thou Eye among the blind . . .

Mighty Prophet! Seer blest! On whom those truths do rest, Which we are toiling all our lives to find . . .

This is magnificent poetry, although the surface meaning is absurd; six-year-olds do not have the knowledge that adults spend their whole lives trying to relearn. But well-treated and well-beloved children, and young people generally, do have vitality and enthusiasm, warmth and idealism, a sense of infinite horizons and limitless power to do good- all qualities that are eroded by aging and experience, leaving in some people a sense of profound loss. "The suns.h.i.+ne is a glorious birth; / But yet I know, where'er I go,/That there hath past away a glory from the earth": so Wordsworth. Others have thought differently. Here is Aristotle on youth: They look at the good side rather than the bad, not having yet witnessed many instances of wickedness. They trust others readily, because they have not yet often been cheated. They are sanguine . . . [because] they have as yet met with few disappointments . . . [Their] hot temper prevents fear, and the[ir] hopeful disposition creates confidence . . . They have exalted notions . . . They think they know everything, and are always quite sure about it.17 17. Aristotle, Rhetoric, bk. 2, ch. 12, in The Complete Works of Aristotle, vol. 2, pp. 22132214 (Jonathan Barnes ed. 1984) (W. Rhys Roberts trans.) (1389a1389b). Aristotle's view is echoed in Michael Oakeshott, "On Being Conservative," in his book Rationalism in Politics and *The Romantic cult of the child implies the rejection of inst.i.tutional Christianity with its doctrine of original sin,18 of the natural sciences because of their realism, and of economics because of its emphasis on constraints-an emphasis particularly marked in the age of Malthus, which coincided with the Romantic age. Romanticism transfers the attributes of divinity from G.o.d to man and by doing so holds out the promise that man (like G.o.d) can create his own reality by an act of imagination. It teaches that natural man is good as well as full of latent power but becomes corrupted and weakened by inst.i.tutions, by "the system"-the domain of the adult, the experienced, the cynical, the worldly-as if maturation and aging were social phenomena rather than personal and biological ones.

Nietzsche despised Romanticism but was romantic in the generic sense, "elevat[ing] to new heights the characteristically modern aspirations to conquer fortune, to master nature, and to actualize freedom."19 His "consistent preference is clear: he is always for the single man against the herd, for genius against justice, for grace against deserts; he favours inspiration against the rule of rules and professional competence, and the heroic in every form against all that is 'human, all too human.'"20 Nietzsche amplifies the Romantic hostility to inst.i.tutions in general and organized Christianity in particular by attacking the Christian religion root and branch and-contrary to Richard Weisberg's equation of ressentiment with antisemitism-by attacking the Jews as the resentful inventors of Christianity: The truly great haters in world history have always been priests . . . Al*that has been done on earth against "the n.o.ble," "the powerful," "the Other Essays 168, 195 (1962): "Everybody's young days are a dream, a delightful insanity, a sweet solipsism. Nothing in them has a fixed shape, nothing a fixed price; everything is a possibility, and we live happily on credit. There are no obligations to be observed; there are no accounts to be kept. Nothing is specified in advance; everything is what can be made of it. The world is a mirror in which we seek the reflection of our own desires."

18. The qualification inst.i.tutional Christianity is important. Romanticism shares with Christianity (and Marxism) a hope of transcending the normal human condition that is foreign to the outlook of the Odyssey.

Peter Berkowitz, Nietzsche: The Ethics of an Immoralist 2 (1995).

J. P. Stern, A Study of Nietzsche 127 (1979).

masters," "the rulers," fades into nothing compared with what the Jews have done against them; the Jews, that priestly people, who in opposing their enemies and conquerors were ultimately satisfied with nothing less than a radical revaluation of their enemies' values, that is to say, an act of the most spiritual revenge . . . With the Jews there begins the slave revolt in morality; that revolt which has a history of two thousand years behind it and which we no longer see because it-has been victorious.21 This pa.s.sage does not give a full picture of Nietzsche's att.i.tude toward Jews. Alongside it must be placed pa.s.sages of lyrical philosemitism22 together with diatribes against antisemitism and German nationalism (indeed, against Germans, period). Nietzsche did give currency to, although he did not coin, the word ubermensch, which was to play so large a role in n.a.z.i racial doctrine. But he did not use it in a racial sense. Nor did he use the term Untermenschen. Only rarely-but the qualification should be noted-did he speak approvingly of slavery or of racial purity.23 Most of what appears to be vicious in Nietzsche's writings can be interpreted figuratively as designed to promote "positive thinking." He is trying to get people to "say 'Yes' to life" by encouraging them to smash the shackles of custom and habit, stop being craven and weak, cultivate a healthy ego, ignore slights, take responsibility for their life, give 21. Nietzsche, note 2 above, at 3334 (essay I, 7). See also id. at 35 (essay I, 8).

See, for example, Beyond Good and Evil: Prelude to a Philosophy of the Future 185189 ( 250, 251) (Walter Kaufmann trans. 1966); Daybreak: Thoughts on the Prejudices of Morality 124125 ( 205) (R. J. Hollingdale trans. 1982); Human, All Too Human: A Book for Free Spirits 228229 ( 475) (Marion Faber trans. 1984); Joyful Wisdom 288289 ( 348) (Thomas Common trans. 1960). Yet in Beyond Good and Evil ( 195) he again speaks of Jews as "a people 'born for slavery'" (quoting Tacitus approvingly) and again says, "They mark the beginning of the slave rebellion in morals" (p. 108). And in Daybreak he calls the Jews "the best haters there have ever been" ( 377, p. 170).

Walter Kaufmann, Nietzsche: Philosopher, Psychologist, Antichrist, chs. 1011 (4th ed. 1974); Richard Schacht, Nietzsche, ch. 7 (1983). Yet we read in Daybreak, note 22 above, at 1491 ( 272), "Crossed races always mean at the same time crossed cultures, crossed moralities; they are usually more evil, crueller, more restless. Races that have become pure have always become stronger and more beautiful." For other examples of Nietzsche's flirtations with racism, exploitation, and genocide, see Ofelia Schutte, Beyond Nihilism: Nietzsche without Masks, ch. 7 (1984).

*shape and meaning to it-what Joseph K. failed to do, what Meursault in The Stranger finally did, what Alfredo Traps succeeded in doing only in parodic form. The ubermensch is a self-overcomer rather than a "Superman."24 Nietzsche admired much in the Old Testament and praised the a.s.similated Jews of the diaspora. Yet he repeatedly a.s.serted that Jews were ultimately responsible, though perhaps not culpably so, for virtually everything that is bad in the modern world. And he unflinchingly advocated pagan values: "You say it is the good cause that hallows even war? I say unto you: it is the good war that hallows any cause."25 Nietzsche was "an anti-anti-Semite and a critic of ancient Judaism, the cradle of Christianity."26 The n.a.z.is ignored the first part of this condemnation. Weisberg ignores the second.

n.a.z.ism has been described as "a kind of Nietzschean Great Politics."27 The German Volk united in the person of Adolf Hitler, the triumph of the will over material constraints, the glorification of war, the celebration of 24. See note 5 above.

Nietzsche, note 4 above, at 47 (pt. I, Zarathustra's Speeches). "What Nietzsche's song of praise to war and strength expressed was the adoption by wide sectors of the middle cla.s.s of his time of a warrior code which had at first belonged to the n.o.bility." Norbert Elias, The Germans: Power Struggles and the Development of Habits in the Nineteenth and Twentieth Centuries 118 (Michael Schroter ed. 1996). Nietzsche transformed elements of the warrior code "into a middle-cla.s.s nationalist doctrine." Id. at 119.

Yirmiyahu Yovel, "Nietzsche, the Jews, and Ressentiment," in Nietzsche, Genealogy, Morality: Essays on Nietzsche's Genealogy of Morals 214, 215 (Richard Schacht ed. 1994) (emphasis added).

Steven E. Aschheim, Culture and Catastrophe: German and Jewish Confrontations with National Socialism and Other Crises 81 (1996). Consider the following pa.s.sage from Human, All Too Human, note 22 above, at 230231 ( 477): "War essential. It is vain rhapsodizing and sentimentality to continue to expect much (even more, to expect a very great deal) from mankind, once it has learned not to wage war . . . Such a highly cultivated, and therefore necessarily weary humanity as that of present-day Europe, needs not only wars but the greatest and most terrible wars (that is, occasional relapses into barbarism) in order not to forfeit to the means of culture its culture and its very existence." Or this pa.s.sage from The Anti-Christ, in Twilight of the Idols and The Anti-Christ 115116 ( 2) (R. J. Hollingdale trans. 1968): "What is good?-All that heightens the feeling of power, the will to power, power itself in man. What is bad?-All that proceeds from weakness . . . The weak and ill-const.i.tuted shall perish: first principle of our philanthropy. And one shall help them to do so. What is more harmful than any vice?-Active sympathy for the ill-const.i.tuted and weak-Christianity."

pitilessness and cruelty, the replacement of bourgeois by barbarian values, the creation of a master race of the strong and the beautiful, and the release of Satanic energies align Nietzsche, along with reactionary neo-Romantic modern poets such as Yeats, who was influenced by Nietzsche, with fascism at numerous points. And as a cultural rather than a religious antisemite28-a critic not of Jews from a Christian standpoint but of Judaism and Christianity from a pagan standpoint-Nietzsche pointed the way to Hitler's brand of antisemitism; for Hitler too was an anti-Christian who bracketed Christianity and Judaism.

In n.a.z.ism we have an example of Romanticism flipping from the celebration of rebellious individualism to the celebration of communitarianism-the radical communitarianism of neo-Marxists, the conservative communitarianism of Edmund Burke, the organicism of a Mussolini or a Hitler29-in short, the annihilation of the boundaries between individuals. It is law-unromantic, indeed antiromantic-that patrols those boundaries. Romanticism is uneasy with law, as shown by the literary tradition of the romantic outlaw.30 One of the aphorisms in Blake's "Marriage of Heaven and h.e.l.l"-"Sooner murder an infant in its cradle than nurse unacted desires"-could be the epigraph of twentieth-century neo-Romantic novels by Gide, Genet, Camus, and others. Nietzsche's celebration of war is consistent with this sentiment, although he did not go so far as to approve murder. Nor for that matter did Blake. Nietzsche's complaint about Christian values (Blake's too) is not that they repress homicidal impulses but that they are "anti-life."

Weisberg, however, interprets legal novels as taking Nietzsche and the Romantics a step further and celebrating the homicidal ubermensch. Raskolnikov in Crime and Punishment commits two murders, one of which would be first-degree murder in our system. Meursault, we saw, is a murderer. Billy Budd commits what in civilian law (an essential qualification, as we shall see) would be at least manslaughter. Weisberg condones the inversion of values that he thinks these works applaud. He expresses A. D. Nuttall, Why Does Tragedy Give Pleasure? 63 (1996).

See Roger Eatwell, Fascism: A History 67 (1995).

30. Martha Grace Duncan, Romantic Outlaws, Beloved Prisons: The Unconscious Meanings of Crime and Punishment, pt. 2 (1996).

*sympathy for criminal acts and antipathy toward the people who bring criminals to justice-those people, he thinks, are consumed by ressentiment. "The perception of the criminal act as a declaration of freedom from ressentiment is a fundamental contribution of modern literature." "The criminal is not p.r.o.ne to ressentiment." Meursault rebels against "an arbitrary value system" because he has "his own system of what are, on balance, positive values. Meursault stands, as an individual, for the total rejection of verbal sentimentality. As such, he partakes of the free flow of human existence with honesty, if not perfect Cartesian rationality" (pp. 119120). The witnesses at Meursault's trial "fail to convey the benignity of the defendant's moral system" (p. 120). So when Meursault declares that "the sun" produced the homicide, we know that within a system based on openness to sensual experience, the natural environment on the day of the murder-coupled with the slight drunkenness from the luncheon wine, a condition never revealed by the legal ratiocination-did in effect rob him of free will. Indeed, in an American court, Meursault's lack of real premeditation would have formed the basis of a viable defense; with the "personality" issue virtually inadmissible there as well, Meursault might have received a relatively light sentence for manslaughter. (pp. 121122; footnotes omitted) Weisberg's unedifying message is obscured by evasive locutions ("in effect," "real," "viable," "relatively") and by his neglecting to mention that Meursault shot his (unnamed, un-French, depersonalized) victim five times and never expressed remorse. The victim's humanity is ignored while the criminal is portrayed as richly human.31 If "justice" depends on 31. A modern example is the murder of a female student at Yale by a young man from a poor home who not only received great sympathy from the Catholic Church but was given only a short prison sentence for his crime. Willard Gaylin, The Killing of Bonnie Garland: A Question of Justice (1995); Peter Meyer, The Yak Murder (1982). See generally Lynne N. Henderson, "Legality and Empathy," 85 Michigan Law Review 1574 (1987). Might not the charge of lack of empathy for victims of crime be leveled against Susan Glaspell's story "A Jury of Her Peers" (chapter 3)? Could not that story, too, have been told from the victim's standpoint? Maybe the murdered husband had been jealous of his wife's bird, like Harry in John Steinbeck's story "The White Quail," who kills, apparently out of jealousy, the bird that his wife loves. In chapter 11 we shall note the law's effort to redress the forensic balance between murderer and (absent) victim by means of victim impact statements.

who the victim and the injurer are, the popular man will get justice and the unpopular one will not. The essence of legal justice is ignoring the personal merits, status, and attractiveness of the respective litigants.