Literature and Law (Rodopi Perspectives on Modern Literature, 30) (Rodopi Perspectives on Modern Literature)

LITERATURE AND LAW

Rodopi Perspectives on Modern Literature

Edited by David Bevan

LITERATURE AND LAW

Edited by Michael J. Meyer

AMSTERDAM

- NEW YORK, NY 2004

The paper on which this book is printed meets the requirements of " I S 0 9706: 1994, Information and documentation - Paper for documents - Requirements for permanence". ISBN: 90-420-1643-4 (Bound) @Editions Rodopi B.V., Amsterdam - New York, NY 2004 Printed in The Netherlands

CONTENTS

Introduction Retrying The Stranger Again Mary Ann Frese Witt and Eric Witt The Silent Voices of the Law Susan Ayres Law and Order: Exploring the British Legal System in David Hare’s Murmuring Judges Karen C. Blansfield Criminal Apprehensions: Prague Minorities and The Habsburg Legal System in Jaroslav Hašek’s The Good Soldier Švejk and Franz Kafka’s The Trial Jenifer Cushman

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Silence in the Courtroom: Language, Literature, and Law in The Ballad of Frankie Silver Gwen McNeill Ashburn

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Representing Lawyers: Edith Wharton’s Portrayal of Lawyers and Lawyering In The Touchstone and Summer Deborah Hecht

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Ritual Murder and the Corruption of Law in Bernard Malamud’s The Fixer Eric Sterling

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“How Shall We Change the Law?”: Birth Control Rhetoric and the Modern American Narrative Beth Widmaier Capo

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Putting God on Trial: The Relationship of Kaf ka to Leibniz Joseph Suglia

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Mumia Abu-Jamal’s Live from Death Row as Post-Legal Prison Writing Brian Conniff

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The Letter of the Law and Canadian Letters: Joy Kogawa’s Obasan Ana María Frailé-Marcos

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Prior Claims and Sovereign Rights: The Sexual Contract in Edith Wharton’s Summer Alicia Renfroe

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Situating Atticus in the Zone: A Lawyer and His Daughter Read Harper Lee’s To Kill a Mockingbird Nancy Lawson Remler and Hugh Lawson

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Challenging the Court: Charles Chesnutt’s Marrow of Tradition Gwen Mathewson

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About the Authors

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INTRODUCTION In his collection entitled Legal Fictions: Short Stories About Lawyers and The Law (Woodstock NY: The Overlook Press, 1991), Jay Wishingrad notes that “the natural affinities between law and literature have long been evident” (ix). To prove his point, in his introduction, Wishingrad cites Aeschylus’s The Oresteia, Chaucer’s “The Physician’s Tale,” Shakespeare’s The Merchant of Venice and Melville’s Billy Budd as evidence of literary examinations of law and justice by authors throughout the centuries. Furthermore, his own selection of works for inclusion in his collection indicates there is a continuing and persistent world-wide interest in the interaction between these two disciplines. By including short fiction from Karel Capek, Isaac Bashevis Singer, Nadine Gordimer, Isabel Allende, R. Sarif Easmon and Franz Kafka in his collection, Wishingrad demonstrates that representatives from varied cultures in Europe, Africa, Asia, North America and South America have examined this intersection. Furthermore, by his choices, he suggests that legal emphases in fiction transcend both different locations and settings as well as authorial genders. Wishingrad’s introduction notes that perhaps the first modern editor who put together an anthology emphasizing the law—literature connection was Ephraim London, a civil liberties lawyer who in 1960 published a two-volume anthology entitled The World of Law. Consisting of two volumes, The Law in Literature and The Law as Literature, The World of Law collected many excerpts from longer works, including plays, short stories, and novels. In contrast, this volume presents literary analyses and criticism rather than primary texts and attempts to assess the relationships between law and justice, between lawyers and clients, and between readers’ perceptions and authors’ intent. Nonetheless, it delineates connections between the two professions that suggest why they have continually been yoked together. For example, many fictional works bear striking resemblances to “the myriad legal documents that lawyers produce” (xiv). Lawyers, like writers, must catch their audience’s attention by novelty of scene, distinctiveness of voice, and ingenuity of design. Furthermore, legal advocates must recreate a concrete sense of reality, developing vivid and valid pictures of a specific time and place. Finally, another talent employed by both professionals is to create a final product that offers “a harmonious and internally consistent argument or tale shaped, arranged and supplemented by logical facts, by imagination and

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sometimes even by assumptions that appear to be illogical at best” (xv). In short, both lawyers and writers attempt to provide a basis for juries/readers to judge defendants/characters by their motivations and their actions and to decide whether a favorable ruling/assessment is justified. In fact, instead of perceiving the law and writing as two disparate professions, one could argue that since strong writing skills are a prerequisite for the legal profession, lawyers are writers, albeit for a very specific audience and within a specific context. The critical studies presented here offer the same opportunity to readers. Individuals have the opportunity to assess the fairness of the Algerian court system that condemns Camus’s Meursault, to determine the relative guilt of Regan/ Rose and Goneril/Ginny in Jane Smiley’s retelling of King Lear, A Thousand Acres, to view the sexism and racism that affects British policemen, lawyers and judges in David Hare’s Murmuring Judges, a drama that not only dissects but also harshly critiques the legal system in Great Britain. The racial biases that affect the legal system are also evident in essays that discuss Bernard Malamud’s The Fixer, while the inequality of genders under the law is the focus of the analyses of Sharon McCrumb’s The Ballad of Frankie Silver, and Edith Wharton’s Summer. Finally, this collection, like London’s, tries to maintain a balance by presenting the concerns expressed about the fairness and justice of law for by including such works as Joy Kogawa’s Obasan and Abu Jamal’s Live From Death Row and by depicting the shifting legal portraits composed at the turn of the century and contrasting them with the assessment of present-day courtroom officials and actions (See The Birth Control and Chestnutt essays). Collectively, the essays in this book are designed to deal with themes of guilt and innocence, right and wrong, morality and legality. The essays also suggest that the world as it is delineated by lawyers is indeed a text that like its literary counterparts sometimes blurs the distinction between fact and fiction as it attempts to define “truth” and to establish criteria for “impartial” justice. By exploring interdisciplinary contexts, readers will surely be made more aware, more sensitive, to the role that stories play in the legal profession and to the dilemmas faced by legal systems that often succeed in maintaining the rights and privileges of a dominant societal group at the expense of a less powerful one. When law acts arbitrarily and capriciously, it is difficult for it to be “blind”; sadly, it is then unable to balance its scales so that the word “law” is synonymous with “justice.” Michael J. Meyer DePaul University 2004

RETRYING THE STRANGER AGAIN MARY ANN FRESE WITT AND ERIC WITT

Camus’s Meursault has been put on trial many times since the first appearance of L’Etranger in 1942, but, given the ambiguity of the text, will probably never receive a final verdict. An approach that takes into account more fully the role of the legal system as it existed in colonial Algeria in the 1930’s may, however, help to re-situate critical judgment of Camus’s anti-hero. Meursault resembles other French Algerians in that he is a foreigner amongst the members of the indigenous population, in fact perceiving them as less than human. Yet he is also a stranger among the French colonials, hence exemplifying both meanings of L’Etranger. By refusing to participate in his society’s legal discourse, he refuses the construction of cause and effect, the linkage of past with present, by extension, the justifications of colonialism. His crime, in the argument of the prosecution, portends a potential revolt on the part of the colonized. Thus, although Meursault shares the pied-noir mentality, he is also a threat to its control and thus a scapegoat to be eliminated. In a court of law, he could well be judged guilty of murder. His “innocence” is not a legal concept but rather a function his original perception of experience. The reason that The Stranger has affected so many readers throughout the world is that it strikes to the heart of the profound discord between the existential reality of living, changing individuals and the constructions which legal and social discourse necessarily make of that reality. On one level, it could be argued that the novel is about the differences between law and literature.

Albert Camus’s Meursault has been put on trial by readers many times since the first appearance of L’Etranger in 1942. Acquitted as a hero of the Absurd, as Existentialist Man, as victim of a society formed to crush the individual, he has also been judged guilty as charged, and condemned as a racist in complicity with the colonial establishment. Given the ambiguity of Camus’s text, the stranger may never receive a final verdict.1 However, an approach that takes 1 A generation of readers of L’Etranger was formed by Jean-Paul Sartre’s 1943 essay “Explication de L’Etranger,” Situations, (Paris: Gallimard, 1947) I, 99–121. In his groundbreaking article “Camus’s Stranger Retried,” PMLA 79 (December, 1964): 519–533,

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into account more fully the role of the legal system may help to re-situate critical judgment of Meursault. In this endeavor, it will be useful to examine the French penal code and courtroom procedures as they applied to colonial Algeria in the 1930s and the manner in which law functions within the novel’s narrative structures. This in turn should shed new light on the “race” question, or the conflict between Arabs and Europeans, colonized and colonizers, as it appears in the text. The novel’s title and the name of its central character deserve mention in this context. L’Etranger can of course be translated as “the foreigner” as well as “the stranger” or “the outsider.” The North-African-born Camus noted in his journal that he felt for a long time like a foreigner in France. At the same time, French colonials ( pieds-noirs)—including the author and his fictional creation Meursault—were in fact foreigners among the indigenous population in Algeria. Still, the title is correctly translated as The Stranger, since Meursault is a character for whom the aspects of life in society normally taken for granted appear inherently strange and whose demeanor also seems strange to his peers. René Girard dealt with Meursault’s actual crime, previously ignored. The first writer to interpret L’Etranger in the light of contemporary Algeria was the historian Pierre Nora, in Les Français d’Algérie (Paris: Julliard, 1961). Nora saw the novel as a sublimated expression of the guilt of French colonists toward Arabs. Renée Quinn’s article, “Le Thème Racial dans L’Etranger,” Revue d’histoire littéraire de la France, 1969, 1009–1113 argues that the novel reveals Camus’s pessimism about any equitable solution for the European and Arab inhabitants of Algeria. Conor Cruise O’Brien, in his Albert Camus of Europe and Africa (N.Y., 1970), made the biggest splash in the English-speaking world because of his condemnation of Camus as pro-colonial. On The Stranger, O’Brien argues that since Camus describes a French court in Algeria convicting a Frenchman for the murder of an Arab, he implies that colonial justice is impartial and thus reveals his true colors as a racist. Mary Ann Witt, in “Race and Racism in ‘The Stranger’ and ‘Native Son,’ The Comparatist, May 1977, 35–47, does not agree with the labeling of Camus as racist, but analyzes the portrayal of colonial racism in the novel. O’Brien’s “exposure” of Camus is extended by Edward Said in the chapter “Camus and the French Imperial Experience” of his Culture and Imperialism (N.Y.: Knopf, 1993), 169–185. Contrasting Camus’s narrative with the “decolonizing” literature of the period, Said claims that critics have mistakenly interpreted the author’s loyalty to French Algeria as a parable of the human condition. An article offering a more nuanced approach is Alec G. Hargreaves, “History and Ethnicity in the Reception of L’Etranger,” in Adele King, ed. Camus’s L’Etranger: Fifty Years On (N.Y.: St. Martin’s Press, 1992), 101–112. Recent essays on the Algerian connection in Camus’s writings include Emily Apter, “Out of Character: Camus’s French Algerian Subjects,” David Carroll, “Camus’s Algeria: Birthrights, Colonial Injustice and the Fiction of a French Algerian People,” both in a special issue of Modern Language Notes on Camus (vol. 112 no. 4, September, 1997, 499–516 and 517–549). There are also two recent books on the subject: Ena C. Vulor, Colonial and Anti-Colonial Discourses (Lanham, Md.: University Presses of America, 2000) and Azzedine Haddour, Colonial Myths: History and Narrative (Manchester: Manchester University Press, 2000).

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Meursault’s strangeness, however, is not only individual and metaphysical, as was once assumed, but integrally related to his “foreignness.” He lives, after all, in an inherently strange society, one in which European structures, including a legal system, have precariously imposed themselves on a world that remains in many ways alien to them. The last name of the man given no first name, in addition to recalling a French wine, echoes the two natural elements of Algeria most beloved by Camus—mer, soleil—sea and sun. The central character in fact figures as a man inherently belonging to North African “nature,” while at the same time linked in spite of himself to a European “civilization” he perceives in some ways as “strange.” With the onset of criticism mindful of L’Etranger’s Algerian context, it has become commonplace to observe that Arabs, in this novel as in all of Camus’s fiction, never become true characters, and in fact hardly seem to be human beings. Ahmed Taleb Ibrahimi, Minister of Education in the newly independent Algeria, remarked that Camus subconsciously portrayed “the dream of the pied-noir who loves Algeria but can only conceive of an Algeria without Algerians.” 2 There is certainly some truth to this: Camus’s lyrical descriptions of his beloved North Africa in Noces, as well as throughout his fiction, are almost entirely devoted to its natural beauty. If Arabs or other indigenous ethnic groups appear at all, they are seen through European eyes as a part of the natural world. This is indeed the case in The Stranger. “Arabs,” seen from the point of view of the first-person narrator Meursault as well as in the dialogue of other European characters, constitute a kind of backdrop to the European drama. Whether or not this constitutes racism on Camus’s part is, however, a more difficult question. Certainly, he reserves his harshest criticism not for the indigenous Algerians, but for aspects of the European systems imposed on their world. The dialogical tension between a literary and existential discourse and a legal and societal one is inherent in the two-part division of L’Etranger. Although the entire work is narrated by Meursault, the same events are in fact recounted twice—once as the narrator experiences them and the second time as he perceives the court reconstructing them in the course of his trial. Thus in the first half—with some notable exceptions—the reader experiences the events in the “isolated blocks of time” of the passé composé famously described by Sartre, a paratactic discourse in which segments of experience are juxtaposed rather than linked by causality. In the second half, on the other hand, the social discourse of the legal system imposes itself on the same events, linking them

2 “Albert Camus vu par un Algérien,” in De la décolonisation à la révolution culturelle, ed. A.T. Ibrahim (Algiers: Société nationale d’édition et de diffusion, 1981) 180. Quoted in Hargreaves, 102.

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with a logic of cause and effect. Significantly, most of the first half takes place in the “natural” Algerian world and the second in the socially constructed European one of courtrooms and prisons. This raises the problem of narrative time in the novel. The well-known first sentence, Aujourd’hui, maman est morte, gives prominence in its first word to the “today,” the present, in which Meursault lives. “Today,” however, soon becomes problematic, since Meursault goes on to recount events that occurred in the days following his reception of the telegram announcing his mother’s death. The text then presents something rather like a journal, although recounted in the near past rather than the present. A recapitulation of the events as Meursault recounts them in the first half follows. Meursault learns on a Friday that his mother has died and immediately takes the bus to the old people’s home where she lived. He keeps vigil with her corpse all night, accepting a cup of café au lait from the caretaker and smoking a cigarette with him. He dozes off. In the morning, under the blazing African sun, he joins the funeral procession to the church. He takes the bus back to Algiers, sleeps long, goes to the beach on Saturday, meets a young woman he used to know. They go to see a movie that evening—a comedy—and she spends the night at his place. She leaves the following morning and he spends Sunday sitting on his balcony, observing life in the street below. At the end of this day, he thinks, “It occurred to me that anyway one more Sunday was over, that Maman was buried now, that I was going back to work, and that, really, nothing had changed.” 3 That week he resumes his clerical job at a shipping office. When his boss proposes a situation in Paris that would mean advancement, he’s not interested. Similarly, when Marie, his new girlfriend, asks him if he’d like to get married, he answers that it doesn’t make any difference to him—if she likes, they can get married. Thus the two aspects of human life assumed in Western society to be more important—work and love—are matters of indifference for this stranger. What seems to be more important to him are physical sensations—the sun, the sea, even the pleasure of drying his hands on a fresh towel at work. Meursault does have some relations with his (all European) neighbors in the apartment building where he lives, including the shady Raymond. “People say” that Raymond is a pimp; Meursault, however, accepts his invitation to eat at his place because “I don’t have any reason not to talk to him” (28). Raymond tells him his story about beating his mistress, whom Meursault understands to be Arab (une mauresque), because he thought she was unfaithful to him. He asks Meursault to write a letter for him to get her back to come back—then he’d

3 Albert Camus, The Stranger, trans. Matthew Ward (N.Y.: Random House [Vintage Books], 1989) 24. Subsequent references will appear in the text.

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get revenge by spitting in her face and throwing her out. Meursault agrees to write the letter because he has no reason not to do so. Saturday he goes to the beach again with Marie, she spends the night, and on Sunday they hear a ruckus at Raymond’s place: the police have arrived, Raymond’s woman is crying and screaming the only words pronounced by an Arab character, “He beat me up! He’s a pimp!” (36) When the police leave, Raymond asks Meursault to be a witness by stating that the girl cheated on him, and Meursault willingly complies. The following Saturday, we learn that Meursault went to the police station to testify for Raymond, who got off with a warning. The police did not bother to verify Meursault’s statement. Raymond then invites Meursault and Marie to come to the beach house of his friend Masson and his wife on Sunday. As they leave the apartment building they see a group of men (“Arabs”) staring at them—Raymond recognizes one of them as the brother of the woman he beat. Once on the beach, Meursault achieves a state of happiness with Marie in the sun and the sea. After lunch, the three Frenchmen walk on the beach and meet the same Arab men they saw earlier, coming toward them with knives. Raymond and Masson fight with two of them, and Raymond is wounded. They return to the beach house, but soon Raymond wants to go out again and Meursault follows him. They find the Arabs at a place on the beach where there is a fresh spring flowing. Raymond pulls his gun out; Meursault, in a moment uncharacteristic of his passive narration, pronounces a moral judgment: “But if he doesn’t draw his knife, you can’t shoot” (56). He convinces Raymond to give him his gun and, if necessary, to take on the Arab “man to man.” Meursault then reflects, “It was then that I realized you could either shoot or not shoot” (56). The Arabs slip away, and Raymond and Meursault return. Meursault, however, does not go in the house, but, in a sense drunk by the power of the merciless sun, turns back, absorbed, he says, by the thought of finding the cool spring and shade again. There he meets again the man identified only as “le type de Raymond.” 4 (He is called “Raymond’s man” in Ward’s translation (57), but the word homme is never applied to Arabs in the French text of this scene.) More than a human being, the Arab appears to him as if part of the power of the sun: “he was just a form shimmering before my eyes in the fiery air (58).” It is at this point that Meursault recounts the actual murder. … I took a step, one step, forward. And this time, without getting up, the Arab drew his knife and held it up to me in the sun. The light shot off the steel and it was like a long flashing blade cutting at my forehead. At the same instant the sweat in

4 Albert Camus, L’Etranger, in Roger Quillot, ed., Albert Camus, Théâtre, Récits, Nouvelles (Paris: Gallimard, eds. De la Pléiade, 1962) 1165. Subsequent references to the original French version will be to this edition and will appear in the text.

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Mary Ann Frese Witt and Eric Witt my eyebrows dripped down over my eyelids all at once and covered them with a warm, thick film. My eyes were blinded behind the curtain of tears and salt. All I could feel were the cymbals of sunlight crashing on my forehead and, indistinctly, the dazzling spear flying up from the knife in front of me. The scorching blade slashed at my eyelashes and stabbed at my singing eyes. That’s when everything began to reel. … My whole being tensed and I squeezed my hand around the revolver. The trigger gave… (59)

In this passage, Meursault’s deadpan narration of events in “islands” suddenly become full of images and metaphors, creating a kind of causality. The image that dominates is that of the sun, its visual dazzling brilliance, its heat that causes a kind of drunken dizziness, even a metaphorical sound “the cymbals of sunlight,” and above all the impression that it gives of a long, flashing blade as it reflects off the Arab’s knife, a “scorching” blade that “slashed” and “stabbed” at Meursault’s eyes. The sun seems to attack him, causing him to respond physically, without thinking about the possible consequences of his actions. The narration implies passivity: he does not say “I pulled the trigger,” but “The trigger gave.” Nor does he reflect afterwards that he has killed a human being, but rather that he has “shattered the harmony of the day (59).” Indeed, in Meursault’s perception, the victim was not a man at all but a part of nature. Nonetheless, his subsequent narration makes it clear that he deliberately fired four shots in the inert body. In the seemingly “absurd” chain of events that leads to the killing, it is the brief contact between Arabs and Europeans that is the precipitating factor. Before he becomes involved in the affairs of Raymond and his “Moorish” girlfriend, Meursault lives in an entirely French society, albeit one imposed on a “natural” non-French world. “Normal life,” it seems, would continue as long as the Europeans remained within the circumscribed world of their “civilized” codes and the North Africans existed passively in the natural background, but actual contact between the colonized and colonizer could portend disaster. The precipitating events suggest—if obliquely—a revolt on the part of the colonized. Raymond, both as a man and as a pied-noir, would “naturally” assume that his woman belonged to him and that he could do with her what he liked. Yet this colonized woman—unique, as noted above, in the novel—actually speaks up, defying the master’s assumption of his rights.5 Although her brother and his cohorts do not speak, one may assume that they are also acting in defiance of pied-noir

5 Patrick McCarthy has commented on the Arab woman’s outcry. In his view, her denunciation “cuts through Raymond’s lies and may be read as an outburst of revolt against the two occasions when he imposes his language on her and her brother, by describing to Meursault how he beat them up.” Camus’s The Stranger (Cambridge, U.K.: Cambridge University Press, 1988) 47.

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assumptions of rights and in accordance with their own non-European code. The non-reflecting Meursault simply falls in with the colonizers’ mentality, although he does make an effort to impose a kind of moral code on Raymond. It might be argued that he acts in accordance with this code since he pulls the trigger only after the Arab has drawn his knife. Yet in his description of the provocation for the shooting, the Arab as a human agent disappears; it is indeed the sun that strikes Meursault. The revolt of the Arabs belongs in his perception to an act of the natural world, for the Arabs, in the pied-noir mindset, are a part of that world. Meursault recognizes that he was once “happy,” in harmony with the beauty of a land of sun and sea where the indigenous remained in their “natural” place. Now he has “shattered” that “balance.” He ascribes no motive to the last four shots he fires. Is he frustrated and angry that the “balance” has been upset? Ironically, Meursault momentarily interacts with Arabs as human beings only after he has killed one. This occurs during the first day of his preventative detention when he was put in a room with other prisoners, mostly Arabs. As usual, the Arabs do not speak in direct dialogue, but through Meursault’s use of indirect discourse we learn that they asked him what he had done and “were all silent” (72) when he told them he killed an Arab. One of them, however, showed him how to fix his sleeping mat. Thus a certain, tenuous solidarity among prisoners is established. It is as if the act of killing has somehow temporarily broken through the wall between the races. After this, however, the Arabs return to their role as part of the backdrop to the European drama. In the scene in the visitors’ room where Marie comes to see Meursault, the Europeans are referred to as “men,” “women,” “prisoners,” or “visitors;” the others as “Moorish women” (mauresques) or “Arabs.” An emblematic example is the description of the “subdued murmuring” of the Arabs (who are seated on the ground) making “a kind of bass accompaniment to the conversations crossing above their heads (74).” Even while speaking, the Arabs do not seem to pronounce words, but rather function as a background basso continuo over which the European recitative is played. After this, Arabs disappear from the novel, conspicuous only by the lack of reference made to Meursault’s victim during the trial. It is in the second half of the novel that Meursault enters into the engrenage of the French colonial legal system. It was a system with which Camus was quite familiar, since he was working as a court reporter for the left-wing Alger républicain while writing L’Etranger.6 Among other cases, he covered a murder 6

The newspaper, which was banned in 1940, when Algeria came under the control of Vichy France, stated its political ideology as “immediate social equality for all Frenchmen, whatever their origins, religion, and philosophy,” and “the progress of Algerian natives towards political equality.” Quoted (without reference) in Olivier Todd, Albert Camus: A Life, trans Benjamin Ivry (N.Y.: Knopf, 1997) 75. Like Camus, it expressed hope for reform, and assimilation, without challenging the legitimacy of French colonialism.

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trial involving a Sheik accused of plotting to kill the Grand Mufti of Algiers. In Camus’s view, the Mufti was allied with the colonial administration and the Sheik a liberal reformer.7 Camus’s contempt for the reactionary elements in the French colonial government is apparent here as it is in his better-known series of articles on famine in Kabylia. Yet at this point in his life as during his later career in Paris, he remained a pied-noir, convinced that the conflicts within Algeria could be resolved without a war of independence. Since Algeria was considered part of France, the system of justice was in principle the same as that in the métropole. However, the government on July 15, 1865, justified not giving Algerian “Muslims” citizenship unless they gave up their personal status since equality under the law could not be compatible with polygamy and unequal inheritance which were part of the Muslim religion. This distinction set between citizens and “subjects” justified inequality in areas such as the penal, the fiscal, military service, and access to work in the public sector.8 In addition, several unconstitutional measures were set up which had the effect of treating Muslims unfairly in respect to their French counterparts. One of these was the “pouvoir d’internement” (power to confine), a law of August 26, 1881, allowing the government arbitrarily to sentence Muslims to an indefinite term in prison based on poorly defined offenses. Some of the punished offenses were not set out in standard French law and/or were as innocuous as stealing sheep or going on a pilgrimage to Mecca without authorization. Although a law of July 15, 1914 reduced the punishment to simply being put under surveillance and limited the term to two years, and the number of convictions under such grounds went down to six in 1938 from 360 in 1907, some of the offenses—in particular, hostile acts towards French sovereignty (“actes d’hostilité contre la souveraineté française”)—remained poorly defined. This unconstitutional law9 was abrogated 7 See Todd, 79–80 and “L’Affaire El Okbi,” In Albert Camus, Fragments d’un combat: 1938–1940 Alger républicain, ed. Jacquéline Lévi-Valensi et André Abbou (Paris: Gallimard, 1978) 413–510. 8 Claude Collot, Les Institutions de l’Algérie Durant la Période Coloniale, 1830–1962 (Paris: Editions du CNRS, Office des publications universitaires: 1987) 267. 9 It is important to know that, as a principle under French criminal law, an act may not be punished unless there is a law that specifically prohibits such an act. Not only must the offence be well defined, but the punishment must also be clearly set out. Furthermore, the interpretation of the text must be narrow, strict, and restrictive and a judge may not interpret such a text beyond its provisions. Analogies are not permitted. An example of this is the swindling of food (filouterie d’aliments) that, although in 1937 was a misdemeanor under Article 401 of the Penal Code, was not punishable before 1873 because no law setting out the elements of this misdemeanor existed at that time. Pierre Garraud and Marcel Laborde-Lacoste, Précis Elémentaire de Droit Pénal (conforme au programme des examens de licence et de capacité en droit, 3e édition, entièrement refondue et mise au courant de la législation et de la jurisprudence au 1er janvier 1937), (Bordeaux:, impr. Bière; Paris: Recueil Sirey, 14 avril, 1937) 28, 30, 32, 33–34.

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by an ordinance dated March 7, 1944. Another of these measures was the “régime de l’indigénat,” originally codified by the law dated June 28, 1881, and established because of the French fear of any indigenous uprising that could cause trouble to the colonial administration. This gave justices of the peace (“juges de paix”) the power to sentence Muslims on certain so-called criminal charges such as being excessively late in paying taxes, a power that normally does not belong to justices of the peace. Although the defendants had the right to appeal the judgment, very few did so, partly because the system of proof was not regulated and also because the appellants would have to pay five more francs if the appeal was confirmed. Even as late as 1937 and 1938, 5,000 sentences were pronounced.10 Furthermore, a decree of October 24, 1870 mandated a jury composed exclusively of French citizens who tended to judge Muslim defendants very harshly. In March of 1904 a law legalized a separate misdemeanor court (“le tribunal correctional”) exclusively to judge “Muslims” and in 1902 a law created a similar separate criminal court.11 These special courts, created under pressure by the colonizers in order to impose order and fear, were designed to subdue any sign of revolt.12 The one set up parallel to the court for misdemeanors completely disregarded even basic rights of the defendants and the one set up to parallel the criminal court was especially biased.13 The jury had to be entirely French in either the criminal court for French citizens or for Muslims. French ethnocentrism fueled by fear of Muslims played a large role in the conviction and sentencing of Muslim defendants.14 However, two of the four assistant judges in the criminal court for Muslims were Muslim themselves. Nonetheless these criminal courts for Muslims were much more severe than their counterparts for Europeans.15 10

Collot, 191–195. Collot, 173–174, 196–198; see also the Law of December 30, 1902, in the Code d’Instruction Criminelle, 37e édition (Tours: impr. Marne, Paris: Dalloz, 5 Novembre, 1938) and especially its Article 1 which makes the division between French, nonMuslims who are either French or foreign subjects, and Muslims who are not from Africa who were to be tried in the “cour d’assises” which was the standard criminal court, and, on the other hand, Muslims from Africa who were to be tried in the separate criminal court. The fact that Muslims from outside of Africa would be judged in the standard criminal court suggests that the discrimination based on difference of belief was, at least in large part, based on a fear of revolt. 12 Collot, 196, 200. 13 Jean-Paul Charnay, La Vie Musulmane en Algérie d’après la Jurisprudence de la Première Moitié du XXe siècle (Paris: Presses universitaires de France, 1991) 210. 14 A law of August 5, 1942, after Camus’s courtroom experience and after L’Etranger was written, allowed an equal number of French and Muslim men to sit on the jury when a Muslim was being tried, but no Muslim could sit to try a French person. Collot, 173, 200. 15 Collot, 199–200. 11

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We can in any event assume that the jury trying Meursault was composed entirely of French citizens. The narrative of Meursault’s case combines a realism based on Camus’s knowledge of the legal system, exaggeration in the interests of parody and satire, and a dissonance affected by the narrator’s “strange” and seemingly naïve point of view. As is the case with his attitude toward the French colonial administration, however, Camus’s harsh criticisms of the French system of justice, including his well-known categorical opposition to the death penalty, do not lead to a rejection of that system, or of law in general, as has sometimes been claimed.16 The case proceeds as if it were in France. The novel is silent on what happens between the killing and the imprisonment of the accused, but it might be useful to summarize what would probably have happened in “real life.” After the police heard of Meursault killing the Arab, it would immediately have informed the prosecutor, as required by law, under the form of a “dénonciation officielle.” 17 The prosecutor would then have referred the case to the “juge d’instruction” (the translation is examining magistrate, but there is really no American or British equivalent), an act that would have initiated the investigation. The role of the juge d’instruction was (and still is) to investigate and assess the evidence necessary to prove that an offense was committed and whether or not the case should go to court.18 The case would probably have been taken lightly at first since it only involved a French person killing an Arab. This would explain why the initial questioning Meursault goes through is innocuous. However, after the juge d’instruction perceives that Meursault thinks in a very different way, the case is taken much more seriously. This part is crucial because it illustrates what appears to be one of Camus’s main criticisms of the legal system in Algeria at the time: a defendant being judged in great part not because of the crime committed but because of the way the defendant thinks. Indeed, as indicated above, the great discrimination in treatment between citizens and subjects was based on belief. All this makes one less surprised to learn that the protagonist of the novel, a Frenchman, goes through an experience similar to that undergone by a Muslim in one of the actual cases covered by Camus. In both instances, a judge d’instruction brandishes a crucifix to the defendant asking if he is a “religious man.” 19 The almost direct 16

Richard Posner, for example, argues that The Stranger rejects law and is “a form of neoromanticism in which criminals are made heroes.” Law and Literature: A Misunderstood Relation (Cambridge, MA: Harvard University Press, 1988), 90. To classify Meursault as a “hero” and the “form” as “neoromantic” is to distort both the character and the novel. 17 Code d’Instruction Criminelle (Paris: Petite Collection Dalloz, 1939) Article 29. 18 Garraud and Laborde-Lacoste (1937), 487–488. 19 Fragments d’un combat, 454. The defendant’s answer was: “Non, j’ai dit, je ne crois pas en Dieu. Il est trop vieux.” (No, I said, I didn’t believe in God. He’s too old. [our translation]).

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and probable inspiration from this occurrence corroborates even further the idea that the discrimination in treatment is not only due to being Muslim, but more broadly having a way of thinking that is incompatible with the moral structure of the European society in Algeria. Some peculiarities observed by English-speaking readers in the treatment of Meursault’s case can be attributed to aspects of the French system. Whereas Anglo-American law is primarily adversarial, French law (as well as that of other systems derived from Roman law) is primarily inquisitorial. The first system assumes equality between the prosecuting and the defense attorneys and proceedings characterized by confrontation; the second is more directed to inquiring into the truth. Much of this is done before the case goes to trial; thus it would not be unusual for an accused man to be put in preventative detention for eleven months, as happens to Meursault. The juge d’instruction may go about seeking “proofs” in any way he sees fit, including hearing confessions of the accused. Proof in French law, under Article 342 of the French Code of Criminal Procedure, rests on the principles of personal conviction (intime conviction) and liberty of proof (liberté des preuves). This means that the judge and/or jury may take anything presented to them into account. This includes character and emotional factors that are, in many cases, forbidden from appearing in evidence under American or British law. These principles set out in Article 342 apply to all phases of the penal procedure and to all the magistrates in the standard criminal courts. The few exceptions to such principles that exist do not apply to the case at hand in The Stranger.20 Thus, although Camus dramatically exaggerates the encounters between the accused and the judge, it is not particularly surprising that the latter interrogates Meursault on matters such as his feelings toward his mother and his religious convictions. What is more surprising is Meursault’s refusal, or inability, to play by the rules of the game offered both by his lawyer and by the juge d’instruction. What would it cost him, after all, to declare that he loved his mother, to burst into tears, like “all the others,” at the sight of the crucified Christ, or to fabricate a reason why he fired four shots at the body? More disturbingly, he is unable to feel, or at least to express, any regret for his act. In an instance of emotional self-analysis that will become more characteristic of the imprisoned Meursault, he tells the juge d’instruction that “more than sorry I felt kind of annoyed” (70) (“plutôt que du regret véritable, j’éprouvais un certain ennui” [1174]). Here, Ward’s translation trivializes Meursault’s expression of his feeling. Ennui may denote sadness and sorrow as well as boredom, difficulty, or annoyance. What Meursault feels, one may surmise, is a profound disturbance over having “shattered the balance.” In any case, he again refuses

20

Garraud and Laborde-Lacoste (1937), 316, 399–400, 447, 449–450, 463.

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to codify his emotions in conventional terms, and it is in this refusal that his “strangeness” comes into conflict with the normative authority of his society as represented by its law. If the examiner’s role is to extract confessions, or at least narrative accounts, from the accused, he has to be frustrated with this particular prisoner. What Meursault seems to understand, if obscurely, is that a codified portrayal of emotions is of necessity a misrepresentation. His stubborn, paratactic, non-causal and non-rhetorical discourse becomes a formal as well as a substantive threat to the body politic. The character of Meursault, as construed by the juge d’instruction through his encounters with the recalcitrant subject, figures importantly in the actual trial. The trial in fact illustrates the inquisitorial system, emphasizing as it does a narrative approach to portraying the defendant’s character, rather than a dramatic, confrontational approach based solely on evidence. According to French law, almost anything in the defendant’s personal history may be brought into the courtroom. Thus, Meursault’s alleged insensitive conduct at his mother’s funeral—the fact that he didn’t cry—takes on considerable importance in the prosecution’s attempt to construct a depiction of the accused as a man with “no soul” and no normal human feelings. The trial’s proceedings follow standard French procedure. The defendant is tried in the Cour d’Assises (the Court of Assizes), the court that handles crimes. There are three judges. The président, translated as the presiding judge, wears a red robe—a tradition dating back to the ancien regime. The colour red symbolizes sovereignty. The other two judges (assesseurs) wear black robes, whose origins can be traced to the clergy, traditionally indicating officials whose positions were inferior to those in red.21 The prosecutor also wears a red robe and is placed in an elevated position, indicating both his status as a magistrate22 and his superiority over the defense attorney, who is dressed in black. This difference in colour is representative of the blatant inequality existing between the prosecution and the defendant that Camus would have noticed as well and which suggests another criticism he had of the legal system in Algeria at the time. For example, the prosecutor could have access to the file at any time whereas the defending attorney could only receive it the day before the hearings. The defendant could not appeal any of the orders from the juge d’ instruction that he felt violated his rights, for example, to be put in preventive detention for up to a month, whereas the prosecutor could appeal orders he thought were too lenient. The defendant could not even appeal the decision

21 Sylvie Husson, Sous les Robes, les Rites (CFJ (Centre de formation des journalists) net) address: http://www.cfpj.com/d_cfj/d4_productions_cfj/d42_spe_cfj_2000/juge/robe/. 22 Jean André Roux, Précis élémentaire de Droit Pénal et de Procédure Pénale (Paris: Recueil Sirey, 1925) 186.

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from the juge d’instruction to bring the case to trial.23 It is also important to take into account the fact that since the prosecutor, like the judge, is a magistrate; he can play a role in the final judgment. Although one may think that this inequality is shown by the great difference in competence between the prosecutor and the defending attorney, the latter is most likely an illustration of another probable criticism Camus had against the legal system: a defendant’s fate being determined in large part by the ability of his attorney to twist the facts.24 The disadvantages stemming from Meursault’s different way of thinking from the judge and jury, being a defendant and having an attorney who is less competent at manipulating the facts than the prosecutor, are further aggravated by the principles of the liberty of evidence and intime conviction.25 The presiding judge, as is the case in Meursault’s trial, takes a much more active role than in an American court, asking questions directly of the defendant and of witnesses. The examination of the defendant in court is much briefer, since so much of it has already been done by the juge d’instruction. During the entire trial, the defendant remains in the box des accusés (the prisoner’s dock). In the present-day French court there are nine jurors, who deliberate with the three judges, but at the time L’Etranger was written, there were twelve who would deliberate separately and then give a verdict to the judge.26 Camus abandons realism for satire in his portrayal of the prosecution’s emphasis on certain details in its attempt to classify the accused as a kind of moral monster. The café au lait Meursault drinks during the vigil over his mother’s body and the comic film, starring Fernandel, that he attends the next day with Marie tend to caricature the pomposity of the prosecutor and of the court proceedings. The effect, especially since the narrative point of view is one of apparent naiveté, is to induce the reader to sympathize with Meursault, even to believe at some level in his innocence. The reader is also in a position to contrast Meursault’s narration of events in the first half of the novel with the prosecutor’s narrative summaries at the trial. The latter are worth examining in some detail. After the presiding judge has interrogated the caretaker at Meursault’s mother’s nursing home, the prosecutor summarizes the events at the wake thus: “… the gentlemen of the jury … will conclude that a stranger may offer a cup of coffee, but that beside the body of the one who brought him into the world, a son should have refused it” (91). After questioning Marie, he again addresses 23

Garraud and Laborde-Lacoste (1937), 566–567, 491. One is reminded of a line from Jean Giraudoux: “The law is the strongest school of imagination. A poet has never interpreted nature as freely as a jurist interprets reality.” La Guerre de Troie n’aura pas Lieu (Acte 2, scène 5). 25 Code d’Instruction Criminelle, Article 342. 26 Charnay, 198. 24

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the gentlemen of the jury: “… the day after his mother’s death, this man was out swimming, starting up a dubious liaison, and going to the movie, a comedy, for laughs” (94). When questioning Raymond, he asks him (in Meursault’s words), “how it was that the letter that set the whole drama in motion had been written by me.” When Raymond replies that it was by chance, the prosecutor “wanted to know if it was just by chance that I hadn’t intervened when Raymond had beaten up his girlfriend, just by chance that I had acted as a witness at the police station, and again just by chance that my statements on that occasion had proved to be so convenient” (95). He then summarizes to the jury, “The same man who the day after his mother died was indulging in the most shameful debauchery killed a man for the most trivial of reasons and did so in order to settle an affair of unspeakable vice” (96). When the defense lawyer questions the link between Meursault’ attitude toward his mother and his alleged crime, the prosecutor exclaims, “I accuse this man of burying his mother with crime in his heart!” a declaration which, Meursault notes, “seemed to have a strong effect on the people in the courtroom” (96). Meursault finds the prosecutor’s final narrative—his attempt to prove that the killing was premeditated—plausible. I had agreed with Raymond to write the letter in order to lure his mistress and submit her to mistreatment by a man of doubtful morality. I had provoked Raymond’s adversaries at the beach. Raymond had been wounded. I had asked him to give me his gun. I had gone back alone intending to use it. I had shot the Arab as I planned. I had waited. And to make sure I had done the job right, I fired four more shots, calmly, point-blank—thoughtfully, as it were. (99)

Emphasizing that the accused never expressed the slightest remorse for his crime, the prosecutor compares the man “morally guilty of killing his mother” to the man accused of parricide to be tried the following day in that both sever themselves from their society in the same way. The prosecution, in effect, seems to be trying to get the death penalty through three different means: matricide (“parricide” ⫽ killing a parent) under Article 299 of the French Penal Code of 1939, premeditated murder under Article 297, and the commission of a second murder under Article 304, all of which were punished by the death penalty as well.27 Camus never specifies, 27

Code Pénal et Code de Justice Militaire (Ed. Dalloz, 1939) Article 302 and 304. It is also interesting to read the description in the French criminal procedure code at the time of how a person guilty of parricide would have been guillotined: “Le coupable condamné à mort pour parricide sera conduit sur le lieu de l’exécution en chemise nu-pieds et la tête couverte d’un voile noir. Il sera exposé sur l’échafaud pendant qu’un huissier fera au people lecture de l’arrêt de condamnation et il sera immédiatement exécuté à mort. (The guilty man sentenced to death for parricide will be led to the place of execution in a shirt, barefoot, his head covered with a black veil. He will be on view on the

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however, of what type of murder Meursault has been found guilty. The omission of the specific crime recalls the violations of basic constitutional rights for Muslims who were often convicted of unspecified crimes, as well as the arbitrary way in which Muslims were convicted in separate courts and sometimes found guilty under different and disparate laws. Many readers of The Stranger have expressed surprise that Meursault’s attorney does not argue for self-defense. However, the text states clearly, if briefly, that he “rushed through a plea of provocation” (103) (“il a plaidé la provocation très rapidement” [1197]). We may thus assume that he at least mentions that, according to the defendant, the victim drew his knife. Since there were no witnesses, and the accused is not very cooperative, it would be difficult to make an argument that Meursault felt his life to be threatened, the condition for self-defense. Instead, the defense attorney chooses to meet the prosecutor on his own grounds: an inquiry into his client’s “soul,” but construed as one of a man who cared for his mother and thus was no parricide. Since the narrator loses interest in his discourse, the reader has only a sketchy (and again caricatural) knowledge of the argument, but we do learn that the defense asks the jury to consider “mitigating factors” (105) (“circonstances atténuantes” (1197). He thus makes at least some argument against premeditated murder and consequently against the death penalty. In short, both the talented prosecutor and his less-distinguished colleague construct narratives that postulate cause and effect: links between the events in Meursault’s life as well as links between the “soul” of the accused and the alleged crime. These are precisely the elements missing in Meursault’s narration in the first half of the novel. Meursault’s own attempt at a causal explanation falls on deaf ears here. In his both elliptical and metaphorical account of his encounter with the Arab, it makes sense to say that the killing occurred “because of the sun.” In the discourse of the courtroom, it is patently nonsensical. What is missing in these court proceedings? To observers of both courtroom dramas and real criminal cases, the answer seems obvious: no attention is given to the most emotional component of the classic murder trial, the victim and the victim’s family. The victim is never given a name; he is only referred to in abstract terms: “a man” Meursault is accused of having killed. Meursault himself refers to his victim only as “the Arab.” We have no idea of the victim’s

scaffold while a bailiff reads to the public his sentence and he will be immediately put to death. [our translation]). Code d’Instruction Criminelle, Article 13. Although executions by guillotine were still supposed to occur in public places, by 1930 the notion of “public place” was put to a minimum by carrying such executions out in the early morning in front of the prison door with the use of troops to keep back the crowd. Pierre Garraud and Marcel Labord-Lacoste, Précis Elémentaire de Droit Pénal (conforme au programme des examens de capacité) (Paris: Recueil Sirey, 1930) 48–49.

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family members or friends; certainly they are not represented as being present at the trial. This erasure of indigenous Algerians from any human or social context in the framework of colonial society is consistent with their portrayal in the rest of the novel. Here, however, the fact that the Arab can be called a man is used as a pretext for sentencing a French Algerian to death. The outcome of the trial begs the question of the extent to which Camus bypasses the realism to which he has to some extent adhered in describing its proceedings. Is it likely that a colonial court with an all-French jury could convict a Frenchman for killing an armed Arab? The information on the legal system in Algeria at the time discussed above leads us to surmise that the odds of a Frenchman being given the death sentence for killing an indigenous Algerian in the 1930s would be about the same as those for a court in Mississippi doing the same to a white for killing a black in the same period.28 It has been argued that this is indeed the primary reason that Camus chose an Arab as Meursault’s victim: it highlights the fact that the court (representing French colonial society) condemns Meursault for something other than his actual crime.29 All the same, there was an important difference between Algeria and Mississippi: in the first, non-Europeans were the vast majority and the threat of a revolt on the part of the colonized was always present. It is not accurate to conclude that Meursault is convicted only for not crying at his mother’s funeral—an assertion made on several occasions by Camus. In the prosecutor’s carefully constructed narrative, Meursault’s criminal mentality appears when he becomes involved with Raymond and, through him, with Arabs. He commits premeditated murder “in order to settle an affair of unspeakable vice” (96) (“pour liquider une affaire de moeurs inqualifiable” [1191]). “Unspeakable” is no doubt the best translation for inqualifiable, which implies something so reprehensible that it cannot even be named.30 Certainly, Raymond’s pimping and mistreatment of women are sordid enough. What may be even more “unspeakable” in the colonial court, however, is the contact between

28 Indeed, the verdicts given in criminal courts (cours d’assises) that judged crimes committed by Europeans against Muslims were blatantly biased. Collot, 199. 29 See Paul Amash, “The Choice of an Arab in L’Etranger,” Romance Notes 9 (Autumn, 1967) 6–7 and Jean Gassin, “Camus raciste?” Revue des lettres modernes (1972) 275–278. 30 Another translation could simply be “cannot be qualified,” which would be a reminder of the blatantly unconstitutional sentencing of a defendant for an offense that is not clearly specified. In this regard it is important to point out that by the 1937, at least two legal manuals had used the term “qualification légal” when stating that in order for any form of prosecution or sentencing to take place, the offending acts had to be qualified. In other words, at least some of the acts of the offender had to correspond directly to all of the elements of an offence that was punishable under written law. Garraud and Laborde-Lacoste (1937), 31.

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pied-noir Algerians and Arabs in a context that could potentially lead to revolt on the part of the latter. Meursault’s letter, as it is constructed in the prosecution’s narrative, ultimately caused the Arab woman’s outcry against Raymond and the apparently planned vendetta of her brother, which in turn led Meursault to kill him. Thus the accused can indeed be seen to have “shattered the harmony of the day” on that fateful afternoon. The precarious but harmonious existence in which “civilized” structures exercise control over those who belong to an indigenous, “natural” world is clearly threatened by the instigation of any conflict between the two orders, especially one that might suggest upheaval on the part of the colonized majority. Meursault, as argued here at the outset, is both a “stranger” and a “foreigner” in colonial Algeria. A foreigner amidst the indigenous people, he is a stranger amidst his own not only in that he refuses to play by the rules of the social games as they are codified in legal proceedings, but also in that he has committed an “unspeakable” offense that could lead to an indigenous revolt that could potentially threaten the established order.31 It is true that Meursault is also convicted for the “moral murder” of his mother. Beyond their abhorrence of his refusal to express emotions in conventional terms, what symbolic significance could the representatives of French colonial law attribute to Meursault’s mother and his alleged indifference toward her? We have seen that Meursault’s paratactic discourse, with its refusal of narrative logic and emotional codification, stands in opposition to the discourse used by judges and lawyers. “Mother” (not Meursault’s particular mother) seems to represent for them continuity with the past and Meursault’s “strange” mode of living entirely in the present is an indifference to such continuity. Meursault’s present is contained in the North African sun and sea; the legal system’s existence depends on its continuous link with French history and tradition. Might not a man more affected by the heat of the sun than by the sight of his mother’s corpse be capable of abandoning himself to the African present and forgetting the French past? Would he cry at the funeral of la mère patrie?32 In this reading, then, Meursault, although himself a pied-noir who never questions, and indeed collaborates with a colonial mentality, becomes, as “the stranger,” a threat to the stability of the colonial system and a scapegoat to be eliminated. His original way of apprehending reality—one that could only be rendered by a writer of great talent—is also baffling to the legal establishment

31

Indeed, anything related to Islam or the Arab language was considered suspect. Charnay, 208. 32 The identification of Meursault’s mother with the French motherland was first suggested in 1977 by Mary Ann Witt in “Race and Racism in The Stranger and Native Son,” 44.

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and the legal mentality. After his appeal33 has apparently been rejected34 and after he has almost violently rejected the consolations of religion, Meursault, in anticipation of his execution and remembering his own particular “strange” mother, not the Mother constructed by the court, rises to new lyric heights. As his “inexorable” path to the guillotine becomes clearer, the reader’s sympathy with him increases. Here it becomes clear that Camus’s indignation is directed not primarily against law or systems of justice per se but more against the death penalty. At first acclaimed because of its “universal” significance, then re-examined in its colonial context, The Stranger has become a modern classic in part because it can be read on many levels, its text at once stylistically limpid and consistently baffling. Any serious reading of the novel must now take into account its context, for it is also a book about French Algeria in the 1930s. Yet it is not only that. One of the reasons that The Stranger has affected so many readers throughout the world is that it strikes to the heart of what human beings experience as a profound discord between our existential reality as living,

33 A “pourvoi” is not a normal appeal in two respects: 1. Only the interpretation of law is discussed, and 2. Even if the French Supreme Court (“Cour de Cassation”) finds that the lower court erred in its interpretation of law, the case is not overturned but simply remanded to another lower court. Under Article 375 the sentence will be carried out within 24 hours after the time limit in which a “pourvoi en cessation” may be made if one has not been made, or, if one has been made, 24 hours after such a pourvoi has been rejected. The time limit is 3 clear days (“jours francs”) under Article 373. Code Penal et Code Justice Militaire, Article 373, 375. 34 It is important to take into account that it is never said that the appeal has been rejected. Nor is it ever said that Meursault actually goes to be executed. These two observations are especially interesting when taken in light the fact that only a small fraction of the sentences pronounced in early 20th century France were actually carried out. For example, in 1938, out of the sixteen death sentences given, only seven people were executed; in 1937, out of the seventeen death sentences given, only six people were executed (Paul Savey-Casard, La Peine de Mort, Esquisse Historique et Juridique (Genève: Librairie Droz, 1968), 144, 153); in 1925, out of the thirty one death sentences given, only seven people were actually executed, and in 1920, out of the fifty six death sentences given, only eight people were actually executed. The people not executed escaped death either through pardon (“grace”), which found its origins in the Article 3 of the Law of February 25, 1875, or through “pourvoi.” Garraud and Laborde-Lacoste (1930), 47–49, 93. Camus arguably may not have filled in these gaps in order to criticize as accurately as possible what the legal system in Algeria actually was at that time. In this regard, although it was realistic to portray the injustice done because of the beliefs of the defendant, the inequality between the prosecutor and the defending attorney, and the ability of the attorney to manipulate the facts, portraying someone who actually gets executed was not as accurate a reflection. Camus’s former job as a court reporter, who must note everything said as precisely as possible, could be an indication of a tendency to stick as closely as possible to the reality of what he was criticizing.

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changing individuals and the constructions which legal and social discourse necessarily make of that reality. To say that the representatives of the law reconstruct and distort Meursault’s “absurd” narration of his experience, however, is not to claim that Meursault is innocent of crime or that, if this were a real case, he should be exonerated in a court of law. The evidence does in fact indicate that he is guilty of murder, perhaps even premeditated murder. On the other hand, the case is also mishandled, and irrelevant factors come into play. Meursault is disadvantaged by having an attorney who is less competent at manipulating the facts than the prosecutor as well as by his way of thinking, which is different from that of the judge and jury, further aggravated by the principles of liberty of evidence and intime conviction.35 If it is true, as argued here, that Meursault and his case represent a threat to the colonial establishment, The Stranger reveals the court’s deep prejudice rather than its alleged “impartiality.” For Camus, Meursault is primarily “innocent” in the sense that he, no more than anyone else, does not deserve to be put to death “in the name of the French people.” His innocence is also not a legal category at all but a function of the disconcertingly original perception of experience that emerges through the first-person narrative. The Stranger may be read on one level as a text on the differences between law and literature.

Works Consulted Marie-José Anon, “Albert Camus: Le Droit entre la révolte et la justice,” La Revue des lettres modernes, 1991; 985–999 2: 51–74. Bernard Durand, Histoire comparative des institutions: Afrique, monde arabe, Europe (Paris: Présence africaine), 1983. Ernest Simon, “Palais de Justice and Poetic Justice in Albert Camus’ The Stranger,” Cardozo Studies in Law and Literature, Spring-Summer 1991, 3(1): 111–125. Richard Weisberg, The Failure of the Word: The Protagonist as Lawyer in Modern Fiction, New Haven: Yale University Press, 1984.

35

Code d’Instruction Criminelle, Article 342.

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THE SILENT VOICES OF THE LAW SUSAN AYRES

This essay examines how women’s stories, especially stories of violence, are often excluded by the legal system. For instance, the recent United States Supreme Court decision of United States v. Morrison, effectively silences and suppresses women. The author contrasts this decision with Jane Smiley’s novel, A Thousand Acres, a rewriting of the classic tale of King Lear. Smiley follows Shakespeare’s general plot, but makes a major plot change by including the father’s incestuous relationship with his two older daughters. Additionally, Smiley changes the point of view from that of the father (in Lear) to that of the older daughters. Smiley’s rewriting is an effort to provide a voice for the two older daughters in Lear, a counter-narrative typically suppressed by law. Thus, the novel provides a dramatic example of how lawyers and judges can change shift their thinking in order to hear these often-suppressed stories.

“In my research on language, one factor which I have often observed is that while women may appreciate the parameters of male reality, men frequently cannot appreciate the dimensions of female reality.” 1

Law oppresses women. Of course, one can argue that we’ve come a long way, baby, since the days when women were chattels. But even in today’s modern, enlightened legal system, women’s stories, especially stories of violence, are often excluded, such as in the recent legal decision of United States v. Morrison. This silencing in the law can be contrasted with Jane Smiley’s novel, A Thousand Acres. Like Morrison, Smiley’s novel is a story about violence against women, but unlike Morrison, A Thousand Acres provides a counter-narrative of violence told from a woman’s point of view. In United States v. Morrison,2 Christy Brzonkala, a student at Virginia Polytechnic Institute, was “repeatedly raped” by two students on the football

1 2

Dale Spender, Man Made Language. Second ed. (London: Routledge, 1985), 90. 529 U.S. 598 (2000).

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team.3 One of the rapists, Antonio Morrison, later bragged about his conquests, and, as the Supreme Court decision notes, Morrison made “boasting, debased remarks about what [he] would do to women, vulgar remarks that cannot fail to shock and offend.” 4 Christy filed complaints against Morrison at Virginia Tech, and, after Virginia Tech dropped and set aside Morrison’s suspension, she filed a complaint in federal district court alleging violations of the Violence Against Women Act of 1994 (VAWA). This act provided for a civil rights remedy for gender-motivated violence. However, the district court ruled that Congress lacked authority to enact VAWA; subsequently, the fourth circuit initially reversed but then affirmed en banc, and the case headed for the Supreme Court.5 The five to four majority decision in Morrison rejected the authority of Congress to enact the civil remedy section of VAWA under the Commerce Clause or under section five of the Fourteenth Amendment. Interestingly, Chief Justice Rehnquist, who authored the majority decision, had spoken out against VAWA, both before and after it was enacted, as a violation of the principles of federalism.6 In Morrison, the Court held that Congress exceeded its commerce power because gender-motivated crimes of violence are not economic activities substantially affecting interstate commerce.7 Despite what the dissent labeled a “mountain of data” 8 regarding the impact of gender-motivated crimes of violence on interstate commerce, the majority rejected this mountain and imposed a molehill of dominant reality, commenting that “ ‘simply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so.’ ” 9 The Court reasoned that to allow Congress to regulate gender-motivated crimes of violence would blur the “distinction between what is truly national and what is truly local.” 10 Morrison implied that the “truly national” includes “employment, production, transit, or consumption,” while the “truly local” includes “marriage, divorce, and childrearing.” 11 Heaven forbid that the law should blur this crucial distinction. Morrison also rejected Congress’ authority to enact VAWA under section five of the Fourteenth Amendment. This rejection was surprising because legislative 3

Morrison, 602. Morrison, 603–604. 5 Brzonkala v. Virginia Polytechnic and State Univ., 935 F. Supp. 779 (W.D. Va. 1996); rev’d 132 F.3d 949 (4th Cir. 1997); aff’d 169 F.3d 820 (4th Cir. 1999) (en banc). 6 Judith Resnik, “The Programmatic Judiciary: Lobbying, Judging, and Invalidating the Violence Against Women Act,” So. California Law Review 74 (2000): 269, 270–271, 275. 7 Morrison, 609–613. 8 Morrison, 628 (J. Souter, dissenting). 9 Morrison, 614 (quoting United States v. Lopez, 514 U.S. 549, 557, n. 2 (1995)). 10 Morrison, 617–618. 11 Morrison, 615–616. 4

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history contained evidence that a “pervasive bias [existed] in various state justice systems against victims of gender-motivated violence”; specifically, some states continued to perpetuate stereotypes that impeded investigation and prosecution of gender-motivated crimes.12 Since this bias appeared to deny victims equal protection of the laws, Congress passed VAWA to provide a civil remedy for gender-motivated crimes.13 Nonetheless, in Morrison the Supreme Court rejected Congress’ authority to enact VAWA under the Fourteenth Amendment because “the Fourteenth Amendment, by its very terms, prohibits only state action. … [and] ‘erects no shield against private conduct, however discriminatory or wrongful.’ ” 14 The Court concluded that the civil remedy provision of VAWA was “aimed … not at any State or state actor, but at individuals who have committed criminal acts motivated by gender bias.” 15 Not surprisingly, scholars have criticized Morrison for constructing a dominant and patriarchal narrative that suppresses women’s stories of violence by “employ[ing] ostensibly gender-neutral tools” to relegate violence against women to the realm of the private.16 By emphasizing the national/local dichotomy in its Fourteenth Amendment analysis, the Supreme Court perpetuated law’s suppression of women. As legal scholar Catharine MacKinnon said: Morrison effectively defines the private as the location where effective redress for sex-based violence is unavailable, ignoring the destruction of women’s freedom and equality in private by the lack of public limits on male violence. The private is thus constructed of public impunity. The jealous guarding of this specific line between public and private acts, under which exercise of state power is accountable to public authority but exercise of so-called private power is not, thus becomes one of the central public means of maintaining a system in which male power over women remains effectively without limit.17

By rejecting congressional findings that gender-motivated violence has an economic impact on interstate commerce and that states discriminate against victims of gender-motivated violence, the Supreme Court in effect “marginalize[d]” and “silenced the voices of women while insulting them in the process.” 18 12

Morrison, 619–620. Morrison, 620. 14 Morrison, 621 (quoting Shelley v. Kraemer, 344 U.S. 1, 13, and n. 12 (1948)). 15 Morrison, 626. 16 Catharine A. MacKinnon, “Disputing Male Sovereignty: On United States v. Morrison,” Harvard Law Review 114 (2000): 135, 136, 170. See also, Sally F. Goldfarb, “ ‘No Civilized System of Justice’: The Fate of the Violence Against Women Act,” West Va. Law Review. 102 (2000): 499, 521–522. 17 MacKinnon, “Disputing,” 170. 18 Christy Gleason, “Presence, Perspectives and Power: Gender and the Rationale Differences in the Debate Over the Violence Against Women Act,” Women’s Rights Law Reporter 23 (2001): 1, 16, 17. 13

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As Morrison demonstrates, dominant reality excludes women’s stories: “[d]ominant narratives are not called stories. They are called reality.” 19 In contrast, women’s stories are not reality, but something else. Many believe that it’s high time to recover suppressed stories of violence. And while law is an unlikely place to find models for the recovery of women’s voices and stories, literature provides a model, especially literature that rewrites or re-envisions dominant reality. An example of a work that re-envisions dominant reality is Jane Smiley’s Pulitzer Prize-winning novel A Thousand Acres, which rewrites the classic tale of King Lear. In Shakespeare’s tragedy, the action begins when Lear, the king of Britain, decides to divide his kingdom among his three daughters, Goneril, Regan, and Cordelia, giving the largest share to the daughter who says she loves him most.20 Lear disowns his youngest daughter Cordelia after her two elder sisters profusely express their love, but Cordelia can say merely, “Nothing,” or when pressed, “I love your majesty/According to my bond, no more nor less.” 21 Lear angrily marries off Cordelia, the daughter he “loved … most,” to the suitor who will take her for “nothing.” 22 After Cordelia marries the king of France, she does not see Lear again until the end of the play, when the two elder sisters have divested him of his entourage of one hundred knights, have thrown him out of the castle into a storm, have chastened the “infirmity of … age,” and thus have driven him to madness.23 The speeches of Goneril and Regan grow increasingly disrespectful and shrill, until the sisters finally conspire to blind the Earl of Gloucester, Lear’s loyal advisor.24 When Cordelia returns to England, the sisters capture and imprison her with Lear, finally ordering her death.25 At the end of the play, Goneril poisons Regan (who has slept with Goneril’s lover, Edmund), Goneril kills herself, a servant hangs Cordelia, and Lear dies after killing the servant.26 Albany, Goneril’s husband, turns the kingdom over to Gloucester’s faithful son, Edgar, and Lear’s faithful servant, the Earl of Kent, whom Lear had banished in the first act but who has disguised himself as Caius to follow Lear.27 19 Catharine A. MacKinnon, 1996, “Law’s Stories as Reality and Politics” in Law’s Stories: Narrative and Rhetoric in the Law, edited by Peter Brooks and Paul Gewirtz (New Haven: Yale UP), 232, 235. 20 William Shakespeare, King Lear (R.A. Foakes ed., Arden Shakespeare series, London: Thomson Learning, 1997) (First Folio 1623) Act I, sc. 1, ll. 35–53. 21 Shakespeare, Act I, sc. 1, ll. 87, 92–93. 22 Shakespeare, Act I, sc. 1, ll. 125, 247. 23 Shakespeare, Act I, sc. 4, ll. 228–243; Act II, sc. 2, ll. 290–300, 437–438; Act III. sc. 4, ll. 4.6. 24 Shakespeare, Act III, sc. 7, ll. 55–83. After Regan’s husband, the Duke of Cornwall, plucks out Gloucester’s eyes, a servant kills Cornwall. Act III, sc. 7; Act IV, sc. 2, ll. 71–73. 25 Shakespeare, Act V, sc. 2–3. 26 Shakespeare, Act V, sc. 3. 27 Shakespeare, Act V, sc. 3, ll. 317–319.

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Similarly, in Smiley’s novel, A Thousand Acres, Larry, a patriarchal father and “king” in his family and community, divides his farm by forming a corporation and dividing the shares among his three daughters.28 When his youngest daughter, Caroline, a lawyer, expresses uncertainty about his plan, he cuts her out.29 Ginny, the protagonist, notes that when Caroline, said “I don’t know,” in response to her father’s plan, she “had … spoken as lawyer when she should have spoken as a daughter.” 30 Ginny’s comment is an ironic allusion to Lear, where Cordelia was similarly disinherited for speaking as a true daughter rather than for saying what her father wanted to hear. Smiley consciously structures her novel on Shakespeare’s play, for the plot of A Thousand Acres provides several modern parallels to King Lear: the father divides the land between the two older daughters, the father rejects and then reconciles with the youngest daughter, the older daughter and son of the father’s close friend commit adultery, the father’s close friend is blinded, and the father wanders in a storm and acts demented.31 In addition, Smiley borrows and rewrites not only Shakespeare’s plot, but also the characters’ names: Lear/Larry, Goneril/Ginny, Reagan/Rose, Cordelia/Caroline, King of France/Frank. Smiley changes the point of view, however, by telling the story not from the father’s perspective as in Lear, but from the perspective of the older daughters, who are generally seen as “figures of pure evil according to conventional wisdom.” 32 Smiley also makes a major plot change by having Larry commit incest with Ginny and Rose, the two older daughters. While some readers of King Lear find incest implicitly or subconsciously suggested in the play,33 the incest in A Thousand Acres occurs explicitly, though not during the action of the novel. The reader doesn’t learn of the incest until halfway through the novel. By this 28 Jane Smiley, A Thousand Acres (New York: Ballantine Publ, 1996) (1991) 18–21. This novel was Smiley’s seventh fictional work. It won the Pulitzer Prize and National Book Critics Circle Award. Although there is no fool character in A Thousand Acres, Smiley suggests that Larry is a fool. For instance, Larry says, “I’m not going to be your fool.” 331. Both Lear and Larry are foolish concerning the premature division of their kingdom. As Richard A. Posner notes, “no play of Shakespeare contains a stronger warning against imprudence in the management of one’s affairs.” Law and Literature 102 (Cambridge: Harvard UP, 1998) (rev. and enl. ed.). 29 Smiley, A Thousand Acres, 19–21. 30 Smiley, A Thousand Acres, 19–21. 31 Smiley, A Thousand Acres, generally. 32 Jane Smiley, 1999, “Shakespeare in Iceland,” in Transforming Shakespeare. Edited by Marianne Nory (New York: St. Martin’s P, 1999). 159, 161. 33 Barbara Mathieson, 1999, “The Polluted Quarry: Nature and Body in A Thousand Acres,” in Transforming Shakespeare: Contemporary Women’s Re-Visions in Literature and Performance, edited by Marianne Novy (New York: St. Martin’s Pr.), 127, 128–129; Janet Adelman, Suffocating Mothers: Fantasies of Maternal Origin in Shakespeare’s Plays, “Hamlet” to “The Tempest” (New York: Routlege, 1992), 125–126.

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point, Ginny has had sex with Jess, the son of her father’s old friend, Harold. Later, Rose will have sex with him, thus repeating the subplot of Lear. And just as in Lear, Ginny becomes so jealous of Rose that she resorts to a “premeditated” attempt to kill Rose by delivering poisoned canned sausage and sauerkraut to her. However, unlike Lear in which Goneril successfully poisons her sister, Ginny’s attempt to poison Rose fails because Rose has converted to Jess’s vegetarian habits and never eats the poisoned food.34 Before Ginny attempts to poison Rose, however, readers are exposed to the accusation of incest. Larry, like Lear, has become more and more unmanageable. Ginny and Rose, who feed Larry and clean his house, anger him by taking away his driving privileges after he wrecks his truck (just as Goneril and Regan anger Lear by taking away his unruly knights). In response, Larry furiously says, “I got nothing.” 35 During a storm, Larry drives off in Rose’s husband’s truck, and when he returns, he confronts Ginny and Rose with the irrational argument that he doesn’t want to go home, but would rather “stay out in the storm.” 36 Similarly, when Regan and Goneril reduce the number of Lear’s knights, he abruptly leaves the castle of Regan and wanders aimlessly in a furious rainstorm. He appeals to the heavens, vows not to cry like a woman, and finally calls his daughters “unnatural hags.” 37 In a scene that parallels Lear, Ginny and Rose stand together holding hands like they had “done when [they] were kids … waiting for punishment.” 38 Larry says “resentfully, ‘That’s right. Hold hands,’ ” a contemporary version of Lear’s “O, Regan, will you take her by the hand?” 39 Then, when Ginny and Rose remind Larry that he has “the nicest house,” but tell him to “[d]o what you want,” he turns on them: “Spoken like the bitch you are!” Rose said, “Daddy!” He leaned his face toward mine. “You don’t have to drive me around any more, or cook the goddamned breakfast or clean the goddamned house.” His voice modulated into a scream. … “You barren whore! I know all about you, you slut. You’ve been creeping here and there all your life, making up to this one and that one. But you’re not really a woman, are you? I don’t know what you are, just a bitch, is all, just a dried-up whore bitch.” 40

The scene has clear parallels to Lear, who curses Goneril with sterility in act one, scene four: “Dry up in her the organs of increase/And from her derogate body 34

Smiley, A Thousand Acres, 243, 324–328, 332, 337. Smiley, A Thousand Acres, 159. 36 Smiley, A Thousand Acres, 195. 37 Shakespeare, Act II, sc. 2, ll. 460–467. 38 Smiley, A Thousand Acres, 194. 39 Smiley, A Thousand Acres, 195; Shakespeare, Act II, sc. 2, l. 383. 40 Smiley, A Thousand Acres, 195. 35

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never spring/A babe to honour her. If she must teem/Create her child of spleen.” 41 Lear’s curse is fulfilled in A Thousand Acres because Ginny never has the children she desperately wants, but suffers innumerable miscarriages due to nitrates in the well water.42 The storm scene has additional significance in A Thousand Acres because Ginny begins to recall her repressed memory when Rose asks if she remembers how their father “came after us.” 43 When Ginny denies it, Rose tells her, “after he stopped going in to you, he started coming in to me. … We had sex in my bed.” 44 Several days later, when Larry’s old friend Harold has taken Larry in and has kicked his son Jess out, Ginny realizes the truth of Rose’s memory as she is making up her old bed in her father’s house for Jess. Lying here, I knew that he had been in there to me, that my father had lain with me on that bed, that I had looked at the top of his head, at his balding spot in the brown grizzled hair, while feeling him suck my breasts. That was the only memory I could endure before I jumped out of the bed with a cry.45

Days later, when Ginny is shopping in town, she overhears her father talking to Caroline. Hiding in a dressing booth, Ginny remembers the suggestiveness of her father’s tone of voice: “All soft and affectionate, but with something underneath that I can’t describe.” 46 She tells Rose, “I thought I was going to faint,” and admits, “It happened like you said.” 47 Ginny realizes that “[o]ne thing Daddy took from me when he came to me in my room at night was the memory of my body.” 48 She remembers that her father had sex with her and that she didn’t resist; “I remembered, over and over again, what the top of his head looked like. But I never remembered penetration or pain, or even his hands on my body, and I never sorted out how many times there were.” 49 Just as Lear’s increasing madness takes over the second half of King Lear, the memories and ramifications of Larry’s incest take over the second half of A Thousand Acres. The incest plot provides a feminist twist to the Lear story by suggesting an alternative narrative of violence stemming from the viewpoint of the silenced sisters.

41

Shakespeare, Act IV, sc. 7, l. 49; Act I, sc. 4, ll. 271–274; Act II, sc. 2, l. 466. Smiley, A Thousand Acres, 177. 43 Smiley, A Thousand Acres, 203. 44 Smiley, A Thousand Acres, 205. 45 Smiley, A Thousand Acres, 247. 46 Smiley, A Thousand Acres, 295. 47 Smiley, A Thousand Acres, 295. 48 Smiley, A Thousand Acres, 302. 49 Smiley, A Thousand Acres, 302–303. 42

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Like Lear, the novel also contains a trial scene, but the trial in A Thousand Acres is not a criminal action for Larry’s incest, but a civil suit brought by Larry and Caroline to invoke the revocation clause in the preincorporation agreement, based on allegations that Ginny and Rose have mismanaged the farm.50 Unlike Lear, in which the mock trial of Goneril and Regan is judged by Poor Tom, Kent, and the Fool, and takes place on the moor after Lear has been banished,51 the lawsuit in A Thousand Acres is not a dramatic part of the plot. Instead, the conference with the lawyer is covered in three pages, and the trial scene in ten pages of a four-hundred-page novel. In short, during the conference, their lawyer tells them to keep up appearances because “appearances are everything”: “you’ve got to farm like model farmers until the court date … And you ladies, you wear dresses every day, and keep the lawn mowed and the porch swept.” 52 Indeed, the lawyer’s advice to keep up appearances reiterates the importance of appearances to dominant reality—what asserts itself are surface, public details, not intimate, private details. The private details about Larry’s incest do not surface during the trial scene, either. Instead, Larry and Caroline lose their suit to revoke the corporation. The evidence is against them, and Larry’s testimony shows he is incompetent, just as Lear’s rantings on the moor in Shakespear’s play during the mock trial devolve into madness.53 Seeking to arraign the absent Goneril and Regan, Lear says, “here’s another whose warped looks proclaim/What store her heart is made on. Stop her there!” and then he imagines “[t]he little dogs and all,/ Trey, Blanch and Sweetheart, see, they bark at me.” 54 Larry similarly makes a mockery of the legal proceedings when he doesn’t answer his lawyer’s direct examination questions, but randomly addresses Caroline: “Caroline! I’ll gag ’em,” “I lost it. It’s well lost. Caroline, please forgive me!” 55 Then he declares that “Caroline’s dead … I think those sisters stole the body and buried her already,” “Those bitches killed my daughter.” 56 Larry’s rantings at trial also parallel Lear’s rantings in prison when he asks Cordelia to forgive him and recognizes that “your sisters/Have, as I do remember, done me wrong. / You have some cause, they have not.” 57 However, whereas the reader of Lear sympathizes with Lear, who appears to be mistreated by his two older daughters, the reader of A Thousand Acres does not sympathize with Larry.

50

Smiley, A Thousand Acres, 262. Shakespeare, Act III, sc. 6, ll. 35–82. 52 Smiley, A Thousand Acres, 307. 53 Shakespeare, Act III, sc. 6, ll. 20 ff. 54 Shakespeare, Act III, sc. 6, ll. 52–54, 60–61. 55 Smiley, A Thousand Acres, 346. 56 Smiley, A Thousand Acres, 347. 57 Shakespeare, Act IV, sc. 7, ll. 72–74, 83–84. 51

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Consequently, while the trial scene has its parallel in Lear, the important trial in A Thousand Acres is not Larry’s claim of corporate mismanagement or abuse, but Ginny and Rose’s claim of sexual abuse. Smiley relates in an interview that in composing the novel, she became a “lawyer” for the two older daughters, and that “[t]he goal of the trial was not to try or condemn the father, but to gain an acquittal for the daughters. The desired verdict was not ‘innocent,’ but rather ‘not guilty,’ or at least, ‘not proven.’ ” 58 Smiley strives to acquit the older sisters by telling the story of incest from their viewpoint, and by deleting the scene from the original play in which Goneril and Regan blind Gloucester as a traitor without due process.59 Although Harold (Gloucester’s counterpart in A Thousand Acres) is also blinded, it’s not due to the actions of Ginny and Rose, but to a tractor accident when a loose hose sprays ammonia into his eyes.60 Since Harold has taken Larry’s side against Ginny and Rose, making derogatory remarks about women when he comes to visit and calling them “bitches” at the church dinner which is held to reconcile Larry and his daughters, neither Ginny nor Rose is especially sorry about Harold’s blinding.61 However, unlike Lear, the daughters are not responsible for the incident blinding. Smiley justifies the plot changes by arguing: Narrative … always calls into question the validity of appearance, always proposes a difference between the public perception of events and their actual meaning. We see this all the time in our adversarial court system, where an event of apparent criminality has taken place, and the jury or judge must decide which narrative of the event is more likely to be true.62

Smiley’s description echoes that of legal scholar Paul Gewirtz, who notes, as James Boyd White has before, that “law and literature attempt to shape reality through language, use distinctive methods and forms to do so, and require interpretation.” 63 Gewirtz reverses Smiley’s relation between law and literature. While Smiley, a storyteller, compares her narrative rewriting to what happens all the time in the courtroom, White and Gewirtz, lawyers, compare what happens in the courtroom to storytelling. White says that “[t]he [legal] process

58 Smiley, “Shakespeare in Iceland,” in Transforming Shakespeare: Contemporary Women’s Re-Visions in Literature and Performance, edited by Marianne Novy (New York: St. Martin’s P, 1999), 172–173. 59 Shakespeare, Act III, sc. 7, ll. 4 ff. 60 Smiley, A Thousand Acres, 250–251. 61 Smiley, A Thousand Acres, 218–221, 236, 252–253. 62 Smiley, “Shakespeare in Iceland,” 172. 63 Paul Gewirtz, 1996, “Narrative and Rhetoric in the Law,” in Law’s Stories: Narrative and Rhetoric in the Law edited by Peter Brooks and Paul Gewirtz (New Haven: Yale UP), 2, 4.

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is at heart a narrative one,” and Gewirtz notes that “[s]torytelling in law is narrative within a culture of argument. Virtually everyone in the legal culture … is explicitly or implicitly making an argument and trying to persuade. Storytelling is, or is made to function as, argument.” 64 Thus, the novel forces readers to blur the distinction between the public/ private dichotomy delineated in the Morrison case by seeing and hearing the story of Larry’s incest from the daughters’ view. When Ginny and Rose discuss their father’s abuse and oppression, Ginny says, “When he talked, he had this effect on me. Of course it was silly to talk about ‘my point of view.’ When my father asserted his point of view, mine vanished. Not even I could remember it.” 65 Ginny and Rose strive to maintain their story, their point of view: “we just had to agree on our plan and stick to it.” 66 They had to keep a “[u]nited front” against the community belief that they were evil daughters who threw their father out in a storm.67 Thus, A Thousand Acres can be read as a feminist modernization of the primary themes in King Lear. If, as many critics have pointed out, King Lear is concerned with the antinomy of natural law versus positive law,68 and of the king’s failure of authority, Smiley has put these themes in a contemporary context.69 As a feminist, Smiley demonstrates Larry’s failure of authority as a sexual being and as a father figure. By raping his daughters, he has treated them as his possessions—the rapes are not portrayed as violent acts, but as unnatural violations—the father’s misuse of his daughters. Smiley’s addition of the incest plot is not inconsistent with the view of Shakespearean critics who have suggested that “Lear may be … harbouring [sic] a suppressed incestuous desire for Cordelia.” 70 Thus, the incest plot allows Smiley to present the daughters’ story and their different reactions to their father’s actions. Rose responds to Larry’s incest with a seething rage, and Ginny responds with a realization that “the memory of [her] body” has been taken and with the

64

James Boyd White, Heracles’ Bow: Essays on the Rhetoric and Poetics of the Law, (Madison: U. of Wisconsin Pr., 1985), 36; Gewirtz, 5. 65 Smiley, A Thousand Acres, 190. 66 Smiley, A Thousand Acres, 163. 67 Smiley, A Thousand Acres, 165, 227–228. 68 Posner, 93; Paul M. Shupak, “Natural Justice and King Lear,” Cardozo Studies in Law and Literature, 9 (1997): 67. 69 For instance, Mary Carden believes that both Smiley and Shakespeare ask “What happens when the law of male ownership of land and women is interrupted.” Mary Paniccia Carden, “Remembering/Engendering the Heartland: Sexed Language, Embodied Space, and America’s Foundational Fiction in Jane Smiley’s A Thousand Acres,” Frontiers 18 (1997): 181, 194. 70 See, for instance, Shakespeare, 39, n. 2; Mathieson, 128, n. 4–5; Adelman, 125–126.

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“riddle … of how we judge those who have hurt us when they have shown no remorse or even understanding.” 71 Rose compares both fathers—Larry and Harold—to Hitler, and doesn’t “care if they suffer” but wants them to show remorse.72 Clearly, Rose bases her ethic on an order of “evil and retribution,” in which she “want[s] what was Daddy’s. I want it. I feel like I’ve paid for it, don’t you. … You think a teenaged hooker costs fifty bucks a night? There’s ten thousand bucks.” 73 In contrast, Ginny’s ethic is based on compassion—she struggles to understand, even if she doesn’t forgive what her father did. Ginny does not understand her father’s basic character, much less his incest. She says that “[t]rying to understand my father had always felt something like going to church week after week and listening to the minister … marshal the evidence for God’s goodness, or omniscience, or whatever,” but the problem was that “[m]y father had no minister, no one to make him gel for us even momentarily. My mother died before she could present him to us as only a man … I wish we had understood him. That, I see now, was our only hope.” 74 A conversation between Ginny and Rose shows their different views about their father: [Ginny] said, “I don’t understand Daddy. I just don’t.” “You’re not supposed to, don’t you get it? Where’s the fun in being understood? Laurence Cook, the great I AM.” [Rose] laughed again. “I want to.” “I don’t. Anyway, I understand him perfectly. You’re making it too complicated. It’s as simple as a child’s book. I want, I take, I do.” 75

Although Rose articulates a “masculine” ethics of judgment over Larry and accuses Ginny of being “paralyzed” because she is trying to “see[] things from his point of view,” 76 Ginny is unable to articulate her point of view, her understanding, because it is based on a “feminine” ethics of compassion and she has no mother, no feminine language to “make him gel.” 77 These two different types of ethics are contrasted by legal scholar Robin West. According to West, an ethic of justice “is typically associated with universal rules, consistency, reason, rights, the public sphere, and masculine virtues,” whereas an ethic of care “is typically associated with particularity, context, affect, relationship, the private sphere, and femininity.” 78 Therefore, by including 71

Smiley, A Thousand Acres, 207, 383, 302, 398. Smiley, A Thousand Acres, 253–254. 73 Smiley, A Thousand Acres, 327. 74 Smiley, A Thousand Acres, 20–21. 75 Smiley, A Thousand Acres, 228. 76 Smiley, A Thousand Acres, 228. 77 Robin West, Caring for Justice (New York: NYU Pr., 1997), 23, 35–36; Smiley, A Thousand Acres, 20. 78 West, 23, 35–36. 72

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incest, and by using a masculine and feminine ethic to differentiate Ginny’s point of view from Rose’s, Smiley provides contemporary audiences with a foothold to understand not only Shakespeare’s grand themes but also Smiley’s feminist concern that there may be another side to the issue. Smiley provides a counter-narrative, a (possible) story of the silenced sisters. James Schiff justifies the incest plot as “credible; [it] makes absolute sense, and fits the story. In addition, it answers well to its culture.” 79 Similarly, Susan Strehle calls the incest plot “a plausible motive for the girls’ actions.” 80 In our society, the likelihood that a father might rape his daughter is, unfortunately, “credible” and “plausible” as many feminist legal scholars have noted. For instance, Kimberle Crenshaw argues that “battering and rape, once seen as private (family matters) and aberrational (errant sexual aggression), are now largely recognized as part of a broad-scale system of domination that affects women as a class.” 81 While West points out that “[t]he centrality of rape and the fear of rape to women’s lives have of course been exhaustively documented in feminist writing over the last twenty years,” 82 the United States Supreme Court in United States v. Morrison implicitly rejected the exhaustive documentation of violence against women when it reversed the Violence Against Women Act. Smiley’s novel is something many legal scholars and feminists, including West, a radical feminist, would argue desperately needs to be heard, especially in light of decisions such as United States v. Morrison. In Caring for Justice, West claims there are also political reasons feminist legal theorists should keep our focus on patriarchal violence rather than patriarchal constructs. … It is extremely difficult … to communicate to men … the defining role that sexual violence and the fears of sexual violence play in women’s and girls’ lives.83 79

James A. Schiff, “Contemporary Retellings: A Thousand Acres as the Latest Lear,” Critique: Studies in Contemporary Fiction 39 (1998): 367, 376. 80 Susan Strehle, “The Daughter’s Subversion in Jane Smiley’s A Thousand Acres,” 41 Critique: Studies in Contemporary Fiction, 41 (2000): 211, 214. 81 Kimberle Crenshaw, “Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color,” Stanford Law Review 43 (1991): 1241, 1241–1242. 82 West, 101. 83 West, 262. By “patriarchal constructs” West refers to the attention given by poststructuralists to the notion that subjectivity and discourse is constructed, and that patriarchy privileges the male in such constructs. See, e.g., Chris Weedon, Feminist Practice and Postructuralist Theory (Oxford: Basil Blackwell, 1987), 131. (“Poststructuralist feminism requires attention to historical specificity in the production, for women, of subject positions and modes of femininity and their place in the overall network of social power relations. In the process of constituting subjectivity, the meaning of biological sexual difference is never finally fixed. It is a site of contest over meaning and the exercise of patriarchal power. This discursive contest, in which women can resist particular meanings and power relations, is subject to historical change”).

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One of West’s premises is that women’s sexuality and pleasure differ profoundly from men’s because women’s sexual pleasure “is a source of danger” since it makes “her vulnerabl[e] to assault, rape, violence, and death.” 84 A Thousand Acres demonstrates women’s vulnerability in a way that focuses on patriarchal violence rather than on what West calls patriarchal constructs. The novel circles around the suppressed stories of violence—incest and beatings— that Larry has enacted against Rose and Ginny. Strehle accepts Smiley’s “revisionary impulse” that “criticize[s] the roaring patriarch and the silent daughter for creating a family discourse in which truth cannot be named or history imagined. Both subversive acts open up a new space in which oppression and abuse can be named and other stories written.” 85 Most importantly, the “silencing violence” 86 of the patriarchy can be cured by women’s stories. Thus, as Martha Minow notes, “[t]he storyteller uses bits of the past to unsettle the present and deprive it of peace of mind.” 87 In the past, women’s stories have been repressed whereas, “[d]ominant narratives are not called stories. They are called reality.” 88 Dominant reality has excluded women’s stories, especially those about violence against women.89 Not surprisingly, feminist scholars have been engaged in “the recovery of suppressed stories of women from the official or accepted accounts of events or conditions in the world.” 90 Smiley’s re-writing of Lear can be seen as part of this radical feminist project to recover suppressed stories of violence. Smiley’s novel demonstrates both dominant reality and suppressed feminine reality. For instance, although Larry oppresses Ginny’s “point of view,” she and Rose assert their point of view in order to “stick with what’s true”: Rose laughed, then she said, “Did we treat him badly?” “I know people think we did.” “But did we? Do you think so?” … I said, “I don’t think so, no.” “Well, then. Stick with what’s true.” “What’s true?” “He went out into the storm because he was stubborn and childish.” 91 84

West, 114–115. Strehle, 225. 86 West, 262. 87 Martha Minow, “Stories in Law,” in Law’s Stories, 24, 33. 88 Catharine A MacKinnon, “Law’s Stories as Reality and Politics,” in Law’s Stories, 232, 235. 89 Regina Graycar, “Telling Tales: Legal Stories About Violence Against Women,” Cardozo Studies in Law and Literature, 8 (1996): 297. 90 Graycar, 297–298. 91 Smiley, A Thousand Acres, 227–228. 85

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What’s true from their personal experience and point of view is a completely different version from that of the community and from that of King Lear. As Rose tells Ginny, “But he did fuck us and he did beat us. He beat us more than he fucked us. He beat us routinely. And the thing is, he’s respected. Others of them like him and look up to him. He fits right in. However many of them have fucked their daughters or their stepdaughters or their nieces or not, the fact is that they all accept beating as a way of life. We have two choices when we think about that. Either they don’t know the real him and we do, or else they do know the real him and the fact that he beat us and fucked us doesn’t matter. Either they themselves are evil, or they’re stupid. That’s the thing that kills me. This person who beats and fucks his own daughters can go out into the community and get respect and power, and take it for granted that he deserves it.” 92

Rose and Ginny must continually struggle to provide a counter-narrative that opposes dominant reality. They have to struggle just to remember “what’s true.” At the end of the novel, Ginny leaves the farm and her husband Ty for the city. Although she doesn’t tell Caroline about the incest, because she doesn’t want to “wreck [Caroline’s] childhood,” 93 she angrily tells Ty her point of view: “You see this grand history, but I see blows. I see taking what you want because you want it, then making something up that justifies what you did. I see getting others to pay the price, then covering up and forgetting what the price was. Do I think Daddy came up with beating and fucking us on his own? … No. I think he had lessons, and those lessons were part of the package, along with the land and the lust to run things exactly the way he wanted to no matter what….” 94

Ginny’s point of view starkly contrasts with Ty’s, who doesn’t believe what she has told him, and at any rate, believes that “people should keep private things private.” 95 Ty’s view corresponds with the dominant reality expressed in Morrison that suppresses women’s stories. By the end of the novel, Ginny subverts the patriarchal view by leaving Ty and voicing her own feminine story, what she knows to be true.

92

Smiley, A Thousand Acres, 326–227. Smiley, A Thousand Acres, 390. Earlier, Rose told Ginny that she didn’t think Larry had sex with Caroline: “ ‘I’m not sure. I mean, he told me that if I went along with him, he wouldn’t get interested in her. He presented it as a kind of biological fact. I suspect he never tried anything with her, mostly because she acts like she feels differently toward him than we do. She humors him and sympathizes with him. He doesn’t overwhelm her the way he does us.’ ” 205. 94 Smiley, A Thousand Acres, 371. 95 Smiley, A Thousand Acres, 368. 93

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Smiley’s challenge to Lear results in a new reality, the father’s incestual abuse of his daughters, and serves Smiley’s purpose of “gain[ing] an acquittal for the daughters.” By adding the incest theme, Smiley’s re-writing is “[her] own Lear,” which succeeds where Shakespeare fails in giving voice to the suppressed Regan and Goneril. Smiley’s novel foregrounds women’s stories. The novel successfully shows the reader Ginny and Rose’s point of view—their story about patriarchal violence. Professor James Boyd White has stated that “You are entitled to have your story told in your language … or the law is failing.” 96 The law failed in United States v. Morrison when it relegated Christy Brzonkala’s story of rape into the private realm, and it undoubtedly fails on a daily basis to hear other stories of violence against women. Reading works such as A Thousand Acres, which provides a counter-point to dominant reality, can make lawyers and judges attuned to silenced voices and perspectives, what Ginny calls “the gleaming obsidian shard I safeguard above all the others.” 97

Works Consulted Adelman, Janet. Suffocating Mothers: Fantasies of Maternal Origin in Shakespeare’s Plays, “Hamlet” to “The Tempest.” New York: Routledge, 1992. Carden, Mary Paniccia. “Remembering/Engendering the Heartland: Sexed Language, Embodied Space, and America’s Foundational Fiction in Jane Smiley’s A Thousand Acres,” Frontiers 18 (1997): 181–202. Crenshaw, Kimberle. “Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color.” Stanford Law Review 43 (1991): 1241–1299. Gewirtz, Paul. “Narrative and Rhetoric in the Law.” in Law’s Stories: Narrative and Rhetoric in the Law. Edited by Peter Brooks and Paul Gewirtz. New Haven: Yale UP, 1996. 2–13. Gleason, Christy. “Presence, Perspectives and Power: Gender and the Rationale Differences in the Debate Over the Violence Against Women Act.” Women’s Rights Law Reporter 23 (2001): 1–19. Goldfarb, Sally F. “ ‘No Civilized System of Justice’: The Fate of the Violence Against Women Act.” West Virginia Law Review 102 (2000): 499–546. Graycar, Regina. “Telling Tales: Legal Stories About Violence Against Women.” Cardozo Studies in Law and Literature 8 (1996): 297–315. MacKinnon, Catharine A. “Disputing Male Sovereignty: On United States v. Morrison.” Harvard Law Review 114 (2000): 135–177. ———. “Law’s Stories as Reality and Politics.” In Law’s Stories: Narrative and Rhetoric in the Law. Edited by Peter Brooks and Paul Gewirtz. New Haven: Yale UP, 1996. (232–237). 96 97

White, 42. Smiley, A Thousand Acres, 399.

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Mathieson, Barbara. “The Polluted Quarry: Nature and Body in A Thousand Acres.” In Transforming Shakespeare: Contemporary Women’s Re-Visions in Literature and Performance. Edited by Marianne Nory. New York: St. Martin’s P, 1999. (127–144) Minow, Martha. “Stories in Law.” In Law’s Stories: Narrative and Rhetoric in the Law. Edited by Peter Brooks and Paul Gewirtz. New Haven: Yale UP, 1996. (24–36) Posner, Richard. Law and Literature. Cambridge: Harvard UP, 1998. Rev. and enl. ed. Resnik, Judith. “The Programmatic Judiciary: Lobbying, Judging, and Invalidating the Violence Against Women Act.” South California Law Review 74 (2000): 269–293. Schiff, James A. “Contemporary Retellings: A Thousand Acres as the Latest Lear.” Critique: Studies in Contemporary Fiction, 39 (1998): 367–381. Strehle, Susan. “The Daughter’s Subversion in Jane Smiley’s A Thousand Acres.” Critique: Studies in Contemporary Fiction, 41 (2000): 211–226. Shakespeare, William. King Lear. Ed. R.A. Foakes, Arden Shakespeare series. London: Thomas Nelson and Sons Ltd., 1997. First Folio 1623. Shupak, Paul M. “Natural Justice and King Lear.” Cardozo Studies in Law and Literature 9 (1997): 67–105. Smiley, Jane. A Thousand Acres. New York: Ballantine Publ. Group, 1996. 1991. ———. “Shakespeare in Iceland.” In Transforming Shakespeare: Contemporary Women’s Re-Visions in Literature and Performance. Edited by Marianne Novy. New York: St. Martin’s Pr., 1999. (159–179) Spender, Dale. Man-Made Language. 2nd ed. London: Routledge, 1985. Weedon, Chris. Feminist Practice and Post-structuralist Theory. Oxford: Basil Blackwell, 1987. West, Robin. Caring for Justice. New York: NYU Pr., 1997. White, James Boyd. Heracles’ Bow: Essays on the Rhetoric and Poetics of the Law. Madison: U. of Wisconsin P., 1985.

LAW AND ORDER: EXPLORING THE BRITISH LEGAL SYSTEM IN DAVID HARE’S MURMURING JUDGES KAREN C. BLANSFIELD

In the early 1990s, British playwright Sir David Hare completed a trilogy that examines and critiques the crises facing three great British institutions: the Church, the Judiciary, and Parliament. Racing Demon explores the conflicts faced by the Anglican Church over its mission and pertinent contemporary issues. Murmuring Judges continues this public inquiry through an examination of the criminal justice system, illustrating how courts, prisons, and police co-exist in a state of mutual incomprehension, and exposing the clash between corruption and idealism in the system. The trilogy concludes with The Absence of War, a thinly veiled account of the campaigns of Neil Kinnock and John Major. Murmuring Judges, the subject of this essay, presents a triumvirate view of the law, examining how, in Hare’s view, the major dilemma of the legal system is the isolation and alienation of the judiciary arm from the two other segments of the legal triad: the prisons and the police. These units neither communicate or connect, nor do they interact or cooperate. The play addresses many of the troublesome issues Hare perceives in this complex legal system, including sexism, racism, internal conflict, insensitivity to clients and colleagues alike, and the impossibility of change within an entrenched structure. At the same time, it grapples dramatically and thematically with the simultaneous unity and divisiveness of this system. Through its dramatic structure and thematic development, Murmuring Judges provides valuable and informed insight into the intricacies and dilemmas of the British legal system.

Near the beginning of Sir David Hare’s 1991 play Murmuring Judges, a character who is on trial and awaiting his verdict mutters, “God, is there anything in the world slower than a lawyer?” (1).1 Even as this question scorns the judiciary,

1

David Hare, Murmuring Judges. Unless otherwise noted, all subsequent parenthetical page references come from the text of the play.

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it foregrounds just one of many issues and dilemmas facing the British legal system that Hare explores in this play, a work that scrutinizes not only the judiciary but the police force and the prison system as well.2 Murmuring Judges is the centerpiece of a trilogy of plays Hare wrote in the early 1990s examining and critiquing Britain’s major institutions and questioning the state of their health. Racing Demon (1990), the first and most popular of the three, considers the contemporary crises and tensions within the Anglican Church as well as public perceptions of its role and mission. Murmuring Judges continues this public inquiry through a study of the criminal justice system, illustrating how courts, prisons, and police co-exist in a state of mutual incomprehension while simultaneously exposing the clash between corruption and idealism within the system. Hare completes his investigation with The Absence of War (1993), which addresses Parliament and party politics through a thinly veiled account of the 1992 campaign between incumbent Conservative Prime Minister John Major and Labour Party leader Neil Kinnock—a contest that in itself confronted core problems of political rhetoric and approaches to the electorate. Besides being the central play of the trilogy, Murmuring Judges is in itself a triad, encompassing a triumvirate perspective of the law. In Hare’s opinion, a major dilemma of the legal system—if not the major dilemma—is the isolation and alienation of the judiciary arm from the two other segments of the legal triad: the prisons and the police. They neither communicate or connect, nor do they interact or cooperate. In Asking Around, a book by Hare recounting his five years of research for this trilogy, he says he began to realize that “our Criminal Justice System was divided quite sharply into three. At the top are the lawyers. … In the middle are the police, who are constantly aggrieved at the amount of stick they get from both sides. And at the bottom are the prisoners and the prison service, a group who are basically ignored except when … they make trouble” (88).3 Concurring with this view, critic Ruby Cohn notes that “Hare dramatizes British justice as an oxymoron: the overworked police cannot begin to contain crime, the prison is governed by its own brutal laws, and the legal eagles fly by their own rarefied codes.” 4 Murmuring Judges addresses many of these troublesome issues, including sexism, racism, internal conflict, insensitivity to clients and colleagues alike, and the impossibility of change within an entrenched structure. At the same time, it grapples both thematically and dramatically with the simultaneous unity and divisiveness Hare perceives in the complex legal system. 2 Hare notes in the text that the play’s title “is from a legal expression, meaning to speak ill of the judiciary” and “is still an offence in Scottish law.” 3 All subsequent references to this book, unless its title is mentioned in the text of the essay, will be cited parenthetically as AA, with page numbers. 4 Cohn, 38.

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Murmuring Judges centers around the dubious criminal sentencing of a young Irishman named Gerard McKinnon and the efforts of an idealistic young lawyer, Irina Platt, to correct this seeming injustice. The play also incorporates the conflict faced by a young police constable, Sandra Bingham, who discovers that a fellow police officer planted evidence that helped implicate McKinnon. A first-time offender, McKinnon receives a five-year term as the driver in a robbery planned by a couple of hard-core thieves he’d met in a pub— James Travis and Michael Fielding—each of whom is sentenced to eight years and six years, to run concurrently. McKinnon, the father of a handicapped child with another baby on the way, reveals that he had been desperate for money to supplement his meagre, multi-job income and that he thought, “OK, just the once. … And the waves will only be up to my chest” (43). As he later tells Platt, “The whole thing was terribly simple. The two of them went in, and I sat outside in the van, shit-scared, I admit. Then they came running out. They didn’t even mention the bloke they’d tied up” (43). But three days later, having not been paid for the job, McKinnon has the unfortunate timing to show up at Fielding’s apartment just as the police arrive with a search warrant, whereupon they find a bag of dynamite sticks on the premises (which, as readers later learn, had been planted by a policeman). Recounting the episode to Irina, McKinnon, who saw what was in the bag, remarks that neither Fielding nor Travis seemed surprised by the police discovery; furthermore, he notes, “The detective said he thought I should go home,” which McKinnon does (44). But in his continued attempt to collect the payment due him, McKinnon gets nabbed, and the two accomplices blackmail him into pleading not guilty in the robbery case to prevent him from revealing what he saw during the police raid. Ultimately, McKinnon’s plea of innocence is construed as lying and thus contributes, along with his being Irish, to what Irina describes as a sentence that is, by any standards, “harsh” and “ridiculous” (Cohn, 39). Once Platt becomes involved in McKinnon’s case, she is introduced to other aspects of Britain’s criminal justice system—including the police, the courts, and the prisons—and ultimately to a recognition of its insensitivity and clubbiness, as well as the snobbish and often contemptuous attitudes its factions display towards one another. At McKinnon’s appeal hearing, for instance, Irina confronts one of the arresting officers, Barry Hopper, on the ethics of her client having been framed: IRINA: I know you think … you think it doesn’t matter. BARRY: Do I? IRINA: You start cutting corners and you think, what’s the harm? BARRY: Do we? (He smiles.) God, you must really understand us. IRINA: It isn’t hard, is it? BARRY: Isn’t it? IRINA: I do understand how policemen’s minds work.

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Karen C. Blansfield BARRY: Do you? From what? From your experience? From your deep experience of doing a filthy, thankless job? You really know? Oh, do you? (He leans in towards her.) When was anyone last sick on your wig? (100–01)

Barry goes on to slam the “middle-class people [who] sit on a committee and then tell the yobs what we’re all doing wrong,” calling it “the English way” and adding sarcastically, “Sure. I think it’s the one thing the police really need. More advice. That’s it. We love it. We can’t get enough. Especially from people who don’t do the job” (101). At another point, while talking with his colleague Sandra, Barry criticizes the prison system as well, noting that McKinnon “shouldn’t be in prison. But then none of them should. Because it isn’t a deterrent. He shouldn’t be in prison because prison doesn’t work” (70). In both instances, Barry’s comments reflect the disdain of the constabulary towards both the judiciary and the penal systems, as well as highlighting the lack of collaboration between the various elements in the system. Sandra is another central character caught in this collective crossfire. Like Irina, she must confront the moral morass of the system to which she belongs; further, she must wrestle with ethical issues when she learns that Barry, with whom she has been romantically involved, has fiddled with the evidence that has implicated McKinnon. And like Irina, she tells Barry, “It isn’t right” (76), shunning his defensive retort that policemen have to resort to tricks in order to get enough information to make arrests. But Sandra doesn’t buy into his viewpoint: “It’s just stupid; it’s bloody stupid. That’s the thing about you, Barry, you used to be smart. You were really smart. Until your main interest got to be in beating the system. Working out your grievance. And that’s when you began to get really dumb” (77). To some extent, the resentment, cynicism, and frustration of the police—as well as their justification of unorthodox methods—can be attributed to feeling that their powers are hampered by the law. In Asking Around, Hare notes that most of the police he interviewed complained about “reforms introduced to counter the element of corruption which had come to light in the seventies,” and, while they acknowledged some to be warranted, others diluted their ability to maintain order, so that “they were spending more time making sure they obeyed the guidelines than actually catching criminals” (109). Furthermore, the police were discouraged by the odds against their cases ever seeing justice, and, as Hare notes, “There were so many filters between a crime and its eventual prosecution that they believed the public had become seriously disillusioned” (110). In Murmuring Judges, this sentiment is echoed by officer Jimmy Kahn while reviewing a record of arrests: Already, you know, you can see the ones you fancy. It gets to be obvious after a while. I can throw my eyes down a crime sheet, and pick the ones where I’ll get a result. (He holds up the list to show the audience.) There’s maybe thirty-five cases. Most of them you haven’t got a chance. Like burglaries, muggings, forget it, unless someone caught them red-handed. Which, if they did, it sure wasn’t us. (59)

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The problems of inefficiency, insensitivity, and injustice extend outside the judiciary itself, taking their toll on the public who are subject to, or perhaps victims of, the system’s internecine warfare. From the outset of Murmuring Judges, for instance, the alienation of the individual from the judicial system is apparent. As McKinnon is about to be sentenced after being found guilty, he thinks, Finally I get it, yes, it is happening, these men, every one of them silver-haired, judicious, informed, they will go home to their wives, to wine in fine glasses and the gossip of the Bar, they will walk the streets and complain about their lives, and I … And I … And I … the stuff of their profession … I will go to my gaol. (2)

McKinnon’s belief is theatrically accentuated by the immediate melding of the courtroom scene into “the open area giving on to the High Court. […,] a great vaulted Victorian building,” where the dispassionate attitude towards his case is demonstrated by an exchange between McKinnon’s defense counsel, Sir Peter Edgecombe, QC—who had had the case dumped on him at the last minute—and Justice Desmond Cuddeford: CUDDEFORD: Are you looking crestfallen? SIR PETER: Crestfallen? No. CUDDEFORD: They were saying at luncheon you’d just lost your case at the Bailey. SIR PETER: Good Lord, I’m astonished anyone mentioned it. CUDDEFORD: But they did. SIR PETER: It was a very trivial affair. … I only took a criminal case as a favour. Fair dos [sic], Desmond. I came to it late. CUDDEFORD: They all count. It spoils your bowling average. (3)

Sir Peter goes on to refer to the case as “a silly sort of warehouse robbery,” and the conversation then segues into an inane discussion of Sir Peter’s guest spot on Desert Island Discs, a radio program featuring prominent public individuals who discuss what music they would select to have should they be stranded on an island (3). That Sir Peter cites this program as “the last remaining thing the British all hold in common,” noting it as “the only time we’re really one nation,” emphasizes his disconnection from the people he supposedly serves and his entrenchment in the rarefied atmosphere of the judiciary (4). His chambers in Lincoln’s Inn, “white-panelled, with Georgian prints on the walls, and all the comforts of his profession, the fine desk, the books, the lamps,” further underscores this separation (83). In truth, Sir Peter has relinquished criminal cases in favor of civil ones for the very reason that they better suit his haughtiness, his contempt for “types” like McKinnon, the “ordinary, slightly sub-average human being who has landed himself in a damn stupid mess” (89), and he acknowledges what a relief

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Chancery Court is. “You know what’s so boring about criminal law?” he asks Irina, to which she responds, “I think I can guess. […] It involves real human beings.” “That’s one disadvantage,” Sir Peter admits, without irony. “But also you have to establish the facts. […] That’s why I also like libel cases. Because so often they’re a matter of opinion. You’re arguing about things which no one can prove. You’re juggling with air, pure and simple” (84–85). Near the end of the play, Irina confronts Sir Peter on his indifference, mocking his attitude— “ ‘Oh, I don’t do criminal law’ ”—and accusing him more specifically of never even having intended to appeal McKinnon’s sentence, to which Sir Peter replies, “The case was not interesting” (91–92). He defends his stance as a form of ethical survival, a necessity for maintaining moral objectivity: We shouldn’t be … soggily compassionate about every petty larcenist we’re hired to represent. Indeed, it’s actually dangerous. Because the fact is … your judgement goes. […] There is a glass screen. And our clients, I’m afraid, live on one side of it. We on the other. And much as you may wish it, we cannot break through. (93)

But Irina does try to break through this barrier, an effort that is evident through the personal interest she takes in McKinnon and her professional concern that his sentence be appealed and justice be served. The fact that Irina herself is socially marginalized by virtue of being female, black, and foreign (a native of Antigua) may help account for the empathy she feels toward McKinnon and the camaraderie they develop. In the court system, to which she is newly arrived, she is clearly regarded as a token racial representative as well as a “catch,” as Edgecombe crassly puts it. “She seemed to us to have all the assets we need in a forward-looking Bar,” he says, to which Cuddeford slyly replies, “Yes. I see those. Most clearly” (6). Furthermore, Irina is expected to serve as Sir Peter’s ornament at public functions, “something nice to hold his right arm. To be seen to hold his right arm” (10). Irina’s visits to McKinnon illustrate yet another way to bridge the artificial stricture between personal and professional, between the individual and the system. While she chides him for taking on the role of “Poor Me,” noting that he can either moulder “in pointless self-pity” or fight for his rights, she also indicates her concern that McKinnon’s solicitor has not pursued an appeal. “You’ve been worried?” asks McKinnon in surprise. “Yes,” says Irina. McKinnon’s response, “You’ve thought of me?” reiterates his amazement that any personal connection is possible in this system that has, in his view, condemned him coldly and indifferently. Irina responds, “Yes, I’ve been worried, and yes, I’m a lawyer. The two things can go together, you know” (39). The process of talking about his situation and his problems is, McKinnon finds, “quite a relief ” (41). Their interaction even goes so far as to having Irina tell the prisoner of her own failed love affair, which prompts further confidence from McKinnon, though this intimate revelation is sincere and is not designed as a ploy to elicit information.

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But a prison official, Raymond Beckett—one of the few in the system who has shown some semblance of humanity towards McKinnon—makes no secret about his attitude towards the temptation of appeals. “Look, did that lawyer tell you it was terrible?” he asks McKinnon after Irina leaves. “Did she say a terrible injustice had been done? And how awful this prison is? Then what did she do? I’ll tell you. She walked away. Walk in. Upset them. Leave them. That’s lawyers” (47). (Beckett’s cynicism does have merit; when McKinnon’s case is finally appealed, thanks to Irina, the court smugly and with a sense of moral generosity reduces McKinnon’s sentence from five years to four and a half.) Beckett’s comment further illuminates the divide that exists within the legal system itself, as does Barry’s exchange with Irina about how little the lawyers know of the police world. Barry reiterates this view when he tells Sandra the fact that McKinnon “was kind of Irish” contributed to his unfair sentence. “And you think judges take that into account?” asks Sandra. Barry retorts, “Oh, leave it out, Sandra, … You’re not in the Dream Palace now.” She pursues her point: “I’m not being stupid, I’m interested, you tell me … are you really saying that’s how judges’ minds work?” (31). Barry replies firmly, Sandra, we are talking about a body of men who sometimes choose to go to work dressed in stockings and suspenders. I’m buggered if I know how their bloody minds work. […] Next time you’re tempted to be serious when you look at a judge. Under the robes. Under the language. Under the gravity. Please remember: he has made a style choice for which any adult male except Danny La Rue would be instantly arrested.” (31–32)

The judiciary, not surprisingly, is equally disdainful of both the police force and the prison system, shuffling off any responsibility it might bear for initiating change. For example, during a dinner at High Table, the new Home Secretary, Charles Kendrick, MP, broaches the idea that reducing prison sentences would not increase the crime rate, citing statistics to that effect from Germany and Sweden. “An independent judiciary is perhaps the most important bullwark against chaos this country has,” he says, carefully acknowledging his own Constitutional position of non-interference. “But we’ve nowhere to put all these bloody prisoners you keep sending us” (56). Cuddeford replies that the problem is the government’s, “not ours,” couching his callous attitude in the guise of judicial propriety and detachment: You see, just think, if for one single moment, when I’m at work in my court, if I begin to consider … if I ever consider what prison is now like … then I cannot fairly administer justice. Because my head is full of what we may call failings of society … […] It’s actually dangerous. If I and my colleagues begin to deceive ourselves, if we fudge our principles, if when the accused stands before us, some extraneous factor, however pressing, makes us pretend that crime is not crime, and

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Karen C. Blansfield should not be punished, then the judges become an instrument of government convenience. (57)

Even as Cuddeford claims the need for objectivity, he contends that judges are “in touch with ordinary people. … Ordinary, common-as-muck individuals. Some of them quite ghastly, I promise you that. This makes us alert to public opinion” (55). He furthers this pretentious humanitarian view with even more disgustingly blatant hypocrisy: “Tonight in your cells, I appreciate you have twice as many prisoners as places. It’s sad. It’s regrettable. These poor devils, they prey on my mind” (57). In Asking Around, Hare offers some insight into this aspect of judges judging themselves, as well as a hint of their subliminal racism. “It was the judges’ own refusal to recognize that they were only part of a long and fallible process, and not in any sense separate from or superior to it, which had begun to make them so controversial throughout the eighties,” Hare writes, citing as examples the wrongful imprisonment of the Birmingham Six, the Guildford Four, and the Maguires (61).5 He continues: Throughout my researches in the Inns of Court, I met lawyers who would not acknowledge that there had been miscarriages of justice, but who rather sought to assure me that the full facts of these Irish cases had not been disclosed; that there was more to them than had met the eye; that it was not the prisoners’ innocence which had been established, but only their guilt which had not been unarguably proved; and that if only certain other kinds of evidence had been admissible at these appeals, the eventual verdicts might have been very different. It is one of the most illuminating ironies of the Bar that men and women trained in the hard crafts of sifting and examining evidence should, outside their own working arena, have less resistance to the virus of gossip than any other professional body I know. (61–62)

Hare explores these flaws throughout Murmuring Judges, examining the lack of communication and the mutual resentment within and among the segments 5 Hare goes on to clarify the identity of these victims and the charges leveled against them: “The Guildford Four were jailed for life in 1975 after being convicted over the 1974 pub bombings which killed five in Guildford. They were released in October 1989 after discovery of irregularities in police evidence. “The Birmingham Six were convicted in 1975 of the murder of twenty-one people in two pub bombings in Birmingham in 1974. They were released in March 1991 when some of the forensic evidence was discredited. “The Maguire Seven were convicted in 1976 on explosives charges arising out of the Guildford and Woolwich pub bombings. Their sentences ranged from five to fourteen years. Their convictions were quashed in June 1991 after doubts arose over forensic evidence.” (61ff).

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of the judiciary system, as well as exposing the formidable obstacles faced by those idealists who attempt to initiate change. This internal divide is further reflected in the strong sense of brotherhood and clubbiness that exists within each arm of the system and contributes to the walling off from each other. Hare reinforces these additional concepts through the dramatic structure, segmenting the play to illustrate this stratification. Most scenes center exclusively on one of the three parts of the system, each having its own sense of camaraderie as well as its own style and jargon. In the judiciary, for instance, the language tends to be formal, snobbish, and smug, with jokes that skewer common people or parade esoteric trivia. The police group, by contrast, are crude, lewd, resentful, and sarcastic, taking a no nonsense approach to one another as well as to the demands of their jobs and their prisoners, while also exhibiting a sense of frustration with and resignation to its requirements. The prison service is mainly grim in language and setting, and the fact that it has the fewest number of scenes in the play suggests its relegation to the edges by both the police and the law. In the judiciary arm of the system, the expectations of loyalty are made clear early on when Irina is told that she is to accompany Sir Peter to the opera, an “invitation” she initially refuses. Her assistant, Woody Pearson, notes, “The last new girl we had here. Very bright. From Harvard. I was told she was an absolute whiz with her torts. She said no, as I recall, to Wagner. […] Where is she now?” (11). He encourages Irina not to “start badly,” but she holds her ground: IRINA: I’m saying no. It’s beginning wrong. It’s the wrong start. (He thinks a moment, looking down, still gentle.) WOODY: You see, the thing is, Irina, the point is, it’s a team. There’s a lot of latitude. But you play in a team. You want to start inside, not outside. (11)

The formal dinner at Lincoln’s Inn (2.1–2) further develops the insularity of this “club,” which ensconces itself within the walls of tradition, ritual, and privilege. As Cuddeford says, The law is a college. We meet. We talk. A judge perhaps has a word with a barrister. He says nothing overt. Nothing critical. Maybe only a look, a chance remark. And yet all the time … there are hints. Thanks to these a barrister is learning. The social is the professional. … It adds to a richness of culture, a depth, a breadth of vision you only find in an Inn. (54)

Even the stage directions reinforce this fraternal aspect, as for instance at the opening of Act II, scene v, when the prison scene gives way to “a group of men all laughing together in a clubby way, all clerks to the lawyers, standing together in suits” (82).

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A similar brotherhood exists among the police, with a blue line of silence and a sense of their being closed off from what the stage directions often allude to as “the outside world.” When Barry and Sandra are arguing about the planting of evidence, Sandra says she always knew what she was in for by joining the force. “Scrotes and dickheads. You know, I’ve told you my family’s been full of police … So they always warned me. … They told me. You choose our profession, you spend your time with scrotes and dickheads all day” (32–33). Barry expresses his own view of the club in defending his actions: “You’ve got to be a copper. It’s expected. You have to give it lots of mouth. Talk about how you go over the side. If you say, oh, I just went home, had a Lucozade and thought about Sandra, you’re letting the boys down. (He smiles at her.) Didn’t they tell you? It’s a team game” (33). After this, he continues by praising “all the poor bloody foot soldiers, like Lester and Jimmy and Dave … (He gestures offstage.) Who’d never even think of betraying their pals” (73). Ironically, the judiciary, immune from acknowledging their own seclusion, condemn strikingly similar behavior in the Constabulary. “It’s called a force,” Sir Peter tells Irina. “Police force, that’s the name for it. Everyone knows. It’s the wrong word. If I could pass an Act of Parliament, I’d call it what it actually is. (He smiles.) ‘Club’. Police club. And, unless you find someone who’s interested in jacking in their membership, you haven’t got a cat’s chance in hell” (88). At another point in the play, Sir Peter further illustrates this attitude of contempt—or perhaps more accurately, sarcasm—albeit more diplomatically, since he is speaking to Parliament member Kendrick: I say there’s one thing to be grateful for. … The British police. … It is one of the great mercies of your situation that only 3 per cent of all crimes reach the courts. Just imagine the scale of your problems if the police began to have some significant success. … The system is already strained to breaking point by a force which is catching scarcely anyone at all. Charles, you do have that to be grateful for. (58)

The sense of bonding—literally and figuratively—is perhaps most grim in the prison system, not only in the neglect that the prison officials feel but more notably in the code of behavior demanded among the prisoners themselves, a code of silence. This attitude is most evident in the brutal beating that McKinnon suffers from his fellow inmates after he has talked with Irina. “You see a black lawyer bitch, that’s what they say,” one prisoner warns McKinnon when he’s been cornered in the showers. “You know what smart people do? … They do their time, Gerard. They do it. They just do it. They never put themselves first” (81). Hare’s dramatic technique, which underscores both the interweaving and the segregation of the disparate segments of the British legal system, is further demonstrated in his staging instructions. For one thing, the cast of characters is

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divided into “Constabulary,” “Bench and Bar,” and “Prison Service,” supplemented by “Government” and “Clients.” Furthermore, Hare illustrates the complex relationships among this trio as various scenes meld, contrast, correlate, and even unite through the course of the play. Take, for example, the stage directions for the opening scene of Act I, which also introduces the array of characters: An empty stage. Then suddenly from nowhere they’re all there—the judge, the jury, the battery of lawyers in wigs, the public, the police, the press, the ushers, the guards, and at the centre of the forward-facing court, the defendants. The entire company of the law has appeared in the blinking of an eye. (1)

This initial fusion of groups is a brilliant illustration of Hare’s depiction of the “players” in the game and “sets the stage” both literally and metaphorically for the interaction—or lack thereof—that Murmuring Judges will develop. In sharp contrast, the play’s final scene depicts the locales of the three groups— the prison, the police station, and Sir Peter’s chambers—on different areas of the stage to accentuate the divisions that the play has exposed. As their dialogue overlaps and interweaves, the music of The Magic Flute builds until “it catches fire, and all the areas start to dovetail together” and the characters speak simultaneously, suggesting that they neither hear nor listen to one another (106–107).6 But this buildup is stunningly dispelled by a lone voice: (All through this, the prisoners are slopping out. As the music and crescendo of words threatens to drown everything out, SANDRA suddenly stands up. At once the music stops, and the other areas darken. She straightens her uniform, turns and takes a few paces to the centre of the stage. She stands alone.) SANDRA: I want the Chief Superintendant. (She waits.) I wonder. Could I have a word? (Darkness.) (109)

Framed within these opening and closing scenes are others that further underscore, both theatrically and thematically, the divisiveness of the British legal system, as opposed to its interconnectedness. The final scene of Act I provides several examples. At the outset, the lights isolate McKinnon in jail on one side of the stage, then shift to Barry “in exactly the same position” at the other side of the stage: “The two men stare identically outwards, as in a dream. Then, very distantly, the first chords of the overture of Die Zauberf löte, just heard […]” (45–46) A few lines later, “BECKETT has stepped in beside GERARD, equally ghost-like, equally unobserved. … The overture continues, eerily, in the background ” (46). The characters speak a few lines, and just as 6

The musical score of The Magic Flute, which is subtly incorporated throughout the play, also has a triangular structure reflecting that of Murmuring Judges, though Hare has said he doubted anyone would notice the correlation.

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Gerard says he believes in Irina, “the Mozart suddenly catches fire, the violins kicking into the allegro, and the whole stage expands as SIR PETER and IRINA, the two of them in evening dress, walk up the main staircase towards the Crush Bar at the Royal Opera House.” Hare’s utilization of separate areas of the stage to depict the three groups reinforces their separation—the prisoner in his cell, the copper in his office, the court rulers at the opera. At the same time, this segregation emphasizes the attempt to remedy that very situation, as Irina, dressed in exquisite, tantalizing fashion, asks Sir Peter to consider an appeal for McKinnon, to which he assents, though clearly with reluctance. Irina is learning to play the game, and her intervention could be construed as somehow communicating itself, in some mystical way, to McKinnon. For immediately after her request, we again see Gerard in his cell, still seated, but with “a thoughtful expression on his face. The stage is now divided into three: the opera house, the police station, and the cell. …” (48). The brief remainder of the scene features interwoven dialogue among characters in these three areas, fusing at the end as the Warders order, “Lights out! Lights out!! (The curtain rises. The opening chords of the first act ring out.) (49). The dual significance of this final phrase accentuates the poignancy of the prisoner’s lonliness, and dramaturgically, it also implicates the audience as yet another separate group, since the lights will go down as Act I ends. By the end of Murmuring Judges, while there is no indication that changes in the system will be forthcoming anytime soon, there is a suggestion that the need for reform is being addressed. Not surprisingly, this movement is made by the two women, Irina and Sandra, who are both jockeying for positions within good-old-boy networks. Women have often been viewed as the moral conscience in Hare’s plays, and, in Murmuring Judges, they are the ones to take steps, however small, toward change, working from within. Irina learns to play the system, recognizing that doing so is necessary to survival, and Sandra becomes “one of the boys,” as she herself notes (80). Irina has already overstepped her bounds by visiting McKinnon in prison, although not with impunity, as she tells Sandra. “I’m in trouble at work because of this. They say it’s a quite unexceptional brief. Which it is. To me, that’s the point. But they have a way of making you feel a bore and a bad sport for wanting the truth of something” (97). The penultimate scene of the play features the two women meeting alone, though not by pre-arrangement; Irina has gone to an area where she knows that Sandra frequently walks, hoping to gain a friend “inside the police” to help her expose the corruption in the planting of evidence (97). As she tells Sandra, “It’s this terrible frustration of knowing something … something so wrong has happened and then not being able to find any proof ” (96). But while Sandra understands, she points out that “being a professional” really does mean not getting emotionally involved. “It’s like in the police,” she says. “I know, I’ve been through this. You let a lot by. You have to. … Or else you’d go crazy” (97).

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In a final bonding moment, when Irina suggests that she may move “to radical chambers … something they call the alternative Bar,” Sandra wryly notes that “there’s nothing called the alternative police. … You can’t join another lot. Not in my profession. You see, in my line of work there’s only one crowd” (98). The closing scene of Murmuring Judges suggests that both women are in fact attempting to initiate change: Irina is convening the first meeting of the John Wilkes Society, “a forum for lawyers concerned about the state of our penal system,” and Sandra, while not exposing her comrades to outsiders, does seem ready to confide in the department’s Chief Superintendent about the internal corruption she’s discovered, as she says, “I wonder. Could I have a word?” (109). The astute timing of Hare’s trilogy—considered by many to be the high point in a long and distinguished career—suggests his sensitivity to the social and political temperature of England, a perceptiveness that he contends was not mere coincidence. As he notes in Asking Around, A friend of mine remarked that it was my special good fortune to have completed a trilogy about British institutions at precisely that moment when British institutions were finally admitted to be in a state of collapse. I, of course, would maintain that it was not chance. A playwright above all other writers responds unknowingly to the mood of the times. [Moreover] … my intention in the plays was never to theorize about the overall state of my three institutions. It has been much more to portray the lives of the people trying to survive in them. At a moment in our history when Conservative governments have been trying to force dramatic changes on this country, I did feel some special sympathy for those luckless people who were charged with the enforcement of those changes, or, perhaps, with dealing with their consequences.(5)

And indeed, in Murmuring Judges, Hare does focus on individuals within the various realms of the judicial system, exploring the challenges they face, tracing emotions ranging from innocence to crass indifference, and illuminating roles that include idealistic newcomers, resigned lifers awaiting retirement, and comfortably ensconced perpetrators of a flawed system. The rules of the game become clear through the course of the play: no emotional involvement with clients, loyalty to the “team” in the various clubs, adherence to established norms of behavior, acknowledgment of cultural strata, and feigned indifference to racial prejudice. Through his intricate, sophisticated, and original dramatic structure, Hare develops these characters and issues and provides in Murmuring Judges a valuable and informed insight into the intricacies and dilemmas of the British legal system. Works Consulted Hare, David. “Asking Around.” London: Faber and Faber, 1993. Hare, David. “Murmuring Judges.” London: Faber and Faber, 1991. Cohn, Ruby. “Rare Hare, Liking Women.” in David Hare: A Casebook. Ed. Hersh Zeifman. New York: Garland, 1994. 23–43.

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CRIMINAL APPREHENSIONS: PRAGUE MINORITIES AND THE HABSBURG LEGAL SYSTEM IN JAROSLAV HAŠEK’S THE GOOD SOLDIER ŠVEJK AND FRANZ KAFKA’S THE TRIAL JENIFER CUSHMAN

In their seminal work on Franz Kafka, Towards a Minor Literature, Gilles Deleuze and Félix Guattari classify the writings of Franz Kafka as “minor literature,” works that challenge the hegemony. Like the German-JewishBohemian-Austrian Kafka, the Czech nationalist Jaroslav Hašek experienced difficulty negotiating Prague’s “territories,” the multiple geographic, linguistic and national terrains of the Habsburg-dominated area. Germans, Czechs, and Jews met in unequal terms at the turn of the last century, however, and Hašek and Kafka move from different starting points in opposing directions through their theoretical spaces of Prague. As a result, while both Hašek’s Švejk and Kafka’s The Trial expose absurdities within the Habsburg legal system, the kind of humor and method of criticism indicated in the texts are quite dissimilar. Indeed, there is a sanctuary space in Hašek’s text for those “in the know,” a comfort zone that Kafka does not provide in his “deterritorialized” writing; Josef Švejk is able to evade public authority through word play, but Josef K. is ultimately convicted by his “criminal apprehension,” his guilty conscience in the inhuman system. An examination of portrayals of representatives of legal authorities (police officers, guards, and soldiers) in the two novels provides insight into the question as to whether Hašek’s novel, like Kafka’s, meets the criteria of minor literature.

In “Hašek and Kafka,” Karel Kosík postulates a near convergence of apprehended criminals in two unfinished Prague novels of the early 1920’s, namely Jaroslav Hašek’s The Good Soldier Švejk 1 and Franz Kafka’s The Trial.2 1

Hašek completed four of the intended six volumes of Švejk between 1921 and 1923, or from the time he returned to Prague after the war until his death. 2 According to Max Brod, he obtained the disordered manuscript in 1920 and “immediately put it in order.” From Max Brod’s postscript to Franz Kafka, The Trial (NY: Alfred A. Knopf, 1963), 334.

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Jenifer Cushman “[Josef] Švejk’s “odyssey under the honorable escort of two soldiers with bayonets” takes him from the Hrac
dany garrison jail along Neruda Street to Malá Strana and over the Charles Bridge to Karlín. It is an interesting group of three people: two guards escorting a delinquent. From the opposite direction over the Charles Bridge and up to Strahov, another trio makes its way. This is the threesome from Kafka’s Trial: two guards leading a “delinquent,” the bank clerk Josef K., to the Strahov quarries, where one of them will “thrust a knife into his heart.” Both groups pass through the same places, but meeting each other is impossible.” 3

As executors of an inconsistent legal system, Josef Švejk’s soldiers and Josef K.’s guards unflatteringly represent the Austro-Hungarian bureaucracy, especially in its treatment of “minorities,” or non-German and non-Hungarian national groups. By extension, Švejk and K., both of whom bear the middle, or minor, name of Emperor Franz Josef, signify the Czech and, less obviously, Jewish minorities in Prague at the turn of the last century respectively. Although the status of minorities was ostensibly protected under the Dual Monarchy, Germans, Czechs and Jews met on unequal terms as the German hegemony felt increasingly threatened by the rise of Czech nationalism. Like the German-Jewish-Bohemian-Austrian Kafka, the Czech nationalist Hašek experienced difficulty negotiating what Scott Spector identifies as Prague’s “territories,” the multiple geographic, linguistic and national terrains of the Habsburg-dominated area.4 In their seminal work on Kafka, Towards a Minor Literature, Gilles Deleuze and Félix Guattari postulate three characteristics of minor literature, namely “the deterritorialization of language, the connection of the individual to a political immediacy, and the collective assemblage of enunciation.” 5 Both Kafka and Hašek were members of minor national groups, and both exposed absurdities inherent in the Austro-Hungarian system through their writing, but can both The Trial and The Good Soldier Švejk be considered examples of minor literature? A close examination of the biographies and texts of the two authors in terms of their portrayals of representatives of legal authorities (police officers, guards, and soldiers) may shed light on this question. According to Hans Peter Hye in Das politische System in der Habsburger Monarchie, paradox was inevitable in an empire that asserted unity among the multiple lands, nations, beliefs, and political traditions that had developed in

3 Karel Kosík, “Hašek and Kafka: 1883–1922/23,” transl. Ann Hopkins, Cross Currents 1 (1983), 127. 4 Scott Spector, Prague Territories. National Conflict and Cultural Innovation in Franz Kafka’s Fin de Siècle (Berkeley: U of California P, 2000), ix. 5 Gilles Deleuze and Félix Guattari, Kafka. Toward a Minor Literature, trans. Dana Polan, Theory of History and Literature 30 (Minneapolis: U of MN, 1986), 18.

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both Austria and Hungary over centuries.6 As the author of an article from The Times of August 31, 1897 remarked, the Dual Monarchy is a paradox which defies explanation by any political theory accepted among men … In most political systems some dominant idea or some paramount force may be found round which other things may be grouped more or less logically and satisfactorily … But in the Dual Monarchy everything is uncertain, everything is fluctuating, and every rule perpetually overwhelmed by exceptions.7

The very different political histories of the two relatively independent “halves” of the empire led even to disparate constitutional developments in the western and eastern regions 8 after the Compromise of 1867. Yet, the Habsburg regime maintained a myth of universality not only in a political sense, but also ideologically in what Endre Kiss in Der Tod der K.U.K. Weltordnung in Wien calls “ein einheitliches Weltbild” (a unified world view).9 The reality was, however, a confusing muddle of nations and beliefs, the resulting unrest of which ultimately led to the First World War and the end of Austria-Hungary. The government’s attitude to its multiple national groups was particularly disordered in Bohemia. Hye notes: Eine besondere Spezialität des böhmischen Landtags war wohl die große Schwierigkeit, einen Konsens zwischen den beiden sich immer mehr polarisierenden, sozial aber ebenbürtigen nationalen Lagern zu erzielen … Absenz und Obstruktion prägten daher im böhmischen Landtag über lange Jahre” (a particular specialty of the Bohemian parliament was certainly the great difficulty in achieving agreement between both increasingly more polarized but socially equal national camps … absence and obstruction thus left their marks in the Bohemian parliament over many years).10 6 Hye notes: “Innerhalb der 17 österreichischen und drei bzw. zwei ungarischen Länder, auf deren Vielfalt in vielerlei Beziehung nicht eigens hingewiesen werden muß, standen zumindest 16 Nationalitäten, sei es als ‘alte, historische,’ sei es als ‘junge,’ das eigenen Bewußtsein gerade formierende, in Beziehung und Konflikt. Auf diesem Gebiet waren gleichzeitig zumindest elf Konfessionen und Religionsgemeinschaften anerkannt.” (Within the 17 Austrian and three or four Hungarian lands, to whose multiplicity in many respects it is not necessary to refer, at least 16 nationalities (whether they be “old, historic” or “young” and just in the process of forming their own consciousness) stood in relationship and conflict. In this region, at the same time, at least eleven faiths and religious societies were recognized.) From Hans Peter Hye, Das politische System in der Habsburgermonarchie, (Prague: Karolinium, 1998), 14–15. 7 Cited in Hye, 13. 8 Hye, 24. 9 Endre Kiss, Der Tod der K.U.K. Weltordnung in Wien, Forschung zur Geschichte des Donauraumes 8 (Wien: Hermann Böhlaus, 1986), 217. 10 Hye, 169.

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Tension between these two groups, the privileged Germans and the “awakened” Czechs, affected the third group, the Jews, whose political status as a “nation” was less clear than that of the Czechs. Anna Tavis records that “Prague’s outward cultural stagnation concealed the deepening social rifts among the three ethnic groups: the Germans, desperately clinging to their privileges; the Czechs, clamoring for cultural recognition and political representation; and the Jewish minority, struggling to survive in the political crossfire between the Germans and the Czechs.” 11 At best, Czechs identified Jews with their German adversaries,12 while German nationalists tended to invoke an exclusively Germanic heritage. Before postulating a virtual meeting between Švejk and K., Karel Kosík asks, “What kind of Prague is Kafka’s Prague, and what is the Prague of Hašek?” 13 Kosík here acknowledges both similarities and differences in the two authors’ portrayals of Prague’s shifting terrain at the turn of the last century,14 specifically in Švejk and The Trial. While Hašek and Kafka moved through the same physical and temporal space, their experiences and consequently their literary reconstructions of Prague were quite different. Because, as Spector argues, spatial metaphors are useful for periods of cultural upheaval,15

11

Anna A. Tavis, Rilke’s Russia (Evanston, IL: Northwestern UP, 1994), 6. “Siegfried Kapper’s efforts towards
Czech-Jewish symbiosis were soundly squelched by Czech nationalist Karel Havlicek, who argued: ‘Undoubtedly all Jews— whatever country or part of the world they may live in—consider themselves as a nation, as brethren, and not solely as co-religionists. We hope that there is no need to prove the point that it is impossible to belong simultaneously to two fatherlands and two nations, or serve two masters. Therefore anyone who wants to
be a Czech must cease to be a Jew’ … In conclusion, somewhat inconsistently, Havlic ek said that if Jews must abandon their ‘natural’ language, Hebrew, then they should ‘attach themselves to the Germans and their literature,’ since German had already become the second mother tongue of the Central European Jews.” From Hugh Agnew, “Czechs, Germans, Bohemians?” Creating the Other in Central Europe Conference, (University of Minnesota, Minneapolis, MN, 7 May 1999), 14. 13 Kosík, 127. 14 Kosík is by no means the only scholar of the last thirty years to compare Hašek and Kafka. Marketa Goetz-Stankiewicz’s “Kafka and Hašek—Reflections on a Meeting in the House of Fiction” (1984) and Willy Prochazka’s “Kafka’s Association with Jaroslav Hašek and the Czech Anarchists” (1978), for example, explore the possibilities and probabilities of a physical meeting between the two authors. There are many connections between the two, including life span; both were born within three months of each other in 1883, and they died within a year of one another, Hašek in 1923 and Kafka in 1924. Both rejected traditional married life in favor of their writing, and both challenged Austrian rule of Prague through their writing. More interesting, however, are the theoretical differences between the two authors in their literary constructions of Prague’s physical and social environment. 15 Spector, x. 12

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a glance at the physical and biographical surroundings of each author may provide insight into their works. Jaroslav Hašek was born April 30, 1883 at 16 Školská street in the working class area of New Town, southwest of Wenceslas square, a prominent center of Czech nationalist identification. Hašek’s father was a schoolmaster, his family poor but educated Czechs who belonged to the generation inspired by the so-called “national awakening” to work towards self-rule. He was left without parental direction at an early age, for his mother seemed unable to provide guidance after his father drank himself to death. Street urchin turned political rebel, Jaroslav Hašek wrote satirical short stories and political articles for local Czech newspapers, and dabbled in Czech anarchist activity, but soon became tired of the earnestness of Czech nationalists. He ran for public office in 1911 as a mock candidate of his own “Party for Moderate Progress Within the Limits of the Law.” “The meetings, at which he made witty impromptu speeches, were held in a pub, and the manifesto contained such proposals as the nationalisation of concierges and the ‘rehabilitation of animals’ … Hašek then wrote a mock-serious History of the party which was so full of slanderous remarks” that it was not published until after the author’s death.16

He married in 1910, but he soon chose to live away from his wife, although a son, Richard, was born in 1912. Hašek spent most of the war years in a Russian army camp, then in the Czech Legion, and finally joined the Bolsheviks in 1917. While rising to prominence in the Russian Communist party, he married a second wife in Russia, although he had never divorced his first. Eventually he returned to Prague and the new Czechoslovak state in his bigamist second marriage, where he continued work begun before the war on a six-volume novel about an unruly Czech soldier named Švejk. He completed only four volumes, for, following in his father’s footsteps, the outrageous carouser “excessed” himself to death 17 in 1923. In Prague Territories, Scott Spector brilliantly maps out the terrain into which Franz Josef Kafka was born just two months after Hašek, on July 3, 1883 at the corner of Maiselgasse and Karpfgasse (today Maiselov and Kaprov) on the border between the Jewish quarter of Josefstadt (Josefov) and Old Town Square. Josefstadt was named for Kaiser Josef (1740–1790), “who granted the Bohemian Jews a number of basic liberties.” 18 Like many upwardly mobile 16 From Alan Menhennet’s introduction to Jaroslav Hašek, The Bachura Scandal and other Stories and Sketches, trans. Alan Menhennet (London: Angel 1991), 9. 17 From Cecil Parrot’s introduction to Jaroslav Hašek, The Good Soldier Švejk and His Fortunes in the World War, transl. Cecil Parrot (London: Penguin, 1973), xiv. 18 Jan Kaplan and Krystyna Nosarzewska, Prague. The Turbulent Century (Cologne: Könemann, 1997), 69.

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Jews in Prague, Kafka’s family moved away from Josefstadt shortly before the narrow, dark, dirty streets of this mostly German- and Yiddish-speaking Jewish ghetto were razed in the so-called “sanitizing” movement of the 1890’s, during which “the labyrinth of medieval dwellings was replaced with large, elegant apartment buildings along wide boulevards.” 19 Kafka’s sense of impermanence in his physical environment was compounded by the complexity of his emotional relationships with his parents and resentment toward his Austro-Hungarian “Vaterland.” He felt alienated from his mother tongue, German, and lamented the fact that he could not speak Yiddish, which belonged to the terrain of eastern European Jews, the only “authentic” Jews in Europe, according to Kafka, since western Jews, he believed, were “dissociated from family and traditions.” 20 Although engaged a few times, Kafka never married, fearful that a middle-class life would leave him without enough time to write. Time and time again, Kafka sought to escape Prague, but he never succeeded, as Hašek had, not even to be called away to service during the war years, since his job at the Bohemian Workers’ Accident Insurance Company was designated “indispensable.” This same job exposed Kafka to the kind of legal double-speak and internalized guilt and powerlessness of the individual that are central problems of The Trial. He only succeeded in leaving Prague when his health declined, and he battled tuberculosis during the last years of his life, finally succumbing to it in 1924.

Hašek’s The Good Soldier Švejk and Kafka’s The Trial In part because Hašek and Kafka each experienced Habsburg Prague as a member of a marginalized national group, both The Good Soldier Švejk and The Trial expose certain absurdities within the Austro-Hungarian bureaucracy. The obvious situational differences—the civil arrest of K., a bank clerk, for example, stands in contrast to the military environment of Švejk, a dog-breeder turned unwilling soldier—point to dissimilarities also in the kind of humor and method of criticism indicated in the texts. Already in the first paragraphs, the many similar elements are outweighed by a difference of tone and perspective. Hašek’s novel opens with a leisurely domestic scene: “ ‘And so they’ve killed our Ferdinand,’ said the charwoman to Mr. Švejk, who had left military service years before, after having been finally certified by an army

19

Kaplan and Nosarzewska, 73. Ronald Gestwicki, A Life Study of Franz Kafka (1883–1924) (Lewiston, NY: Edwin Mellen, 2000), 81. 20

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medical board as an imbecile, and now lived by selling dogs—ugly, mongrel monstrosities whose pedigrees he forged. Apart from this occupation he suffered from rheumatism and was at this very moment rubbing his knees with Elliman’s embrocation. ‘Which Ferdinand, Mrs. Müller?’ he asked, going on with the massaging. ‘I know two Ferdinands. One is a messenger at Pru° ša’s, the chemist’s, and once by mistake he drank a bottle of hair oil there. And the other is Ferdinand Kokoška who collects dog manure. Neither of them is any loss.’ ‘Oh no, sir, it’s His Imperial Highness, the Archduke Ferdinand, from Konopište, the fat churchy one.’ ” 21

The reference to the assassination of the Archduke Ferdinand immediately establishes a specific time and place for the novel, but the conversational tone of the charwoman neutralizes any anxiety, for this private sphere is hardly distressed by the political world. Even the domestic trouble of rheumatism receives its balm as local citizens take precedence in the main character’s consciousness over world leaders. The Archduke is associated with messenger boys and dog manure, and it is implied that his death is no loss, while the comically unflattering information unnecessarily used to identify him equalizes common folk and aristocracy. In general, there is a casual disregard for administrators in Hašek’s work that is the antithesis of Kafka’s apprehension toward the same. Like Švejk, The Trial opens with a domestic scene, but it is anything but comfortably removed from bureaucratic penetration and the public eye: “Someone must have traduced Joseph K., for without having done anything wrong, he was arrested one fine morning. His landlady’s cook, who always brought him his breakfast at eight o’clock, failed to appear on this occasion. That had never happened before. K. waited for a little while longer, watching from his pillow the old lady opposite, who seemed to be peering at him with a curiosity unusual even for her, but then, feeling both put out and hungry, he rang the bell. At once there was a knock at the door and a man entered whom he had never seen before in the house.” 22

The arrest theme appears immediately in the first sentence, obviating any possibility of contentment, and the break in the normal breakfast routine

21 Jaroslav Hašek, The Good Soldier Švejk and His Fortunes in the World War, transl. Cecil Parrot (London: Penguin, 1973), 3. All further references to this work will be inserted parenthetically into the text as Hašek with appropriate page number. 22 Franz Kafka, The Trial, transl. Willa & Edwin Muir (NY: Alfred A. Knopf, 1963), 3–4. All further references to this work will be inserted parenthetically into the text as Kafka with appropriate page number.

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signals an upset in the domestic sphere for which there is no balm like that in Hašek’s world. As the counterpart to Švejk’s chatty serving woman, K.’s landlady’s cook not only “fails to appear,” but is replaced with the silent, prying eye of a neighbor woman. There are no time and place indicators as in Švejk, and the resulting alienation is intensified by a disturbing lack of surnames, indeed names in general, so unlike the comic formality of address in Hašek’s novel. Josef K.’s unease is augmented by the penetration of the unfamiliar, official world into his private apartment, for he has none of Švejk’s disrespectful attitude toward a comfortably distant bureaucracy. Even when Švejk moves into the public sphere just after the opening scene and encounters an authority figure in the policeman Bretschneider, it is in the relative ease of a neighborhood bar, where the bartender rather than he himself is initially the focus of interrogation: “ ‘Well, it’s a glorious summer!’ said Bretschneider, embarking on his serious conversation. ‘Shit on everything!’ answered Palivec, putting the glasses away into a cupboard. ‘It’s a fine thing they’ve done to us at Sarajevo,’ said Bretschneider with a faint hope. ‘Which Sarajevo?’ asked Palivec. ‘Do you mean the wine cellar at Nusle? They’re always fighting there, you know. Of course it’s Nusle.’ ‘At Sarajevo in Bosnia, Mr. Palivec. They’ve just shot His Imperial Highness, the Archduke Ferdinand, there. What do you say to that?’ ‘I don’t poke my nose into things like that. They can kiss my arse if I do!’ Palivec replied politely, lighting his pipe. ‘Nowadays, if anyone got mixed up in a business like that, he’d risk breaking his neck. I’m a tradesman and when anyone comes in here and orders a beer I fill up his glass. But Sarajevo, politics or the late lamented Archduke are nothing for people like us. They lead straight to Pankrác [the Prague prison].’ Bretschneider lapsed into silence and looked disappointingly round the empty pub. ‘Hallo, there used to be a picture of His Imperial Majesty hanging here once,’ he started up again after a while. ‘Just where the mirror hangs now.’ ‘Yes, you’re right,’ Palivec replied. ‘It did hang there, but the flies used to shit on it, so I put it away in the attic. You know, somebody might be so free as to pass a remark about it and then there could be unpleasantness. I don’t want that, do I?’ ” (Hašek, 6–8).

As a member of a national minority, the Czech bartender Palivec is conscious of his language in ways that Bretschneider cannot be, and is thus able to best the officer. Ever the trickster, Hašek bends and subverts his malleable mother tongue, using crudity to shock and amuse, while undermining the tradition of fine literature and the authority of the author with what Peter Steiner calls

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“semiotic self-defense.” 23 The Prague Hašek portrays in this passage is a dichotomous space divided between German and Czech, symbolized by the treatment of the Emperor’s portrait. The Czech knows he cannot openly express his disdain for the loaded object to the German authority, so he couches his criticism in the affected foolishness that the Czechs have claimed, in Švejk’s name, as national resistance first to the Habsburgs, then the Nazis, and finally the communist regime. In The Trial, however, Josef K. falls prey to the same bureaucratic language that Švejk and Palivec manipulate with such ease. In the interview with an authority figure that follows Kafka’s opening scene, K., too, moves away from his private room, but not of his own free will, and not into a relaxed public space; rather, public and private spheres merge most uncomfortably in the apartment of K.’s neighbor, Fräulein Bürstner: … Now the night table beside her bed had been pushed into the middle of the floor to serve as a desk, and the Inspector was sitting behind it. He had crossed his legs, and one arm was resting on the back of the chair … ‘Josef K.?’ asked the Inspector, perhaps merely to draw K.’s roving glance upon himself. K. nodded. ‘You are presumably very much surprised at the events of this morning?’ asked the Inspector, with both hands rearranging the few things that lay on the night table, a candle and a matchbox, a book and a pincushion, as if they were objects which he required for his interrogation. ‘Certainly,’ said K., and he was filled with pleasure at having encountered a sensible man at last, with whom he could discuss the matter. ‘Certainly, I am surprised, but I am by no means very much surprised.’ ‘Not very much surprised?’ asked the Inspector, setting the candle in the middle of the table and then grouping the other things round it. ‘Perhaps you misunderstand me,’ K. hastened to add.” (Kafka, 15).

K.’s interrogator is completely in control of both the situation and the information. He does not, like Bretschneider, ineptly attempt to lead the subject toward self-incrimination, but expertly directs K. to question himself. Far from seeking to confuse the authorities, K. is distressed by the possibility of a misunderstanding, as he assumes, unlike Palivec, that he is dealing with “a sensible man.” The Inspector’s terseness draws K.’s attention to the objects in the room, which are curiously disconnected from the situational context. While it is the very absence of the loaded object (the Emperor’s portrait) in Švejk that draws attention to it, the objects in the Trial are disturbingly present, in spite of their apparent meaninglessness as empty signifiers. Kafka also uses portraits as loaded objects,24 but K.’s focus in this passage is on insignificant household 23 Peter Steiner, “Tropos Kynikos: Jaroslav Hašek’s The Good Soldier Švejk,” Poetics Today 19:4 (Winter 1998), 470. 24 Deleuze and Guattari comment on the “proliferation of photos and portraits in The Trial from Fraulein Burstner’s room to Titorelli’s studio,” which they see as “neutralized desire.” Deleuze and Guattari, 3–5.

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items that are transformed into potential apparati of torture by fire, penetration, and, most powerfully, the (legal) book. The book is not open, however, for, according to Kiss, “Josef K. … wird in eine Welt hineingeworfen, deren Gesetze von jedem eingehalten werden, ohne daß sie klar und öffentlich artikuliert wären” (Josef K. … is thrown into a world whose laws are followed by everyone without being clearly and publicly articulated).25 Throughout the novel, especially in the interrogations of K. and the famous parable “Before the Law” told by the priest “In the Cathedral” (Kafka, 267–269), the individual wages a self-absorbed battle with the legal system, seeking order not only in the political world, but also the existential, the religious, and the metaphysical .26 In eschewing time and place signifiers and extending his novel beyond the Jewish situation in AustriaHungary, Kafka transcends the particular, for “Kafkas Welt [im Prozeß] reproduziert die Struktur einer Weltordnung auch ‘von oben’ ” (Kafka’s world [in The Trial] reproduces the structure of a world order also “from above”).27 Because there are no clear laws, boundaries, or specificity of setting in Kafka’s literary world, there is no concrete connection to Kafka’s social environment. In other words, while Švejk is clearly Czech, K. is not obviously Jewish. Unlike Švejk, who is certain of his inferior status under the law, and continually commits offenses but avoids being arrested, Josef K. initially believes in his own innocence, the laws of his country, and his elevated status under the constitution: “K. lived in a country with a legal constitution, there was universal peace, all the laws were in force; who dared seize him in his own dwelling?”(Kafka, 7). K. gives credence to a constitution that assures the equality of all, but discovers that, in spite of his “German” self-importance, his deepest fear is realized, and he is treated like a Jew, for in Austria, as in Orwell, some are more equal than others. Yet, Kafka still avoids specific nationalist reference also in his “Darstellung eines Helden, der—streng unreflektiert!—den Kampf gegen diese Ordnung der Welt vehement … aufnimmt” ( portrayal of a hero who—strictly unreflectively— vehemently takes up the battle against this order of the world).28 K.’s lack of self-reflection prevents him from accepting moral responsibility for his life even as he continues to seek approval from external authority. During his interrogation, K. asserts, “… though I am accused of something, I cannot recall the slightest offense that might be charged against me. But that even is of minor importance, the real question is, who accuses me? What authority is conducting these proceedings? Are you officers of the law? None of you has a uniform …”(Kafka, 16).

25

Kiss, 218. Kiss, 218. 27 Kiss, 217. 28 Kiss, 217. 26

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While Bretschneider wears a uniform that symbolizes an authority that Palivec thwarts, the Inspector wears no uniform; nevertheless, K. respects the Inspector’s authority because he mistakenly believes it will release him from his own guilt. Ironically, it is this very refusal to accept responsibility for his life that is K.’s crime; the Inspector responds to K.’s questions with: “think less about us and of what is going to happen to you, think more about yourself instead” (Kafka, 17). In directing K. toward self-reflection, the Inspector not only provides a broader psychological space for interpretation of the novel, but he also turns responsibility back onto the individual. Precisely because he refuses to examine himself and admit his (German-Jewish,29 but also more broadly human) self-doubt, K. must perish. In the final scene of The Trial, after the trio have left Kosík’s virtual encounter on the Charles Bridge and made their way up to the Strahov quarries (of course, neither place is explicitly named), the two guards politely prepare K. for his death by propping him against a boulder and drawing out a knife: “K. now perceived clearly that he was supposed to seize the knife himself, as it traveled from hand to hand above him, and plunge it into his own breast. But he did not do so, he merely turned his head, which was still free to move, and gazed around him … His glance fell on the top story of the house adjoining the quarry. With a flicker as of a light going up, the casements of a window there suddenly flew open; a human figure … leaned abruptly far forward and stretched both arms still farther. Who was it? A friend? A good man? Someone who sympathized? Someone who wanted to help? … Were there arguments in his favor that had been overlooked? Of course there must be. Logic is doubtless unshakable, but it cannot withstand a man who wants to go on living. Where was the Judge whom he had never seen? Where was the High Court, to which he had never penetrated? He raised his hands and spread out all his fingers. But the hands of one of the partners were already at K.’s throat, while the other thrust the knife deep into his heart and turned it there twice. With failing eyes, K. could still see the two of them immediately before him, cheek leaning against cheek, watching the final act. ‘Like a dog!’ he said; it was as if the shame of it must outlive him” (Kafka, 285–286).

Even in the last moments of his life, K. refuses to accept responsibility for his own life and death. He not only continues to look for help outside of himself, in an imagined “friend,” “good man,” or someone who sympathizes, he still blames “the Judge whom he had never seen” for his “apprehension” and condemnation. Indeed, it is the shame of his death rather than the fact of it that seems to bother him the most. 29

For more discussion on the “bifurcated soul” of the German-Jew, see Paul Mendes-Flohr, German Jews: A Dual Identity (New Haven: Yale UP, 1999).

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Interestingly, K. equates his death with that of a dog, a motif Peter Steiner discusses in “Tropos Kynikos, Jaroslav Hašek’s The Good Soldier Švejk.” Steiner counters Kosík’s argument that Kafka and Hašek are welded together, like “Siamese twins breech delivered from the same womb” 30 by comparing the novels “in an antistrophic manner” from The Trial’s “Like a dog!” ending to the opening of Švejk with a former soldier turned dog breeder. It is the “linkage of shame with a canine that distances Kafka from Hašek” 31 argues Steiner, who associates Hašek’s discursive strategies and indirect challenge to authority with the Greek kynic philosopher Diogenes of Sinope through the adjectival form of dog, kyon.32 While there is no boundary between K.’s external and internal “apprehension” by the law, Švejk refuses to internalize his guilt. In fact, he uses the very system that binds K. to achieve his freedom. Like Kafka’s character, Hašek’s hero is arrested near the end of his novel, but Švejk’s motley escort hardly poses the same threat as K.’s: “The following document accompanied Švejk to the brigade: In accordance with instructions contained in telegram number 469 the infantryman Josef Švejk, a deserter from the 11th march company, is forwarded to the brigade staff for further action. The escort itself, which consisted of four men, was a medley of nationalities. It was made up of a Pole, a Hungarian, a German and a Czech. The last-named, who had the rank of a corporal and led the escort, tried to show his importance towards the prisoner who was his fellow-countryman by letting him feel his frightful superiority. When, for instance, Švejk expressed the wish at the station that he might be permitted to urinate, the corporal told him quite rudely that he could urinate when he came to the brigade. ‘Very well,’ said Švejk, ‘You’ll have to give me that in writing, so that when my bladder bursts it is established who is responsible for it. There is a law about that, corporal.’ The corporal, who was a simple cowman, was frightened by the word bladder and so the whole escort ceremoniously led Švejk to the W.C. on the station. There was very little fun in the escort altogether. The Hungarian talked with the German in a peculiar way, because the only words he knew in German were Jawohl and Was? When the German explained something to him, the Hungarian nodded his head and said, ‘Jawohl,’ and when the German stopped talking the Hungarian said: ‘Was?’ and the German started again” (Hašek, 717–718).

Unlike K., who never discovers the particulars of his trial, Švejk is fully aware of the charges against him, which accompany him in a document to his

30

Steiner, 470. Steiner, 472. 32 Steiner, 469. 31

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farcical court martial. Like the Habsburg empire, Švejk’s escort is a “medley of nationalities” in which each struggles to show his “frightful superiority” over the other. The absence of unity in diversity under the Dual Monarchy leads to uncertainty about the laws (so that Švejk can “cow” his adversary with his “bladder” of fabricated knowledge), and to lack of communication even between the two kingdoms, for the Hungarians in Švejk are mere aye-sayers to the verbose decrees of the German hegemony. In turn, the authoritative Austrians are constrained by their adherance to the same hierarchichal system that frees Kafka’s officials to become psychological tormenters, and, in the end, Švejk is cleared of all charges and sent back to his company (Hašek, 724). With its unambiguous nationalist identification and easy, satirical style, Hašek’s novel can be interpreted as more superficial than Kafka’s, for, if The Good Soldier Švejk is unmistakably directed at the Austro-Hungarian regime, The Trial more generally criticizes the absurdity of any rigid bureaucracy in a changing and uncertain world. Yet, asks Kosík, “isn’t this naturalness and transparence only illusory, and in this sense deceitfully misleading?” 33 “Kafka’s man,” he argues, “is condemned to live in a world in which the only human dignity is confined to the interpretation of that world … And Hašek, through his own work, shows that man, even when treated as an object, is still man.” 34 In the very name of the title character we can see contempt for the Austrian officers who were probably always shouting at the unruly Hašek to be quiet, or “schweig,” in German. In fact, Švejk, like Hašek never does “schweig,” and the very writing of the novel is a challenge to the order to remain quiet about unacceptable politics. With their overtly problematized political environments, Švejk and The Trial undoubtedly demonstrate the second characteristic of minor literature, the connection of the individual to a political immediacy. Perhaps, too, both novels display the third characteristic, the collective assemblage of enunciation, in that they seem to speak on behalf of a Czech (Švejk) or more broadly human (The Trial) collective. Yet, while both Kafka and Hašek clearly disturb the authority of the Habsburg legal system in their satirical portrayals of guards, soldiers, and the like, Hašek’s novel falls short of Deleuze and Guattari’s category of “minor literature.” It is in the first characteristic, the deterritorialization of language, that Švejk differs from The Trial. In fact, as it was written in Czech rather than German, it cannot even be considered in Deleuze and Guattari’s category, since a “minor literature doesn’t come from a minor language; it is rather that which a minority constructs within a major language.” 35 33

Kosík, 128. Kosík, 136. 35 Deleuze and Guattari, 16. 34

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But it is not merely the language of the author that perhaps disqualifies Hašek’s work as minor literature, for there is a sanctuary space in Hašek’s text for those “in the know,” a comfort zone that Kafka does not provide in his “deterritorialized” 36 writing. His characters intentionally take speech literally for comic effect and use crudities to shock and obscure a meaning that is, nevertheless, always clear to the reader. While Josef Švejk is able to evade public authority through this “ludic play,” 37 Josef K. is ultimately convicted by his “criminal apprehension,” his guilty conscience in the inhuman system. Certainly the experiences of Kafka and Hašek in terms of national identity led to very different perceptions and portrayals of government and law. Although Czechs and Jews were both marginalized in German-dominated Prague, the status of Czechs as a minority group was much less ambiguous than that of the Jews. Furthermore, the rebellious Hašek suddenly became a member of the Prague status quo after the war, but Kafka, as a German Jew, found himself doubly marginalized in the new Czechoslovak state. Because the triumph of Hašek’s Czech nationalism excluded Kafka’s German Jewish community, while they moved through the same physical space in Prague at the same time, meeting each other was, indeed, impossible.

Works Consulted Agnew, Hugh. “Czechs, Germans, Bohemians?” Creating the Other in Central Europe Conference. University of Minnesota, Minneapolis, MN. 7 May 1999. Deleuze, Gilles and Félix Guattari. Kafka. Toward a Minor Literature. Trans. Dana Polan. Theory of History and Literature 30. Minneapolis: U of MN, 1986. Gestwicki, Ronald. A Life Study of Franz Kafka (1883–1924). Lewiston, NY: Edwin Mellen, 2000. Hašek, Jaroslav. The Bachura Scandal and other Stories and Sketches. Trans. Alan Menhennet. London: Angel 1991. ——. The Good Soldier Švejk and His Fortunes in the World War. Transl. Cecil Parrot. London: Penguin, 1973. Hye, Hans Peter. Das politische System in der Habsburgermonarchie. Prague: Karolinium, 1998. Kafka, Franz. The Trial. Transl. Willa and Edwin Muir. NY: Alfred A. Knopf, 1963. Kaplan, Jan and Krystyna Nosarzewska. Prague. The Turbulent Century. Cologne: Könemann, 1997. Kiss, Endre. Der Tod der K.U.K. Weltordnung in Wien. Forschung zur Geschichte des Donauraumes 8. Wien: Hermann Böhlaus, 1986.

36 37

Deleuze and Guattari, 4. Steiner, 469.

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Kosík, Karel. “Hašek and Kafka: 1883–1922/23.” Transl. Ann Hopkins. Cross Currents 1 (1983), 127–136. Mendes-Flohr, Paul. German Jews: A Dual Identity. New Haven: Yale UP, 1999. Spector, Scott. Prague Territories. National Conflict and Cultural Innovation in Franz Kafka’s Fin de Siècle. Berkeley: U of California P, 2000. Steiner, Peter. “Tropos Kynikos: Jaroslav Hašek’s The Good Soldier Švejk.” Poetics Today 19:4 (Winter 1998): 469–498. Tavis, Anna A. Rilke’s Russia. Evanston, IL: Northwestern UP, 1994.

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SILENCE IN THE COURTROOM: LANGUAGE, LITERATURE, AND LAW IN THE BALLAD OF FRANKIE SILVER GWEN MCNEILL ASHBURN

Two 1998 books, The Ballad of Frankie Silver by Sharyn McCrumb and Just Words by John Conley and William O’Barr both examine the convergence of law, language, and power. These two diverse texts, one a novel and the other a linguistic study of legal discourse by two professors, present remarkably similar conclusions of how protagonists may be silenced and thus deprived of justice and equality in legal proceedings. Conlon and O’Barr’s promotion of language as the defining element of the law’s power suggests ways to examine the defining element of literature—language. Though Sharyn McCrumb might be dismissed by scholars for her prolific production of popular genre fiction, her novel, The Ballad of Frankie Silver, should not be ignored by those interested in the confluence of law and literature, for she explores important issues of language, the lack of language and power, and the legal system in an enlightening way. Both texts provide striking support for Heilbrun and Resnick’s assertion that literature and law narratives do reveal and illuminate lives otherwise invisible. And both texts cast light on how the scales of justice can become unbalanced in the complex intersections of law, language, and power. Conley and O’Barr state, “At the end, we reach the conclusion that language is not merely the vehicle through which legal power operates: in many vital respects, language is legal power.” McCrumb, through the stories of her two fictional protagonists, delivers the same message: language is legal power, and, for those who do not possess that powerful form of language or register, the law can be discriminatory, patriarchal, and unjust. The Ballad of Frankie Silver and Just Words are worthy additions to the canon of literature and law texts for the lives and language issues they reveal. Both law and literature share the activity of generating narratives that illuminate, create, and reflect normative worlds, that bring experiences that might otherwise be invisible and silent into public view. Carolyn Heilbrun and Judith Resnik in “Convergences: Law, Literature, and Feminism” Focusing simultaneously on law, language, and power can give us a new insight into what has been the fundamental question in American legal

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Gwen McNeill Ashburn history: how a legal system that aspires to equality can produce such a pervasive sense of unfair treatment … language is not merely the vehicle through which legal power operates: in many vital respects, language is legal power. John M. Conley and William M. O’Barr in Just Words

Had she not been hung for the murder of her husband in 1833, Francis Stewart Silver’s life, as so many other frontier women’s lives in the 1800s, would be unrecorded and forgotten. However, unlike other nameless nineteenth century women who settled in the remote western part of the state, Frankie Silver is part of North Carolina history, and her story is recounted in novels, ballads, videos, and folklore studies a 170 years after her trial and death.1 Archives, including a few legal documents, petitions to two governors, and newspaper accounts, provide a fragmented record of a young woman’s arrest and trial. But it is the unsubstantiated details in the stories and ballads recounting how she murdered her husband, sang of her deed, and died on the gallows, which have added layers of speculation and lore to the sparse records and have served to immortalize Frankie Silver in this state.2 Sharyn McCrumb, a prolific, popular Southern Appalachian writer, uses this intriguing folk story in her 1998 novel, The Ballad of Frankie Silver.3 From McCrumb’s and others’ narratives, we learn that Francis Stewart married Charles Silver probably when she was eighteen—there are no birth or marriage records. By the age of twenty or twenty-one, she had a year-old daughter and was living in a small cabin near the Toe River on the western frontier of North Carolina in land claimed by the Silver family. Her husband, reputed to be willful and handsome, may have been abusive, though this defense was never offered in the trial, not surprising considering state statutes in the 1800s. Witnesses in the hearing and trial would testify based on circumstantial evidence that Frankie Silver killed her husband, dismembered him, burned him piece by piece in the fire place, and misled his family when asked to account for his disappearance. Possibly Frankie’s own family may have 1 Noted as the first woman hung for murder in North Carolina and given credit for a gallows ballad of confession, both contentions are erroneous but give Frankie Silver’s story lasting appeal. 2 The popular Frankie Silver ballad is now known to be a broadside one or criminal’s farewell. Such ballads became popular in 16C England; they recount a story, often a crime or sensational event. Printed on a sheet of paper known as a broadside, they were sold by street vendors who sang out the verses. 3 Sharyn McCrumb, The Ballad of Frankie Silver (New York: Dutton, 1998, reprinted by Signet, 1999). In the “Author’s Note,” 389–393, McCrumb acknowledges her extensive research in recreating the controversial legal treatment and death of this infamous young woman.

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helped her at least in disposing of the body; in fact, her mother and brother were arrested with her initially but then released for lack of evidence. In The Ballad of Frankie Silver, Crumb also intertwines the story of a Tennessee man on death row in the 1990s, a man wrongly convicted for the murder of two college students on the Appalachian Trail twenty years before. She creates this fictional case, based on contemporary cases and from interviews with an inmate on Riverbend’s death row, the maximum-security prison in Nashville, Tennessee. By weaving together these two stories, McCrumb invites readers to associate the unfair verdict of a young woman, convicted with only circumstantial evidence, with the similar conviction of Lafayette Harkryder, called Fate, a hundred and fifty years later, another victim of a legal system who imprisoned and executed him for a crime he did not commit. McCrumb’s defendants are similar not only in their age and wrongful convictions, but also in their regional, social, and economic parameters. One other similarity, an important one for this essay, is McCrumb’s depiction of her characters as near silent. Because of familial and cultural ties, both protagonists choose not to tell their stories as their lives and deaths are made public and visible. Their voicelessness is, in part, a choice, but, for both defendants, it is also imposed and reinforced by culture, circumstance, and court procedures. Although McCrumb’s The Ballad of Frankie Silver clearly and repeatedly emphasizes that a social, economic and legal injustice silences her protagonists, the novel’s value is more than just local history, a clever weaving of two Appalachian crime stories, or yet another examination of injustice against the poor. Rather McCrumb’s novel is valuable for its illustration of how language, law, and power intersect and how unbalanced the scales of justice may be for those who are poor, rural, and voiceless. Another 1998 book, ironically entitled Just Words, by John Conley and William O’Barr, is strikingly similar to McCrumb’s 1998 novel in its examination of the convergence of law, language, and power. Conley, Kenan Professor of Law at the University of North Carolina Law School, and O’Barr, professor and chair of the Cultural Anthropology Department at Duke University and adjunct professor of law at UNC, ask Why do many people continue to think that the law does not treat them fairly? The answer cannot be found just in the study of legal norms. The law no longer returns fugitive slaves, treats women as the property of their husbands, or excludes African American citizens from juries. If the law is failing to live up to its ideals, the failure must lie in the details of everyday legal practice—details that consist almost entirely of language.4

4 John M. Conley and William M. O’Barr, Just Words (Chicago: University of Chicago Press, 1998), xii.

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Through linguistic analysis of legal discourse as recorded in court transcripts and mediation proceedings, as well in examinations of legal discourse practices from cross-cultural and historical perspectives, Conley and O’Barr find evidence that the law does fail “to deliver on its biggest promises, especially the equal treatment of all citizens.” 5 In their preface Conley and O’Barr assert: … we show how some of the most fundamental issues of sociolegal scholarship— issues such as unequal treatment by the law, the law’s relationship to patriarchy, and gender discrimination within legal processes—play themselves out linguistically. Indeed we argue within the details of the talk that constitutes legal practice that discrimination occurs, that patriarchy manifests itself, and that the power of the law is realized.” 6

Both texts—one a novel by a popular, prolific mystery writer, the other a linguistic study of legal discourse by a law professor and anthropology professor— provide striking support for Heilbrun and Resnick’s assertion that literature and law narratives do reveal and illuminate lives that otherwise might be invisible.7 And both texts cast light on how the scales of justice can become unbalanced in the complex intersections of law, language, and power. Conley and O’Barr state, “At the end, we reach the conclusion that language is not merely the vehicle through which legal power operates: in many vital respects, language is legal power.” 8 McCrumb, through the stories of her two fictional protagonists, delivers the same message: language is legal power, and, for those who do not possess that powerful form of language or register, the law can be discriminatory, patriarchal, and unjust. Clearly The Ballad of Frankie Silver and Just Words are worthy additions to the canon of literature and law texts because of the lives and language issues they reveal. Conley and O’Barr begin their examination of “linguistic mechanisms through which legal power is realized and reproduced” by focusing on trial transcripts of rape cases.9 The authors point out how in cross-examination discourse lawyers use linguistic tactics of domination and control; they give as examples question forms, topic management, commentary by the cross-examining lawyer, and questioning of the witness’s capacity for knowledge. They also discuss how silence is manipulated by lawyers in order to exert control over witnesses. Lawyers may repeat a question to a witness who is hesitant in 5

Conley and O’Barr, 13. Conley and O’Barr, xii. 7 Carolyn Heilbrun and Judith Resnick, “Convergences:Law, Literature, and Feminism,” Yale Law Journal, 99 (1990). Reprinted in Jacqueline St. Joan & Annette Bennington McElhiney, Beyond Portia (Northeastern University Press, 1997), 11–52. 8 Conley and O’Barr, 14. 9 Conley and O’Barr, 15. 6

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answering in order to suggest the witness may know the answer to a question but is unwilling to say it. Similarly, silence by the lawyer following an answer also may serve as reflection on the credibility of the witness.10 Frankie Silver, of course, would not have been manipulated by a skillful lawyer’s use of silence in her trial since she was not allowed to testify on her behalf, a state statute not revised in North Carolina until 1881. Daniel Patterson, UNC Kenan Professor Emeritus of English and Folklore and author of Tree Accurst: Bobby McMillon and Stories of Frankie Silver, points out this legal silencing as well as the many other factors which left Frankie Silver voiceless. Her real voice had been silenced by circumstances: her illiteracy, rules of evidence that stopped the mouth of a defendant, laws that discounted a women’s claim to have acted in self-defense. She was silenced, too, by her backcountry, subsistencefarming family’s lack of political leverage; a lady of the polite class would have had at least her family’s position to speak for her. Time itself stole the confession Frankie dictated to friends in her final weeks of life; we cannot find either the manuscript or the printed form of the document.11

McCrumb’s portrayal of Silver incorporates these and other socio-economic factors, all of which shaped the young defendant’s voice and her choice of silence. Frankie Silver’s growing up poor in the rural mountains of Western North Carolina, her lack of education, her marriage as a teen-ager to a young man whose father owned property, thus privileging him and his family a higher status among frontier settlers than the Stewarts, and her trial in a North Carolina court with its ban on defendant testimony are powerful controlling and silencing forces on a young woman. Issues of inequality and discrimination arise quickly in the novel. Burgess Gaither, the clerk of court and narrator of Frankie Silver’s story in The Ballad of Frankie Silver, first sees her on January 10, 1832, as she is brought into Morganton, the county seat, from the wild, western portion of Burke County where she lives. On one of the horses sat a young girl, so little and pale that at first I took her for a child. She was covered in a hooded woolen cloak, but I could see fair hair at the sides of her face, and her cheeks were rouged with cold. Frankie Silver was small and slight, but she had the wiry body of one who had seen her share of drudgery on a hardscrabble hill farm. She appeared to be about eighteen now, only seven

10 Conley and O’Barr, 24. They cite investigators who call this use of silence the “pin-drop effect.” 11 Daniel W. Patterson, A Tree Accurst (Chapel Hill: University of North Carolina Press, 2000), 117.

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Gwen McNeill Ashburn years younger than I, but what a distance there was between us in experience and opportunity! At thirty, when I am still short of my prime, she will be an old woman, if childbirth or sickness does not take her first.12

Gaither speaks to the accused woman as he helps her dismount the horse that has brought her from her home in the Kona community, forty miles west of Morganton, NC, to be jailed for the murder of her husband, Charlie Silver. I set her properly upon the ground, and then, feeling as if I should pass some pleasantry with this small person who was in such straits, I said, “Well, madam, I hope that a stay in our jail will not be too terrible for you. I could wish you better lodging than this on a cold winter morning. They will not grant you bail, of course, but still, guilty or not, it is a real pity to keep a woman in such a tiny, cold room with no windows and no chair, and hardly room to turn around in.” She looked up at me for a moment, and then she shrugged. “Reckon what do you think I lived in before I came here?” 13

This brief response is all the Silver dialogue for another hundred pages and then, only after being nudged by her lawyer, does she answer, “Not guilty” in the courtroom.14 Her socio-economic status—a young, poor, illiterate, female defendant—could not be more different from Gaither and other professional men of the court whose language and positions indicate the power acquired through education and wealth, as well as by social and political connections. Between this first limited exchange with Gaither in the novel to Silver’s initial italicized interior monologue ten pages later, the arresting constable has detailed her horrific crime to Gaither and the sheriff. He describes Silver’s family as poor latecomers to the frontier and details the hideousness of her deed down to the grease bubbles in the fireplace. In her monologue, Silver reflects on her family’s lack of money and land and the vast differences in her life in the rural community of Kona as compared to those who live in Morganton. Though a small town in western North Carolina, it was a county seat with a court house, lawyers, merchants, and twelve residents worth more than $10,000 in 1830.15 Silver’s language in this and other subsequent monologues (italicized in the novel) is lyrical and less marked with vernacular dialect features. They have brought me down from my beautiful mountain in the white silence of winter, my wrists bound with hemp rope, my legs tied beneath the pony’s belly as

12

McCrumb, 28–29. McCrumb, 30. 14 McCrumb, 139. 15 Patterson, 51. 13

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if I were a yearling doe taken on the long hunt. And perhaps I am , for I am as defenseless as a deer, and as silent. They say that deer, who live out their lives in silence, scream when they are being killed. Well, perhaps I will be permitted that.16

Ironically, Silver does not break her public silence until she gives a limited confession near the date of her hanging. Historical records do indicate such a confession, but no evidence exists except for a reference in a petition sent to Governor Swain by Thomas Wilson in June 1833. By including Fate Harkryder’s story in the novel as a parallel narrative, McCrumb emphasizes that a lack of voice and legal inequality are not issues of gender or ones corrected by court reform. McCrumb illustrates the effect of his low socio-economic status in Harkryder’s first encounter with the sheriff’s deputy after his arrest. He is a reticent, sullen, poor mountain boy whose older brothers already have been in prison. Deputy Sheriff Spencer Arrowood read the suspect his rights. “Do you understand?” he said as he put the card away. “You can have a lawyer if you want one.” The sullen young man sat with his feet wrapped around the legs of the chair, scowling up at the officer questioning him. His long hair was unkempt, and his baggy clothes were several days past needing a wash. Spencer had a good mind to hose him down before he put him in the jail cell. The prisoner shrugged. “What do I need a lawyer for?” It wasn’t the deputy’s job to tell him. He said, “I’m just telling you that if you do want one, you can call him now. And if you can’t afford to hire an attorney, we can have one appointed to represent you.” He shrugged, “I don’t need no help to say I didn’t do it.” “Where did you get the jewelry?” Another shrug. “Found it.” The interrogation had yielded precious little information after that. Fate Harkryder sat there sullen and silent, refusing all offers of food and soft drinks with a quick shake of his head, as if he were determined to say as little as possible.17

Deputy Arrowood warns “Fate” he will not be able to talk his way out of having jewelry that belonged to the victims, and indeed he does not, for he refuses to testify and incriminate his brothers. Consequently, the jury finds him guilty. In the cases of both protagonists, remaining silent rather than incriminating other members of one’s family proves deadly. Fate Harkryder, like Frankie Silver, longs for his home in the mountains, but he is never able to return there. Loyalty to his family, his lack of education and community support, his poorly prepared court-appointed lawyer, and his

16 17

McCrumb, 40. McCrumb, 203.

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refusal to speak out result in his unjust conviction and impending execution. Though McCrumb does not develop Fate’s story as fully as Frankie’s, her rendition of a defendant on death row who is not guilty bears some compellingly familiar parallels with recent cases involving convicted murderers proved to be innocent by diligent investigators and lawyers. Fate Harkryder spends twenty years on death row insisting on his innocence. When Arrowood, the arresting deputy and now sheriff, confronts Harkryker the day before his execution with his choice of silence. Harkryder says, “I said I wasn’t guilty.” Arrowood replies “All prisoners say they’re not guilty. We caught you with the victim’s personal effects. You must have known that if you didn’t explain that, you’d be convicted.” Spencer found himself thinking of Frankie Silver. We caught you in a lie. Why didn’t you tell us what really happened? Fate Harkryder didn’t tell, for the same reason Frankie Silver had kept silent. Because we’re Celts and mountain people, he thought. We don’t trust authority figures, and we haven’t since the Romans landed in Britain and started calling the shots. We never think the law is going to be on our side, and ninety-nine times out of a hundred, we’re right. Who am I to change that today? 18

Spencer Arrowood continues to urge Harkryder to break his silence and incriminate his brothers but knows the prisoner awaiting execution is right when he says, “I’m a poor, dumb hillbilly, Sheriff. Why should anybody keep me alive?” 19 Using Burgess Gaither as the narrator of Frankie’s story is a masterful choice on McCrumb’s part because it allows her to set up this distinction between town and frontier settlers, hillbillies and flatlanders, and the differences in their cultures and dialects early in North Carolina’s history. Gaither, a historical figure in Morganton, NC, was clerk of court in the 1830s. In the novel, he is portrayed as an outside observer, one who is neither born to the established gentry of piedmont and eastern North Carolina nor is he one of the frontiersmen who live in the remote western mountains. However, he is astutely aware of the class differences between the two diverse groups; he also functions as a knowledgeable observer of the legal proceedings. In contrast, McCrumb creates the role of the young lawyer, Nicholas Woodfin, who must defend Frankie Silver, basing him on a historical character but having no records connecting him to the Silver case. One of Silver’s interior monologues in the novel reflects on her court-appointed lawyer and her choice of silence. They have got me a lawyer, Mrs. Presnell says, and she seems to set a store by them, always going on about what fine gentlemen they are, and big political men, but I cannot see what use that will be to me. I don’t trust strangers, and I’ve seen

18 19

McCrumb, 372. McCrumb, 375.

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the way these town-bred folk look at us mountain people—like we were something they caught in a trapline, and they’re afeared of catching something off’n us. I do not want to tell my secrets to such as them, for they are men, and like as not they own slaves to boot. What would they know about being afraid? They think the law looks after people that needs help.20

In the novel, the protagonists separated by one hundred and fifty years are silent and silenced; it is only through internal monologues that readers are allowed to understand their inner lives and to hear voices unrestrained by regional, legal, social, economic, and familial bonds. Frankie Silver would have lived in a patriarchal society as a daughter, struggling under her father’s firm control first, then under her husband’s demands. Legend and the novel provide a dramatic example of the relationship between patriarchy and silencing. When asked on the gallows if she has any last words, Silver steps forward, but then her father yells out, “Die with it in you, Frankie!” and she is hung.21 The novel also invites readers into an 1832 North Carolina courtroom where there are no women as officers of the court, no women as jurors, and no way for a woman to tell her story of abuse. Her trial is conducted according to North Carolina’s limited 1830’s law code. In Elisabeth I. Perry’s account of serving on a jury in The Chronicle of Higher Education, she tells of her grandmother’s efforts in the 1920s to overturn New York’s law preventing women from serving on juries because they were not fit and because it was hard for them to be away from home. In 1937 women were allowed on juries in federal courts as well as some state court juries including New York, but their service was not mandatory. Finally in 1975, the U. S. Supreme Court ruled in Taylor v. Louisiana that juries must represent a cross section of the community, and women’s service was no longer optional. Perry concludes her article, “To allow, indeed to require, women to serve on juries is crucial to creating a true panel of peers. It is crucial to keeping our system of justice as fair and as honest as we can make it.” 22 Frankie Silver was judged by property-owning white males, denied the right to testify on her own behalf, found guilty in courtroom proceedings conducted according to an antiquated discriminatory law code— how could she have received an honest trial? In Conley and O’Barr’s chapter entitled “Speaking of Patriarchy,” their discussion of linguistic and patriarchal practices in courtroom talk enhances one’s appreciation for McCrumb’s skill in constructing her characters. In studying how litigants give accounts of their legal difficulties in small claims court,

20

McCrumb, 117–118. McCrumb, 322. 22 Elizabeth I. Perry, “Jury Duty: When History and Life Coincide,” The Chronicle of Higher Education, 25 October 2002, B15–16. 21

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Conley and O’Barr found two distinct patterns: rule-oriented accounts which are arranged sequentially and deal explicitly with cause and effect and relational accounts which are not linear but rather focus on personal status and social position with details about the life of the speaker. They describe how these narrative patterns differ The rules-versus-relationships dichotomy implicates some common gender stereotypes. The structure of the rule-oriented account reflects some defining beliefs that many men have about themselves: men think in straight lines, they get right to the point, they emphasize “facts” rather than emotions, and they have faith in general rules that apply to everyone regardless of personal circumstances. The relational account, on the other hand, evokes a widely held male stereotype of female thought and behavior: women are imprecise in dealing with time, they wander off the point when telling stories, they let their emotions get in the way of the facts, and they get too engrossed in context to develop and apply general principles. Our research indicates that gender does influence the distribution of the two kinds of accounts, but in an indirect way. … The ability to produce rule-oriented accounts seems to be an acquired skill. The crucial factor associated with this skill is exposure to the culture of business and law. Lawyers have this skill, of course; so do landlords, merchants, and other business people, big and small. Because it is still the case in our society that these roles are most often occupied by men, the ability to give rule-oriented accounts remains largely a male prerogative. This imbalance is highly significant because the law has a strong preference for rule-oriented accounts.23

In the novel, Silver’s confession is full of relational details of her troubled life with Charlie Silver and her maternal behavior when her child is threatened on the night of the murder. Silver tells Burgess Gaither and Thomas Wilson “… He was mad with drink, and we’d been shut up in that cabin most of the winter on account of the deep snow, with the baby colicky and crying day and night. Charlie likes a good time, sir. He wasn’t one to suffer bad times. He would have been sorry afterward, most likely, if he had killed the baby, but it wouldn’t have been no use then.” Mr. Wilson said softly, “And what did you do?” “Well, I didn’t have more than a heartbeat to think on it, for he was a-steadying that pistol at the baby’s head. Next thing I knew, the ax was in my hands and I was swinging at him with all my might. I had to stop him, you see, any way I could.” Thomas Wilson and I looked at each other. There was sorrow in his face and anger in mine, but we said nothing to the prisoner except a calm “Continue, please.” “I hit him. I reckon I did.”

23

Conley and O’Barr, 72–73.

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“And then?” “He went down, and there was blood around the side of his head, and he was twitching. I had me a white kitten once, and while it was playing by the hearth, my daddy’s hunting dog snapped at its little throat and shook it while I stood and screamed. When that dog dropped my kitten, it lay there twitching, blood coming out of its mouth, with its eyes like ice, staring without seeing. Took it a long, long minute to die. I cried for three days.” She looked up at us, as if she had suddenly remembered we were there. “It was like that with Charlie. It was quick.” 24

Frankie is at last provided the opportunity to tell her story, but the confession is too late and the petition for clemency filed on her behalf with signatures of most of the gentlewomen of Morganton as an addendum is denied. Of course, the petition sent to the governor consists of a sterile, rule-ordered account of the murder omitting the poignant, relational details Frankie provides. McConley and O’Barr cite their earlier study of courtroom speech styles in which witnesses were frustrated by being unable to “structure and illustrate their accounts as they did in ordinary conversation.” 25 Had Frankie Silver been allowed to testify and tell her story with its details of a crying baby, a wayward husband who points a gun at her baby, and a mother’s defensive behavior, she might have been one of the many frontier women ignored in histories of North Carolina. Conley and O’Barr also acknowledge some of the more overt patriarchal aspects of the legal process in the aforementioned chapter. Despite that women are now attorneys, judges, and professors in law schools, and though there has been considerable reform in laws pertaining to women, Conley and O’Barr write, “In the most direct sense, law is patriarchal because it is powerful and men control it.” 26 In support of this conclusion, they review the work of feminist scholars who in recent decades have examined the patriarchal nature of law on multiple levels—family law, laws governing marriage and property, denial of women to enter contracts or to vote, gender discrimination, sexual harassment, rape trials, antiquated laws allowing husbands to beat their wives. The list is long and painful. And yet despite reforms, Conley and O’Barr acknowledge that feminists are correct in arguing that “laws that appear to be evenhanded still embody a distinctive male point of view.” 27 By reexamining their earlier work on speech styles of trial witnesses and how witnesses structure their accounts, they conclude there is a “strong, if subtle, male bias.” 28

24

McCrumb, 276. Conley and O’Barr, 67. 26 Conley and O’Barr, 60. 27 Conley and O’Barr, 61. 28 Conley and O’Barr, 63. 25

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In explaining their analysis of stylistic variation, they use Robin Lakoff ’s 1975 observations in Language and Woman’s Place, while reaching similar conclusions. Against this background, we paid particular attention to female witnesses. Not surprisingly, we found many who spoke what Lakoff had termed “women’s language.” But we also found that not every woman spoke this way and that some men did. The women who did not were usually expert witnesses such as physicians or psychologists (there were not very many female experts in the 1970s), while the men who did were typically poor and uneducated. These findings complicated our conception of women’s language, but they did not diminish the fact that some witnesses spoke a language of deference, subordination, and nonassertiveness, whereas others spoke in a more rhetorically forceful style. We coined the term powerless language to reflect what we had actually observed: that the speech style Lakoff had identified was associated primarily with the speaker’s status in society (O’Barr and Atkins 1980). Given the social realities of the 1970s, most powerless speakers were in fact women, but the correlation of powerless language with gender was not exact.29

McCrumb’s inclusion of Fate Harkryder’s case dovetails well with Conley and O’Barr’s conclusion on powerless language and how the power of patriarchy is more complex than merely male domination of women. Women have clearly been affected by a number of blatantly patriarchal laws and legal practices, and, as Conley and O’Barr point out, some women do not speak the forceful, more dominant register of professional men and women, but men too may talk in this hesitant, less forceful style. Harkryder, like Silver, has chosen not to tell his side of the story because he is dominated by older brothers, and he certainly does not have the linguistic ability to portray himself well with the arresting officer or in court. Fate Harkryder first believes his guilty brothers would step forward rather than allow him to die for the murders. However his brothers, both over eighteen and with criminal records, choose to let their younger sibling who has never been charged with a crime, stand trial. They and others are surprised when the innocent seventeen-year-old is found guilty and sentenced to death based on circumstantial evidence. At first the brothers maintain some contact but now after twenty years on death row, “Fate” has not heard from anyone but an aunt for years. At first he thought a lot about his brothers. … In his imaginings they were always laughing, always free. Fate wanted to destroy them. He would escape from prison, he thought, and he would put a gun barrel into Tom’s grinning mouth, and he would

29

Conley and O’Barr, 64–65.

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make the laughter stop. Or he would recant. Break the silence. Tell what happened that night, but tell it a different way, so that they, not he would be shut away here until they faded into nothingness. Except that no one would believe him this time. Nobody cared about the truth anymore—if, in fact, they had ever cared at all. The trial was finished, the sentence was passed, and now it was all over but the waiting.30

Though he now realizes his mistakes, Fate Harkryder is powerless to reverse the domination of his family, society, or the justice system, so he remains voiceless. Ironically though, it was gender and racial inequity that might have saved Frankie Silver, for hanging a woman was unusual in North Carolina in the nineteenth century, especially a young white woman with a baby.31 However all appeals, including petitions to two governors, failed. Another astounding issue of inequality and patriarchy is how men of this era were seldom convicted in domestic abuse and murder cases. Nineteenth-century newspaper accounts, court records, and ballads tell of men’s abuse and murder of their wives for which they received little, if any, punishment. For example in 1827, Judge Thomas Ruffin who would later review Silver’s appeal as a member of the North Carolina Supreme Court ruled “that the husband has a right to inflict moderate punishment on his wife.” Even in 1857, twenty-five years after the Silver murder, the state supreme court ruled that the husband in State v. William Hussey “had a right to give to the wife moderate chastisement, of which he is the judge; and he is not criminally responsible unless permanent injury is inflicted, or the chastisement is carried to such extent as to threaten permanent injury.” 32 Perry Young in The Untold Story of Frankie Silver cites a case in Burke County, North Carolina, in which a man beat his wife to death with a ramrod in 1831, the same year Silver was accused of killing her husband with an ax. He was tried before a magistrate’s court and found guilty, based on witnesses who testified to his drunken, hideous treatment of his wife. His punishment was to pay “three dollars sixty cents cost given under our hands and seals October 25, 1831.” 33 In the 1800s there are also numerous cases of men killing other men and being exonerated because they were defending their honor. In fact, in her recasting of Silver’s trial and execution as a miscarriage of justice, Sharyn McCrumb incorporates the murder of a woman by her husband who is then set free.34 30

McCrumb, 62. Perry Deane Young in The Untold Story of Frankie Silver (Ashboro, NC: Down Home Press, 1998), 21–22, notes that of the sixteen women known to have been executed in North Carolina prior to 1910, only two of the fourteen whose race is known were white. Young adds that only three women have been executed in NC since 1910. 32 Patterson, 57. 33 Quoted from records in North Carolina Archives by Young, 37. 34 McCrumb, 331–334. 31

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Conley and O’Barr, through examining “countless linguistic interactions taking place every day at every level of the legal system,” conclude their Just Words with the following: If we were to state the arguments of the previous chapters in a single sentence, it would be this: the details of legal discourse matter. First and foremost, the details of legal discourse matter because language is the essential mechanism through which the power of the law is realized, exercised, reproduced, and occasionally challenged and subverted. Most of the time, law is talk: the talk between disputants; the talk between lawyers and clients; the courtroom talk among lawyers, parties, judges, and witnesses; the legal talk that gets reduced to writing as statutes and judicial opinions; and the commentary on all of this other talk that people like us engage in. Therefore, if one wants to find particular, concrete manifestations of the law’s power, it makes sense to sift through the microdiscourse that is the law’s defining element. If the objectives are to understand the nature of the law’s power, to see how that power is exercised over real people, to identify points at which it might be challenged, and to assess which challenges are likely to work, the microdiscourse is the place to look.35

Conley and O’Barr’s promotion of language as the defining element of the law’s power also offers ways of examining the defining element of literature— language. Though Sharyn McCrumb might be dismissed by literary scholars for her prolific production of popular genre fiction, her 1998 novel, The Ballad of Frankie Silver, should not be ignored by those interested in the confluence of law and literature, for she explores important issues of language, the lack of language and power, and the legal system in an enlightening way. The revision of North Carolina and other states’ statutes prohibiting testimony by the accused in the later 1800s, significant twentieth century reforms of marriage, property and family law, the Nineteenth Amendment to the Constitution in 1920, the Civil Rights Act of 1964—these reforms would have affected Frankie Silver’s trial and execution. But as Conley and O’Barr, McCrumb realizes there is still inequality. She chooses to include a modern case to reveal how two defendants’ fates lie in the complex intersection of law, language, and power, an intersection that is not square and fair for all. McCrumb’s characters are silent and powerless and thus denied any chance for equal justice in court. These vital intersections of language, power and law are made intentionally visible in McCrumb’s The Ballad of Frankie Silver. In the conclusion of her “Author’s Note” in the novel, McCrumb states: When I began researching the life and death of Frankie Silver, I thought I was looking into a fascinating riddle concerning a long-ago murder on the frontier, a 35

Conley and O’Barr, 129.

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tragic incident but only a minor curiosity in North Carolina’s pioneer history. As I delved deeper into the story, I began to think that the case was really about poor people as defendants and rich people as officers of the court, about Celt versus English values in developing America, about mountain people versus the “flatlanders” in any culture. … I concluded that Frankie Silver had much to tell us about equal justice under the law, and that not much has changed since she went to her death on a bright July afternoon 164 years ago.36

Silver’s and Harkryder’s stories, as rendered by McCrumb, are important beyond their regional, historical, or fictional boundaries. Through McCrumb’s popular novel, readers may experience the lives and deaths of two protagonists who choose silence, but ironically whose voicelessness helps readers to better understand how for those whose language is of the less powerful Other— socially, economically, culturally—our justice system is neither just nor equal.

Works Consulted Conley, John M. and William M. O’Barr. Just Words. Chicago: University of Chicago Press, 1998. Heilbrun, Carolyn and Judith Resnick, “Convergences: Law, Literature, and Feminism,” Yale Law Journal 99 (1990). Reprinted in Jacqueline St. Joan & Annette Bennington McElhiney, Beyond Portia, Boston: Northeastern U P, 1997, 11–52. McCrumb, Sharyn. The Ballad of Frankie Silver. New York: Dutton, 1998. Reprinted New York: Signet, 1999. Patterson, Daniel W. A Tree Accurst. Chapel Hill: University of North Carolina Press, 2000. Perry, Elizabeth I. “Jury Duty: When History and Life Coincide.” The Chronicle of Higher Education, 25 October 2002, B15–16. Young, Perry Deane. The Untold Story of Frankie Silver. Asheboro, NC: Down Home Press, 1998.

36

Sharyn McCrumb, “Author’s Note,” The Ballad of Frankie Silver, 393.

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REPRESENTING LAWYERS: EDITH WHARTON’S PORTRAYAL OF LAWYERS AND LAWYERING IN THE TOUCHSTONE AND SUMMER DEBORAH HECHT

“Representing Lawyers” focuses on the working lawyers in two of Edith Wharton’s novellas: The Touchstone (1900) and Summer (1917). Stephen Glennard of The Touchstone is an ambitious young man practicing corporate law in Manhattan. In contrast, lawyer Royall is an older man, a Lincolnian figure who ekes out a living in the remote village of North Dormer, Massachusetts. Glennard seems to exemplify the sophisticated corporate lawyer, while Royall might be the embodiment of the romanticized solo practitioner. Wharton, however, subverts any possibility of the reader idealizing either of these fictional lawyers, each of whom struggles with a serious ethical dilemma.

Edith Wharton is noted for her ironic portrayals of Old New York, that rulebound, intensely conventional world in which she grew up. More recently, she is recognized for her empathetic and realistic portrayals of working class women in fiction as seemingly diverse as “The Bunner Sisters” and The House of Mirth. Wharton also creates memorable portraits of lawyers and their approaches to lawyering, and she does so in works including The Touchstone (1900) and Summer (1917), novellas that present the reader with two very different kinds of barristers. In The Touchstone, the ambitious young lawyer Stephen Glennard, a member of an elite Manhattan law firm, is believed to have demonstrated his financial acumen. In Summer, a solo practitioner, Lawyer Royall, ekes out a living in the remote Massachusetts village of North Dormer. At first glance, Glennard might be compared to the aristocrats described by Alexis de Toqueville in Democracy in America, an exemplar of the corporate lawyer, while Royall might be compared to the romanticized Lincolnian figure described by Jerold Auerbach in Unequal Justice.1 However, although Glennard and Royall might 1

Jerold Auerbach, Unequal Justice (New York: Oxford University Press, 1976). 15.

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seem to represent one or another aspect of the developing late nineteenth century legal profession, Wharton subverts any possibility of the reader idealizing her fictional lawyers. In each of these novellas, Wharton exposes serious personal, legal and ethical dilemmas with which Glennard and Royall struggle. It is not surprising that Wharton created characters who are lawyers since her parents’ circle of friends included George Templeton Strong, noted lawyer and diarist; similarly, Wharton’s circle of relatives and friends also included lawyers. For example, Thomas Newbold, her first cousin and advisor, represented Wharton when she divorced her husband Teddy. Billy Wharton, her brother-in-law, received his law degree from Harvard in 1873 and went on to become a member of the Massachusetts House of Representatives, and he was later appointed Assistant Secretary of State under President Benjamin Harrison. Other connections include the Parisian lawyer Andre Boccon-Gibbard, who represented Wharton when she contested her mother’s will; Judge Robert Grant, Boston lawyer and novelist, and the elusive and never-married lawyer Walter Van Rensselaer Berry. Indeed, Walter Berry was one of Wharton’s most cherished friends. Although it is tempting to speculate that some of Wharton’s fictional lawyers might be based on the elite lawyers with whom she was acquainted, in Wharton’s autobiography A Backward Glance she states: “Nothing can be more trying to the creative writer than to have a clumsy finger point at one of the beings born in that mysterious other-world of invention…” 2 As mentioned previously, Glennard and Royall might initially seem to fit one or another aspect of the late nineteenth century legal profession. At the turn of the last century, the dominant trend among the elite members of the bar was to professionalize the training of lawyers and to raise standards. For many, as Justice David Josiah Brewer states in his 1906 essay, “The Ideal Lawyer,” 3 the goal was “to put safeguards around their ranks, which will prevent the entrance of, and also remove after entrance, the unworthy and incompetent, and at the same time lift up its character.” For some, the movement to professionalize was a way to prevent immigrants (such as Jews and Italians) from becoming lawyers. However, the most dramatic change in the legal profession during the last part of the 19th Century was the emergence of the corporate lawyer. In the previously mentioned Unequal Justice, Jerold Auerbach points out that the best opportunities were for “those lawyers who possessed appropriate social, religious, and ethnic credentials…. Only those lawyers who possessed ‘considerable social capital’ could inhabit the corporate law firm world.” 4 The 2 Edith Wharton, A Backward Glance (New York: Appleton-Century-Crofts, 1934). 943. 3 David Josiah Brewer, “The Ideal Lawyer” (The Atlantic Monthly, November 1906) 13. 4 Auerbach, 21.

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lawyers who possessed such capital, Auerbach explains, were “born in the East to American families of British lineage, they were college graduates (a distinct rarity) who followed their fathers into business and professional careers”.5 Here, Auerbach’s description clearly fits Wharton’s Stephen Glennard, the fictional lawyer in The Touchstone. Stephen Glennard is a college-educated young man who reads law in his uncle’s Hillsbridge law office. When Glennard meets novelist Margaret St. Aubyn, who is then separated from her husband, he thrives on her attention. However, when Aubyn’s husband dies and she is free to remarry, Glennard becomes increasingly critical of her. When Aubyn’s second novel is published and her fame is assured, Glennard abruptly moves to Manhattan and joins a law firm. No specific details about the firm or his professional responsibilities are provided, but he is clearly expected to maintain membership in a private club, to attend the opera, and to marry well. Glennard, to his increasing dismay and great discomfort, struggles and fails to meet these expectations. He has social capital but the ambitious young lawyer is struggling to survive financially. Suddenly, letters from Aubyn, who is still living in Hillsbridge, begin to arrive. Glennard is as ambivalent about the letters as he has been about Margaret St. Aubyn. At times, Glennard feels so burdened by Aubyn’s letters that “he used to avoid looking in his letter-box when he came home to his rooms—but her writing seemed to spring out at him as he put the key in the door” 6. However, there are other times when Glennard feels that Aubyn’s letters are “a voice of reassurance in surroundings as yet insufficiently aware of him.” 7 Glennard interprets Aubyn’s letters as being as “affectionately impersonal as his own” 8 but, unfortunately, he is neither a skillful nor a sensitive reader. As we see throughout the novella, Glennard repeatedly misreads texts. For example, he does not understand the hundreds of letters written to him by Margaret St. Aubyn; later, he cannot accurately decode his fiancee’s facial expression, and he misinterprets the book collector Flamel’s motivation in helping him sell the Aubyn letters. Although no specific example occurs in the text, Glennard’s inability to ‘read’ probably extends to his dealings with clients as well. When Glennard visits Aubyn in Hillsbridge, he assumes that since he is making new friends, so is she. This, however, is another instance where Glennard misinterprets the evidence and misreads the text. He would like to justify what might be construed as his abandonment of Aubyn. However,

5

Auerbach, 22. Edith Wharton, The Touchstone. 1900. (Grosse Pointe: Scholarly Press, 1968) 6. 7 Wharton, 21. 8 Wharton, 21. 6

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Deborah Hecht Glennard gradually learned that he stood for the venture on which Mrs. Aubyn had staked her all … Her attitude seemed indeed to throw his own reasonableness into distincter relief; so that they [Glennard and Aubyn] might have stood for thrift and improvidence in an allegory of the affections.9

Aubyn moves to London, where she continues to write to Glennard as often as before. Glennard observes that “the altered conditions of her life, the vistas of new friendships disclosed by every phrase, made her communications as impersonal as a piece of journalism.” 10 As it turns out, once again Glennard is unable to read the text. Glennard is lounging at his club when he reads a scholar’s request for the now-deceased Aubyn’s letters. On this night, Glennard is in despair because he cannot afford to invest in “the sure thing” proposed by his fellow club-member, Dinslow, or to marry his sweetheart, Alexa Trent. Depressed, Glennard dines alone and walks back to his rooms in the rain. There, he opens a locked desk drawer and takes out the hundreds of letters he has received from Margaret St. Aubyn. “The letters were tied in packets of thirty or forty. There were a great many packets. On some of the envelopes the ink was fading; on others, which bore the English postmark, it was still fresh. She had been dead hardly three years, and she had written, at lengthening intervals, to the last. …” 11 Since there are enough letters to create an entire book, Glennard reasons that if he publishes the letters, he stands to make a substantial amount of money— and he needs money so that he can marry Alexa Trent, the woman he loves. Glennard does not stop to think about the ethics of publishing his friend’s letters, nor does he consider whether he is betraying a dead woman’s trust. Furthermore, he does not discuss the possible sale of the letters with any of his colleagues at the law firm, and he does not research the question on his own. Instead, Glennard, consumed with his need for cash, turns to book collector Barton Flamel, a man who has a “well-known leniency of view.” 12 Glennard mentions the existence and the potential cash value of the Aubyn letters; he then asserts ownership rights to the letters, saying: “They’re mine fast enough. There’s no one to prevent—I mean there are no restrictions-’ he was arrested by the sense that these accumulating proofs of his impunity might precisely stand as the strongest check on his action.” 13 Flamel, on hearing that the dead novelist had no family, says, “then I don’t see who’s to interfere.” 14 Furthermore, Flamel argues, “I doubt you’d be justified in 9

Wharton, 21. Wharton, 25. 11 Wharton, 14. 12 Wharton, 46. 13 Wharton, 46. 14 Wharton, 46. 10

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holding them back. Anything of Margaret Aubyn’s is more or less public property by this time. She’s too great for any one of us.” 15 Thus, according to Barton Flamel, a non-lawyer, there is no legal question. Nevertheless, when it comes to selling the letters, Glennard self-protectively stipulates that he does not want his name associated with the letters in any way. Although the reader does not see the details of the sale and subsequent publication of the Aubyn letters, the reader does see the results: Glennard marries Alexa and they live together happily in a charming cottage. “The sum obtained from the publishers by Flamel’s adroit manipulations, and opportunely transferred to Dinslows’ successful venture, already yielded a return which, combined with Glennard’s professional earnings, took the edge of compulsion from their way of living.” 16 In addition, the reader also sees how clients are attracted to the appearance of a lawyer’s financial acumen: Clients who had passed his door in the hungry days sought it out now that it bore the name of a successful man. It was understood that a small inheritance, cleverly invested, was the source of his fortune; and there was a feeling that a man who could do so well for himself was likely to know how to turn over other people’s money.17

The success of the now-published and widely-discussed Aubyn letters fills Glennard with deep uneasiness and profound guilt. The letters are described by a Mrs. Touchett, who is talking to a group that includes Glennard’s wife, as the author’s “soul, absolutely torn up by the roots—her whole self laid bare; and to a man who evidently didn’t care; who couldn’t have cared.” 18 However, to his own apparent surprise, Glennard does care. After the Aubyn letters are published to public acclaim and apparently endless discussion, he begins to understand what he has done and to feel the depth of his betrayal: He understood now that, at the moment of selling the letters, he had viewed the transaction solely as it affected himself: as an unfortunate blemish on an otherwise presentable record. He had scarcely considered the act in relation to Margaret Aubyn; for death, if it hallows, also makes innocuous. Glennard’s God was a god of the living, of the immediate, the actual, the tangible; all his days he had lived in the presence of that god, heedless of the divinities who, below the surface of our deeds and passions, silently forge the fatal weapons of the dead.19

15

Wharton, 48. Wharton, 58. 17 Wharton, 58. 18 Wharton, 67. 19 Wharton, 76. 16

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In an ending that most contemporary critics find unsatisfying, Glennard’s wife tries to help him to confront his anguish and his need to do penance. She tries to find a way to console him; she tries to persuade him that his suffering has turned him into the man Margaret St. Aubyn loved. She says, “That’s worth suffering for, worth dying for, to a woman—that’s the gift she would have wished to give.” 20 Thus, in The Touchstone, Wharton offers the reader glimpses of an ambitious college-educated young lawyer who reads for the bar privately and then joins an established corporate law firm in Manhattan. When self-interest collides with a professional and ethical dilemma, Stephen Glennard takes the step that seems guaranteed to further his financial success: confronted with a legal and ethical question, Glennard looks for a convenient answer outside the legal profession. Confronted with overwhelming remorse, Glennard accepts solace from outside the legal profession. Wharton presents a far different portrait of the legal profession in Summer. In this novella, she offers a compelling and disturbing portrait of Lawyer Royall, who is a solo practitioner in the desolate Massachusetts village of North Dormer. In Unequal Justice, Jerold Auerbach offers a romanticized description of the Lincolnian ideal, the ruggedly individualistic small town lawyer: Whether he rode circuit or lounged around the local courthouse, he absorbed the camaraderie of his profession and cherished the respect of his neighbors. An independent generalist, he served all comers, with no large fees to turn his head toward a favored few. He moved easily between his casual, cluttered office, where informality (it was assumed) nurtured trust and loyalty, and the courtoom, where skill as an advocate earned him local renown. Self-reliant and persevering, he was the common man’s lawyer in a pre-urban, pre-industrial society.21

This description, as the reader will note, admirably fits Wharton’s character, Lawyer Royall, who is depicted as a man of great professional and personal strengths that are undermined—but not destroyed—by human weaknesses. Summer is usually approached as if the sole focus is the story of Charity Royall; it is clear that on the surface, Charity’s “story” is the more obviously dramatic one. However, the novella is very much the story of Lawyer Royall as well. Indeed, in a letter to her friend Bernard Berenson, Wharton wrote: “I’m so particularly glad you like old man Royall. Of course, he’s the book!” 22

20

Wharton, 156. Auerbach, 15. 22 R.W.B. Lewis and Nancy Lewis, editors. The Letters of Edith Wharton. (New York: Charles Scribner’s Sons, 1988) 398. 21

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Lawyer Royall is the first named character in Summer, which begins with a one-sentence paragraph: “A girl came out of lawyer Royall’s house, at the end of the one street in North Dormer, and stood on the doorstep.” 23 In Wharton’s work, first lines and first pages are packed with meaning. As she states in The Writing of Fiction, “…the first page of a novel ought to contain the germ of the whole…”.24 In the first line of Summer, the words “a girl” suggest an archetype as opposed to a fully developed character; in contrast, “lawyer Royall’s house” is far more specific. In three words the reader is given the man’s profession, his name, and his status as homeowner. Royall is specifically mentioned and his ownership is re-emphasized twice more in the next three paragraphs: the man and his profession are linked; his status as owner is stated and restated. The reader never learns his first name and this deliberate authorial omission serves to distance the reader from the character. In the eighth paragraph of the novel, Wharton reiterates Royall’s profession and status with a significant addition: we learn that Lawyer Royall’s house is at one end of the village and that the white church is at the other. The two structures are law-related and they are given equal weight: North Dormer is framed or supported by the laws of man and the laws of God. Furthermore, the law-filled village is placed in direct opposition to the dark, looming, fearinspiring Mountain, that godless and lawless place from which a five-year-old child (Charity) was rescued by Royall, now her guardian. Throughout the novella, the reader sees Royall indirectly, through the lessthan-reliable viewpoint of Charity, who finds the world of ideas, as expressed in writing and in speech, painfully confusing and difficult. Written language holds little appeal for Charity. Indeed, she thinks of the library where she works as her “prison-house,” where she does not enjoy either reading or caring for books.25 Letters are even more problematic. When Charity reads a letter from her lover Lucius Harney, sent after his return to the city, she reads “with a strange sense of its coming from immeasurable distances and having lost most of its meaning on the way…”.26 Most of her own letters to Harney are “never put on paper, for she did not know how to express what she wanted to tell him.” 27 Spoken language is no easier. On her first trip to Nettleton, a gentleman says “unintelligible things before pictures she would have enjoyed looking at if his explanations hadn’t prevented her from understanding them.” 28 When

23

Edith Wharton, Summer. 1917. (New York: Bantam Books, 1993) 1. Edith Wharton, The Writing of Fiction. (New York: Simon & Schuster Touchstone Edition, 1997) 39. 25 Wharton, Summer, 5. 26 Wharton, 152. 27 Wharton, 156. 28 Wharton, 8. 24

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she first meets Lucius Harney, the words he speaks bewilder her; “the more she wished to understand him the more unintelligible his remarks became. He reminded her of the gentleman who had ‘explained’ the pictures at Nettleton, and the weight of her ignorance settled down on her again like a pall.” In contrast to his ward Charity and to corporate lawyer Stephen Glennard, Lawyer Royall thrives on language: his interest in reading and his skill as a speaker are among his professional strengths. Wharton’s description of the country lawyer’s routine includes mention of him as a speaker and as a reader: Before going in [to his office], he stepped in to the post-office for his mail— usually an empty ceremony—said a word or two to the town clerk, who sat across the passage in idle state, and then went over to the store on the opposite corner, where Carrick Fry, the storekeeper, always kept a chair for him, and where he was sure to find one or two selectmen leaning on the long counter, in an atmosphere of rope, leather, tar and coffee beans. Mr. Royall, though monosyllabic at home, was not averse, in certain moods, to imparting his views to his fellow townsmen; perhaps, also, he was unwilling that his rare clients should surprise him sitting, clerkless and unoccupied, in his dusty office … the rest of the time he spent either in the store or in driving around the country on business connected with the insurance companies that he represented, or in sitting at home reading Bancroft’s History of the United States and the speeches of Daniel Webster.29

In addition to the professional skills and interests Royall demonstrates in speaking and in his choice of reading materials, it becomes clear that Royall earns the trust and respect even of people who have reason to fear him: Lucius Harney, Charity’s lover, is one such person; the never-named man Royall successfully prosecutes in Nettleton is another. Charity, despite herself, notes that Harney respects Lawyer Royall. The reader sees Harney’s respect for Royall in after-supper conversations the two men share during a time when Harney has contracted to take his evening meals at Royall’s. Charity is “surprised to find how well [Royall] seemed to talk now that he had a listener who understood him; and she was equally struck by young Harney’s friendly deference.” 30 Indeed, Charity learns more about her own past when she eavesdrops on one specific after-supper conversation held by the two men. She is in the kitchen when she hears Royall condemn the Mountain for its lawlessness. Royall faults the representatives of the law for allowing this lawlessness to continue. His ethics, as well as his courage and integrity, are evident but not to Charity, whose bias shapes her interpretation of his every work and action. Royall says, 29 30

Wharton, 24. Wharton, 49.

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it’s North Dormer’s fault if there’s a gang of thieves and outlaws living over there, in sight of us, defying the laws of their country. Why, there ain’t a sheriff or a taxcollector or a coroner’d durst go up there. When they hear of trouble on the Mountain, the selectmen look the other way and pass an appropriation to beautify the town pump. The only man that ever goes up is the minister, and he goes because they send down and get him whenever any of them dies.31

However, although it seems clear that most people in North Dormer fear and avoid the Mountain, Royall is not among the fearful. He has been to the Mountain; indeed, his journey to the Mountain is central to the novella. The journey originates with a legal case that he’d tried and won in Nettleton. He relates the story of that case to Harney: The fellow came down [from the Mountain] to Nettleton and ran amuck, the way they sometimes do. After they’ve done a wood-cutting job, they come down and blow the money in; and this man ended up with manslaughter. I got him convicted, though they were scared of the Mountain even at Nettleton…”.32

What happens next gives the reader a strong sense of the confidence Lawyer Royall inspires in others, how trustworthy he is believed to be, and to what extent he deserves the trust of those around him. After the unnamed man in convicted, he asks Royall—the lawyer who had successfully prosecuted him— to do something for him up on the Mountain. Royall continues, “He told me he had a child up there—or thought he had—a little girl; and he wanted her brought down and reared like a Christian. I was sorry for the fellow, so I went up and got the child.” 33 The child, whose name Royall does not divulge to Harney, is the then-five-year-old Charity. Another instance of Royall’s professional capabilities is evident at the Old Home Week festival, where Royall gives an impassioned and self-revelatory speech in which he exhorts his fellow townsmen to come back to the village for good. Even Charity, who is now furious with Royall for questioning her relationship with Lucius Harney, is moved by Royall’s speech. Royall directs his remarks to the young men who are planning to leave the village in order to seek their fortunes and make their lives elsewhere. He says: Some of us have come back to our native town because we’d failed to get on elsewhere. One way or another, things had gone wrong with us … what we’d dreamed of hadn’t come true. But the fact that we had failed elsewhere is no reason why we

31

Wharton, 49. Wharton, 50. 33 Wharton, 50. 32

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Deborah Hecht should fail here. Our very experiments in larger places, even if they were unsuccessful, ought to have helped us to make North Dormer a larger place … you young men who are preparing even now to follow the call of ambition and turn your back on the old homes—well, let me say this to you, that if ever you do come back to them it’s worth while to come back to them for their good … the best way to help the places we live in is to be glad we live there.34

When Lawyer Royall stops speaking, “…a murmur of emotion and surprise ran through the audience. It was not in the least what they had expected, but it moved them more than what they had expected would have moved them.” 35 However, despite the trust and respect Lawyer Royall has earned, his personal weaknesses undermine his professional life. Royall, the reader learns, had previously maintained a law practice in the relatively more urban environment of Nettleton. The specific reasons for his move back to North Dormer are never stated, but the reader is told that Charity “knew why he had come back to live at North Dormer, instead of practising at Nettleton where he had begun his legal career.” 36 Furthermore, Charity has “known since childhood about Mr. Royall’s ‘habits’: had seen him, as she went up to bed, sitting morosely in his office, a bottle at his elbow; or coming home, heavy and quarrelsome, from his business expeditions to Hepburn or Springfield….” 37 On the emotion-packed night of July 4th, after her own secret and passionfilled hours with Lucius Harney, Charity encounters her guardian. Royall is with a group of revelers that includes Julia Hawes, a woman whose reputation and life have been ruined by a sexual liaison and a subsequent abortion. The group is described as “tipsy,” while Royall himself is described as drunk.38 Charity, in a compassionate moment, goes to him with the intention of taking him home: “…the idea of his associating himself publicly with a band of disreputable girls and bar-room loafers was new and dreadful to her.” 39 Her effort fails, but the complexity of the relationship between Royall and Charity is highlighted in this incident. Their complex relationship begins when Royall, as he has related to Harney, accedes to a convicted felon’s request and rescues the five-year-old girl from the Mountain. He and his wife do not adopt the girl; instead, she is christened Charity, and he is considered her guardian. Mrs. Royall dies when Charity is about thirteen years old; two years later, the girl, now fifteen, refuses the chance to leave Royall in order to attend boarding school. She and her guardian “had sounded the depths of isolation; and though 34

Wharton, 138. Wharton, 139. 36 Wharton, 14. 37 Wharton, 106. 38 Wharton, 106. 39 Wharton, 106. 35

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she felt no particular affection for him, and not the slightest gratitude, she pitied him because she was conscious that he was superior to the people about him, and that she was the only being between him and solitude.” 40 When Charity is seventeen, however, there is a night when She was awakened by a rattling at her door and jumped out of bed. She heard Mr. Royall’s voice, low and peremptory, and opened the door, fearing an accident. No other thought had occurred to her; but when she saw him in the doorway, a ray from the autumn moon falling on his discomposed face, she understood.41

She stretches out her arm to stop him from coming into her room; she refuses to give him the key to the liquor cabinet. “I don’t want the key,” he tells her. “I’m a lonesome man.” Charity is not frightened. As the reader sees, she has no reason to be. She tells Royall that he’s made a mistake and “…after staring at her for a moment he [Royall] drew back and turned slowly away from the door.” 42 He then leaves the house. In her Introduction to a 1998 edition of Summer, Marilyn French calls Charity “street-wise.” French writes, Charity knows about sex, she knows about anger, and she knows about money— about not having it, about what things cost … she does not cower in prurient terror, but indignantly orders [Royall] away from her bedroom door when he tries to invade her room. And she is irritated when, in conversation with the town’s one real “lady,” she must disguise her knowledge with euphemisms.43

The aftermath of Lawyer Royall’s middle-of-the-night knock on his ward’s door indicates how law-governed he is and how self-disciplined he can be. Unlike Stephen Glennard, who searches for answers outside the law, Lawyer Royall invokes the law to help him deal with complex feelings in a lawful way: he proposes marriage. The seventeen-year-old Charity, however, stares at him without saying a word. The reader sees Royall through her eyes: As he stood there before her, unwieldy, shabby, disordered, the purple veins distorting the hands he pressed against the desk, and his long orator’s jaw trembling with the effort of his avowal, he seemed like a hideous parody of the fatherly old man she had always known.” 44

40

Wharton, 15. Wharton, 17. 42 Wharton, 17. 43 Wharton, Summer. 1917. (New York: Scribner Paperback Fiction, 1998) 44. 44 Wharton, Summer, (New York: Bantam Books, 1993) 20. 41

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When Charity does find words, those words are brutally cruel. Although she has mentally referred to him as ‘a parody of the fatherly old man she has always known,’ her response is that of a beautiful and young woman who is repelled by the aged appearance of her would-be suitor. “What’s come over you, I wonder? How long is it since you’ve looked at yourself in the glass?” Royall’s face is “ash-colored and his black eyebrows quivered as though the blaze of her scorn had blinded him,” but all he says to her is “That’ll do— that’ll just about do.” Before leaving the house, he pauses: “People ain’t been fair to me,” he says. “From the first they ain’t been fair to me.” 45 Royall proposes marriage for the second time when he notes the intensity of Charity’s interest in Harney. The villagers have begun to gossip, and he fears for her future. As to Harney, Royall says, “He’s a pleasant fellow to talk to— I liked having him here myself. The young men up here ain’t had his chances. But there’s one thing as old as the hills and as plain as daylight: if he’d wanted you the right way, he’d have said so.” 46 Royall continues: …I’ve always acted straight to you but that once. And you’ve known I would— you’ve trusted me. For all your sneers and your mockery, you’ve always known that I loved you the way a man loves a decent woman. I’m a good many years older than you, but I’m head and shoulders above this place and everybody in it, and you know that too. I slipped up once but that’s no reason for not starting again. If you’ll come with me, I’ll do it. If you’ll marry me we’ll leave here and settle in some big town, where there’s men, and business, and things doing.47

Indeed, Royall is telling the truth. Charity knows that she “had nothing further to fear from Mr. Royall. Of this she had declared herself [to Harney] sure, though she had failed to add, in [Royall’s] exoneration, that he had twice offered to make her his wife.” 48 Charity, whose age is established indirectly, is twenty-one years old when she becomes involved with Harney. In a scene that takes place in the deserted cottage where the lovers now meet regularly, Royall confronts Harney. “Is this the home you propose to bring [Charity] to when you get married?” Royall asks. Harney sidesteps the question, telling Royall that Charity is “free to come and go as she pleases, without any questions from anyone.” The enraged and broken-hearted Royall compares Charity to her mother, giving the young woman another glimpse of her past. Her mother, Royall says, was

45

Wharton, 21. Wharton, 80. 47 Wharton, 81. 48 Wharton, 124. 46

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a woman of the town from Nettleton, that followed one of those Mountain fellows up to his place and lived there with him like a heathen. I saw her there sixteen years ago, when I went to bring this child down. I went to save her from the kind of life her mother was leading.” 49

Royall proposes marriage for the third time when Charity is pregnant with Lucius Harney’s child. Harney has left town and is engaged to another woman. Charity does not want to coerce Harney into marriage by telling him that she is pregnant, but she walks away from an abortionist, unwilling to end the pregnancy. She runs away to the Mountain, arriving in time to witness her own mother’s squalid funeral and to see the misery in which Mountain people exist. Her despair is complete. Lawyer Royall, however, braves the Mountain once again. Once again, he rescues Charity. At this point, he proposes marriage for the third time. You and me have spoke some hard things to each other in our time, Charity; and there’s no good that I can see in any more talking now. But I’ll never feel any way but one about you; and if you say so we’ll drive down in time to catch that train, and go straight to the minister’s house; and when you come back home you’ll come as Mrs. Royall.50

From Charity’s perspective, Lawyer Royall may be an unlikely rescuer, but she is now mature enough to revise her earlier and at least partially mistaken ‘reading’ of Royall. As the two come down from the Mountain, “his silent presence gave her, for the first time, a sense of peace and security. She knew that where he was there would be warmth, rest, silence; and for the moment they were all she wanted.” 51 Although Lawyer Royall’s age and his first name remain a mystery, the reader learns that Royall’s intentions are, to use his word, “honorable.” Unlike Glennard, who cannot find a penitential act to atone for his betrayal of a friend’s trust, Royall marries Charity but even on their wedding night does not share her bed. Instead, after the wedding and their wedding supper, Charity falls asleep alone in a soft bed with smooth sheets and a warm blanket. She wakes to see Lawyer Royall in a chair near her, and she knows “that he sat there in the darkness to show her she was safe with him. A stir of something deeper than she had ever felt in thinking of him flitted through her tired brain, and cautiously, noiselessly, she let her head sink on the pillow …” 52 Indeed, Charity is

49

Wharton, 148. Wharton, 191. 51 Wharton, 193. 52 Wharton, 200. 50

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far safer with Lawyer Royall than Margaret St Aubyn or her letters were with Stephen Glennard. Thus, Edith Wharton presents us with two fictional lawyers, complex characters whose strengths are undermined by weaknesses of character. Stephen Glennard, the ambitious young corporate lawyer of The Touchstone, seizes every opportunity for self-advancement and looks back in remorse only after he has realized a substantial personal, financial, and professional profit. The money Glennard receives from the sale of a dead woman’s letters is, in his wife’s eyes, tainted; the ethics of the still-unknown person to whom the letters were written are questioned by the very people who buy the published collection. Glennard, despite his wife’s efforts to console him, is aware of the depth of his disloyalty to a person who, as if she’d been his client, trusted him. In the last lines of the novella, he cries out, “I took everything from her, I deceived her, I despoiled her, I destroyed her—.” 53 (160). In contrast, Lawyer Royall, the more obviously flawed solo practitioner of Summer, has earned the trust and respect of law-abiding villagers and even the lawless Mountain folk. However, he must atone for one foolhardy moment in which loneliness drives him to knock on Charity’s bedroom door. He accepts her rejection of him that night without protest; in fact, he continues to accept her rejection of him and of his values for several years thereafter. However, his love and his persistence, coupled with her need for protection, eventually seem to win her trust. As the novel draws to a close, he marries the pregnant young woman and demonstrates to her, in a redemptive act, that his intentions are honorable and that he can indeed be trusted. He does not allow his single mistake to ruin his future; instead his ethical actions redeem him.

Works Consulted Auerbach, Jerold S. Unequal Justice. New York: Oxford University Press, 1976. Auchincloss, Louis. The Vanderbilt Era. New York: Charles Scribner’s Sons, 1985. _____. Edith Wharton: A Woman in Her Time. New York: The Viking Press, l971. Benstock, Shari. No Gifts from Chance: A Biography of Edith Wharton. New York: Charles Scribner’s Sons, 1994. Brewer, David Josiah. “The Ideal Lawyer,” The Atlantic Monthly (November, 1906), 13. Chroust, Anton-Hermann. The Rise of the Legal Profession in America, Vols. I and II. Norman: U Oklahoma P, 1965. Goodman, Susan. Edith Wharton’s Inner Circle. Austin: U Texas P, 1994. Hobson, Wayne K. The American Legal Profession and the Organizational Society, 1890–1930. New York and London: Garland, 1986.

53

Wharton, The Touchstone, 160.

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Lewis, R.W.B. Edith Wharton: A Biography. New York: Harper Colophon Books, 1977. Lewis, R.W.B. and Nancy Lewis, editors. The Letters of Edith Wharton. New York: Charles Scribner’s Sons, 1988. Lubbock, Percy. The Craft of Fiction New York: The Viking Press, 1921. _____. Portrait of Edith Wharton. New York: D. Appleton-Century Company, Inc. 1947. Russ, Joanna. How to Suppress Women’s Writing. Austin: U Texas P, 1983. Strong, George Templeton. The Diary of George Templeton Strong. Vols I–IV. ed. Allen Nevins and Milton Halsey Thomas. New York: Macmillan, 1952. Tyler, William Royall. “Personal Memories of Edith Wharton.” Massachusetts Historical Society Proceedings, 85 (1973), 91–104. Veblen, Thorstein. The Theory of the Leisure Class. 1899. New York: Penguin Books, 1979. Warren, Charles. A History of the American Bar. Buffalo: William S. Hein & Co, l990. Warren, Samuel D. and Louis Brandeis. “The Right to Privacy.” Harvard Law Review, IV; 5 (December 15, 1890), 193–222. Wegener, Frederick, ed. Edith Wharton: The Uncollected Critical Writings. Princeton: Princeton U P, 1996. Wharton, Edith. The Touchstone. 1900. Grosse Pointe: Scholarly Press, 1968. _____. Summer. 1917. New York: Bantam Classics, 1993. _____. Summer. 1917. New York: Harper Perennial, 1979. _____. Summer. 1917. New York: Harper & Row, 1980. _____. Summer. 1917. New York: Scribner Paperback Edition, 1998. _____. The Writing of Fiction. 1924. New York: Simon & Schuster Touchstone Edition, 1997. Wolff, Cynthia Griffin. A Feast of Words: The Triumph of Edith Wharton. New York: Oxford UP, 1977. Wright, Sarah Bird. Edith Wharton A to Z: The Essential Guide to the Life and Work. New York: Checkmark Books, 1998.

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RITUAL MURDER AND THE CORRUPTION OF LAW IN BERNARD MALAMUD’S THE FIXER ERIC STERLING

Bernard Malamud’s novel The Fixer (1966), winner of the Pulitzer Prize and the National Book Award, focuses on the abuse of the legal system in Russia during the reign of Nicholas II. Malamud’s poignant novel, involving Yakov Bok—a Jew falsely accused of murder, is about the role of antisemitism in the corruption of the judicial system. The work is based on a historical case, that of Mendel Beiliss, a Jew falsely accused of ritual murder in 1913 in Kiev. Ritual murder is a false charge concocted by antisemites that has been employed since 1144 as an excuse to kill or imprison Jews. A ritual murder would involve the murder of a Christian by a Jew for sacrificial and religious purposes—draining the blood of the victim to bake Passover matzos. Although the blood accusation has no basis in reality, Jews have been punished severely for the alleged crime for a long time, and people believe the lies simply because of anti-semitism and ignorance. As Malamud demonstrates in the novel, the false accusations derive partly from political purposes. Nicholas II and the Black Hundreds hope to make a scapegoat out of Bok to maintain their political authority, claiming that they must remain in power in order to suppress the supposed threat to the masses that the Jews pose. Malamud concentrates much of the novel in a Russian prison, manifesting how Bok, through the suffering and enduring of his ordeal, attains a moral growth.

Bernard Malamud’s novel The Fixer (1966), winner of the Pulitzer Prize and the National Book Award, concerns the abuse and corruption that existed within the pre-Revolutionary Russian legal system because of virulent antisemitism and an unstable political situation. An analysis of the structural features of the book, along with an examination of the nightmarish legal system, prejudicial historical context, and ghoulish ethnic superstitions that enmesh the hapless title character, can enable readers to grasp more fully both the immensity of his dilemma and the enormity of his partial victory. A victim of circumstance, the title character is abused by a judicial system that intends to scapegoat a Jew in order to control public opinion for religious, nationalistic, and political reasons. Although an idealistic lawyer attempts to prove the Jew’s

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innocence, he is no match for a corrupt and prejudicial legal system intent upon prosecuting an innocent man in order to preserve the tsar’s power and reinforce traditional antisemitic beliefs that prove to be an integral fabric of the contemporary society. Although the unscrupulous and bigoted legal system causes the title character great harm, the abuses that he endures result in his moral growth. Yakov Bok, a fixer (i.e., carpenter and painter), is falsely accused of committing a ritual murder—a killing of a Christian by a Jew in order to drain and then use the blood of the victim to make Passover matzos. (The misguided belief in the practice of ritual murder originated in Norwich, England in 1144,1 evolving and proliferating because of ignorance about, and prejudice and hatred toward, Jews). Although the story of Yakov Bok is fictional, it is based on a true story involving Mendel Beiliss, who also was confronted by, and was eventually acquitted of, a false charge of ritual murder in 1913 in Kiev. Along with the Alfred Dreyfus legal affair in France, the Beiliss case exists as the most notorious antisemitic trial in modern world history.2 Like Beiliss, Bok must confront false accusations based on malicious prejudice and on superstition, and he must battle a corrupt legal system controlled by antisemitic prosecutors and influenced by Jew-hating witnesses and law officers. As The Fixer begins, Bok, because of desperate financial circumstances, reluctantly agrees to work for a prominent member of the Black Hundreds, a notorious antisemitic Russian organization that greatly influenced the Nazis in Germany. Hiding his Jewish heritage because he fears the vicious, prevalent antisemitism and because he lives illegally in a district forbidden to Jews, Bok becomes the supervisor in a brickyard where the employees steal rampantly and where a roguish boy, Zhenia Golov, routinely trespasses. Bok earns the enmity of his employees by watching them vigilantly, thus preventing their thefts. For example, the foreman Proshko, embittered by his inability to steal, spies on Bok, searching his apartment and observing him chase Golov away from the brickyard. When Golov is brutally murdered, Bok becomes a suspect, particularly after the police, with Proshko’s help, discover some matzos in his room that a lost and injured Hasidic Jew who stayed with the fixer over night has left behind. The “evidence” brought against Bok by the Prosecuting Attorney Grubeshov includes the following facts: a Hasidic Jew stayed at his apartment, blood is found on Bok’s oldest shirt (which he has employed as a rag to treat the Hasid’s wound), Proshko once witnessed the fixer chasing 1

Robert S. Wistrich, Antisemitism: The Longest Hatred (New York: Pantheon Books, 1992), 30. 2 Captain Alfred Dreyfus was wrongly accused of providing military secrets to the German government. He was court martialed and convicted in 1894 yet subsequently acquitted in 1906.

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Golov, the dead boy was found in a cave near the brickyard, matzoh (left by the Hasid) was found in the fixer’s apartment, it is Passover, and Bok is Jewish. The acceptance of this “evidence” as proof of Bok’s guilt depends entirely upon a juror’s antisemitic belief in the blood ritual myth. However, once he is identified as a Jew, Bok immediately becomes the only suspect, even though the boy’s mother is a bitter and hot-tempered woman with a history of criminal activity as well as violence that includes permanently blinding her boyfriend with carbolic acid and beating her son until he became unconscious. Bibikov, Investigating Magistrate for Cases of Extraordinary Importance, who is Bok’s only supporter, is sufficiently intelligent to discern the absurdity of the “evidence” and willing to prove Bok’s innocence, but he is not allowed to challenge the testimony of Marfa Golov (the murdered boy’s mother) or other witnesses. Although Bibikov possesses serious evidence indicating that Marfa Golov is the murderer, the antisemitic—and thus myopic—Grubeshov refuses to consider another suspect or a different motive. He does not want there to be other suspects that might suggest any doubt about Bok’s guilt. Thus, Grubeshov refuses to allow Bibikov to ask Marfa questions because he realizes that she is lying and possibly he has himself provided her with a fantastical story that points toward the fixer’s guilt instead of her own. Consequently, Grubeshov permits Golov’s mother to alter her past history, transforming herself into a virtuous Christian woman and a doting, loving mother. Actually, the woman is a trader in stolen goods who involves herself in one abusive sexual relationship after another and who physically assaults her lovers and her son. However, the Prosecuting Attorney purposefully suppresses her past history of violence because he wants her to appear as a convincing and credible witness. Similarly, in order for there to be a thirst for revenge against Bok and an outrage at the ritual murder, Zhenia Golov, her knavish son, is transformed after his death into a sinless and innocent boy eager to enter the priesthood, almost a Christ-like martyr. Marfa Golov and Grubeshov realize that the blood libel accusation will seem more credible to Russians if the boy is perceived to possess a Christ-like innocence. This is because Russian citizens believe that like Christ, the innocent Zhenia has been sacrificed and has died a painful death because of the Jews. In addition, Marfa Golov’s probable guilt is ignored partly because the prosecution and punishment of a Russian mother who murders her own child would do nothing to distinguish and advance the authority of the government and Grubeshov, while the arrest and the confession of an enemy to the state, a Jew, for the murder of an innocent Christian child would greatly enhance both the tsar’s and the Prosecuting Attorney’s reputations. An interrogation by Bibikov is dangerous to the prosecutor’s case against Bok because Marfa has invented a slanderous and false account, and thus she is unable to provide impromptu answers to questions such as why she waited a week to consider reporting her twelve-year old son missing; in fact, she never

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does report her son missing, but rather merely claims that she has contemplated doing so when her son’s body is found. Sensing Bibikov’s dedication to truth and justice, the Prosecuting Attorney Grubeshov prevents the magistrate from questioning the witnesses. Ironically, Bibikov’s virtuous nature also impedes his defense of Bok. The Investigating Magistrate idealistically—and naïvely—trusts in the law and the value that people place on it. When the despairing Bok asks the Investigating Magistrate for mercy, Bibikov confidently replies, “Mercy is for God, I depend on the law. The law will protect you. … Keep in mind, Yakov Shepsovitch [Bok], that if your life is without value, so is mine. If the law does not protect you, it will not, in the end, protect me.” 3 Bibikov’s words of comfort incorporate much dramatic irony because these are among the last words that the Investigating Magistrate speaks to Bok, and eventually it is the law (and its abuse by the prosecutor, whose function is to ensure that others abide by the law) that destroys him and injures the Jew he has championed. The irony manifests Malamud’s point that even intelligent people with great knowledge of the law can underestimate the power of politics to influence and corrupt the legal system. By challenging the case against the fixer and working to establish Bok’s innocence, Bibikov is considered by Grubeshov to be a threat to the law and consequently the state; as a result, Grubeshov decides to eliminate the threat by concocting a false charge of embezzlement against the Investigating Magistrate that leads to Bibikov’s incarceration in prison, where he becomes depressed and commits suicide; similarly, Bibikov’s assistant, Ivan Semyonovitch, is jailed also, for allegedly not supporting the tsar, a charge based on his failing to remove his hat while the band played “God Save the Tsar.” This trumped up charge is significant, for it suggests that, by working as the fixer’s advocates and challenging the blood ritual accusation, Semyonovitch and—by extension—his superior, Bibikov, were perceived as undermining the power of the tsar and the judicial system. Thus, Malamud demonstrates the unfortunate fate of those who crusade against this powerful and tyrannical Czarist Russian legal system. Bibikov is placed in a cell tantalizingly near Bok’s, close enough for the two to hear the other’s screams but far enough away so that the two cannot communicate, a distance designed to torture the Investigating Magistrate emotionally—to punish him for challenging the state’s adherence to the blood libel myth. Furthermore, the Prosecuting Attorney views Bibikov as a threat because the demystification of one legend can result in the debunking of other ideologies and prejudices that keep the commoners in check. After Bibikov’s suicide,

3 Bernard Malamud, The Fixer (New York: Farrar, Straus and Giroux, 1966), 80, 176. All quotations from the novel are from this edition.

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Bok’s cell is purposefully left open by the guards so that the prisoner himself can find the dead body of his lawyer. When the Prosecuting Attorney announces to the fixer that Bibikov and his assistant have been incarcerated and that the former committed suicide, he asks Bok incisively, “Do you get the point?” 4 The point, of course, is that Grubeshov hopes that Bok will realize that the only person with the courage to prove the fixer’s innocence is now dead and that hopefully Bok himself will commit suicide as well. Yet Bok possesses an inner strength and a heroic resolve to combat the antisemitic judiciary. Malamud deftly portrays Yakov Bok’s struggle against the unscrupulous and political Russian judicial system. The “evidence” exists not in a vacuum, but rather is seen as a means to support the government’s antisemitic agenda. For example, in the minds of Prosecuting Attorney Grubeshov, law enforcement officers, and witnesses, an innocuous container of strawberry jam that Bok owns becomes Christian blood. It is noteworthy that Jewish Talmudic law declares unequivocally, “You shall not eat anything with the blood. …” 5 But just as wine, according to Catholic doctrine, transubstantiates into blood wine, the prosecutor, without even testing the jam, transforms it—in his mind—into Christian blood. When Bok protests, “There was no bottle of blood on my table … If there was anything it was a jar of strawberry jam,” Grubeshov chastises him, “Be quiet … We will inform you when it is your time to speak.” 6 The prosecutor, however, clearly has no interest in the truth or hearing the fixer’s explanations; instead he is intent on finding a scapegoat and coercing the defendant to confess, and these goals supersede truth or justice. The accused ultimately discovers that under this antisemitic legal system, he possesses no right to clear his name or to speak in his own defense. As Malamud demonstrates, Bok’s time to speak does not come, for the Russian prosecutor comprehends that he is guiltless7 and thus fears that, if a public trial were held, he would easily convince others of his innocence. Bok nevertheless becomes resolved to have a trial so that he can defend himself, even though he realizes that the prosecutor intends to exploit the unfair and antisemitic Russian legal system against him. The fixer, for instance, cannot hire a lawyer; his request even to speak with a lawyer is denied. Instead the Investigating Magistrate informs the fixer: As for consulting a lawyer, that is not possible at this stage. … After the preliminary examination the Investigating Magistrate and Prosecuting Attorney consult, and if both believe the suspect to be guilty, an Act of Indictment is drawn up and

4

Malamud, 225. Leviticus 19: 26. 6 Malamud, 106. 7 Malamud, 171. 5

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Thus, Bok must, ironically, be declared guilty by the Investigating Magistrate and Prosecuting Attorney, based on supporting evidence, before he is allowed to consult with a defense lawyer. Only after he is found guilty can he receive legal assistance and examine his indictment. Given this system, a jury would realize that he has already been found guilty before they judge him during a trial. Nonetheless, Bok waits in prison for two years for his letter of indictment because the prosecutor, realizing the lack of conclusive evidence against the fixer, is afraid to bring the case to trial. Grubeshov thus prefers to wait, for years if necessary, hoping that Bok will become so desperate that he will either confess or commit suicide. When neither option occurs, and sensing Bok’s resolve to have his day in court, prison guards, perhaps acting upon the suggestion of the Prosecuting Attorney or Warden Grizitskoy, make an attempt to poison him. Their hope is that Bok’s death will probably be reported as a suicide, allowing the Prosecuting Attorney to insinuate publicly that the fixer took his own life because he was ashamed of his evil deed and realized that the evidence against him was incontrovertible. A suicide would thus prove a triumph for Grubeshov, implying to the masses that the prosecution was correct in its reliance upon the ritual murder as the motive for the killing. Grubeshov prosecutes Bok for political reasons and transforms the murder, a familial crime, into a killing with political implications. Jonathan Dollimore astutely correlates the demise of political regimes and the manner in which these governments and “their ideological legitimation were subjected to skeptical, interrogative and subversive representations.” 9 Since antisemitism is such an integral aspect of the sociopolitical fabric, the demystification of the myth concerning blood libel would prove devastating to the established hegemonic political structure headed by Tsar Nicholas II. However, this “proof ” regarding the blood libel would stabilize the government of Nicholas II, who considered the ritual murder myth to be factual and who viewed Jews as an integral part of the revolutionaries who threatened his political authority and thus needed to be contained. In the novel, Grubeshov attempts to intimidate the fixer by showing him that even Tsar Nicholas II considers him guilty. To prove this, the prosecutor 8

Malamud, 84. Jonathan Dollimore, Radical Tragedy: Religion, Ideology and Power in the Drama of Shakespeare and his Contemporaries (Chicago: University of Chicago Press, 1984), 4. 9

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shows the fixer newspaper clippings concerning his case. One reads, “ ‘His Majesty expressed himself as justified in his belief that the crime was a dastardly work of a Jewish criminal who must be properly punished for his barbaric deed.’ ” 10 By stressing “Jewish criminal,” Nicholas II demonstrates that he wishes to punish someone, not for his evil deed, but because of the person’s ethnicity and because the punishment will bring about positive political ramifications. Nicholas II declares that the culprit must be Jewish, but the fact remains that Bok has not been convicted or even indicted. Another newspaper article quotes the tsar as saying that he will “ ‘do whatever is necessary to protect our innocent Russian children and their anxious mothers. When I think of my own wife and children I think of them.’ ” 11 In this instance, the tsar, as a means of strengthening the ideology that allows him to maintain power, portrays himself as protector of the people and as a strong advocate of justice. Yet Nicholas II clearly perceives Jews as revolutionaries, as threats to his authority. For example, in Bok’s dream, the tsar tells the fixer that he is in prison because “ ‘[t]he simple fact is there are too many Jews—my how you procreate! Why should Russia be burdened with teeming millions of you? The ingestion of this tribe has poisoned Russia.’ ” 12 Both the tsar and rightwing extremists consider the Jews a threat to the government, and, according to Binjamin W. Segel, “The Union of the Russian People, founded in 1905 and known as the Black Hundreds, attempted to use anti-Jewish mob violence as a way of defending tsarism.” 13 Robert S. Wistrich adds that the “involvement of Jews in Russian radicalism also gave a convenient pretext to conservative antisemites within the government. … The increased strength of the revolutionary movement in 1905 and the threat which it posed intensified the antisemitic propaganda fostered by the government.” 14 In order to curtail the threat of Jewish revolutionaries, the Black Hundreds employed pogroms to support the government of the tsar, all the while scapegoating Jews as the major threat to Nicholas II and his government. Susan Mizruchi notes that historically the Black Hundreds perpetuated the blood libel myth and the accusation against Mendel Beiliss as a means of protecting the tsar and the policies of his government: It was the culmination of a long campaign against Russian Jewry by right-wing extremists: a campaign which began with the ferocious pogroms of 1903–1905 10

Malamud, 223. Malamud, 223. 12 Malamud, 251. 13 Binjamin W. Segel, A Lie and a Libel: The History of the Protocols of the Elders of Zion, trans. and ed. Richard S. Levy (Lincoln: University of Nebraska Press, 1995), 45, n. 5. 14 Wistrich, 172–173. 11

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Eric Sterling and ended with more literate forms of prosecution. From 1905 to 1916, with the active encouragement of the czar’s government, these extremists produced and distributed over 14 million anti-semitic pamphlets and books. The blood accusation was a mainstay of these publications. …15

The conviction or confession of Bok would reaffirm the power of the tsar and his governmental apparatus, portraying him as the protector of the people from a dangerous and treacherous threat, and demonstrating why the people benefit if he remains in power. On a lower level, the Prosecuting Attorney and law enforcement officers (such as Colonel Bodyansky) similarly wish to make a political statement by transforming Bok into a public spectacle. For instance, after the fixer’s arrest for living in the Lushiansky, a place forbidden to Jews, Bok is paraded publicly through the streets of Kiev: He had begged the colonel to let him walk on the sidewalk to lessen his embarrassment, but was forced into the wet center of the street, and people on the way to work had stopped to watch. … Most seemed to wonder what the parade was about, but then a uniformed schoolboy in a blue cap and silver-buttoned coat, poking his fingers up like horns over his head, danced in the snow behind the prisoner, chanting, “Zhid, Zhid,” and that awoke murmurs, hoots, mockery. A small crowd, including some women, began to follow them, jeering at the fixer, calling him dirty names, “murdering Jew..” He wanted to break and run but didn’t dare. Someone flung a block of wood at him. …16

The public spectacle serves to remind the common people that the police and prosecutor’s office are performing their jobs well and protecting the Russian people from Jews, whom they portray as alien, subhuman creatures who threaten the public good by murdering innocent Christian children in order to complete their holiday rituals. When Bok declares that he is innocent of the ritual murder, Grubeshov angrily retorts, “No Jew is innocent. …” 17 Mizruchi claims that an accusation of murder for ritualistic purposes “presumes a terrible compulsion—simultaneously ethnic and spiritual…” 18 This compulsion suggests that Jews are a danger to the people and the government because they act not merely out of malice, but out of necessity, for they cannot control these ritual murders, which are thus inevitable. The prosecutor Grubeshov wants to manifest his role in protecting the people by convicting

15

Susan Mizruchi, “The Place of Ritual in Our Time.” American Literary History 12 (3) Fall 2000: 479. 16 Malamud, 71–72. 17 Malamud, 225. 18 Mizruchi, 480.

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Bok or by coercing him to confess; Grubeshov, of course, prefers the latter option because he lacks solid evidence of the fixer’s guilt. Furthermore, by publicly displaying Bok’s guilt, the prosecutor hopes to enhance his own status and to demonstrate to the tsar his importance to the society, possibly in order to earn himself a promotion within the judicial system. Thus, the role of the tsar and the Russian legal system are intimately linked. The Fixer examines the relationship between Russian law and politics, how the need to find a Jewish scapegoat and prosecute—or at least imprison— a Jew derives from the political system of the times. Bok realizes that he is victimized simply because he is a Jew. Reflecting upon his ordeal, the fixer admits that he has learned that “there’s no such thing as an unpolitical man, especially a Jew.” 19 He comprehends that the cultural climate induces the lawyers such as Grubeshov to scapegoat a Jew rather than blame the real culprit—Golov’s mother. In short, an implicit conspiracy exists between the lawyers, the clergy, the witnesses, and perhaps even the Tsar to use Bok as a scapegoat. All of them refuse to speak the truth and hope that Bok will confess, thus confirming as reality the myth of Jewish ritual murder and simultaneously affirming their national unity and homogeneity against a common enemy, a radical “other.” Facts are inconsequential compared to the need for the case’s resolution to conform to and validate cultural beliefs, upholding the status quo of ethnic discrimination. Jonathan Dollimore delineates the cultural connections between signification and legitimation: the way that beliefs, practices and institutions legitimate the dominant social order or status quo—the existing relations of domination and subordination.… Those who rule may in fact be serving their own interests and those of their class, but they, together with the institutions and practices through which they exercise and maintain power, are understood as working in the interests of the community as a whole. Secondly, through legitimation the existing social order—that is, existing social relations—are “naturalised”, thus appearing to have the unalterable character of natural law. History also tends to be invested with a law of development (teleology) which acts as the counterpart of natural law, a development leading “inevitably” to the present order and thereby doubly ratifying it. Legitimation further works to efface the fact of social contradiction, dissent and struggle.… Therefore, if the very conflicts which the existing order generates from within itself are construed as attempts to subvert it from—without (by the “alien”), that order strengthens itself by simultaneously repressing dissenting elements and eliciting consent for this action.20

19

Malamud, 335. Jonathan Dollimore, “Introduction: Shakespeare, Cultural Materialism and the New Historicism,” Political Shakespeare: New Essays in Cultural Materialism (Ithaca, NY: Cornell University Press, 1985), 6–7. 20

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Dollimore’s commentary is quite relevant to Malamud’s novel in that the prosecution of the fixer is perceived as being in the best interests of the nation. The targeting and destruction of an alien and demonized element that is labeled a threat to the social order (in this case, a Jew) allows the dominating force (the tsar and his government) to demonstrate to the people its importance to the nation, thus legitimizing and even strengthening its sociopolitical authority. Throughout the novel, moreover, Jews are seen by Russians as fundamentally dissimilar from Christians not only in regard to ethical behavior but also in regard to physical appearance. Thus, characters refer to Christians as “Russians” and Jews simply as “Jews.” In other words, Christians in Russia are entitled to a nationality; they represent the country. Jews, contrariwise, are identified merely by their religion and heritage, thus suggesting that they are not citizens but stateless people, devoid of a nationality. Thus a rigid and powerful demarcation exists between Christians and Jews, indicating that Jews are “undesirables” who are undeserving of citizenship because they are dangerous and treacherous people. Such a distinction renders it much easier for the tsar and the judicial officers to scapegoat and discriminate against Jews such as Yakov Bok, since such “undesirables” are clearly expendable. Although the trial of Bok is politically motivated, the Prosecuting Attorney shields the self-interested and political aspects of the case by presenting the legal case as historical, as if the murder is part of a continuum of crimes that were initiated with the crucifixion. The misconstruing of the past is yet another way the corrupt judicial system is able to victimize Bok. Jews, Grubeshov suggests, have been preoccupied with Christian blood and included it in their sacrificial rituals ever since they became Christ-killers. In fact, Grubeshov remarks to Bibikov that among the significant evidence he possesses is “the evidence of history.” When Bibikov claims, “History is not law,” Grubeshov retorts, “We will see about that.” 21 Iksa Alter reminds us that Malamud thus focuses on how history controls “the relationships with the institutions and personnel of the external environment. … [The moral system] “becomes increasingly ineffective as a force to insure order or stability and increasingly ambiguous as a determinant of personal emancipation when confronted with events occurring in historical time.” 22 Antisemitic stereotypes and past accusations over the centuries, accepted as fact by many in the Russian culture of the era, accordingly become incontrovertible evidence against Yakov Bok. Bok recognizes that “[b]eing born a Jew meant being vulnerable to history, including its worst errors.” 23 Prior to his 21

Malamud, 108. Iksa Alter, The Good Man’s Dilemma: Social Criticism in the Fiction of Bernard Malamud (New York: AMS Press, 1981), 154–155. 23 Malamud, 155. 22

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arrest but already feeling the sting of antisemitism, Bok writes a personal essay in which he muses, “ ‘I am in history,’ he wrote, ‘yet not in it.’ ” 24 The fixer signifies, perhaps, that he as an individual has failed to make his mark on history, yet the mythical history concerning Jews has indelibly shaped his destiny, causing him to be an unfortunate and a subjugated victim of prejudice and discrimination. Malamud demonstrates this point when Bok, in an effort to blend in with other Russians and hide his Jewish heritage, devises a Christian name for himself; he calls himself Yakov Ivanovitch Dologushev. The initials for the Christian name that he creates are, ironically, YID, a derogatory term for a Jew coined by antisemites. Despite changing his name and shaving his beard, Bok cannot escape the historical facts: his Jewish heritage suggests the adversity that arises from antisemitism. Even though he no longer is an observant Jew or no longer believes in God (he throws his phylacteries in the river and forgets that it is Passover), Russian laws still classify him as a Jew because of his birth, labeling all Jews as outsiders: therefore, he must suffer accordingly during the investigation and while in jail. In fact, because Bok shuns his religion and fails to satisfy the Russian stereotype of a Jew, prison guards provide him with a prayer shawl and a set of phylacteries in order that he look Jewish and thus capable of committing a blood ritual crime.25 They insist that his appearance conform to their stereotypical image of Jews. The hatred toward Jews of the Russian citizens, including the tsar, prosecutor, law enforcement officers, other legal officials, and even inmates derives partly from the notion that all Jews are implicitly Christ-killers—responsible for the death of Jesus during the time of Passover. This accusation that Jews were behind the crucifixion, a violent and bloody death, ultimately led to the charges throughout the Middle Ages that Jews required the blood of Christians to bake their Passover matzos. Commenting on Matthew 27:25, which records the comment of the Jewish leaders to Pontius Pilate (“His blood be on us and our children),” Bernhard E. Olson notes that some “conservative and fundamentalist authors [use the passage] to connect the crucifixion with the subsequent plight of the Jews,” but that some liberal theologians consider it a later addition to the Gospel included specifically to scapegoat Jews by unfairly blaming them for the murder of Christ.26 Yakov Bok is one of these targeted descendants whom Grubeshov and other Russians believe to be partly responsible for

24

Malamud, 60. For a discussion of Bok’s reaction to receiving the Jewish prayer materials while in prison, see L. Lamar Nisly, Impossible to Say: Representing Religious Mystery in Fiction by Malamud, Percy, Ozick, and O’Connor (Westport, CT: Greenwood Press, 2002), 55. 26 Bernhard E. Olson, Faith and Prejudice: Intergroup Problems in Protestant Curricula (New Haven: Yale University Press, 1963), 241. 25

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the death of their savior and consequently deserving of punishment by the law. Olson adds: To maintain that a tiny, select group within the Jewish nation, more allied with Rome than with Judaism, could have brought untold consequences to millions of Jews through a single utterance [that Christ merited death] is to combine a superstitious belief in the power of a curse with a belief in a type of collective responsibility wherein a single group is made responsible for all time for the action of a few members of the group.27

Yakov Bok realizes that “there was no ‘reason’ [for his incarceration]; there was only their [the Russian prosecutor’s and other law officers’] plot against a Jew, any Jew; he was the accidental choice for the sacrifice.” 28 Although Bok’s oppressors anticipate that this sacrifice will destroy him, it actually has the opposite effect. During the course of Bok’s imprisonment, the title character, who had lost his faith before his hardships began, undergoes a spiritual conversion and a concomitant moral growth. The adversity that he suffers causes him to crave for religious teachings, which, in turn, allow him to endure his tribulations with patience and faith. Even when Bok’s jailers confiscate the pages of the Old Testament in his possession, he acquires a copy of the New Testament and reads it for the first time. The novel, in fact, begins with the discovery of Zhenia Golov’s body for which a Jew will be sacrificed and depicts the fixer as looking at the scene “[f]rom the small crossed window of his room…” 29 Bok even envisions himself as a Christ-like martyr, forsaken by God while in the custody of officers of the law. L. Lamar Nisly claims that to the fixer, “Jesus is significant as an example of a man abandoned by God in his time of need on earth, not as an atoning sacrifice for the sins of mankind.” 30 Malamud’s depiction of Bok’s imprisonment hardly resembles a judicial function, then, but rather a vengeful sacrifice for the murder of Christ. This correlation between the Christian faith and the deep-rooted hatred of Jews illustrates how even a benevolent and devout character like Nikolai Maximovitch Lebedev could also be such a virulent antisemite. When Bok is accused of committing a ritual murder simply because he is Jewish, Nikolai Maximovitch Lebedev employs revisionist history after discovering that Bok is Jewish. Initially, Lebedev, a prominent member of the Black Hundreds, is grateful to Bok for saving his life and befriends the fixer, offering him a job in his house and subsequently a position as foreman in his brick factory. Despite

27

Olson, 244. Malamud, 155. 29 Malamud, 3, my italics. 30 Nisly, 56. 28

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the fact that Lebedev has praised Bok frequently in earlier scenes, he instantly despises the fixer upon learning that the man is Jewish. In an ensuing statement to the Investigating Magistrate, Lebedev declares falsely that he was often suspicious of the fixer. For instance, Lebedev informs the Investigating Magistrate that when he first met Bok, he mistrusted the fixer for being acquainted solely with the Old Testament, not with the Gospels.31 But the Black Hundreds member is lying, for when Bok informs him that he only has read the Psalms, Lebedev remarks excitedly to his daughter, “Wonderful! Did you hear, Zina?—the Psalms, wonderful. The Old Testament is admirable, the true prophecy of Christ’s coming and his redemption of us through death.” 32 The Prosecutor should realize that Lebedev’s remark about mistrusting Bok is deceptive and contradictory, because why would the Black Hundreds member, if he actually had serious misgivings about the fixer, have allowed Bok to work unsupervised in his house and then provided him with a position of great trust in his brick factory and an invitation to court his daughter? But since he is eager to convict Bok of ritual murder and to “protect” the interests of the state, the Prosecuting Attorney willingly ignores the inconsistencies in Lebedev’s statement, concerning himself only with any circumstantial evidence (no other type exists) that suggests Bok’s guilt. Embarrassed that he has praised and helped a Jew, thus tarnishing his own reputation as a member of the Black Hundreds, the antisemitic Lebedev feels compelled, in turn, to slander Bok’s reputation; Lebedev’s desire to help incarcerate the fixer derives from his desire to preserve his reputation as an antisemite. The Black Hundreds member desires that the Jew be punished partly for having the audacity to take a job from an antisemite. He wants Bok to assume a lower, subservient role, matching the historical condemnation of Jews as inferior. When Lebedev shows the Investigating Magistrate his sigil, which denotes his membership in the Black Hundreds, on his lapel, he declares: “it a mark of this man’s insolence that he was not quailed by it in my presence.” 33 Lebedev is disturbed that Bok refuses to acknowledge his inferiority by avoiding the presence of a Russian antisemite; the Black Hundreds member ignores the fact that previously the Jew had altruistically saved his life as he lay drunk in the snow. It is also noteworthy that Lebedev is a devout and charitable Christian who cries when he hears passages from the Sermon on the Mount and who is unable to eat for weeks upon the death of his dog, but who promotes and advocates the mass murder of innocent Jews. If a merciful and sensitive Christian hates Jews, one can presume that less charitable and less spiritual Russians would presumably despise Jews even more. Lebedev is an 31

Malamud, 82. Malamud, 38. 33 Malamud, 83. 32

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honest person who nevertheless willingly lies to investigators in order to help frame an innocent Jew. When asked by Investigating Magistrate Bibikov whether he requested Bok’s papers, Lebedev answers vaguely, “Not directly. Yes, perhaps I did once and he made me some sort of fishy Jewish excuse or other.” 34 Bibikov astutely realizes that Lebedev answers the question both falsely and evasively. “Not directly” and “Yes, perhaps” signify nothing and are contradictory statements; either Lebedev asked for the papers or he did not. Furthermore, Lebedev’s statement that Bok provided him with a “fishy Jewish excuse” links falsehoods with Judaism, as if mendacity in Jews is redundant, indicating that a member of the Black Hundreds equates all Jews with Bok and all Jews with liars. If all Jews are liars, thinks Lebedev, Bok must inevitably be deceitful. To Lebedev, Bok does not lie because he lacks identification papers, but rather because he is a Jew. It is noteworthy that although Lebedev’s statement clearly is deceitful, the Prosecuting Magistrate and the Colonel accept the testimony unquestioningly. To them, the Russian legal system must by necessity take the word of a reputable Russian over that of a Jew. Like Lebedev, Zina (Lebedev’s daughter) initially fails to recognize Bok as Jewish and befriends the fixer. In fact, Zina attempts unsuccessfully to seduce Bok by complimenting him and offering him her body. Prosecuting Attorney Grubeshov (Procurator of the Kiev Superior Court) and the arresting officer Colonel Bodyansky are outraged that the fixer would appear nude in the presence of a Russian woman and that the woman could so mistake Bok’s ethnicity that she would offer herself to him. Zina’s false accusation of sexual assault undoubtedly derives from the woman’s embarrassment for attempting to seduce—and indeed even, to her utter humiliation, of being rejected by— a Jew; she thus projects her anger onto him. The fact that Bok possesses the ability to disguise his Jewish ethnicity and sexually arouse a Russian woman is yet another reason why the Prosecuting Attorney believes that the fixer must be punished. Even though Bok claims that he rejected Zina’s sexual advances, Grubeshov nonetheless considers him guilty of miscegenation. Although Grubeshov convinces himself that Bok is guilty of sexual assault (the Prosecuting Attorney instinctively takes the word of a Russian woman over that of a Jew), the mere potential for a crime is sufficient for Bok to be punished. The ability for a Jew to blend in with Christians is perceived by the law as a threat to the nation, so Bok must be prosecuted to set an example to those Jews who wish to mix with “proper” Russian society. Just as Meursault in Albert Camus’s The Stranger is prosecuted not specifically because of the murder, but because of his indifference toward his mother’s death and toward God, Bok is

34

Malamud, 83.

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prosecuted not specifically because of the murder in question, but because he has manifested that he is dangerous, in as much as Russians cannot always distinguish Jews from Gentiles and he has sexually aroused a Russian woman. Grubeshov prosecutes Bok for the blood libel murder not only because the boy was murdered, but also because the fixer has blurred the rigid and clear demarcation between Jew and Christian. The threat is both actual and metaphorical; a Jew has lived amongst Russians and thereby has demystified the ideology that Jews are different and subhuman beings. Since Grubeshov believes that fundamental distinctions exist between Jews and Christians, he is quick to accept the Middle Ages myth of Jewish males menstruating; in fact, the Prosecuting Attorney employs the myth as evidence of a bizarre connection between Jews and blood. Sander Gilman observes that the “sense of difference impacts on the Jew who is caught in the web of power which controls and shapes his or her psyche and body.” 35 Although highly intelligent, Grubeshov cannot distinguish fact from myth, accepting several absurd antisemitic attitudes as truth. The notion that Jewish men can menstruate implies that Jews are not human beings, but alien devils. Consequently, to antisemitic Russian legal officers such as Grubeshov, Jews must be incarcerated and destroyed, in groups or even one by one, for the good of the people. As Grubeshov informs Bok, Russians “believe that your masters are dickering with the British to help you overthrow the legitimate Russian government and make yourselves rulers of our land and people.” 36 Malamud delineates Grubeshov’s and Bodyansky’s strong desire to imprison Bok by detailing their anger when Bibikov refuses to believe Zina’s false charge of sexual assault against the fixer. Speaking to Bok, he says: “I do believe you,” said Bibikov. Grubeshov, sharply startled, stared at the Investigating Magistrate. Colonel Bodyansky shifted uncomfortably in his chair. … The colonel and Prosecuting Attorney sat like statues. … [Bibikov added,] “I will recommend to the Prosecuting Attorney that you not be charged with attempted sexual assault.” … The Prosecuting Attorney… pushed back his chair and got up noisily. Colonel Bodyansky also arose. Bibikov reaching for the water glass, knocked it over. … Grubeshov and Colonel Bodyansky, neither speaking a word, strode sullenly out of the room.37

Grubeshov does not care that Zina has lied in her accusation of sexual assault or that her father has falsely denounced the fixer; he merely wants Bok in jail and cannot accept the fact that a Jew could tell the truth while a Christian lies

35

Sander Gilman, The Jew’s Body (New York: Routledge, 1991), 235. Malamud, 226. 37 Malamud, 93–94. 36

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about the incident. It is no coincidence that only a few minutes after Bibikov agrees that Bok is innocent, the Prosecuting Attorney and the Colonel return and charge Bok with a more serious crime—blood libel, the murder of Zhenia Golov. The prosecutor fails to realize that although Bok is charged with a ritual murder, a crime committed because he allegedly covets Christian blood, the fixer actually rejects Zina because he is disgusted by her blood (she is menstruating). As with all the crimes of which Bok is accused, the problem is not his guilt, but rather simply that he is considered guilty by virtue of being a Jew. Even the other inmates in the prison, who insist adamantly that they themselves are innocent of the crimes of which they have been accused, instinctively presume that Bok must be guilty of murder because of his Jewish heritage. Malamud presents his readers with various facets of the Russian population who deem that Bok is guilty—prosecutors, police officers, and common citizens— but here is one part of society that tends to give accused prisoners the benefit of the doubt and accept their vows of innocence. Yet even incarcerated Russian prisoners refuse to accept a Jew’s claim of innocence. If the fixer is unable to receive empathy and the benefit of the doubt from his fellow prisoners, obviously it is unlikely that he would receive a fair hearing or a fair trial in the Russian judicial system. Malamud emphasizes this point by demonstrating what ordinary citizens, such as the ferryman, think about Jews. Not realizing that the fixer is Jewish, the ferryman takes Bok across the river as a favor and, ironically, warns him about Jews: God save us all from the bloody Jews, … those long-nosed, pock-marked, cheating, bloodsucking parasites. They’d rob us of daylight if they could. … Russia will be done to death by the diseases they spread unless we make an end to it. A Jew’s a devil—it’s a known fact—and if you ever watch one peel off his stinking boot you’ll see a split hoof, it’s true. I know, for as the Lord is my witness, I saw one with my own eyes. … [T]he only way to save ourselves is to wipe them out. I don’t mean kill a Zhid now and then with a blow of the fist or kick in the head, but wipe them all out … I say we call our menfolk together, armed with guns, knives, pitchforks, clubs—anything that will kill a Jew—and when the church bells begin to ring we move on the Zhidy quarter, which you can tell by the stink, routing them out of wherever they’re hiding … bashing in their brains, stabbing their herringfilled guts, shooting off their snotty noses, no exception made for young or old, because if you spare any they breed like rats and then the job’s to do all over again. … And then when we’ve slaughtered the whole cursed tribe of them … we’ll pile up the corpses and soak them with benzine and light fires that people will enjoy all over the world.… You can take my word—the time’s not far off when everything I say, we will do, because our Lord, who they crucified, wants his rightful revenge.38 38

Malamud, 27–28.

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Although these comments, in light of the subsequent Holocaust, might shock Malamud’s readers, the boatman merely passes along convictions that he inherited from others and that he shares with a large percentage of the population. He simply continues a historical tradition of prejudice that ostracizes Jews. After the boatman completes his anti-Jewish diatribe, he crosses himself, and Bok “felt an impulse to do the same. His bag of prayer things fell with a plop into the Dnieper and sank like lead.” 39 Comprehending the antisemitic hatred that the boatman and countless others feel, the fixer understandably feels compelled to discard all remnants to his ethnicity. The mass murder of Jews is not perceived by the boatman as genocide, but rather as a crusade, as doing the Lord’s desired work; the mass killings of “the whole cursed tribe” will commence when the church bells ring, as if the mass purge, like the prosecution of a Jew for a crime that he clearly did not commit, is divinely sanctioned. The genocide that the boatman eagerly anticipates, most probably led by the Black Hundred, could occur if Bok is found guilty of the blood accusation, confesses, or commits suicide (a sign of guilt). Thus, the fate of the individual, Bok, is linked with the fate of thousands of other Jews. The boatman reminds readers of Charon, the grim ferryman who led people over the River Styx into Hades; consequently, the analogy signifies that because Bok is a Jew, he will be deprived of all legal rights, causing Kiev to be a hellish place for him. More than half of the book is devoted to Bok’s suffering in prison, showing the ramifications of an antisemitic and corrupt legal system and demonstrating his Job-like patience. Thus, Grubeshov punishes Bok without a trial, regardless of his innocence or guilt. Historically, Beiliss was acquitted, but in Malamud’s novel, Bok is not; the book concludes with the fixer finally being brought to trial. This open-ended conclusion is appropriate for Malamud’s novel. Although Bok’s real-life parallel, Mendel Beiliss, was vindicated by his acquittal, Bok also emerges triumphant—but his victory is attained simply by achieving a trial. Daniel Walden comments, “For Malamud, what is supremely important is man’s relationship to the Law, meaning doing what is right when it has to be done, no matter the suffering.” 40 The fixer’s steadfast refusal to confess prevents the ultimate aim of Nicholas II and the Black Hundreds—a bloody pogrom, ostensibly in retribution for the murder of Zhenia Golov, that would lead to the murder of thousands of Jews and reinforce the power of the tsar. Although Grubeshov, desperate for a confession, offers Bok his freedom and no further punishment in exchange for the fixer’s signature on a letter that claims that he committed the ritual murder, Bok refuses because he is unwilling to endanger the lives of Russian Jews at the hands of the tsar and the Black 39

Malamud, 28. Daniel Walden, “Bernard Malamud, an American Jewish Writer and His Universal Heroes,” Studies in American Jewish Literature 7 (2) 1988: 156. 40

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Hundreds. Such altruism contrasts markedly with the selfishness of the fixer before his incarceration, manifesting a significant moral growth. Furthermore, before Bok’s imprisonment, he had despised his estranged wife, Raisl, but while in prison he benevolently signs a letter claiming to be her baby’s father in order to maintain the woman’s and baby’s good standing in the Jewish community. His benevolence and kindness to Raisl demonstrates a significant alteration in his behavior and the acquisition of a strong dignity—a dignity that he lacked before the blood libel accusation. Although a discussion of the ritual murder myth might seem outdated, it remains timely because, incredibly, this antisemitic accusation still exists in contemporary society, with recent Arab newspapers reporting that Jews invade Palestinian territories to murder Arabs and use their blood for ritualistic purposes. In October and November of 2000, for instance, the Egyptian newspaper Al-Ahram reported that “ ‘Many Arab children disappeared in the Palestinian territories and their bodies were later found dismembered and drained of blood. Quite likely their blood was mixed with the flour of radical Jews, thereby creating dough from which the Passover matzos are baked.’ ” 41 Furthermore, on March 10 and 12 of 2002, the Saudi government-controlled newspaper Al-Riyadh published articles entitled “Jews Use Teenagers’ Blood for ‘Purim’ Pastries.” 42 The current articles derive from the tensions between the Arab nations and Israel, particularly after the initiation of the Intifada in 2000. As in the case of Yakov Bok, the false accusations actually derive from political motivations. Bernard Malamud’s novel, The Fixer, demonstrates the danger to the individual’s legal rights when the judicial system is corrupted by secular societal factors. Although antisemitism is the author’s focus, Malamud employs anti-Jewish sentiment as a metaphor. Malamud has admitted that during the course of writing The Fixer, he concerned himself with how the corruption of law affected people such as Alfred Dreyfus, Sacco and Vanzetti, Caryl Chessman, African Americans, and Jews during the Holocaust. All were unfairly victimized by the corruption of the law. Yakov Bok’s suffering is, to some extent, related to the pain endured by the aforementioned people. In Talking Horse, Malamud says, “I was now looking for a story that had happened in the past and perhaps would again. … I wanted to show how recurrent, almost without thought, almost ritualistic, some of our unfortunate historical experiences are.” 43 The blood accusation has existed for centuries and unfortunately 41 “Expressions of Anti-Semitism in the Arab Press,” March 2001, Jewish Virtual Library, http://www.us-israel.org/jsource/anti-semitism/arabpress0301.html 42 Arnold Beichman, “Blood Libel Lives,” http://www.washtimes.com/op-ed/ 20020319-5444732.htm 43 Bernard Malamud, Talking Horse: Bernard Malamud on Life and Work, Eds. Alan Cheuse and Nicholas Delbanco (New York: Columbia University Press, 1996), 88.

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might endure into the future. Only through education, understanding and acceptance of other cultures, good communication, and fair treatment by legal systems can blood accusations finally cease.

Works Consulted Alter, Iksa. The Good Man’s Dilemma: Social Criticism in the Fiction of Bernard Malamud. New York: AMS Press, 1981. Beichman, Arnold. “Blood Libel Lives.” http://www.washtimes.com/op-ed/ 200203195444732.htm Dollimore, Jonathan. “Introduction: Shakespeare, Cultural Materialism and the New Historicism.” In Political Shakespeare: New Essays in Cultural Materialism. Ithaca: Cornell UP, 1985. 2–17. _____. Radical Tragedy: Religion, Ideology and Power in the Drama of Shakespeare and his Contemporaries. Chicago: U of Chicago P, 1984. “Expressions of Anti-Semitism in the Arab Press.” March 2001. Jewish Virtual Library. http://www.us-israel.org/jsource/antisemitism/arab press 0301.html Gilman, Sander. The Jew’s Body. New York: Routledge, 1991. Malamud, Bernard. The Fixer. New York: Farrar, Straus and Giroux, 1966. All quotations from the novel derive from this edition. _____. Talking Horse: Bernard Malamud on Life and Work. Eds. Alan Cheuse and Nicholas Delbanco. New York: Columbia UP, 1996. Mizruchi, Susan. “The Place of Ritual in Our Time.” In American Literary History 12 (3) 2000: 467–492. Nisly, L. Lamar. Impossible to Say: Representing Religious Mystery in Fiction by Malamud, Percy, Ozick, and O’Connor. Westport, CT: Greenwood Press, 2002. Olson, Bernhard E. Faith and Prejudice: Intergroup Problems in Protestant Curricula. New Haven: Yale UP, 1963. Segel, Binjamin W. A Lie and a Libel: The History of the Protocols of the Elders of Zion. Trans. and Ed. Richard S. Levy. Lincoln: U of Nebraska P, 1995. Walden, Daniel. “Bernard Malamud, an American Jewish Writer and His Universal Heroes.” Studies in American Jewish Literature 7 (2) 1988: 153–161. _____. “Bernard Malamud and His Universal Menschen.” In The Magic Worlds of Bernard Malamud. Ed. Evelyn Avery. Albany: State U of New York P, 2001. 167–173. Wistrich, Robert S. Antisemitism: The Longest Hatred. New York: Pantheon Books, 1992.

Daniel Walden also discusses the universal nature of the case in “Bernard Malamud and His Universal Menschen,” in The Magic Worlds of Bernard Malamud, Ed. Evelyn Avery (Albany: State University of New York Press, 2001), 171.

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“HOW SHALL WE CHANGE THE LAW?”: BIRTH CONTROL RHETORIC AND THE MODERN AMERICAN NARRATIVE BETH WIDMAIER CAPO

The American birth control movement, led by Margaret Sanger, fought against the Comstock Act of 1783 in order to legalize access to birth control. This sweeping national obscenity law made no distinctions between pornography, literature, or medical pamphlets, and pushed birth control underground by supporting a social climate of ignorance. Fiction of this period (1914–1944) by many American authors, male and female, canonical and forgotten, captured the issues of the birth control movement, contributing their narratives to social discourse on the morality and legality of contraception. By examining select narratives and illustrations in this cultural context, including novels by F. Scott Fitzgerald (The Beautiful and Damned), Theodore Dreiser (Jennie Gerhardt and An American Tragedy), William Faulkner (If I Forget Thee, Jerusalem), and Djuna Barnes (Ryder), and short works in periodicals such as The Birth Control Review, this article examines how literature revealed the effects of the law on class and medicine. Fictional representations of the justice system, including lawyers, judges, and Anthony Comstock himself, depict an unflattering picture of an unjust law that punishes women, children, and the poor. These narratives are both subversive and complicit; that is, as they forward arguments for legal change, they often do so by reinforcing traditional beliefs about marriage, female sexuality, and abortion. Examining these fictional narratives can provide a greater understanding of the cultural forces and social contexts surrounding reproductive laws.

“How Shall We Change the Law?” asks the July 1919 cover of the Birth Control Review, Margaret Sanger’s monthly periodical which was “Dedicated to Voluntary Motherhood,” as the subtitle occasionally declared.1 This question 1 Sanger’s first publication, The Woman Rebel, was published in 1914 as a direct challenge to the Comstock Act. Four of the seven issues were confiscated, and Sanger was arraigned for violating the law. The case never came to trial. See People v. Sanger, 222 NY 192 (1918). Her second periodical, the Birth Control Review, published fiction

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was accompanied by a cover illustration by Lou Rogers depicting a nurse looking down into the eyes of a babushka-clad woman (Figure 1). The youthful, feminine appearance of the nurse contrasts with the sunken-eyed, toothless, lined face of the woman, visual clues of her poverty and despair. The positioning of the figures also reveals the power relationship between them, reinforced by the sketch’s caption: Must She Always Plead in Vain? “You are a nurse—can’t you tell me? For the children’s sake—help me!” The question “How Shall We Change the Law” and the cover illustration work in tandem to create pathos (for the poor woman and her children) that is directed toward the need for legal change and activism (“How shall we change the law” implying agency, possibility, and community). The goal of changing the law is presented throughout the Review, from its illustrations to articles to stories, and through subscription and street sales it reached a fluctuating audience of 15,000 to 30,000 readers, including doctors, clergy, judges, and poor women in rural and urban settings.2 The question of changing the law also entered public discourse through the visual and narrative rhetoric published in periodicals and novels from 1911 to 1939. By examining select narratives in this cultural context, such as novels by F. Scott Fitzgerald, Theodore Dreiser, William Faulkner, and Djuna Barnes, this article will examine how literature revealed the effects of the law on class and medicine.3 This fictional counter-narrative

from 1917 through 1928. Although Margaret Sanger is often credited as the force behind the birth control movement, other individuals were instrumental, including Mary Ware Dennett. While Sanger sought support of the medical community for her “doctor’s only” bill, Dennett wanted nothing less than the complete repeal of Comstock. See Constance M. Chen, “The Sex Side of Life”: Mary Ware Dennett’s Pioneering Battle for Birth Control and Sex Education (NY: The New Press, 1996) and Ellen Chesler, Woman of Valor: Margaret Sanger and the Birth Control Movement in America (NY: Simon and Schuster, 1992). For the history of contraceptive practice, see Norman Himes, Medical History of Contraception 1936 (NY: Gamut Press, 1963) and John M. Riddle, Eve’s Herbs: A History of Contraception and Abortion in the West (Cambridge: Harvard UP, 1997). For a political history, see Carole R. McCann, Birth Control Politics in the United States, 1916–1945 (Ithaca: Cornell UP, 1994). 2 Diana Peck, “Birth Control Review,” Women’s Periodicals in the United States, edited by Kathleen L. Endres and Theresa L. Lueck (Westport, CT: Greenwood Press, 1996): 28–38. 3 These authors are not alone in writing narratives that intersect with procontraceptive arguments. Other novels that could be discussed include: Sherwood Anderson, Dark Laughter (1925); William Faulkner, As I Lay Dying (1930) and The Sound and The Fury (1929); Ellen Glasgow, Barren Ground (1925); Ernest Hemingway, Torrents of Spring (1926); Edith Summers Kelley, Weeds (1923); Charles Norris, Seed (1930); Tess Slesinger, The Unpossessed (1934); and Agnes Smedley, Daughter of Earth (1929).

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enabled an alternate voice in public discourse by articulating the call for legal change in the voice of disenfranchised poor women. The interdisciplinary study of law and literature has developed along two paths: examining depictions of the legal profession in literature, and applying the theoretical techniques of literary analysis to the language of legal case opinion. Some critics of law and literature argue against the value of examining expressions of law in literature. For instance, Richard Posner writes that “although the writers we value have often put law into their writings, it does not follow that those writings are about law in any interesting way that a lawyer might be able to elucidate.” 4 Such a position argues that a judge’s moral position is not determined by literature, but rather by normative social and political forces. Proponents of cultural studies, however, argue that literature is a normative social force and that narratives act within public discourse to influence opinions about law, justice, and morality, and thus are about law at its most basic level.5 The act of reading and judging places the reader in the midst of a public conversation, allowing readers to transcend the boundaries of their own experience and consider the effects of law on others. As Martha Nussbaum writes: the very structure of the interaction between the text and its imagined reader invites the reader to see how the mutable features of society and circumstance bear on the realization of shared hopes and desires—and also, in fact, on their very structure.6

The birth control movement in America, under the direction of Margaret Sanger, fought to repeal the Comstock Act of 1873 and to make contraception legally available to women if prescribed by a doctor.7 This battle to change the 4 Richard Posner, “Law and Literature: A Relation Reargued” Virginia Law Review 7 (1986): 1356. 5 This argument is theoretically aligned with Wayne C. Booth, The Company We Keep: An Ethics of Fiction (Berkeley: University of California Press, 1988); Robin West, “Economic Man and Literary Woman: One Contrast,” Mercer Law Review 28 (1988); Ian Ward, Law and Literature: Possibilities and Perspectives (Cambridge UP, 1995); and Richard Weisberg, Poethics and other strategies of law and literature (NY: Columbia UP, 1992). Booth proposes an “ethical criticism” that asks literary scholars to consider how works affect readers and writers. He states, “serious ethical criticism cannot be divorced finally from political criticism. When we talk about changing persons, we are also talking about changing societies” (12). 6 While Nussbaum is speaking specifically about realist novels, her comments apply to other fictional forms that direct a reader’s emotional response toward a certain end. Martha C. Nussbaum, Poetic Justice: The Literary Imagination and Public Life (Boston: Beacon Press, 1995): 7. 7 The Comstock Act of 1873, named for director of the New York Society for the Suppression of Vice, Anthony Comstock, amended the U.S. Postal Code to prohibit the distribution of “obscene” materials.

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law was fought on many fronts, including the courts, the offices of Congressmen, the pages of the movement’s propaganda outlets, and the mainstream media. Historians and scholars have examined the birth control movement in many of these outlets but have neglected an important cultural medium: narrative fiction, including stories in the Birth Control Review and novels by major American authors, also engaged the hearts and minds of the public on this issue. The movement for birth control used fiction as a rhetorical means of swinging public opinion toward legalization. These works, if read together, offer a rich and valid site to examine the birth control movement and its legal and social implications for female sexuality and reproductive control. Their representations of the justice system, including lawyers, judges, and Anthony Comstock himself, present an unflattering picture of an unjust law that punishes women, children, and the poor. Examining select narratives and illustrations from this period, readers discover many examples of law in literature, including depictions of lawyers and trials. But, from the perspective of a scholar of literary cultural studies, a more interesting mode of investigation is looking beyond these explicitly “legal” concerns to examine how narrative literature acts as rhetorical discourse, shaping the minds of readers (even, potentially, lawyers and judges). This approach analyzes law as experienced as a material condition rather than as abstract theory or narrative trope. From this point of view, literature can act as a grass-roots call to action by articulating diverse experience and creating sentiment against particular laws, inherently advocating reform. Such an approach considers the law as an institution interacting with other institutions, such as class and medicine, thus recognizing that legal interpretation and its effects are fluid. Examining the role of literature in public discourse surrounding birth control legislation provides a case study of this approach and a new way to read the law. These narratives are both subversive and complicit; that is, as they forward arguments for legal contraception, they often do so by reinforcing traditional beliefs. As feminist scholars Hirshman and Larson note, sex has always been subject to law.8 The legal system is one institution among many that defines appropriate gender roles, contributing to the regulation of sexual behavior. Laws enforce and maintain social beliefs about public morality, gender, and the family in a patriarchal, capitalist system. It was under this guise of public morality and protection of the family that the Comstock Act of 1873 was spawned. Entitled an “Act of the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use,” this act made it illegal to distribute through the United States mail “any article or thing designed or intended for the prevention of conception or procuring of abortion” as well as “advertisements” 8 Linda R. Hirshman and Jane E. Larson, Hard Bargains: The Politics of Sex (NY: Oxford UP, 1998).

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or “information” regarding birth control. Whether Comstock was motivated by the desire to control female sexuality or protect children, the effect was to suppress the individual rights of women.9 This sweeping national obscenity law made no distinctions between pornography and medical contraception and pushed birth control underground by supporting a social climate of ignorance and shame.10 But, by the time Margaret Sanger began her birth control campaign in 1914, society was already questioning this moral code. Under particular scrutiny was the definition of “lewd” in interpreting the law. One mode of critiquing the law in visual and narrative discourse was to present it as musty and old-fashioned. Radical New York Bohemians such as the writers and editors of The Masses openly mocked the provincial repression of the Comstock Law.11 9 While feminist critics such as Janet Farrell Brodie and Carol Smith-Rosenberg have argued that the purpose of the Comstock Act was in part to control female sexuality, Nicola Beisel argues that Anthony Comstock was motivated by a desire to protect children: “children, not women, were Comstock’s concern, although he assumed that the rearing of morally pure children required women devoted to home and family” (9). Janet Farrell Brodie, Contraception and Abortion in Nineteenth Century America (Ithaca: Cornell UP, 1994); Carol Smith-Rosenberg, Disorderly Conduct: Visions of Gender in Victorian America (NY: Alfred A. Knopf, 1985); Nicola Beisel, Imperiled Innocents: Anthony Comstock and Family Reproduction in Victorian America (Princeton, NJ: Princeton UP, 1997). 10 Critics disagree on how effective the Comstock Act actually was. Himes argues that Comstock was quite effective, but later historians have noted veiled references to contraception in newspaper medical columns and penny circulars. See Esther Katz, “The History of Birth Control in the United States,” History of Medicine 4, no. 2/3 (1988): 81–101. Despite the legal impediments, demographic researchers show that family size declined during this period. Katherine B. Davis conducted a survey of 1,000 women of marriageable age before the onset of World War I. Seventy-four percent of respondents practiced some form of contraception, while an even larger number surveyed believed that it was morally right. Katherine Bemont Davis, Factors in the Sex Lives of Twenty-Two Hundred Women (NY: Harper & Brothers Publishers, 1929). Middletown, a study of the changing trends from 1890–1925 in the “life of a small American city,” noted that, despite an earlier marriage age, family size was shrinking (from 4.6 in 1890 to 3.8 in 1920) due in part to “the diffusion of knowledge of means of contraception.” Robert S. Lynd and Helen Merrell Lynd, Middletown: A Study in American Culture (NY: Harcourt, Brace & Company, 1929): 111. 11 The Masses differed from other Socialist-affiliated periodicals in its liberal editorial policy, its refusal to endorse coherent party lines, and its unified support for birth control. Many of the writers, editors, and illustrators for the Masses contributed to Sanger’s defense fund and published in the Birth Control Review, including Mary Heaton Vorse, Floyd Dell, and Cornelia Barns. The Masses was sanctioned by the New York Society for the Prevention of Vice, and fought continuously with censors. William L. O’Neill, Echoes of Revolt: “The Masses,” 1911–1917 (Chicago: Quandrangle Books, 1966) and Rebecca Zurier, Art for the Masses: A Radical Magazine and Its Graphics, 1911–1917 (Philadelphia: Temple UP, 1988).

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For instance, the September 1915 issue of the Masses published a drawing by Robert Minor (Figure 2). Set in a courtroom, the drawing depicts a hawk-faced judge leaning down as an overweight, bald and mutton-chopped lawyer, bearing a remarkable resemblance to the real Anthony Comstock, drags forward a bare-foot and night-gowned girl. The girl, her face covered by hair, is limp in his grasp, apparently taken straight from childbed. With upraised finger, the lawyer indignantly states “Your Honor, this woman gave birth to a naked child!” The absurdity of this situation satirizes the moral stricture of the Comstock Act as prudish and out of touch. One issue later, another drawing by Minor, entitled “O Wicked Flesh!”, presents the same pot-bellied, balding Comstock figure standing on a larger-than-life naked women and brandishing an upraised sword. While humorous, these drawings encapsulate the tense struggle between advocates for birth control and zealous crusaders for public morality. Read in the context of the birth control movement, they also indicate the difficulty of fighting this battle in the legal system, where wealthy men uphold laws to be enacted on the bodies of poor women. The Masses appealed to a diverse body of readers, from “respectable middle-class families” to “working class and immigrant readers,” and sold 20,000 to 40,000 copies a month.12 Thus, this picture of prudish and interfering censors would have entered many households. A similar picture of the oldfashioned moral reformer also entered public discourse via literary texts such as F. Scott Fitzgerald’s The Beautiful and Damned. Capitalizing on the popular success of Fitzgerald’s This Side of Paradise, which had sold over 41,000 copies a year earlier, The Beautiful and Damned was serialized in The Metropolitan Magazine before its publication as a complete novel in 1922.13 Fitzgerald lampoons the old-fashioned reformist impulse of Anthony Comstock in his description of the protagonist’s grandfather who “became a reformer among reformers. Emulating the magnificent efforts of Anthony Comstock, after whom his grandson was named, he leveled a varied assortment of uppercuts and body-blows at liquor, literature, vice, art, patent medicines, and Sunday theatres.” This lengthy string of “immoral” practices, conflating literature with patent medicines, is firmly attributed to an older, dying generation. The protagonist views his grandfather as “a rabid monomaniac,” “a prig, a bore, and something of a hypocrite.” 14 Fitzgerald, who was widely read, would have reached a much wider audience than the “bohemians” who picked up The Masses, spreading this satirical portrait of the founder of the Comstock Act 12 See Mark S. Morrisson, The Public Face of Modernism: Little Magazines, Audiences, and Reception 1905–1920 (Madison: University of Wisconsin Press, 2001). 13 Jay Parini, “Introduction,” The Beautiful and Damned by F. Scott Fitzgerald (NY: Penguin, 1998): vii. 14 F. Scott Fitzgerald, The Beautiful and Damned (NY: Penguin, 1998): 4, 71.

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into wider discourse. By poking fun at the old-fashioned morality of Anthony Comstock, these artists and writers led public opinion to question the relevance and efficacy of a law so obviously a ban to progress. This sentiment echoes the basis of the birth control movement as articulated in Sanger’s 1917 trial testimony: “I cannot respect the law as it exists today.” 15 In the drawings by Robert Minor discussed above, the legal system is presented as not only male, but wealthy. This theme of class inequity was carried through in the fictional narratives as well. Economic conditions offered another avenue of attack for birth control reformers. The legal system may have intended “blind justice,” but the application of the law was uneven. For instance, wealthy women could often receive birth control from sympathetic private physicians who would prescribe a pessary, a device worn in the vagina to support a prolapsed uterus, which also acted as a contraceptive. This class divide is symbolized in a Lou Rogers illustration in the June 1918 issue of the Birth Control Review (Figure 3). A man labeled “Medical Profession” whispers contraceptive information to a well-dressed woman, while in the background a haggard woman holding a baby, with a small child tugging at her skirts, looks on. The drawing is captioned: “Mrs. Poor Patient:—‘If you’re rich, the law don’t count’.” Unfortunately, knowledge of birth control was a commodity not accessible to the poor at this time and, judging from the articles, letters, and fiction, this divide was widely known.16 Letters to the Review reveal poor women asking for the information they are sure other, wealthier women are getting. For example, a series of letters in 1917 entitled “Raising Garbage Collectors for the Doctors” foregrounds the re-entrenchment of class difference in its title, while

15

Arrested October 1916 for operating a contraceptive clinic in the Brownsville section of Brooklyn, Sanger was brought to trial for violating Section 1142 of the New York State Penal Code. The trial took place in January 1917, and Sanger was found guilty, serving a 30-day prison sentence. Testimony is quoted from “Sanger on Trial: The Brownsville Clinic Testimony,” Margaret Sanger Papers Project Newsletter 25 (Fall 2000). Full testimony can be found at: New York v. Sanger, 222 NY 192, 118 N.E. 637 (Court of Appeals 1917), National Archives, Records of the U.S. Supreme Court, RG 267 (MSPME-CDS C15: 298). 16 In “Women and U.S. Literary Radicalism,” Paula Rabinowitz notes that the CP USA Women’s Commission journal, Working Woman, reprinted a letter to a birth control clinic and provided an editorial response acknowledging the class-based knowledge divide of contraception, calling for women to fight for more birth control clinics (6). Paula Rabinowitz, “Women and U.S. Literary Radicalism,” Writing Red: An Anthology of American Women Writers, 1930–1940, ed. Charlotte Nekola and Paula Rabinowitz (NY: Feminist Press, 1987): 1–16. The Birth Control Review bolstered its case by printing supportive letters from doctors, clergy, lawyers, and judges, usually highlighting these letters with special sections and written introductions, as they did in “A Judge on Birth Control” to highlight a letter of support by Judge J.C. Ruppenthal of Kansas. Birth Control Review (September 1918): 11.

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the contents implicate uncontrolled fertility as the mechanism of continued oppression (13). Similarly, a series of letters in the May 1928 Review, “The Mother’s Question—Is Poverty Inevitable?” demonstrates that poor women were in the same straits eleven years later. The economic implications of the law’s enforcement were clear, especially when one considered the wealth of the judges and lawyers enforcing the law against poor women. The Birth Control Review made much of this disparity and the attendant hypocrisy. For instance, when the activist Kitty Marion was arrested for selling the Review on the streets, an anonymous article addressed her judges with “One wonders, Your Honors, why Kitty Marion is in jail and your families, to all appearance, have been the subject of a wise and judicious limitation?” 17 Just as the letters and articles foreground how knowledge was located as a commodity that reinforced class divisions, so much of the fiction that engages with the debate over birth control is embedded in revealing class as an institution affecting the law’s application. For example, one of the few fictional pieces in Margaret Sanger’s first publication, The Woman Rebel, melodramatically demonstrates how this arbitrary law causes poverty, ruins female health, and strains a marriage. In “Man’s Law,” Sonia Ureles demonstrates the “typical” course of married life for the poor: “The first three years of married life crowned them with two babies. The first, a son, was proudly cared for. The second brought no enthusiasm. The third made it harder for them.” 18 At last, broken in health, the mother “stumbled into the nurse’s room” at the local hospital and “gasped, in a broken whisper, ‘that I’m pregnant again.’ ” “Tell me what to do,” she pleaded, frantic with fear. “I can’t,” said the nurse, averting her eyes in misery, “the law won’t allow it.”…“I’m sick—my babies are dying,” whispered the mother. “And now—another! Never!” She screamed, terror holding her rigid. “Never! I’ll kill myself first.”

Later hearing that the woman has indeed drowned herself, the nurse sobs “Man’s law is bitter cruel!” The rather obvious moral of this melodramatic vignette is that the law against birth control is solely man’s law, and as such subject to change. The story employs tragic extremes—of shattered health, poverty, and suicide—to evoke an emotional reaction against the Comstock Act. The heroine’s defeated body becomes the terrain on which the reader engages in political action. This image was repeated in birth control propaganda, including a drawing by Cornelia Barns (Figure 4). Published in the Birth Control Review,

17 Judges with small families jail Kitty Marion,” Birth Control Review (November 1918): 5. 18 Sonia Ureles, “Man’s Law,” Woman Rebel 1., no. 2 (1914): 9. Text available online through the Margaret Sanger Papers Project at http://adh.sc.edu/ms/ms-table.html

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the drawing depicts a gaunt woman half-rising from bed in a one-room shack, newborn at her side and several smaller children gathered around. The doctor tells her “another child will kill you,” but then refuses to tell her how to prevent pregnancy with the brief denial “I cannot.” These propagandistic illustrations and vignettes argue that the law negatively impacts the medical profession’s mission to save human life. Sanger herself employed this institutional conflict in her political rhetoric and used the fiction in her Birth Control Review to reinforce this message through vivid portrayals of the resulting suffering. These narratives created an alternate lens through which readers would view the experience of families in abject poverty denied contraceptive information by the medical profession. Mary Burrill’s “They That Sit in Darkness” typifies the terms of this discourse. In the September 1919 Review “They That Sit in Darkness: A One-Act Play of Negro Life,” portrays a large family in extreme poverty in the South. Mrs. Jasper, a week past the birth of her tenth child (eight live, although one is simpleminded and one has stunted legs), is told by the visiting nurse that the last pregnancy has left her with a bad heart and that she must give up her laundry work. Mrs. Jasper begs the nurse to tell her how to prevent conception, but the nurse can only reply I wish to God it were lawful for me to do so! My heart goes out to you poor people that sit in darkness, having, year after year, children that you are physically too weak to bring into the world—children that you are unable not only to educate but even to clothe and feed. Malinda, when I took my oath as nurse, I swore to abide by the laws of the State, and the law forbids my telling you what you have a right to know!19

The nurse enacts the point of moral conflict between the law and a woman’s right not to be killed by repeated childbearing. Again, individual rights are restricted under “man’s cruel law,” and medical knowledge cannot be shared with those in need. The story employs tragedy and melodrama to reinforce this point, evoking pathos in the reader that would combine with the logical and factual arguments presented elsewhere in the Review to create a whole and compelling argument. Soon after this exchange, Mrs. Jasper dies, and her oldest daughter must give up a scholarship to attend Tuskegee, a chance to lead her family out of the “darkness” of ignorance and poverty. The law is to blame for keeping this family in ignorance, insuring the reproduction of poverty and tragedy.

19 Mary Burrill, “They That Sit in Darkness,” Birth Control Review (September 1919): 5–8.

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These stories and others reveal how fiction circulated within explicitly probirth control periodicals. This rhetorical strategy employs multiple genres and levels of appeal, from unsubtle tugs at the heartstrings to logical appeals based on medical science and economic theory. Fictional characters dramatized the plight of the poor in order to elicit sympathy, anger, and support for the movement. The stories of nurses and doctors unable to give needed information supported Sanger’s “Doctor’s Only” bill, an attempt to enable the medical profession to prescribe contraception. Sanger’s approach was thus tempered by pragmatism; the potential nature of birth control to revolutionize female sexuality was kept firmly contained by the conservative institutions of medicine and marriage.20 Pro-contraceptive narratives could also be found outside of periodicals directly involved in supporting the birth control movement, demonstrating a mainstreaming of the issues. For instance, Lawrence Lagner’s play Wedded, published in The Little Review in 1914, reveals sharp commentary on the confluence of law and class.21 The modernist magazine The Little Review had a surprisingly diverse readership and a respectable circulation of 2,000 to 4,000 subscribers, selling to both political radicals and literary bohemians in thirtysix cities across the country by 1914.22 This humorous play opens onto an absurd scene: the groom has died shortly before the wedding, leaving the bride pregnant and unmarried. Janet, the bride, and her mother attempt to persuade the priest to pretend that Bob died after, not before, the ceremony, thus allowing Janet the security of “marriage.” Janet reveals that she and Bob had heard of birth control but had no access to it. She states, “Well, Bob said the rich people do it. He said they must know how to do it, because they never have more’n two or three children in a family; but you’ve only got to walk on the next block—where it’s all tenements—to see ten and twelve in every family, because the workin’ people don’t know any better.” 23 The commodity of 20 Birth control clinics would only serve married women. In 1965, with Griswold v. Connecticut (1965), the U.S. Supreme Court overturned a Connecticut statute prohibiting contraceptive use on the grounds that it violated the constitutional right to marital privacy. The court extended this right of privacy to the unmarried in Eisenstadt v. Baird (1972). The issue of privacy in reproductive decisions came into play again in 1973 in Roe v. Wade. 21 Margaret Anderson’s Little Review was devoted to publishing the works of avant-garde writers. It attracted “a more upscale segment of the modern audience” than the Masses, selling to both political radicals and literary bohemians. See Christine Stansell, American Moderns: Bohemian New York and the Creation of a New Century (NY: Henry Holt, 2000): 175. Like the other radical periodicals discussed here, the Little Review ran afoul of the Comstock Act for printing “lewd and lascivious” material, in this case installments of James Joyce’s Ulysses. 22 See Morrisson. 23 Lawrence Langner, “Wedded: A Social Comedy,” Little Review (November 1914): 8–18.

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knowledge manifests, and is embodied, by family size. The play uses humor to critique as ridiculous how the Comstock Act (and public morality) kept birth control a kind of black-market commodity that only the rich could afford. Canonical writers such as Theodore Dreiser also acknowledged that class allowed the rich to sidestep the law on birth control. As a Naturalist writer, Dreiser was concerned with examining how external conditions, such as class and the legal system, shaped people’s lives. In his 1911 novel Jennie Gerhardt (originally entitled “The Transgressor” as though to emphasize the breaking of social norms), Jennie is tempted to engage in sex outside of marriage in order to financially aid her family. Here Dreiser acknowledges the uncomfortable reality of the female body in the labor market, and the sexual marketability that led to prostitution. Dreiser also depicts Jennie’s second wealthy lover, Lester Kane, as knowing about birth control. Lester tells her “But don’t worry about that. You don’t need to. I understand a number of things that you don’t yet. It can be arranged. You don’t need to have a child unless you want to. And I don’t want you to.” 24 Again it is the wealthy male with agency, while the female is a commodified object under the law. But the original readers of the novel would not have had Lester’s statement revealing that conscious birth control was the reason for Jennie’s childlessness (although this is implied even without the reference). This is because Jennie Gerhardt, like Sister Carrie and An American Tragedy, was heavily edited by the publishers, and this veiled reference to birth control was excised on moral grounds. This editing of references to birth control reveals the long arm of the Comstock Act and the constraints it placed on writers. In Jennie Gerhardt and in his nonfiction, Dreiser reveals an astute understanding of the sexual and economic politics of birth control under Comstock. It is Lester, the wealthy man, who controls contraceptive knowledge, and in doing so controls Jennie’s reproductive body. In “A Word Concerning Birth Control,” in the April 1921 Birth Control Review, Dreiser further reveals his thinking on birth control and class.25 In this short article, he advocates birth control for the poor and is frankly suspicious of wealthy efforts to keep this knowledge illegal. He writes, “I sometimes suspect the wealthy and powerful of various persuasions and interests, especially those who might hope to profit from the presence here of vast and docile hordes of having more of an interest in blind unregulated reproduction on the part of the masses than they would

24

Theodore Dreiser, Jennie Gerhardt, 1911. ed. James L.W. West III (NY: Penguin, 1992): 158. Dreiser contributed to the Review and was a sponsor of the First American Birth Control Conference organized by Sanger in New York in 1921. When Boston tried to ban An American Tragedy in 1927, Sanger appeared at an anti-censorship rally with her mouth taped shut in support of Dreiser. 25 Theodore Dreiser, “A Word Concerning Birth Control,” Birth Control Review (April 1921): 5–6, 12–13.

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care to admit.” By regulating contraceptive knowledge, the law enables unregulated reproduction, benefiting a capitalist society that needs bodies for labor. Advocates of birth control thus presented overturning the Comstock Act as a panacea to the problems of prostitution, abortion, poverty, and suffering. Changing the law, the logic went, was much preferred to reproducing the agony and despair of poor women. This trope can be found even in more experimental modern fiction, such as Djuna Barnes’ 1928 novel Ryder. That Barnes’ first novel was briefly a bestseller provides evidence not only that the trope supporting birth control was widespread among fiction, but that it was reaching a wider audience than the limited readership of periodicals such as the Birth Control Review. The novel does not explicitly reference birth control but was censored for its depictions of sexuality. Ryder chronicles the ancestry and family of Wendell Ryder, who blasts monogamy and begets children on multiple women. The female characters, however, criticize this enforced motherhood as “biological entrapment,” to use the phrase of another modernist author, Ernest Hemingway in A Farewell to Arms. Ryder emphasizes the physical and psychological suffering of repeated childbirth. For instance, the text includes a “Midwives’ Lament,” a short poem about a woman who died as women die, unequally Impaled upon a death that crawls within; For men die otherwise, of man unsheathed But women on a sword they scabbard to.26

This vision of pregnancy connects childbirth to a painful death, likening the fetus to a sword and thus calling forth associations of battle or warfare within the womb. Ryder’s wife Amelia equates sex with pregnancy and pregnancy as pain, as she tells her daughter, “don’t let a man touch you, for their touching never ends, and screaming oneself into a mother is no pleasure at all.” 27 Kate, Ryder’s other wife, articulates how this lack of reproductive control makes women into animals: “I’ll kill it the minute it’s born, but I’ll bear it! … I’ll stand over it like a distempered bitch before a wailing litter, and I’ll stamp it into the ground, and be done with your filth! … I’ll have my children, one, two, three, a dozen! until the mould breaks, and I’ll stamp on them.” 28 Although Kate refers to a dozen children, it is important to note the decline in family size through the generations of the Ryder family. This decline correlates with historical patterns. Although Barnes does not explicitly discuss birth control in her novel, it is implied in the text by the decline in family size. By emphasizing the 26

Djuna Barnes, Ryder (NY: Horace Liveright, 1928): 93. Barnes, Ryder, 117. 28 Barnes, Ryder, 224. 27

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physical dangers of motherhood, Barnes undermines the social platitude that motherhood is natural, uncomplicated and inherently fulfilling.29 Such a narrative depicts women trapped by the complicit systems of law and economics that deny women access to birth control. While Barnes implicitly employs arguments for birth control, she more explicitly fought the same censorship law that so impeded the birth control movement. Barnes’ descriptions of sexual intercourse caused her novel to be censored. Rather than rewrite her work, as Dreiser had done, Barnes had it published with stars to mark where text had been deleted by censors. In the preface to the novel, she criticizes the damage these censors have done to the “sense, continuity, and beauty” of her text.30 Thus Barnes presents a two-fold argument against the Comstock Act as detrimental both to women and to art. The act of censorship reveals the true power of literature to influence society: that is, why bother to legally intervene if narrative fiction has no lasting impact? Theodore Dreiser’s 1925 novel An American Tragedy also explores themes relevant to the legalization of birth control, and indeed it was reviewed glowingly by Ivan Bloch in the September 1926 Birth Control Review.31 Many scholars of Law and Literature have been interested in American Tragedy for its lengthy trial scenes and the strategies used in Clyde’s failed defense. But what they ignore is that American Tragedy, like Jennie Gerhardt, refers explicitly to birth control. This time, however, it is ignorance of birth control, and it is explicitly to blame for the evil to follow. In An American Tragedy, Clyde Griffiths pursues success and sex. He finds that, with sex, “the difficulty lay, not in the deed itself, but in the consequences which followed upon not thinking or knowing.” 32 That is, as he learns from the case of pregnant and abandoned sister Esta, the problem is in getting the girl pregnant. Clyde seduces and accidentally impregnates Roberta, a simple factory girl. Dreiser writes, “But there was this to be said in connection with the relationship between these two, that no time, owing to the inexperience of Clyde, as well as Roberta, had there been any adequate understanding or use of more than the simplest, and for the most part unsatisfactory, contraceptive devices.” 33 After Roberta tells him that she is pregnant, Clyde 29

According to Richard and Dorothy Wertz, maternal mortality peaked in 1920 at 90 deaths per 10,000 live births. It dropped steadily afterwards, due in part to increased use of hospitals for delivery, use of penicillin and antibiotics to fight puerperal fever, and advances in blood transfusion techniques. Maternal mortality rates for non-white women were up to three times higher than for white women. Richard W. Wertz and Dorothy C. Wertz, Lying-In: A History of Childbirth in America (New Haven: Yale UP, 1989). 30 Barnes, Ryder, xi. 31 Theodore Dreiser, An American Tragedy 1925 (NY: Signet, 1964). Ivan Bloch, “Book Reviews,” Birth Control Review (September 1926): 279–280. 32 Dreiser, American Tragedy, 100. 33 Dreiser, American Tragedy, 368.

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wants to end the pregnancy but realizes that he knew “little more than those rumored specifics and preventatives of quack doctors and shady druggists and chemists.” 34 When “the remedy he purchased failed to work,” that remedy being a box of pills for which he paid a “staggering sum” and which Roberta tries not once but twice, Clyde pressures Roberta into seeking an abortion.35 Clyde’s ignorance and lack of access to effective contraception, direct results of the Comstock Act, are crucial components in his moral and legal downfall because they lead to two greater crimes: the abortion attempt and murder. The doctor Roberta approaches for the abortion articulates the connection between law, medicine and morality when he tells her it is “very dangerous legally and ethically as well as medically very wrong. Many women who seek to escape childbirth die in this way. Besides it is a prison offense for any doctor to assist them, whether there are bad consequences or not.” 36 The birth control movement consciously stated a position against abortion, as indicated by the statement “Don’t kill. Don’t take life, but prevent,” in Sanger’s flier for the Brownsville Clinic. American Tragedy is often interpreted as the depiction of one man’s weakness and failure, but when the novel is read in the context of the birth control movement, it becomes stunningly apparent that Clyde’s downfall is spurred by sexual ignorance. Dreiser’s references to Clyde’s ignorance of birth control and his conviction after Roberta’s unwanted pregnancy that “never again, without knowing a lot more than he did now, would he let himself drift into any such predicament as this,” indicate that birth control could have prevented the tragedy of Roberta’s death and Clyde’s execution.37 In addition, in their rush to discuss Clyde’s legal predicament, scholars ignore the fate of Roberta. Trapped by her poverty, her ignorance, and a legal system that has outlawed both contraception and abortion, Roberta can be likened to the depiction of women in another political cartoon by Lou Rogers (Figure 5). Here the figure of “woman” in the foreground is drawn disproportionately small, helpless beneath the crushing weight of “drastic laws against birth control” while the “male republic” of the United States is “Too Self-Satisfied to Take Notice.” Similarly, Roberta is crushed beneath the weight of restrictive laws within the text, and her character is often erased within a scholarly criticism that focuses on the male legal establishment. Like An American Tragedy, William Faulkner’s If I Forget Thee, Jerusalem (1939) depicts failed contraception leading to abortion, and reflects the climate of American fear surrounding these issues. Interestingly, while a number of critics focus on the abortion, none mention the explicit birth control scene. For 34

Dreiser, American Tragedy, 373. Dreiser, American Tragedy, 378 36 Dreiser, American Tragedy, 403. 37 Dreiser, American Tragedy, 376. 35

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instance, Joseph Urgo states that “Through the choice of abortion, maternity become a matter of consciousness, no longer an exclusively natural function.” 38 But birth control itself makes maternity a conscious choice for Charlotte before her decision to have the abortion. Faulkner’s two illicit lovers, Harry and Charlotte, practice post-coital douching as contraception. According to a 1940 survey, antiseptic douching was one of the most popular methods throughout the United States, in part because the necessary materials could be found at any drugstore.39 Douching is effective for Charlotte, until, “When the stove went out, my douche bag was hanging behind it. It froze and when we lit the stove again I forgot it and it burst.” 40 Isolated in remote mine country, Charlotte cannot replace her douche bag nor can she find any other technological means of contraception. She has to rely on folklore and hope: “I remember somebody telling me once, I was young then, that when people loved, hard, really loved each other, they didn’t have children, the seed got burned up in the love, the passion. Maybe I believed it. Wanted to believe it because I didn’t have a douche bag any more.” 41 Without birth control, Charlotte becomes pregnant. She forces a reluctant Harry, who never finished his medical degree, to attempt an abortion. Charlotte even “boiled the water herself and fetched out the meagre instruments.” Harry refers to the procedure in metaphoric language: “you just have to let the air in.” 42 This phrase, echoing Hemingway’s “Hills Like White Elephants” of 1927, demonstrates the existence of a popular legend of abortion rather than practical knowledge of the procedure. Harry’s failed search for an alternate method, “a kind of pill” that “whores use,” reaffirms both the illicit nature of abortion, and the lack of safe or legal methods available.43 Faulkner’s text continues the popular discourse that abortion is tragic, as Charlotte dies of hemorrhage and Harry is sentenced to prison. By depicting the economic despair in the mining communities and elucidating Charlotte and Harry’s belief that the world was not a good place to bring a child into, Faulkner adopts rhetorical arguments prominent in birth control rhetoric. As Charlotte says, “I can starve and you can starve but not it.” 44 38

Joseph Urgo, “Faulkner Unplugged: Abortopoesis and The Wild Palms,” Faulkner and Gender: Faulkner and Yoknapatawpha, 1994, ed. Donald M. Kartiganer and Ann J. Abadie (Jackson, MS: University of Mississippi Press, 1996): 252–272. 255. 39 John Winchell Riley and Matilda White, “The Use of Various Methods of Contraception,” American Sociological Review 5 (1940: 890–903): 898. 40 William Faulkner, If I Forget Thee Jerusalem (1939. NY: Vintage Books, 1995): 172. 41 Faulkner, If I Forget Thee Jerusalem, 172. 42 Faulkner, If I Forget Thee Jerusalem, 185. 43 Faulkner, If I Forget Thee Jerusalem, 174. Italics in original. 44 Faulkner, If I Forget Thee Jerusalem, 185.

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The scenes of poverty in the mining community and Charlotte’s statement echo the letters in the Birth Control Review and Sanger’s own arguments regarding the selfishness of bringing children into the world to starve. But, if Faulkner is sympathetic towards abortion, why kill Charlotte and condemn Harry? Indeed, Harry had previously practiced a successful abortion on the married Buckner couple. The fate of Harry and Charlotte reflects the reality of illegal contraception and abortion.45 The high mortality rate of abortion was another reason birth control advocates fought it—birth control, they argued, would protect women’s health and allow them to bear more children. But the Comstock Act forced women to choose between two illegalities, birth control or abortion. Faulkner’s text is significant for its development of this cultural narrative, exploring the legal and mortal consequences of unmarried sexuality and unwanted pregnancy. Indeed, their unmarried status is emphasized throughout the novel, as various characters throughout the novel immediately sense that the “real outrage” is that “they aint married to each other.” 46 Like the birth control movement itself, it presents contraception as favorable to abortion. This message aligns with conservative ideology by positioning contraception as medically necessary for healthy women and children. The birth control movement operated on many fronts in its attempts to legalize the dissemination of birth control. By lobbying lawmakers and taking its challenge to the courts, Sanger finally succeeded in legalizing contraception if prescribed by a doctor. The texts discussed above also operated on different fronts by manifesting in a diverse range of genres, from illustrations to simple melodramatic vignettes in the propagandistic popular press, to mainstream novels such as those by Fitzgerald and Dreiser, to the avant-garde experiments of Barnes. While these works differ in their level of literary sophistication, and reach varying audiences, they intersect in their implied support for legalizing

45

Charlotte’s death after her abortion fits the odds, as does Harry’s fate, although in a more complicated manner. Through the 1930s, the state prosecuted abortionists after the death of the woman, but more so if the woman was unwed. According to Reagan, husbands involved in helping wives obtain an abortion were rarely arrested, but lovers were—revealing the importance of marriage in the application of the law. Reagan cites a case that is strikingly similar to the tale of Harry and Charlotte: “In 1916 Chicago and Denver newspapers published Ruth Merriweather’s love letters to a Chicago medical student, who was on trial for his involvement in her abortion-related death” (1257). Leslie J. Reagan, “ ‘About to meet her maker’: Women, Doctors, Dying Declarations, and the State’s Investigation of Abortion, Chicago, 1867–1940,” Journal of American History 77.4 (1991): 1240–1264. Ware reports that, in the 1930s, couples could find an illegal abortionist who charged $100–150, but that between 8,000 and 10,000 women died each year from abortions. Susan Ware, Holding Their Own: American Women in the 1930s (Boston: Twayne, 1982). 46 Faulkner, 8, 7.

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birth control. Taken together, these intersecting narratives create a rhetorical voice that contributed to a reinterpretation of the Comstock Act. Readers of these texts were given a new frame to view the effects of the law, a way to see contraception as part of a just and moral system. This shift in public opinion is revealed by 1936 Gallop poll “showed that 63 percent favored the teaching and practice of birth control” while a Ladies’ Home Journal poll that revealed that 79 percent of American women “believe in birth control.” 47 In 1936 the decision of U.S. v. One Package of Japanese Pessaries lifted legal restrictions on the medical profession, allowing them to disseminate contraceptive information for health reasons. The decision ruled that contraception would not have been included under Comstock if the original framers had “information now available as to the evils resulting in many cases from conception.” 48 Four years earlier, Dr. Hannah M. Stone, birth control activist and clinic director, wrote in the Birth Control Review of a great change in American attitudes toward birth control: “The cumulative effect of the various social, economic, educational and scientific forces on birth control thought is now becoming manifest, and a significant change is taking place in the attitude of the public, the church and the medical professional.” 49 While Dr. Stone cites the growth of the clinic system and efforts to change the law as effecting this change, it is likely that American writers more subtly helped to shape the debate. The legal battle for birth control was fought not only in the courts, but in the sphere of public discourse. Looking at popular fiction provides a new perspective on the rhetorical strategies shaping public opinion via the use of entertaining and educational narratives. In her examination of the representation of unwed mothers in recent fiction, Carol Sanger argues that popular fiction “may reflect what ordinary readers feel most comfortable with, their existing values.” 50 But this relationship is not one of simple reflection, but also one of refraction; that is, the fiction works to shape the beliefs of its readers by exposing them to new experiences, even as it couches these ideas in the framework of comfortable morality. In the contraceptive fiction discussed above, the potentially radical idea of birth control was positioned within a larger moral framework in order to make it more palatable. Indeed, these works indicate, the 47 Ware, 7. James Reed, “The Birth Control Movement before Roe V. Wade,” The Politics of Abortion and Birth Control In Historical Perspective, ed. Donald T. Critchlow (University Park: Penn State UP, 1996): 35. 48 See Justice Augustus Hand’s Case Opinion. United Sates v. One Package of Japanese Pessaries, 13 F. Supp. 334 (E.D.N.Y. 1936), aff’d 86 F. 2d 737 (2d Cir. 1936). 49 Hannah M. Stone, “Birth Control in America,” Birth Control Review (June 1932): 188. 50 Carol Sanger, “Less than Pornography: The Power of Popular Fiction,” Representing Women: Law, Literature, and Feminism, ed. Susan Sage Heinzelman and Zipporah Batshaw Wiseman (Durham: Duke UP, 1994): 76.

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law itself was outdated and unevenly applied, and therefore the path of morality and progress was to change the law. Today birth control is legal and openly advertised in magazines and on television. Women have a variety of options offering up to a 99 percent effectiveness rate, and birth control pills are the most commonly prescribed drug for women ages 15–44. The open marketing of female contraceptives demonstrates how far birth control has come in this country, from an illegal and “obscene” idea to glossy advertisements. Examining these contraceptive narratives offers a glimpse into a different period of law and morality, and reveals how fictional narratives evoked pathos to change people’s view of the law. Why and how was this law changed? The messages implicit in these fictional works provides the answer: the law against birth control did not provide a framework of justice, but reinforced injustice. These texts can provide a greater understanding of the cultural forces and social contexts surrounding reproductive laws. Examining these texts with an eye to both legal history and literary scholarship enriches the understanding of the effects of narrative as cultural documents.

Authors Note: I would like to thank Deborah Clarke, Erika Spohrer, Kristin Jacobson, Janet Holtman, and Brandon Kempner for their feedback on an earlier draft of this article; Nick Capo and Mike Meyer for their careful editing; and Rob Stone and Sanford Thatcher for their explanation of copyright law.

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Figure 1 Lou Rogers. “Must She Always Plead in Vain?” Birth Control Review ( July 1919): front cover.

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Figure 2 Robert Minor. “Your Honor, this woman gave birth to a naked child!” The Masses 6 (September 1915): 15.

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Figure 3 Lou Rogers. Mrs. Poor Patient: “If you’re rich, the law don’t count.” Birth Control Review (June 1915): 5.

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Figure 4 Cornelia Barns. “Remember, Mrs. Judd, another child will kill you.” Birth Control Review (August 1919): 9.

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Figure 5 Lou Rogers. “Too Self-Satisfied to Take Notice.” Birth Control Review (May 1918): 5.

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Works Consulted Barnes, Djuna. Ryder. NY: Horace Liveright, 1928. Barns, Cornelia. “Remember, Mrs. Judd, another child will kill you.” Birth Control Review (August 1919): 9. Beisel, Nicola. Imperiled Innocents: Anthony Comstock and Family Reproduction in Victorian America. Princeton, NJ: Princeton UP, 1997. Bloch, Ivan. “Book Reviews.” Birth Control Review (September 1926): 279–280. Booth, Wayne C. The Company We Keep: An Ethics of Fiction. Berkeley: U California P, 1988. Brodie, Janet Farrell. Contraception and Abortion in Nineteenth Century America. Ithaca: Cornell UP, 1994. Burrill, Mary. “They That Sit in Darkness.” Birth Control Review (September 1919): 5–8. Chen, Constance M. “The Sex Side of Life”: Mary Ware Dennett’s Pioneering Battle for Birth Control and Sex Education. NY: The New Press, 1996. Chesler, Ellen. Woman of Valor: Margaret Sanger and the Birth Control Movement in America. NY: Simon and Schuster, 1992. Davis, Katherine Bemont. Factors in the Sex Lives of Twenty-Two Hundred Women. NY: Harper & Brothers Publishers, 1929. Dreiser, Theodore. Jennie Gerhardt. 1911. Edited by James L.W. West III. NY: Penguin, 1992. _____. “A Word Concerning Birth Control.” Birth Control Review (April 1921): 5–6, 12–13. _____. An American Tragedy. 1925. NY: Signet, 1964. Faulkner, William. If I Forget Thee, Jerusalem. 1939. NY: Vintage Books, 1995. Fitzgerald, F. Scott. The Beautiful and Damned. 1922. NY: Penguin, 1998. Hemingway, Ernest. “Hills Like White Elephants.” 1927. Ernest Hemingway: The Short Stories. New York: Simon & Schuster, 1995. 273–278. _____. A Farewell to Arms. 1926. NY: Scribner Classic, 1986. Himes, Norman. Medical History of Contraception. 1936. NY: Gamut Press, 1963. Hirshman, Linda R. and Jane E. Larson. Hard Bargains: The Politics of Sex. NY: Oxford UP, 1998. “Judges with small families jail Kitty Marion.” Birth Control Review (November 1918): 5. Katz, Esther. “The History of Birth Control in the United States.” History of Medicine 4, no. 2/3 (1988): 81–101. Langner, Lawrence. “Wedded: A Social Comedy.” Little Review (November 1914): 8–18. Lynd, Robert S. and Helen Merrell Lynd. Middletown: A Study in American Culture. NY: Harcourt, Brace & Company, 1929. McCann, Carole R. Birth Control Politics in the United States, 1916–1945. Ithaca: Cornell UP, 1994. Minor, Robert. “Your Honor, this woman gave birth to a naked child!” The Masses 6 (September 1915): 15. Morrisson, Mark S. The Public Face of Modernism: Little Magazines, Audiences, and Reception 1905–1920. Madison: U Wisconsin P, 2001. Nussbaum, Martha C. Poetic Justice: The Literary Imagination and Public Life. Boston: Beacon Press, 1995.

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O’Neill, William L. Echoes of Revolt: “The Masses,” 1911–1917. Chicago: Quadrangle Books, 1966. Parini, Jay. “Introduction.” The Beautiful and Damned by F. Scott Fitzgerald. NY: Penguin, 1998. vii–xiv. Vii. Peck, Diana. “Birth Control Review.” Women’s Periodicals in the United States. Edited by Kathleen L. Endres and Theresa L. Lueck. Westport, CT: Greenwood Press, 1996. 28–38. Posner, Richard. “Law and Literature: A Relation Reargued.” Virginia Law Review 72 (1986). Rabinowitz, Paula. “Women and U.S. Literary Radicalism.” Writing Red: An Anthology of American Women Writers, 1930–1940. Edited by Charlotte Nekola and Paula Rabinowitz. NY: Feminist Press, 1987: 1–16. Reagan, Leslie J. “ ‘About to meet her maker’: Women, Doctors, Dying Declarations, and the State’s Investigation of Abortion, Chicago, 1867–1940.” Journal of American History 77: 4 (1991): 1240–1264. Reed, James. “The Birth Control Movement before Roe V. Wade.” The Politics of Abortion and Birth Control In Historical Perspective. Edited by Donald T. Critchlow (University Park: Penn State UP, 1996): 22–52. Riddle, John M. Eve’s Herbs: A History of Contraception and Abortion in the West. Cambridge: Harvard UP, 1997. Riley, John Winchell, and Matilda White. “The Use of Various Methods of Contraception.” American Sociological Review 5 (1940): 890–903. Rogers, Lou. “Must She Always Plead in Vain?” Birth Control Review (July 1919): front cover. _____. “Mrs. Poor Patient: “If you’re rich, the law don’t count.” Birth Control Review (June 1915): 5. _____. “Too Self-Satisfied to Take Notice.” Birth Control Review (May 1918): 5. Ruppenthal, J.C. “A Judge on Birth Control.” Birth Control Review (September 1918): 11. Sanger, Carol. “Less than Pornography: The Power of Popular Fiction.” Representing Women: Law, Literature, and Feminism. Edited by Susan Sage Heinzelman and Zipporah Batshaw Wiseman (Durham: Duke UP, 1994): 75–100. “Sanger on Trial: The Brownsville Clinic Testimony,” Margaret Sanger Papers Project Newsletter 25 (Fall 2000). Smith-Rosenberg, Carol. Disorderly Conduct: Visions of Gender in Victorian America. NY: Alfred A. Knopf, 1985. Stansell, Christine. American Moderns: Bohemian New York and the Creation of a New Century. NY: Henry Holt, 2000. Stone, Hannah M. “Birth Control in America.” Birth Control Review (June 1932): 188–189. Ureles, Sonia. “Man’s Law.” The Woman Rebel 1., no. 2 (1914): 9. Urgo, Joseph. “Faulkner Unplugged: Abortopoesis and The Wild Palms.” Faulkner and Gender: Faulkner and Yoknapatawpha, 1994. Edited by Donald M. Kartiganer and Ann J. Abadie. Jackson, MS: University of Mississippi Press, 1996. 252–272. Ward, Ian. Law and Literature: Possibilities and Perspectives. Cambridge UP, 1995.

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Ware, Susan. Holding Their Own: American Women in the 1930s. Boston: Twayne, 1982. Weisberg, Richard. Poethics and Other Strategies of Law and Literature. NY: Columbia UP, 1992. Wertz, Richard W. and Dorothy C. Wertz. Lying-In: A History of Childbirth in America. New Haven: Yale UP, 1989. West, Robin. “Economic Man and Literary Woman: One Contrast,” Mercer Law Review 28 (1988): 127–138. Zurier, Rebecca. Art for the Masses: A Radical Magazine and Its Graphics, 1911–1917 Philadelphia: Temple UP, 1988.

PUTTING GOD ON TRIAL: THE RELATIONSHIP OF KAFKA TO LEIBNIZ JOSEPH SUGLIA

The subject of Franz Kafka’s famous short story “In The Penal Colony” is theodicy: that is, the legal defense of the beneficence of God in a world that appears corrupt and malicious to the core. Leibniz coined the term, “theodicy” and was God’s most eloquent advocate and defense attorney. Kafka, on the other hand, presents a world that is composed entirely of pain. The world, for Kafka, is a penal colony presided over by a fanatical officer who has pledged his life to an absent and anachronistic god. In a moment of theodicical revelation, it is revealed to the condemned man in the story that there is no transcendental structure that underlies the world, that the realms of nature and grace are forever separated, and that the world is a world of unmitigated anguish. His pain-wracked body serves as a sign of the absence of transcendence. And yet, as this essay argues, the apparent contradiction between Kafka and Leibniz ultimately breaks down, for, in a strange moment in Leibniz’s Essays on Theodicy, the actual world appears as one that is unendurable—unless one is constantly drunk.

“We are but nightmares in the brain of god.” –Kafka to Max Brod

The vast abyss that separates the pre-modern world from that of modernity becomes apparent when one compares two texts from these respective periods that address the same problem: the Essais de théodicée sur la bonté de Dieu, la liberté de l’homme et l’origine du mal of Gottfried Wilhelm Leibniz (1710) and “In der Strafkolonie” by Franz Kafka (1914; published in 1919).1 Leibniz and Kafka have completely different perspectives on this question, perspectives that were in some sense conditioned by the ages in which they lived. 1 Citations are taken from the following: Gottfried Wilhelm Leibniz, Die philosophischen Schriften, Volume Six, ed. G. D. Gerhardt (Hildesheim: Georg Olms Verlagsbuchhandlung, 1961) and Franz Kafka, Erzählungen (Berlin: Fischer Verlag, 1965). All renderings into English are my own.

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While Leibniz appears as god’s defendant, Kafka appears as god’s prosecutor. Whereas Leibniz and the seventeenth century that he mostly inhabited posited a transcendental structure that would underlie the actual world (there is a prestabilized harmony between the realms of nature and grace), in Kafka one finds the withdrawal of all such reassuring principles and foundations. In short, Kafka’s narrative is a parody of Leibnizian theodicy that demonstrates its utter irrelevance in the modern world. As the word indicates (a word that Leibniz himself coined), “theodicy” is the justification of god in a world that seems utterly bereft of beneficence. The theodicist wants to exculpate god, who is on trial for being a malevolent deity or a cosmic demon. Leibniz thus assumes the role not of an advocatus diaboli, but of an advocatus dei: he is the one who will demonstrate god’s absolute goodness and prove, for all time, that the contradiction between predetermination and human freedom is merely an apparent one. There is no single world, according to Leibniz; there are only an infinity of possible worlds, each of which exists in potentia. His contention is that god chooses the best of all possible worlds (otherwise he would not be the supreme deity) 2 and yet it must be remembered that his definition of the “best” is not synonymous with absolute goodness or perfection. The existing world must be understood not as composed of a homogeneous and undifferentiated sameness, but as an infinitely overlapping and divergent series of folds—each fold is superimposed over another in the way that waves flow into waves.3 Wholeness 2 See Leibniz 167: “La bonté de l’Etre infiniment parfait est infinie, et ne seroit pas infinie, si l’on pouvoit concevoir une bonté plus grande que la sienne … Cette Maxime est parfaitement à mon gré, et j’en tire cette consequence, que Dieu fait le meilleur qui soit possible: autrement ce seroit borner l’exercise de sa bonté: ce qui seroit borner sa bonté elle même, si elle ne l’y portoit pas, s’il manquoit de bonne volonté; ou bien ce seroit borner sa sagesse et sa puissance, s’il manquoit de la connoissance necessaire pour discerner le meilleur et pour trouver les moyens de l’obtenir; ou s’il manquoit des forces necessaries pour employer ces moyens. Cependant il y a de l’ambiguité à dire que l’amour de la vertu et la haine du vice sont infinies en Dieu: si cela étoit vray absolument et sans restriction, dans l’exercise même, il n’y auroit point de vice dans le monde” [The goodness of the infinitely perfect Being is infinite, and would not be infinite if one could conceive of a goodness greater than this … This maxim is altogether to my liking, and I draw from it this conclusion, that God does the very best possible: otherwise the exercise of his goodness would be restricted, and that would be restricting his goodness itself, if it did not prompt him to do the best, if he were lacking in good will. Or again it would be restricting his wisdom and power, if he lacked the necessary knowledge for discerning the best and for finding the means to obtain it, or if he lacked the necessary strength to employ these means. There is, however, ambiguity in the contention that love of virtue and hatred of vice are infinite in God: if that were absolutely and completely true, in actuality, the world would be without vice]. 3 See Gilles Deleuze, The Fold: Leibniz and the Baroque, trans. Tom Conley (Minneapolis: University of Minnesota Press, 1993).

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is inconceivable except in relation to fragmentation; consequently, moral goodness is constitutively related to moral corruption. In this way, Leibniz affirms the necessity of “evil” as the indivisible binary counterpart of “the good.” This does not imply that evil could be a potential object of the divine will (Leibniz’s god does not engender evil directly), but rather that evil is a hypothetical consequence or an effect of willing the best of all possible worlds: [P]our ce qui est du mal, Dieu ne veut point du tout le mal moral, et il ne veut point d’une maniere absolue le mal physique ou les souffrances: c’est pour cela qu’il n’y a point de predestination absolue à la damnation: et on peut dire du mal physique, que Dieu le veut souvent comme une peine due à la coulpe, et souvent aussi comme un moyen proper à une fin, c’est à dire pour empêcher de plus grands maux, ou pour obtenir de plus grands biens. [(A)s for evil, God wills moral evil not at all, and physical evil or suffering he does not will absolutely. Thus it is that there is no absolute predestination to damnation; and one may say of physical evil, that God wills it often as a penalty owing to guilt, and often also as a means to an end, that is, to prevent greater evils or to obtain greater good].4

This passage suggests that god does not necessitate evil, but permits evil to exist for the sake of the greatest goodness. For god, the category of existence precedes the moral character of the world; existence is the determining factor of all morality, not the other way around.5 “The good” and “the evil” are ultimately effects of that particular world which is in existence. The moral character of the world is derived from the sum of all monadic singularities.

4

Leibniz 116. See Leibniz 175: “Ces loix, ce juge ne contraignent point: ils sont plus forts, car ils persuadent. La sagesse ne fait que montrer à Dieu le meilleur exercise de sa bonté qui soit possible: après cela, le mal qui passé est une suite indispensable du meilleur. J’adjouteray quelque chose de plus fort: Permettre le mal, comme Dieu le permet, c’est la plus grand bonté. Si mala sustulerat, non erat ille bonus. Il faudroit avoir l’esprit de travers, pour dire après cela qu’il est plus malin de laisser à quelcun, elle luy appartient avant son existence, elle étoit dès lors dans son idée encor purement possible, avant le decret de Dieu qui le fait exister; la peut on laisser ou donner à un autre? C’est tout dire” [These laws and this judge do not limit: they are stronger, since they persuade. Wisdom shows merely God the best possible exercise of his goodness: after that, the evil that occurs is an inevitable result of the best. I will add something stronger: To permit the evil, as God permits it, is the greatest goodness. Si mala sustulerat, non erat ille bonus. One would need to have a bent toward perversity to say after this that it is more malicious to leave to someone the whole trouble and the whole blame of his destruction. When God does leave it to a man, it has belonged to him since before his existence; it was already in the idea of him as still merely possible, before the decree of God which makes him exist. Can one, then leave it, or give it to another? That is all there is to say]. 5

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Leibniz’s concept of the “best of all possible worlds,” then, denotes the existing totality of all relations. While it is the case that the realm of nature and that of grace are harmonized, they are not sutured together seamlessly. Instead, there are discordances, rifts, and ruptures that filigree the infinite quality of “the best.” The network of relations that form between individual singularities is traced out by god’s attorney, the theodicist. In this case, Leibniz himself does not fail to point out that the question that god poses himself is, “What is the best in terms of the totality of individual singularities?”, not, “What is the best considered in terms of individual singularities?” One can value the “good,” monadic singularities produced by god only by contrasting them with the evil effects with which they are inextricably conjoined. Leibniz never ceases reminding his readers that supreme reason constrains the deity to permit evil in the world—and yet reason is what guarantees god his liberty. It is the result of the crudest anthropomorphism that god has been inculpated for the sins of the world. God’s prosecutors isolate singular instances in the existing world from the web of relationships with which they are interwoven; in doing so, they “anthropomorphize” god by representing him as a self-conscious agent that is responsible for individual occurrences while misconstruing the “totalizing” rationality of divine providence. Those who make such claims represent god as a blameworthy, personal subject. They assume that they can accuse god of creating worldly evil only by ignoring the fact that evil in all of its variegated forms is the inevitable effect of the “best”: Quelque adversaire ne pouvant repondre à cet argument, repondra peutêtre à la conclusion par un argument contraire, en disant que le monde auroit pu être sans le peché et sans les souffrances: mais je nie qu’alors il auroit été meilleur. Some adversary who is unable to answer this argument would perhaps respond to the conclusion with a counter-argument, saying that the world could have been without sin and without suffering: but I deny that it would have been better.6

6 Leibniz, 128. See also Ibid. 117: “Mais par rapport à Dieu, rien n’est douteux, rien ne sauroit être opposé à la regle du meilleur, qui ne souffre aucune exception ny dispense. Et c’est dans ce sens que Dieu permit le peché; car il manqueroit à ce qu’il se doit, à ce qu’il doit à sa sagesse, à sa bonté, à sa perfection, s’il ne choisissoit pas ce qui est absolument le meilleur; non obstant le mal de couple qui s’y trouve envelopé par la supreme necessité des verités eternelles” [But in relation to God, nothing is open to question, nothing can be opposed to the rule of the best, which suffers neither exception nor dispensation. It is in this sense that God permits sin: for he would fail in what he owes to himself, in what he owes to his wisdom, his goodness, his perfection, if he followed not the grand result of all his tendencies to good, and if he elected not the absolute best, despite the evil of guilt, which is implicated by the supreme necessity of the eternal verities].

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Thus, in Leibniz’s view, god wills “the best of all possible worlds” into existence—which means, at the very least, that only inferior worlds are conceivable—and moral evil appears as a hypothetical necessity for the sake of that which exists. Through this argument, Leibniz feels that he is able to acquit god of the crimes of which the latter has been accused. According to Leibniz, all of the miseries that beset humanity are relative to the rationality of the divine plan. Considered in this way, god is cleared of the charges that have been levelled against him, and he is guaranteed his liberty. Conversely, in the narrative “In der Strafkolonie,” Kafka poses, in a less sanguine manner, a direct challenge to Leibnizian theodicy. Indeed, this narrative is the greatest blow that Leibnizian theodicy has suffered since Voltaire’s Candide (1759) and Kant’s Kritik der reinen Vernunft (1781/1787). Kafka’s horizon, however, is not that of the Enlightenment. His work is circumscribed by the “nihilism” of modernity. A traveller attends a public execution in a penal colony presided over by a guard and an officer. The condemned man is a soldier who slept while on duty and was “accordingly” charged with “disobedience and insulting a superior.” His execution is to be carried out by a punitive writing apparatus created by the former commandant of the penal colony. A devoted and even fanatical supporter of this form of punishment, the officer explains the functioning of the machine to the traveller in enthusiastic and vivid detail. The machine is composed of a “bed” (to which the prisoner would be manacled), a “scriber,” which dictates the contents of the writing, and a “harrow,” a series of needles that puncture and scarify the flesh of the human engraving, producing exquisite designs; this device is also accompanied with shorter needles that spray water to cleanse the writing-surface of blood. The “harrow” is made of glass so that the spectators can read the message inscribed by the machine. The condemned man’s penalty is as follows: the writing machine will inscribe a sentence (“Honor Your Superiors”) upon the prisoner’s body. Nonetheless, the words will not be legible in the sense ordinarily attributed to this term; instead, a moment of revelation will come to the prisoner during the sixth hour when the prisoner will be able to “read” the sentence from his wounds. This “enlightenment” would originate through the sensations of the body. The prisoner, in a word, would only understand the sentence (of which he would not be informed earlier) once it is traced on the surface of his body. The officer appeals to the traveller to voice his support for this means of punishment to the new commandant of the colony, who finds the practice anachronistic and barbaric (indeed, a primitive form of ritual sacrifice). The officer also mentions that in the “pre-modern” world of the penal colony, executions were heavily attended and that now this form of punishment is either carried out completely without fanfare or is otherwise unnoticed. When the

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colony was held under the sway of the old commandant, public executions were immense and festive celebrations where the truth of the law would be revealed, where it would become apparent that justice had been done. Children would kneel down beside the writing instrument and wait for an expression of recognition and transfiguration to spread across the face of the prisoner in the sixth hour. Now, however, the machine is in a state of utter disrepair; the officer cannot even supply the machine with the supplementary equipment that it requires to keep running. He reveals that the new commandant and the ladies who surround him are temperamentally opposed not merely to the machine, but also to the tradition which it represents. The traveller, who serves as the mediator between the old and new regimes, refuses to abet the officer. His position is that of a detached spectator: he does not intend to call for the abolition of the machine, but he will not express his support for it, either. Upon hearing the traveller’s resolution to maintain strict neutrality, the officer, despairing, resigns himself to death. The officer then liberates the condemned man, strips, and places himself under the maw of the “harrow.” The needles begin to carve out the sentence on his own naked flesh, and yet the desired moment of enlightenment never comes for the officer; indeed, the machine breaks down catastrophically and the jabbing needles tear the officer’s flesh to threads. An imitation Christ, the officer’s body is crucified. After witnessing the spectacle, the traveller is led by the guard to the grave of the former commandant, a grave that promises the latter’s second coming. He quickly orders a boat and departs from the colony. The condemned man and the guard also attempt to leap onto the boat, but are prevented from doing so when the traveller wards them off with a heavy rope. In Kafka’s allegory, the officer figures the theodicist who attempts to show forth divine law—in this case, the law would be disclosed through writing. The law to be inscribed on the body, according to the officer’s theodicical program, belongs to an eternal, pre-established order; in fact, the sentence has a transcendental origin. The prisoner would nonetheless “experience” this sentence “on his own body.” 7 Thus, it would seem that the law bears within itself a necessary “aesthetic” dimension: in order for the law to establish itself as the law, the law must be written in blood on the body of the condemned. 7 Kafka, 205: “Der Reisende hatte verschiedenes fragen wollen, fragte aber im Anblick des Mannes nur: ‘Kennt er sein Urteil?’ ‘Nein’, sagte der Offizier und wollte gleich in seinen Erklärungen fortfahren, aber der Reisende unterbrach ihn: ‘Er kennt sein eigenes Urteil nicht?’ ‘Nein’, sagte der Offizier wieder, stockte dann einen Augenblick, als verlange er vom Reisenden eine nähere Begründung seiner Frage, und sagte dann: ‘Es wäre nutzlos, es ihm zu verkünden. Er erfährt es ja auf seinem Leib’ ” [The traveller would have liked to pose many questions, but, at that moment, he merely asked him, “Does he know his sentence?” “No,” the officer said and would have continued with his explanations had the traveller not interrupted him: “He doesn’t even know his own sentence?”

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It would not be an exaggeration to claim that Kafka’s narrative suggests that the sacrifice of the body of the condemned is necessary in order for the law to institute itself. The spirit must become the word, and the word must become flesh—flesh that must be rent, bloodied, mutilated. According to the officer’s system of interpretation, then, the law is immediately given through pre-reflective corporeality and not to the movements of comprehension. The law grasps, seizes hold of the body and marks the body’s surface. The body is inscribed by the imprint of the law—and it is an inscription that approaches as a touch (as an aesthetic moment). One feels the law, outlined by the vicissitudes of pain (in a manner not dissimilar to Kantian Achtung): the law comes by way of the affections and sensations of the sanguine body and is only subsequently grasped by the understanding. The communication of the law is infinitely interrupted, however, in Kafka’s narrative. Not only does the writing machine malfunction; the content of its message is absolutely unintelligible. Within the writing device, the “harrow” is governed by the movements of the “scriber,” which (as mentioned above) dictates the shape and characters of the script. The fundamental designs, in this case, are the drawings of the late commandant, which the officer hands over to the traveller. The law inscribes itself, and yet the text of the law is illegible. The traveller looks at the designs uncomprehendingly; they are nothing more than the garbled transmissions of an indecipherable communication: Er zeigte das erste Blatt. Der Reisende hätte gerne etwas Anerkennendes gesagt, aber er sah nur labyrinthartige, einander vielfach kreuzende Linien, die so dicht das Papier bedeckten, daß man nur mit Mühe die weißen Zwischenräume erkannte. “Lesen Sie”, sagte der Offizier. “Ich kann nicht”, sagte der Reisende. “Es ist doch deutlich”, sagte der Offizier. “Es ist sehr kunstvoll”, sagte der Reisende ausweichend, “aber ich kann es nicht entziffern.” “Ja”, sagte der Offizier, lachte und steckte die Mappe wieder ein, ‘es ist keine Schönschrift für Schulkinder. Man muß lange darin lesen. Auch Sie würden es schließlich gewiß erkennen. [He showed the first sheet. The traveller would have liked to say something appreciative, but all he could see were labyrinthine, crisscrossing lines covering the paper so densely that one could only make out with difficulty the white spaces between. “Read,” said the officer. “I can’t,” said the traveller. “But it’s quite clear,” said the officer. “It’s very artistic,” the traveller said evasively, “but I can’t decipher it.” “Right,” said the officer, laughed and put the folder away. “This is not calligraphy for school children. It takes a lot of reading. Even you would eventually make it out in the end.”] 8 “No,” the officer repeated. He hesitated for a moment, as if he expected the traveller to explain what he meant by his question, and then remarked, “It would be useless to tell him. He experiences it off of his own body”]. 8 Kafka, 211.

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The diagrams handed over to the traveller could legitimate both the officer’s authority as a theodicist as well as the existence of divine law. Nonetheless, the meaning of these diagrams—the message that would be inscribed on the prisoner’s body—is not immediately granted, according to the officer’s system of interpretation. The legible surface of the script cannot be easily deciphered, according to the officer. In order to decode the designs, the officer suggests, one must focus one’s reading intensely, not on the letter of the law, but on the spirit that underlies it and serves as its precondition. Only by permeating the surface of the script can one gain access to the truth of the law. An immediate intuition of the content of the message is not pre-given. Despite the officer’s intentions, the letter of the law absolutely disguises the law’s spirit (pneuma). What is left is “literature”—if by this word one understands language when its physical character becomes conspicuous and opaque. If there is a moment of parousia—one in which the infinite and prestabilized order would be disclosed—it occurs nowhere in the space of Kafka’s presentation.9 In fact, the truth of some divine law is never disclosed in Kafka’s narrative. This becomes blindingly apparent when one considers the two moments of theodicical revelation in “In der Strafkolonie.” The first of these moments occurs when the prisoner learns that he is liberated. And yet this liberation takes a strange form: “Du bist frei”, sagte der Offizier zum Verurteilten in dessen Sprache. Dieser glaubte es zuerst nicht. “Nun, frei bist du”, sagte der Offizier. Zum erstenmal bekam das Gesicht des Verurteilten wirkliches Leben. War es Wahrheit? War es nur eine Laune des Offiziers, die vorübergehen konnte? Hatte der fremde Reisende ihm Gnade erwirkt? Was war es? So schien sein Gesicht zu fragen. Aber nicht lange. Was immer es sein mochte, er wollte, wenn er durfte, wirklich frei sein und er begann sich zu rütteln, soweit es die Egge erlaubte. “Du zerreißt mir die Riemen”, schrie der Offizier, “sei ruhig! Wir öffnen sie schon.” Und er machte sich mit dem Soldaten, dem er ein Zeichen gab, an die Arbeit. Der Verurteilte lachte ohne Worte leise vor sich hin, bald wendete er das Gesicht links zum Offizier, bald rechts zum Soldaten, auch den Reisenden vergaß er nicht. [“You’re free,” the officer told the condemned man in his own language. The man did not believe it at first. “I said, ‘You’re free,’ ” the officer repeated. For the first

9

The preceding discussion passes close to Jean-François Lyotard’s essay on “In der Strafkolonie” in Lectures d’enfance (Paris: Galilée, 1991). Lyotard’s essay on Kafka is preoccupied with the manner in which the alterity of law is dependent upon that which resists it absolutely: the body, which can never be assimilated by the legislation of the law. My remarks on the aesthesis of the law are also indebted to Lyotard’s elucidation.

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time genuine life came into the condemned man’s face. “Was this true? Was it just a whim of the officer’s that might pass? Had the foreign visitor just done him a favor? What was it?”, his face seemed to be asking. But not for long. Whatever it might be, he wanted, if he could, to be actually at liberty, and he began to shake himself about as much as the harrow allowed. “You’re tearing my straps!” the officer shouted. “Keep still! We’ll undo them soon!” He beckoned to the soldier, and the two of them set to work. The condemned man said nothing but laughed quietly to himself, turning his face now to the left towards the officer, now to the right towards the soldier, and he did not forget the traveller, either.] 10

On the left is the possibility of pain. On the right is the possibility of pain. The prisoner discovers that the world of the penal colony—the existing world as such, which for Leibniz is the best of all worlds conceivable by god—quite the contrary, is a world of generalized pain. His giddiness results from the madness of this knowledge. What one is left with, what remains, is not a justification of god’s goodness, an epiphany in which the truth of divine beneficence would be disclosed to the prisoner. Fortunately or unfortunately, the prisoner discovers at this epiphanic moment that the world of the penal colony is the worst of all possible worlds. Moreover, this world is one that was produced by an absent divinity. Readers learn early on in the narrative that the entire penal colony is the creation of the former commandant: “… die Einrichtung der Kolonie so in sich geschlossen ist, daß sein Nachfolger, und habe er tausend neue Pläne im Kopf, wenigstens während vieler Jahre nichts von dem Alten wird ändern können” [The establishment of the colony… was so self-contained, that (the old commandant’s) successor, even if he had thousands of new projects in mind, would be able to alter nothing of the original concept for many years at least].11 Like the god of Gnosticism, the old commandant has withdrawn from the world that he created— a world that is subject to a rigorous mechanistic determination. He is similar to the god who orders and determines all of the future from the beginning and then recedes from the work that he has created. In the world of the penal colony, all human activity is pre-programmed: the future recapitulates the past, thus annulling the present as a category. Here one encounters an almost Leibnizian predetermination: the actual world is a network of interconnected causes and effects that was designed in advance.12 10

Kafka 227. Kafka 201. 12 See Leibniz 134: “Tout l’avenir est determine, sans doute: mais comme nous ne savons pas comment il l’est, ny ce qui est prevu ou resolu, nous devons faire nostre devoir, suivant la raison que Dieu nous a donnée, et suivant les regles qu’il nous a prescrites…” 11

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The second “moment of revelation” in the narrative follows the first in its presentation of the absence of divinity. The hierarchy of empowerment is reversed: the prisoner is freed, and the officer subjects himself to the work of the machine that he once operated. Laying himself down inside the writingdevice, the officer despairs. His despair is that of the failed lawyer who is incapable of defending the goodness of the divine order in a world in which goodness is seemingly absent. Now it is the prisoner who implements the machine of punishment. The executioner becomes the victim; the punisher is identical to the punished: “Helft doch!” schrie der Reisende zum Soldaten und zum Verurteilten hinüber und faßte selbst die Füße des Offiziers. Er wollte sich hier gegen die Füße drücken, die zwei sollten auf der anderen Seite den Kopf des Offiziers fassen, und so sollte er langsam von den Nadeln gehoben werden. Aber nun konnten sich die zwei nicht entschließen zu kommen; der Verurteilte drehte sich geradezu um; der Reisende mußte zu ihnen hinübergehen und sie mit Gewalt zu dem Kopf des Offiziers drängen. Hiebei sah er fast gegen Willen das Gesicht der Leiche. Es war, wie es im Leben gewesen war; kein Zeichen der versprochenen Erlösung war zu entdecken; was alle anderen in der Maschine gefunden hatten, der Offizier fand es nicht; die Lippen waren fest zusammengedrückt, die Augen waren offen, hatten den Ausdruck des Lebens, der Blick war ruhig und überzeugt, durch die Stirn ging die Spitze des großen eisernen Stachels. [“Help!”, the traveller shouted to the soldier and the condemned man as he himself grabbed the officer’s feet. He meant to push against the feet at his end; he wanted the others to go to the other side and take hold of the officer’s head, and between them they would slowly lift him off the needles. The others, however, could not make up their minds; the condemned man turned around; the traveller had to walk up to them and forcibly move them to the officer’s head. While doing so, he caught an almost involuntary glimpse of the face of the corpse. It was just as it had been in life, with no sign of the promised deliverance; what all the others had found in the machine, the officer had not found; his lips were pressed firmly together, his eyes were open and had the look of being alive, the expression in them was one of calmness and conviction; the great iron spike was driven through his forehead.] 13

The sheer ugliness of this passage is something to which the reader should attend. The observers await a moment of enlightenment that would shine forth on the officer’s face, as it would on the face of anyone who has been condemned and subjected to the writing apparatus. Far from the realization of [Doubtless, the entirety of the future is determined: but since we do not know it, nor what is forseen or resolved, we must follow our obligations, according to the reason that God has given us and according to the rules that he has prescribed for us…]. 13 Kafka 234.

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some kind of preternatural “enlightenment,” however, one is left with the pointless and disgusting destruction of a human body. Transcendence ends up, as always in Kafka, mired in the vulgar. As in “The Judgment” (“Das Urteil”) and The Trial (Der Prozess), transcendence is evoked only in order to show its inversion or ruination. In The Trial, it will be remembered, the law is figured as a transcendental—even divine—order, and yet the transcendence of the law is exposed in that text to a field of absolute accessibility (the openness of the law is itself a form of selfoccultation) and indeed contamination. All of the accoutrements and departments of the law in the novel are irremediably debased: the courthouse is filthy, the book of jurisprudence that K. finds in the court is pornographic, the officials are slovenly and incompetent, etc. Similarly, the father of “The Judgment” is at first a deific figure, and yet (as the reader learns) he possesses numerous un-godlike features: he is toothless, senile, soils his underwear, gambols on his bed like a can-can dancer, etc. One should also consult Kafka’s letter to his father, Hermann (a letter that was never delivered to its addressee). The father is initially represented as one who promulgates the law and is the figure of justice itself, and yet he is incapable of living up to it (he orders the constituents of the family to eat in a regimented fashion and yet eats hoggishly himself, etc.). A similar figure of peripetia (and perhaps even anagnorisis) may be found in the narrative of “In der Strafkolonie.” A moment of enlightenment is staged only to be reversed, turned into its opposite. If the crucified body of the officer could present a testimony, it would attest to the truth of the law and the sovereignty of the old regime: transcendence would be instituted through his bloodied flesh. The promised epiphany, however, never arrives. Instead, it is revealed to the officer (and to the traveller who bears witness to this revelation) that the present world is a world deprived of transcendence. The officer’s body is a sign of the absence of transcendence. Through a strange inversion, the theodicist unwittingly demonstrates the exact opposite of what he wanted to demonstrate: the absence of the beneficent god. The distance between Leibniz and Kafka is immense: it is the difference between a universe composed of infinitely multiplying principles and one that has absolutely lost its principles.14 As god’s defense attorney, Leibniz defends god’s inscrutable and indestructible order. On the other hand, as god’s prosecutor, Kafka demonstrates the absence of the divine in the modern world. According to Leibniz, “the best of all possible worlds” is the only the “best” insofar as it is the world that is currently in existence. The present world comes into existence through god’s election: no matter what imperfections the current

14

This discussion is indebted to Deleuze 67–68.

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world may contain, it is superior to all other possible worlds. Those who contend (and here Leibniz is doubtless thinking of Bayle) that the world could be without miseries misunderstand the rational character of the present world. God does not err: he is absolute rationality itself. Without the imperfections and miseries of the world, god reasons, the world would not attain its superiority. Leibniz believes in a world that has a transcendental foundation: the god who makes rational decisions and who hypostatizes, situates the current world at the pinnacle of all possibilities. In Kafka, on the other hand, the world has altogether lost its rational structure. The officer holds to the traditional norms and ideals of the fallen, premodern world, but although he continues to serve an absolute law, it is obvious that this law has absolutely lost its validity. He is a theodician who believes that divine revelation will illuminate the world of the penal colony—a world of globalized suffering—and thus rescue it from its fallenness. He hopes that the terrible writing-instrument that he operates will inscribe the truth of divine law on the flesh, thus making the truth of the law manifest in blood. However, the failure of the writing-machine to bring about the desired theodicical revelation sheds light on Kafka’s critique of traditional theodicy in general. With respect to this narrative, critics should speak not of Kafka’s “theodicy,” but only of Kafka’s “negative theodicy,” since the revelation that the officer undergoes discloses nothing. What is uncovered is not the truth of divine law, but the absence of such a truth. It is not a matter of counter-posing Kafka’s dogged “pessimism” with Leibniz’s indefatigable “optimism.” A comparison of both texts gives one insight into one of the countless differences that separate modernity from the Pre-Enlightenment: it is the difference between a world structured by transcendental principles and one in which these principles are irretrievably lost. As has been argued above, Leibniz does not posit a world without miseries; indeed, he affirms the irremediable misery of the actual world. The narrative cycles of Kafka and Leibniz intersect at this point. The theodicical revelation with which Leibniz closes the Essais de théodicée is evidence of this intersection: it is a revelation that is analogous, in a certain respect, to the one experienced by the officer in “In der Strafkolonie.” Leibniz’s “theodicy” concludes with the beautiful narrative of Jupiter’s high priest and emissary Theodorus (whose name means, “the gift of god”), a narrative that was conceived as a response to Laurentius Valla’s Dialogue on Free Will. Theodorus is dispatched by Jupiter to consult with Pallas Athena. Prior to the meeting, Theodorus lays down in the temple of the goddess and dreams of the daughter of Jupiter. Under Pallas’s guidance, Theodorus is led in his dream through the palace of the Fates, which represents the infinite possibilities of worlds. Each room emblematizes a possible world: in one room, there is a Sextus who is noble, in another a Sextus who is steeped in mediocrity. There is a number on the forehead of each Sextus that corresponds to a passage in a book which contains a

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detailed description of each of the multitudinous variations. There is an endless set of versions for each possibility of Sextus. Theodorus looks downward and is bewildered by the staggering sight of the palace’s infinite descent. It is a pyramid without a base. The goddess explains that there is no limit to the proliferation of multiple worlds; even the worst of all worlds is succeeded by one that is even more inferior. Theodorus envisions the dizzying and ever-multiplying plenitude of hypothetical worlds infinitely descending below him in a vortical spiral. He nearly collapses from this vertiginous experience. When Theodorus enters into the highest hall (which represents the actual world), he loses himself entirely. He undergoes an experience in which he is placed entirely outside-of-himself; his “ec-stasy” is allayed by a pharmacological substance. When Pallas Athena places an ambrosial liquid on his tongue, Theodorus gathers himself together by the force of the drug. Because of this episode, the concluding moment of Leibniz’s “theodicy” is one of the most subversive passages in the history of metaphysics, despite all appearances. It is a subversion of the very theodicy that Leibniz took such pains to defend. For in his portrayal of Theodorus, Leibniz suggests that only by narcotizing oneself can one endure the present world in its actuality, a world that stands under the paradoxical injunction, “It is impossible not to live, and yet it is impossible to live!” By suggesting that the world of god’s election is fundamentally unlivable, god’s defendant becomes indistinguishable from god’s prosecutor. To this extent, Leibniz is in closer proximity to Kafka than one previously imagined. The “best of all possible worlds” is unendurable except through the tranquilization of self-medication.

Works Consulted Deleuze, Gilles. The Fold: Leibniz and the Baroque. trans. Tom Conley Minneapolis: U Minnesota P, 1993. Kafka, Franz. Brief an den Vater: Faksimile. Frankfurt am Main: Fischer, 1994. ______. Der Prozess. Stuttgart: Reclam, 1993. ______. Erzählungen Berlin: Fischer Verlag, 1965. Contains “Das Urteil” and “In der Strafkolonie.” Leibniz, Gottfried Wilhelm. Die philosophischen Schriften. Volume Six, ed. G. D. Gerhardt. Hildesheim: Georg Olms Verlagsbuchhandlung, 1961. Lyotard, Jean-François. Lectures d’enfance. Paris: Galilée, 1991.

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MUMIA ABU-JAMAL’S LIVE FROM DEATH ROW AS POST-LEGAL PRISON WRITING BRIAN CONNIFF

The case of Mumia Abu-Jamal has exposed many of the practical and moral limitations of America’s public debates on crime and punishment. In his writing from death row, Abu-Jamal has also contributed significantly to the development of contemporary American prison writing. In Live from Death Row, Abu-Jamal has tried to reclaim the legacy of radical prison writing of the late 1960s and early 1970s for an age that is far less receptive to the rights of prisoners. Unlike the writing of his predecessors, Abu-Jamal’s prison writing can be described as “post-legal”: that is, it involves more explicit and complex literary experiments designed to examine, reconstruct, and deploy the relationships between narrative, ideology, and the law. This book also documents many of the ways in which the legal principle of “an evolving standard of decency” is being eroded on two levels: in key Supreme Court decisions and in the intensification of punishment directed at death row inmates. Referring most frequently to the Supreme Court decision McCleskey v. Kemp (1987), Abu-Jamal finds the courts, and the public at large, abandoning any hope of achieving social justice. Realizing that he is writing in a “postlegal” age—when the courts and the public will discount evidence of racial discrimination and undermine justice out of a “fear of too much justice,” Abu-Jamal transforms the conventions of convict autobiography, based primarily on an individual conversion before the law, to a poetics of solidarity with the powerless and a prophetic call for a collective moral conversion.

It is contemporary America’s most famous murder scene, perhaps the most famous of the past thirty years: near the corner of Thirteenth and Locust in Philadelphia, just before 4:00 a.m., December 9, 1981. A twenty-five-year-old police officer lies dead on the sidewalk. A few feet away, a twenty-seven-year-old man slumps against the curb, bleeding from a gunshot wound to the chest. The police officer is white. The other man is black, with dreadlocks. Between them lies an empty revolver (Williams 3–4). Starting from this point, try to imagine the story that will inevitably be told, a story of guilt and innocence, crime and punishment. Lying dead is a figure of law and order, of common decency, of accepted values—or a figure of abusive

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force and the violation of fundamental rights. Bleeding next to him is a figure of anarchy and disruption, of indulgence and animalism—or a figure of moral righteousness and human dignity. Take your pick. Almost everyone has. Then, factor into the equation a single personal detail: the black man, who had been driving a cab that night to make extra money, is a recognized journalist, known as “the voice of the voiceless.” He has repeatedly called into question the police department’s moral authority and its use of force, most of all in the black community. Then, add one more detail: more than a decade earlier, as a fourteen-yearold, this man had joined the Black Panther Party. How might this biographical fact, this historical allusion, affect the interpretation of the scene? What information from this man’s youth—what set of beliefs—might be used as “evidence” when this case goes to trial? What unresolved angers and resentments from the collective past will be resurrected in the courtroom? What persuasive power will they hold? This story will inevitably be told as two stories, two contending narratives, each of them highly inflected by race, each of them inciting wave after wave of distrust and division with each retelling. This event—this early morning murder on an inner-city street—is incommensurable. In fact, in contemporary America, it would be hard to invent a narrative formula more likely to generate deep disagreement and bitter resentment. When it comes to a story like this one, America’s public discourse provides virtually no moral center or even common ground. And Americans have even less reason to hope that the legal process itself will resolve their doubts or lessen their distrust. On the contrary, the division and distrust provoked by such a story will inevitably be exacerbated once the journalist is convicted of murder and sentenced to death. In contemporary America, in a highly publicized case of this kind, with its particular racial inflections, the courts simply do not serve to build consensus or confidence. As a matter of public narrative, this man’s conviction will not be the climax of the story; rather, it will be one more step in a pattern of rising conflict, with no anticipated resolution. The journalist in question is, of course, Mumia Abu-Jamal. The police officer was Daniel Faulkner. In the twenty-two years since Faulkner’s death on that Philadelphia street, both of these men have become cultural icons or “poster children”: one for a view of the law as an instrument of abusive power and political repression, one for a view of the law as an instrument of civic order and protection. They have both become protagonists, and antagonists, in a national melodrama—of race, violence, and morality—that says a great deal about, among other things, the moral and practical limitations of public discourse on crime and punishment. Even as the murder scene on Twelfth and Locust has reverberated for more than twenty years in popular debates about law enforcement, legal process, the

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prison industry, and the death penalty, it has also contributed significantly to the development of contemporary American prison writing. Abu-Jamal’s writing emerges out of the conventions of convict autobiography, as they were established in the 1920s and 1930s by “common criminals” who adapted the confessional broadsides and the picaresque adventure stories of the eighteenth and nineteenth centuries in their efforts to assert their humanity. This was a time, as H. Bruce Franklin writes, when “[t]he prison system rested solidly on the belief that convicts were not human beings” (161). In the late 1960s and 1970s, a number of African American prison writers—most significantly, Malcolm X, Eldridge Cleaver, and George Jackson—adapted convict autobiography to question the moral authority of legal and political institutions and to suggest that prisoners had the potential to become a revolutionary “vanguard.” Like Assata Shakur, whose autobiography Assata precedes Abu-Jamal’s Live from Death Row by eight years and anticipates some of his political positions and aesthetic experiments, Abu-Jamal finds that he must alter convict autobiography’s predominant pattern, which depends upon the conversion of a politically naïve prisoner to a “higher” moral code. In several crucial respects, Abu-Jamal realizes that his situation does not lend itself to this kind of conversion narrative since he was never a “common criminal” but rather, before his arrest, an accomplished journalist. In fact, by the time of his arrest, he had already thought carefully, for many years, about the ideologies of organizations like the Black Panther Party and MOVE. Primarily for these reasons, he could not conveniently represent his conviction and imprisonment as experiences, before the law, that led him suddenly to a sudden realization. From their different ideological perspectives, Malcolm X, Cleaver, and Jackson all held out hope—at least in their most influential prison writing—that they might not only galvanize their fellow inmates to political action but also forge affiliations with movements “on the street,” which tended to grant the prisoner a high degree of moral authority. Viewed as part of this genealogy of prison writing, Abu-Jamal’s role is much more self-conscious and deliberately strategic: he must reclaim and adapt this radical legacy for a later age, one that is generally far less receptive to any attempt to incorporate the concerns of prisoners into a larger public discourse of rights and justice. That is why, to understand Abu-Jamal as a prison writer, it is important to keep in mind that his arrest and imprisonment correspond to the “boom” in the prison industry, with its pervasive abandonment of rehabilitation and its increasingly punitive approaches to crime and punishment. He has been writing from death row, now for more than twenty years, at a time when the public discourse about prisons has been dominated by debates over mandatory sentencing, “boot camps,” “three strikes” legislation, chain gangs, and “control units.” It is also important to remember that, like Shakur, Abu-Jamal was convicted and sentenced at the end of a highly controversial trial in which his political

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beliefs were used as “evidence” against him. Like Shakur, too, he predicates his writing on the belief that established legal institutions—the prison, the courts, the legislature, the electorate—will not willingly provide any legitimate remedy to the kinds of injustice he has experienced. Instead, according to Abu-Jamal, recent developments in American prisons and courts amount to a wholesale rejection, throughout civil society, of virtually any hope for progressive prison reform. For these reasons, in Abu-Jamal’s writing, as opposed to more conventional convict autobiography, “conversion” is not based on sudden admission of guilt or access to any higher truth that might hold the potential for broad social transformation. Rather, conversion is based on a gradually evolving skepticism regarding civil rights, legal positivism, and all institutions of law and order. At the same time, like Shakur, Abu-Jamal describes his encounters with the law as steps towards a broader conception of “human rights,” one that reconnects the fate of the most marginalized, including inmates on death row and in super-maximum prisons, with the common good. Most fundamentally, unlike the prison writing of his predecessors, Abu-Jamal’s writing from death row can be described as “post-legal”: that is, it involves more explicit and complex literary experiments designed to examine, reconstruct, and deploy the relationships between narrative, ideology, and the law. In Live from Death Row, Abu-Jamal typically accounts for America’s moral erosion on two levels: in key Supreme Court decisions and in the intensification of punishment directed at death row inmates. While these two levels might seem disparate, one of the book’s central contentions is that they illustrate the same “march backward” in America’s commitment to human rights and human dignity. The legal case to which Abu-Jamal refers most frequently in this book is the 1987 Supreme Court decision McCleskey v. Kemp. McCleskey was a black man convicted of murder in the 1978 shooting of a white police officer in Fulton County, Georgia. He and three accomplices were robbing a furniture store when the police officer entered after responding to a silent alarm. The officer was shot in the face and killed. After being arrested weeks later on another offense, McCleskey confessed to participating in the robbery, and, though he did not confess to the shooting, he was convicted of murder and sentenced to death. His case became legally significant because of the constitutional issues raised by his lawyers in his postconviction petition. David Baldus and his colleagues summarize these issues in their study of death penalty convictions: McCleskey’s postconviction petition asserted a number of constitutional claims. Most relevant to the subject of this book was his assertion that his death sentence was unconstitutional because it had been imposed discriminatorily on the basis of his race and the race of his victim. In support of his request for a hearing on this issue, McCleskey’s petition argued that the evidence he planned to present would

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support a finding that Georgia had applied its death-sentencing statute in a manner that violated the Fourteenth Amendment’s equal-protection clause because it purposefully discriminated against defendants who were black and defendants whose victims were white. He also argued that such a discriminatory application of the death penalty constituted an arbitrary, capricious, and irrational application of the death sentence and violated the Eighth Amendment of the United States Constitution. (Baldus, Woodworth, and Pulaski 311)

The judge in McCleskey’s case ordered a hearing, which became a two-week debate about systemic racial discrimination in a Georgia death penalty sentencing. The centerpiece of the hearing was the statistical evidence presented by Baldus and his associates, primarily derived from their Charging and Sentencing Study. As McCleskey eventually worked its way to the Supreme Court, it became a test case for death penalty defenses based upon evidence of persistent racial bias. Most significantly for Abu-Jamal, McCleskey shows the Court fundamentally abandoning any hope of achieving racial justice, at least in the application of the death penalty. He repeatedly refers to Justice William Brennan’s summary of the Baldus Study from his dissenting opinion in McCleskey, particularly a passage in which Brennan refers to Baldus’ most salient statistics: Defendants charged with killing whites are 4.3 times more likely to be sentenced to die than defendants charged with killing blacks; six of every eleven defendants convicted of killing a white would not have received a death sentence had their victim been black. Thus the study showed that “there was a significant chance that race would play a prominent role in determining if [a defendant] lived or died.” (Live 12)

Abu-Jamal finds it especially telling that the Court does not dispute this evidence. Rather, in its majority opinion, it does something that he considers far more shocking: it decides that the evidence does not matter. Baldus’ extensive and statistically sophisticated data does not persuade the majority—as similar evidence had persuaded the Supreme Court fifteen years earlier, for instance, in Furman v. Georgia—that such selective application of the law is unconstitutional. Powell’s majority opinion concludes, “The Constitution does not require that a State eliminate any demonstrable disparity that correlates with a potentially irrelevant factor to operate a criminal justice system that includes capital punishment” (McCleskey v. Kemp 17). But for Brennan, joined by Justices Marshall, Blackmun, and Stevens, the legally “irrelevant factor” is the most relevant, at least in terms of real justice, and the evidence is highly compelling. “Nothing could convey more powerfully the intractable reality of the death penalty,” Brennan writes, before quoting Marshall from an earlier decision, Godfrey v. Georgia (1980), “that the effort to eliminate arbitrariness in the infliction of that ultimate sanction is so

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plainly doomed to failure that it—and the death penalty—must be abandoned altogether” (58). Even more striking is a point on which the justices on both sides of the McCleskey decision are able to agree. As Abu-Jamal notes, both Powell and Brennan suggest that McCleskey’s claim has been “rejected out of fear” of its implications (Live 13). In a passage Abu-Jamal quotes from the majority decision, Powell writes that “McCleskey’s claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system” (quoted by Abu-Jamal, Live 14), and Powell continues by stating that this claim “easily could be extended to apply to other types of penalties and to claims based on unexplained discrepancies correlating to membership in other minority groups and even to gender” (McCleskey 16–17). Brennan is more direct and concise: the Court’s decision, he claims, demonstrates that society must constantly battle “a fear of too much justice” (quoted by Abu-Jamal, Live 15). For Abu-Jamal, it is this point most of all that marks McCleskey as a turning point not only in death penalty law but also in the larger American society’s view of race, punishment, and criminality—a turning point he describes as the start of a “Great March Backward” (30). Of all the case’s potential implications for the “entire criminal justice system,” the Court seems to fear the impact McCleskey might have on other cases in “a system of demonstrable, documented imbalance, where race of victim and race of defendant determined whether one would live or die” (Live 30). In this respect, when he writes about McCleskey, Abu-Jamal realizes that this case might very well play a role in deciding his own fate. Nonetheless, he consistently manages to see the Court’s refusal to act upon evidence of racial bias as part of a larger social trend. Quoting from an older landmark case, Trop v. Dulles (1958), Abu-Jamal relates the McCleskey decision to a broad conception of social progress: The notion that human progress is marked by “an evolving standard of decency,” from the less civilized to the more civilized, from the more restrictive to the less restrictive, from tyranny to expanding freedom, dies a quick death on the rocks of today’s Rehnquistian courts. (26)

In fact, the main focus of Abu-Jamal’s prison writing can be described as an effort to document, in vivid detail, many of the ways in which this principle of “an evolving standard of decency” is systematically being eroded rather than attained. In Live from Death Row, for instance, he documents the emergence of supermaximum prisons, the mounting indifference to the disproportionate imprisonment of African Americans, the increased and increasingly punitive use of solitary confinement and psychiatric drugs, and the growing tolerance of (even satisfaction with) violence behind bars. Some of Abu-Jamal’s most influential predecessors among African American prison writers held out some hope that American institutions, especially the

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prison and the justice system in general, would change systemically under the pressure of rising social movements supporting human rights and racial equality. When Malcolm X said that the prison was his Harvard, he was not merely being “street smart”; he was also recognizing the education he received as a result of progressive programs in the Norfolk Prison Colony: As you can imagine, especially in a prison where there was heavy emphasis on rehabilitation, an inmate was smiled upon if he demonstrated an unusually intense interest in books. There was a sizable number of well-read inmates, especially among the popular debaters. Some were said to be practically walking encyclopedias. They were almost celebrities. (The Autobiography of Malcolm X 173)

By the same token, it is no accident that Eldridge Cleaver begins the most sustained autobiographical essay in Soul On Ice by aligning his story with the passage of Brown v. The Board of Education of Topeka, Kansas. He narrates his own process of moral and political awakening and the burgeoning “prison movement” of his day, in relationship to a larger social awakening: From my prison cell, I have watched America slowly coming awake. It is not fully awake yet, but there is soul in the air and everywhere I see beauty. I have watched the sit-ins, the freedom raids, the Mississippi Blood Summers, demonstrations all over the country, the FSM movement, the teach-ins, and the mounting protest over Lyndon Strangelove’s foreign policy—all of this, the thousands of little details, show me it is time to straighten up and fly right. (Soul On Ice 34–35)

Of course, this moment of hope, that American prisons might somehow provide the “vanguard” of a progressive legal and social revolution, would turn out to be brief—particularly in the wake of Malcolm’s assassination, Cleaver’s exile and conversion to reactionary politics, and the Attica Massacre. But for Abu-Jamal, McCleskey v. Kemp is just the clearest of many signs that the courts—or, for that matter, American legal institutions in general—will not play a significant role in any societal “evolution” (let alone revolution) in support of “decency” or human dignity. Rather than adhering to constitutional principle or legal precedent, the courts now follow the “political winds” of a larger society that is becoming more and more reactionary: Where the issue of the death penalty is concerned, law follows politics, and the conservatives won the socio-political battles of the 1980s on the basis of an agenda that included a ringing endorsement of capital punishment. The venerated principle of stare decisis—following rulings of previous judicial decisions—meant little in the politically charged judicial arena. Statistical methodology and scientific and sociological studies, once valued tools for challenging state practice, now serve as meaningless academic exercises. (11)

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For Abu-Jamal, it is the men and women on death row—more than anyone else—who see the actual consequences of these historical changes. Moreover, in the absence of other effective instruments of justice, from judicial precedent to “sociological studies,” prisoners once again find themselves a critical source, if not of political change, then at least of political understanding. Abu-Jamal explains how inmates “on the row often wager with one another on the outcome of judicial decisions” (16). Simply “by viewing every decision through the prism of politics,” he claims, he has “never lost a bet” (16). This argument goes a long way towards explaining one of the peculiar features of Abu-Jamal’s murder trial. Few commentators have discussed (or even mentioned) his determination to have MOVE founder John Africa alongside him in the courtroom. This strategy, though predictably disastrous for Abu-Jamal’s legal interests, provides one of the critical links between his sense of justice, his sense of rhetoric, and his later prison writing. If the courts are driven by a “fear of too much justice,” then Abu-Jamal’s determination to link his fate to some of the most marginalized organizations and individuals—or, in Powell’s term, to present his case as a test of “the principles that underlie our entire criminal justice system”—might seem to have practically assured his conviction and continued imprisonment, even his death sentence. To put it another way, in the political and legal climate in which he found himself, Abu-Jamal was a defense attorney’s worst nightmare. By aligning himself at this crucial moment with MOVE—the organization most radically and notoriously critical of the local political establishment and the police—he provided himself with a vocal and visual representation of marginalization and resistance. Later, in his writing from death row, he also affiliated himself with those who were considered (even by death row standards) the lunatics and the pariahs. For Abu-Jamal, the majority decision in McCleskey v. Kemp, like all the other fears of justice it can be taken to represent, makes this affiliation with the outcast morally necessary. What might be less apparent is that McCleskey v. Kemp also provides some of the critical categories and aesthetic strategies that emerge in Abu-Jamal’s prison writing. His realization that he is writing in a post-legal age—when the courts will discount evidence of racial discrimination and, like the larger society, will undermine justice out of a “fear of too much justice”—causes him to move more fully from the narrative conventions of convict autobiography, based primarily on an individual conversion before the law, to a poetics of solidarity with the powerless and a prophetic call for a collective moral conversion. For instance, in his essay “Teetering on the Brink,” AbuJamal quotes extensively from a passage in Justice Brennan’s dissenting opinion in McCleskey v. Kemp. In this case, his interest is as much literary as legal, because he realizes that Brennan’s opinion is not only a voice of dissent within the current debate on capital punishment, but also a vision (perhaps a desperate vision in a moral wilderness) that looks towards the possibilities of a more

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progressive and productive discourse. It is easy to imagine, too, that Abu-Jamal must have been drawn to Brennan’s interlacing of the core of his argument with references to life on death row: It is tempting to pretend that minorities on death row share a fate in no way connected to our own, that our treatment of them sounds no echoes beyond the chambers in which they die. Such an illusion is ultimately corrosive, for the reverberations of injustice are not so easily confined. … McCleskey’s evidence will not have obtained judicial acceptance, but that will not affect what is said on death row. However many criticism of today’s decision may be rendered, these painful conversations will serve as the most eloquent dissents of all. (quoted by Abu-Jamal, Live 15)

This passage might have been written as an endorsement for Abu-Jamal’s role as the “voice of the voiceless” on death row, for, when Brennan asserts the moral and practical necessity of a “connection” between the fate of those on death row and our collective fate as a nation, he is stating one of the central principles of Abu-Jamal’s prison writing. Most basically, what Abu-Jamal finds in recent death penalty decisions is an abandonment of any hope that a formal legal positivism, such as the application of reasoned deductions from general constitutional principles to specific cases, will serve the ends of justice. The essential “connections”—between those judging, those being judged, and those in the public at large that support the legal status quo—has been too badly eroded for this kind of progress to occur. In another essay in Live from Death Row, “Blackmun Bows out of the Death Game,” Abu-Jamal discusses another Supreme Court decision, Callins v. Collins (1994). In this instance, he focuses on another dissenting opinion, this time written by Justice Harry A. Blackmun, who accuses the Court of “having virtually conceded that both fairness and rationality cannot be achieved” in death penalty cases while nonetheless upholding the death penalty (quoted by Abu-Jamal 93). In his dissent, Blackmun despairs of ever seeing a time when the Court will be able to make such decisions, fairly and rationally, according to established procedures. In “Blackmun Bows out of the Death Game,” Abu-Jamal quotes a passage in which Blackmun concludes that the only alternative to continued “arbitrary application” is to abandon the death penalty altogether: Perhaps one day this Court will develop procedural rules or verbal formulas that actually will provide consistency, fairness, and reliability in a capital-sentencing scheme. I am not optimistic that such a day will come. I am more optimistic, though, that this Court will eventually conclude that the effort to eliminate arbitrariness while preserving fairness in the infliction of [death] is so plainly doomed to failure that it—and the death penalty—must be abandoned altogether. I may not live to see that day, but I have faith that it will arrive. (quoted by Abu-Jamal 95–96)

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Blackmun does not pursue the implications of his dissent beyond the current status of the death penalty. For instance, by maintaining consistency with the dominant language of previous death penalty decisions, he couches this part of his argument in terms of “arbitrariness” rather than “discrimination” or “human rights”; and in doing so, he casts his criticism in formal terms, rather than in moral or social terms. Nonetheless, on principle, Blackmun decides to “bow out of the death penalty game,” saying rather eloquently, “I no longer shall tinker with the machinery of death” (quoted by Abu-Jamal 93). But Abu-Jamal does not believe that this dissent will have much of an effect at a time in which this “machinery” is operating with unprecedented efficiency. And even more than Blackmun, he doubts that any formal legal procedures or “verbal formulas” will be effective in preventing discrimination. In a strategy much like Brennan’s, he places Blackmun’s dissent in the context of conversations among death row inmates: But if Blackmun’s denunciation of his benchmates seemed bitter, the response of some on death row seemed equally acerbic. “Why now?” asked one. “What’s it mean? asked another. (94)

Blackmun is not so much a heroic figure in the death penalty controversy as a cautionary one. He leads Abu-Jamal to reconsider the role of the contemporary prison writer in order to avoid becoming, like Blackmun near the end of his career, “the lone dissenter, a Jeremiah preaching in a dry, searing judicial wilderness, where few will hear and none will follow” (95). Considering Blackmun’s fate, Abu-Jamal begins to discover that he must develop an alternative, postlegal discourse. Yet Abu-Jamal finds himself writing at a historical moment in which such an alternative discourse is rendered inordinately difficult by the prison industry, prison policy, and prevailing attitudes towards crime and punishment. If Malcolm X, Eldridge Cleaver and George Jackson wrote in an “age of relevance” for prison writers—when concerns about civil rights, movements for progressive social reform, and widespread questioning of legal and social institutions led a wide readership to invest the prisoner with a romantic appeal and moral authority— then Abu-Jamal writes at the height of an “age of irrelevance” (or the Age of Super Max), in which the public at large is increasingly disinclined to see the fate of prisoners as connected, in any way, to its own. Prisoners must be “getting what they deserve,” Americans typically tell themselves. The courts no longer seem to hold out any hope that prisons can reflect any “evolving standard of decency.” Like the public at large, they have remained convinced that a procedural formalism is the only manner in which prisoners’ concerns can be addressed—regardless of any evidence that such an

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approach consistently fails to eliminate discrimination. Their only other option is simply to give up altogether. At the same time, the prison writer can no longer imagine that telling his or her story in the narrative conventions assumed by earlier writers—that it, in terms of personal encounters with the law and subsequent moral conversion—will serve as a means of linking his or her cause to any larger social movement, let alone revolution. Abu-Jamal describes these developments as “Marionization,” a phrase he borrows from a Human Rights Watch report and an allusion to the 1983 transformation of the Marion Federal Penitentiary into a “permanent lockdown control unit”—the “forbear and model of Super Max prisons in thirty-eight states” (73). Most fundamentally, for Abu-Jamal, Marionization is a process by which any “illusion of human rehabilitation” is replaced not merely by containment but by “dehumanization by design” (73–74). Of course, for the prisoner on death row, Marionization has dimensions that are both political and practical. Abu-Jamal invokes the political by reference to the sordid and highly symbolic history of Marion Federal Penitentiary. Like other contemporary “control unit” prisons, Marion was supported by a discourse that continually assured the public that this prison would be reserved for “the worst of the worst.” Abu-Jamal argues, however, that many of the inmates who wound up in Marion were not there because they had committed “heinous” crimes but because of their political views: That justification was the basis for the infamous lockdown of the Marion Federal Penitentiary, where the government promptly dumped a number of political prisoners including, for a time at least, former Black Panther Sundiata Acoli, former American Indian Movement activist Leonard Peltier, former resistance conspiracy defendant D. Alan Berkman, and North American anti-imperialist Tim Blunk, among others. In 1987, Amnesty International reported that Marion violates almost every one of the United Nations’ Standard Minimum Rules for the Treatment of Prisoners. (74)

These “political prisoners” are not the sort of “criminals” the public imagines when it hears the super-maximum prison justified as a necessary instrument to “control” the “worst of the worst.” Nonetheless, these are some of the prisoners who suffer the kind of “dehumanization by design” that is, for Abu-Jamal, the distinctive feature of the contemporary carceral state. In fact, Abu-Jamal asserts, the state has designed the control unit prison to combine a wide range of techniques of isolation and punishment: Mix in solitary confinement, around-the-clock lock-in, no-contact visits, no prison jobs, no education programs by which to grow, psychiatric “treatment” facilities designed only to drug you into a coma; ladle in hostile, overtly racist prison guards and staff; add the weight of the falling away of family ties, and you have all the fixings for a stressful psychic stew designed to deteriorate, to erode one’s humanity—designed, that is, by the state, with full knowledge of its effects. (25)

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In the age of Super Max, the prison writer must account, somehow, for this “stressful psychic stew,” and he or she must reconnect the causes of this dehumanization, in the courts and society at large, with its effects, most of all in the death rows and control units. And the prison writer must somehow convince a significant audience—in a way the law no longer does—that those who live in such places share in a common humanity. Abu-Jamal’s primary rhetorical strategy is to juxtapose life on death row with his own social commentary, and to juxtapose both of these with the larger American social and political discourse. Another essay in Live from Death Row, “ ‘On tilt’ by state design,” uses this basic method. The essay begins with the voice of a death-row inmate: Harry Washington shrieks out of an internal orgy of psychic pain: “Niggers!! Keep my family’s name outcha mouf! Ya filth! Ya racist garbage! All my family believe in God! Keep your twisted Satanic filth to Y’allself ! Keep my family’s name outch’all nasty mouf!!” (24)

Having encountered the screaming voice of Harry Washington, most readers would want an explanation—hoping most of all, though at best half-consciously, that the explanation will provide a measure of distance, some reassurance that this madness can be controlled or contained, that it has nothing to do with the general public. For a moment, at least, in the next paragraph, Abu-Jamal provides the kind of voice the public wants: I have stopped the reflexive glance down in front of Harry’s cell. For now, as in all the times in the past, I know no one is out near this ground-level cell—I know Harry is in a mouth-foaming rage because of the ceaseless noises echoing within the chambers of his tortured mind. For Harry and I are among the growing numbers of Pennsylvanians on death row, and Harry, because of his mind-snapping isolation, a bitterly racist environment, and the ironies, the auguries of fate, has begun the slide from depression, through deterioration, to dementia. (24)

After hearing Harry Washington’s voice, most readers will be struck by the contrast with this overarching narrative voice. But the contrast is ironic, and deliberately deceptive. It is never enough, for Abu-Jamal, merely to portray or “explain” this degradation. He must also obliterate the distance his readers would like to maintain from the Harry Washingtons of the world. He does it most basically by directly associating himself—“Harry and I are among the growing numbers of Pennsylvanians on death row”—with the most marginalized of his death row companions. He also does it by invoking, in the same phrase, the language of common citizenry: after all, even on death row, he and Harry are both “Pennsylvanians.” And he does it by telling Harry’s story.

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Still a young man, Harry Washington, was once a corrections officer: “Once he wore the keys, now he hears the keys, in an agonizing wait for death” (28). Abu-Jamal’s extremely brief account of Harry’s life is, in effect, another device for connecting the center to the margin, the powerful to the powerless, the “tormentors” to the “tormented,” the “normal” to the “deviant.” Now, Harry’s “tormentors” on death row describe him as “on tilt.” He is insane precisely as a result of the systematic pressures that he, himself, once helped apply. This reflective effect of Harry’s story produces a sense that everyone shares in Harry’s degradation—that his tormented insanity is, paradoxically, not a sign of deviance that makes him fundamentally different from the public at large but one more element of common humanity. Harry’s story suggests that a society only affirms human dignity to the extent that it does so for a man like him, most of all when he is tormented as he is at this moment, shrieking “out of an internal orgy of psychic pain.” Ultimately, for Abu-Jamal, it is not enough to listen to an articulate death row inmate, perhaps one like himself. It is also necessary to listen to the demented cries of the “lunatic” on the row.

Works Consulted Abu-Jamal, Mumia. Live from Death Row. New York: Avon, 1996. Baldus, David, George Woodworth, and Charles A. Pulaski, Jr. Equal Justice and the Death Penalty: A Legal and Empirical Analysis. Boston: Northeastern UP, 1990. Cleaver, Eldridge. Soul On Ice. 1968. New York: Random House, 1992. Frankin, R. Bruce. Prison Literature in America: The Victim as Criminal and Artist. New York: Oxford UP, 1989. Jackson, George. Soledad Brother: The Prison Letters of George Jackson. 1970. Chicago: Lawrence Hill, 1994. Malcolm X and Alex Haley. The Autobiography of Malcolm X. New York: Ballantine, 1965. McCleskey v. Kemp. 482 U.S. 279; s. Ct. 1756; 95 L. Ed. 2d 262; 1987 U.S. Lexis 1817; 55 U.S.L.W. 4537. web.lexis-nexis.com. Williams, Daniel L. Executing Justice: An Inside Account of the Case of Mumia AbuJamal. New York: St. Martins, 2001.

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THE LETTER OF THE LAW AND CANADIAN LETTERS: JOY KOGAWA’S OBASAN ANA MARÍA FRAILÉ-MARCOS

Canada’s relatively recent multiculturalism policy has had an impact on the laws of that country, as well as on its cultural life. The first part of this essay examines the effect that legal measures such as the Canadian Charter of Rights and Freedoms (1982) and the Multiculturalism Act (1988), have on the Canadian literary canon. As the law is changed to accommodate, safeguard, and enhance the cultural plurality found in Canada, Canadians are thrust to accept a new national identity which consists of a single unifying national ethnicity respectful of the country’s plurality. Multiculturalism turns, thus, into Canada’s most outstanding national identity trait. The second part of the essay focuses on Joy Kogawa’s novel Obasan (1981) in order to illustrate how politics, literature and the law interact. In spite of the recent development towards the acknowledgement of multiculturalism, ethnic minorities such as the Japanese Canadian community have historically suffered the consequences of unjust racist laws that dispossessed and dislocated them, depriving them of their freedom and of their civil rights. In a brilliant, though painful, historiographic revision, Kogawa offers her own version of a multi-ethnic country internally split round the issue of national identity and the ideals of freedom and democracy. As the novel calls for a revision of the law, it makes a great effort to rewrite history in such a way that the white hegemonic version of the past is corrected.

I. Law and Letters: The Multiculturalism Policy in Canada and its Impact on the Literary Canon In the mythology that informs Canada’s current national consciousness, a central figure is the metaphor of the multicultural mosaic, an image that allows space for the peaceful existence of all of Canada’s inhabitants in a land hardly touched by the effects of war (cf. Davidson 13). Not only is the mosaic metaphor legally endorsed, it is also protected by what one critic terms “the meta-narratives of the federal state … —the Constitution, the Charter of Rights, the Official Languages Act” (Kamboureli 93), and the Multiculturalism Act. Besides, these legal meta-narratives are reaffirmed in cultural discourses, such as the literary canon, whose gradual expansion during the last decades has been encouraged

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by the nation’s multicultural policy. Thus, Canada has constructed an official national identity based on the legal acknowledgement of difference, an accomplishment that has led Calcutta-born writer Bharati Mukherjee to conclude that “the country proudly boasts of its opposition to the whole concept of cultural assimilation” (2). This commitment to diversity distinguishes Canada from its neighbor of the South, the United States, whose colonial and immigration history runs parallel to that of Canada. Notwithstanding the multicultural character of both countries from the beginning, the United States has been traditionally shaped by the ideal of the melting pot and of assimilation, whereas Canada has had to deal with at least two dominant cultural and linguistic heritages, as determined by the Anglo and French colonial powers. As a consequence, “[f]or years, bilingualism and biculturalism carried the weight of defining what ‘Canadian’ meant (thanks to a silent ignoring of the First Nations)” (Hutcheon & Richmond 12–13). While Hugh MacLennan’s 1945 novel, Two Solitudes, stands as the epitome of Canada’s Anglo/French identity, the ideal of a plural Canada respectful of all its minorities remains a rather recent development. In fact, the Canadian Charter of Rights and Freedoms, whose most outstanding trait is the recognition of collective rights for the benefit of linguistic and autochthonous minorities, was added to the Constitution only in 1982, while the Multicultural Act was assented to in 1988. The race for the acknowledgement of multiculturalism started, nevertheless, when Prime Minister Pierre Elliott Trudeau decided in 1971 to implement a policy that would enhance and support the cultural contribution of ethnic groups. Since then many voices have been raised in an effort to point out the pros and cons of such a policy. In spite of Canada’s reputation as a welcoming and tolerant country, the very need for a multicultural policy and the consequent translation of this policy into law suggests the assimilationist drive of an earlier time, one that promoted Anglo-European values as the Canadian norm and that revealed the pitfalls of the Canadian ideal of tolerance. Thus, Canada’s benevolent image remains etched against an underlying current of racism and intolerance: From the extermination of the Beothuk in Newfoundland to the restriction of the other native peoples to reserves; from the deportation of the Acadians to the cultural denigration of French Canada in Lord Durham’s Report; from the head tax collected only on Chinese immigrants to the displacement and internment of all Japanese Canadians during the last war; from the deportation of the sick, poor, unemployed, or politically radical in the first decades of [the twentieth] century to the refusal to accept European Jews before the Holocaust. (Hutcheon & Richmond 11)

If the present multicultural policy uncovers a flawed past, it might also risk hiding an imperfect future behind the veil of ethnic celebration and

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acknowledgement. A close look at the Canadian Multiculturalism Act reveals that the current construct of ethnicity is key to Canada’s sense of national identity and to the regulation of its social, political, and economic life. However, ethnicity does not emerge from this legal document as a clear-cut concept but as a double-edged, contradictory construct. If, on the one hand, the Multiculturalism Act intends to agglutinate all Canadians, regardless of their origins, under a single unifying national ethnicity respectful of the country’s plurality, on the other hand, the Act also reveals the more widespread use of the term ethnic as referring only to the marginal ethnic groups of the nation, excluding from its definition the white Anglo/French mainstream ethnicities.1 Thus, ethnicity is fused with otherness, as Werner Sollors argues in Beyond Ethnicity (1986). Some fear that the emphasis on ethnicity as a category which does not apply to the Anglo/French European culture may just be the sign of a continuing sanction of its privileged position in a hierarchically structured society. This understanding of ethnicity as otherness leads Smaro Kamboureli to denounce the Multiculturalism Act for “practicing a sedative politics” which subtly maintains the status quo while seemingly enhancing the multicultural character of Canada: a politics that attempts to recognize ethnic differences, but only in a contained fashion, in order to manage them. It pays tribute to diversity and suggests ways of celebrating it, thus responding to the clarion call of ethnic communities for recognition. Yet, it does so without disturbing the conventional articulation of the Canadian dominant society. The Act sets out to perform the impossible act of balancing differences, in the process allowing the state to become self-congratulatory, if not complacent, about its handling of ethnicity. (82) (emphasis mine)

In spite of the positive effects of a law that celebrates difference and encourages minorities to preserve, develop, and spread their own languages and cultures, critics show themselves wary about the legal exaltation of otherness which, they fear, may be merely a sign of tokenism and only serve to ghettoize marginal cultures. Joy Kogawa, for example, warns against the idea of a mosaic where the pieces are kept separate from each other, where interrelation and transculturation among the different ethnic groups are discouraged because their unity 1 This use of the term ethnicity is corroborated by the instance in which the Canadian Multiculturalism Act links the word ethnic to minority and to discrimination. Although, the term multicultural is systematically preferred throughout the Act, section 5.g—specifying one of the measures that the Minister shall take to implement the multicultural policy of Canada—reads as follows: “[The Minister may] assist ethno-cultural minority communities to conduct activities with a view to overcoming any discriminatory barrier and, in particular, discrimination based on race or national or ethnic origin” (in Hutcheon & Richmond 373).

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round a common cause would pose a serious danger to mainstream’s hegemony. Kogawa says, In Canada the multicultural program gives a grant to this or that group, and that’s the pie. We fight each other to make sure we get our grant, and our voices are kept distinct and separate from each other, controllable, smaller, and less united. That seems very destructive. ( Williamson 112)

According to this interpretation, the current implementation of the multiculturalism policy would be actually directed to prevent the formation of a strong coalition of all minorities—what Senator Paul Yuzyk called in 1964 the “Third Force” (cf. Kamboureli 97)—that would, in turn, produce an effective counter-discourse. Should critics focus on the Act’s emphasis on ethnicity as a sign of equality rather than as a sign of difference, inclusive of both minority and majority ethnic groups, new questions would be posed. First, a national identity based on the idea that what all Canadians have in common is their ethnic difference risks hiding the historical dichotomy between the hegemonic power of the Anglo/French dominant groups and the rest of the population. As a consequence, the resultant apparent homogenization of Canadian society would throw a veil on the discrimination suffered by minorities in the course of history. However, an even more negative effect of such a unification would be the fact that “ethnicity [may cease] to function as the counternarrative that it has been” (Kamboureli 100). If, as Prime Minister Pierre E. Trudeau stated in the 1971 White Paper on multiculturalism, “although there are two official languages, there is no official culture, nor does any ethnic group take precedence over any other” (qtd. in Kamboureli 98), what are historically discriminated groups going to contest? His argument, which dissociates language from culture and from the ethnic groups producing both, contradicts much of the current postcolonial theorizing about the interconnection between language, ethnic identity, and power.2 Inasmuch as language stands as a metonym for the culture it has sprung from, the consideration of French and English as the official languages inevitably leads readers to regard the cultures and societies that produced them as the “official,” dominant and privileged ones, destroying the notion of equality. Therefore, Trudeau’s statement may well continue to be a desideratum rather than a reality. 2 Edward Said, Homi Bhabha and Gayatri C. Spivak form the ineludible triad of critics whose role in emphasizing the interrelation between language and power have marked postcolonial studies. Similarly, Henry Louis Gates, Chinua Achebe, Edward Kamau Brathwaite, or Ngugi wa Thiong’o come to mind as some of the critics and writers who have written extensively about this topic, although it is a general concern for many more writers as well.

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Notwithstanding these difficulties, the balance that the law attempts with “a policy of multiculturalism designed to preserve and enhance the multicultural heritage of Canadians while working to achieve the equality of all Canadians in the economic, social, cultural and political life of Canada” (“Multiculturalism Act,” in Hutcheon & Richmond 370), remains a worthwhile ideal to pursue, an ideal which has already produced some welcome changes. The political, legal and economic effort of Canadian institutions to achieve the—probably contradictory, or even “impossible”—goal of equality for all Canadian citizens within the frame of the two official languages, has brought into light the ethnic richness of Canada. It has also set the right context for minorities to raise their voices and be heard. With the legitimation of ethnic diversity, the discourse about Canadian identity has been substantially altered. Thus, whereas Kamboureli acknowledges that “the introduction of legislation about [multiculturalism] marks a turning point in the national imaginary” (94), Hutcheon & Richmond claim that “what has been created is an entire ‘discourse’ about multiculturalism—a way of thinking and talking about ethnicity and race—that is gradually working to change how Canadians define themselves” (14). This new definition of Canadianness relies on a rewriting of the past which acknowledges the multicultural reality of Canada from its foundations. Supported by official funds, the contribution of ethnic minorities to the reshaping of Canada’s historiography and national identity is of enormous significance, and it has found a welcoming impulse in the academy as well as in the publishing market. The impact of the multicultural policy is most notably perceived in the change undergone by the Canadian literary canon, which has been expanded to include Native Canadian writers such as Cree Tomson Highway, Okanagan Jeannette Armstrong, part-Cherokee Thomas King and part-Cree Joan Crate; Afro-Canadian writers of African American ancestry, such as George Elliott Clarke, whose roots in Canada date back to the loyalist migration from the United States at the end of the eighteenth century, or of Afro-Caribbean ancestry such as Austen Clarke, M. Nourbese Philip, and Dionne Brand; also from the Caribbean but of East Indian descent is Neil Bissoondath; South Asia is represented by acclaimed writers Michael Ondatjee and Rohinton Mistry; and the legacy of Chinese and Japanese immigration in Canada, which can be traced to the very origins of the nation, is well represented by Japanese Canadian writers Joy Kogawa and Hiromi Goto, and Chinese Canadian Sky Lee. These authors, whose living experience is a constant negotiation between different cultures and worlds, are just a sample of the current creative variety to be found in Canada and are excellent representatives of the hyphenated Canadian identity. The readiness with which they have been accepted by mainstream society raises some problems related to the previous discussion about the capitalization on ethnicity as either a strategy to keep the different ethnocultures apart from each other or, on the other hand, as a move to erase difference

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superficially, thereby preventing opposition to the covert dominant discourse. However, the recent developments in the field of literary anthologies, for example, indicate a tendency to correct underlying biases, extracting the best from the multicultural project. Thus, Kamboureli draws attention to “a major shift” which consists of “the compilation of writing in comprehensive volumes intended not to represent distinct ethnic groups, but to bridge their differences” (106). Bridging differences is essential for the reciprocal understanding not only of ethnic minorities among themselves, but also for their acceptance within a mainstream respectful of difference.

II. The Letter of the Law as Represented in Obasan Obasan (1981), Joy Kogawa’s acclaimed first novel, is an excellent example of the way in which ethnic minority writers have been bridging differences, “taking you from one side to otherness” (Kogawa, Itsuka 78), since Obasan takes the reader into the unfamiliar world of those Canadians of Japanese ancestry whose trials in Canada have been “swept under the carpet of a conveniently forgetful history” (Davidson 14). Thus, the novel’s aim broadly coincides with that of the political activist character in Obasan, Aunt Emily, who “toiled to tell of the lives of the Nisei in Canada in her effort to make familiar, to make knowable, the treacherous yellow peril that lived in the minds of the racially prejudiced” (49). In an interview, Kogawa’s ideal perception of Canada as a country whose inhabitants’ hybridity allows them to act as bridges of cultures, leading them to understand each other and to move toward a peaceful and just co-existence, provokes her—unconsciously perhaps—to misquote from her second novel, in a very revealing slippage. Thus, instead of reproducing Aunt Emily’s words saying “Japanese Canadians are east-west bridges. We span the gap. It’s our fate and our calling—to be hyphens—to be diplomats” (Itsuka 78), Kogawa says “In the new novel, Aunt Emily tells Naomi that a Canadian is a hyphen and that we are diplomats by birth” (Hutcheon & Richmond 96) (emphasis mine). By extending to all Canadians a characteristic that in Emily’s words was just Japanese Canadian, and by qualifying Japanese Canadians simply as Canadians by means of the use of the pronoun we, Kogawa is not only setting up bridges between minority and majority ethnic discourses, but she is actually blurring the boundaries of distinct ethnic identities to highlight their common ethos. Obasan denounces the legal situation that allowed the Canadian Government during and after World War II to strip selected Canadian citizens of all their belongings, to intern them in concentration camps, move all families to ghost towns and abandoned mining communities in the British Columbia interior and, later, to disperse in the sugar beet farms East of the Rockies those who did not “choose” to be repatriated/depatriated to Japan, breaking up families and

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dislocating them forever.3 Such governmental dispersal and repatriation policies were aimed at the suppression and virtual extermination of the Japanese Canadian cultural community, which was driven either to conform or to leave the country. In both cases the result is the dissolution and disappearance of a “visible” ethnic group. Joy Kogawa explains that “as a Japanese Canadian, I grew up needing to be the only Jap in town, which was what we were taught we had to be and why we’re all spread around and don’t know each other… I experienced myself as White almost all my life, until very recently” (Williamson 153). In the novel, Naomi reflects on this fact when she ponders “We are the Issei and the Nisei and the Sansei, the Japanese Canadians. We disappear into the future undemanding as dew” (132). Her thoughts match Kogawa’s observation even as she tries to give a positive twist to the Canadian thrust for assimilation, and transform it into a fruitful evolution towards hybridity:4 It’s likely that there aren’t going to be any Japanese Canadians. They’ll just be all mixed up. I’ve seen grandchildren of nisseis … you can’t see any Japanese-ness in 3 The history of the Nakane-Kato family provides a complete account of the Japanese Canadian experience, since their roots go back to the days of the first Japanese immigration, bringing to the foreground both the efforts of this ethnic group to make a home for themselves in Canada, and the pervasive racism they had to face from the very beginning. If, in 1895, the provincial government of British Columbia denied the vote to Japanese residents, while they were referred to as the “Yellow peril,” after the Pearl Harbor attack all Japanese became enemies, a threat to national security. Initially, their boats were confiscated, they were stripped of their cameras, radios and cars, their newspapers were closed, except for The New Canadian, and many Japanese Canadians were detained. As a consequence of the War Measures Act, the whole Japanese community was evacuated and interned in concentration camps in 1942. In 1943 all their properties were sold, which accelerated their dispersal eastward and severed their links with the Pacific Coast. After the war, Japanese Canadians were forced to choose between going to Japan or moving East of the Rockies, following the “repatriation or relocation scheme.” Since repatriation became highly controversial, it was suspended in 1947, after some 4.000 alleged volunteers, who had never set foot in Japan before, had already left Canada. As to those who stayed, their right to vote was not restored until 1948, and they were not free to move until April 1949. Even then, the suffering of Japanese Canadians was not assuaged. Because their property was not returned to them, few returned to their original places, and their dispersal was definitive. Most stayed where they were, and many settled down in the sugar beet farms of Alberta and Manitoba where they lived in shacks without electricity or water, as isolated as they could from the xenophobic atmosphere which continued to victimize them. As Kogawa explains in the novel, “To a people for whom community was the essence of life, destruction of community was the destruction of life.” For a succinct but well documented account of the history of Japanese Canadians, see Eva Darias Beautell’s Division, Language, and Doubleness in the Writings of Joy Kogawa. 4 For a reading of Obasan from the perspective of hybridity see Mathew Beedham’s “Obasan and Hybridity: Necessary Cultural Strategies.”

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As it intertwines historical events with fictional characters, the novel is careful to identify some of the most relevant legal measures taken against the Japanese Canadian community. The various orders in council made under the War Measures Act deserve especial mention. In 1942 they required that all those of Japanese ancestry living within 100 miles of the Pacific Coast be removed from this “Protected Area.” In addition, Bill 135 disenfranchised in 1944 “men and women of Canadian birth.” The novel’s portrayal of the asymmetry between law and justice is as central to the narrative as the dichotomy speech/silence and its intersection with personal memory, official history, symbolism and irony. In a deeply moving lyrical account, the novel opens the eyes and hearts of its readers to the devastating consequences that the implementation of racist laws entailed for the successive generations of Japanese Canadians, creating an inquietude to support any measures that would remedy this situation. After reading the novel, the reader feels that a revision of the law is peremptory in order to achieve the social harmony that Canada purportedly claims and supports. Since in a democracy the enactment of new laws is usually in accordance with the social climate of the majority of the population, the novel also shows the changing and real character of national identity. Notwithstanding its condition as a disruptive text, Obasan had a strong impact in Canada, winning instantaneous widespread critical acclaim after its publication in 1981 and multiple awards. Similarly, the novel became very popular in Japan, a cornerstone in the current study of Asian American literature, a landmark in women’s writing, and an indispensable reference in much postcolonial criticism.5 Its success, however, has caused critics such as Apollo O. Amoko to consider the ways in which the Canada can both incite and contain 5 A proof of the novel’s success is that it has been excerpted in numerous U.S. and Canadian anthologies, having become a staple in many ethnic literature courses. Apart from the natural repercussion within Canada, articles about Obasan appear in anthologies of Asian American literature, including the Canadian experience in the framework of U.S. studies. Some examples are Cynthia Wong-Sau-ling’s A Resource Guide to Asian American Literature (2001), Gary Y Okihiro’s Privileging Positions: The Sites of Asian American Studies (1995), and Shirley Geok-lin Lim and Amy Ling’s Reading the Literatures of Asian America (1992); similarly, works focusing on U.S. ethnic diversity also take Obasan within their scope. This is the case of Payant & Rose’s The Immigrant Experience in North American Literature (1999), Maitino & Peck’s Teaching American Ethnic Literatures (1996), or Singh, Sketrett & Hogan’s Memory and Cultural Politics: New Approaches to American Ethnic Literatures (1996). Obasan is studied through the

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resistance, eventually wondering whether Obasan’s public success and “rapid hypercanonization as a Classic in Canadian literature” does not rather indicate the novel’s failure as a “critique of Canadian multicultural discourses” (52). One year after the publication of Obasan, the 1982 Canadian Charter of Rights and Freedoms was added to the Constitution. The Charter guarantees Canadian citizens all those “fundamental freedoms and rights” which, as Joy Kogawa’s novel shows, were denied to Japanese Canadians in the past— freedom of conscience and the press; “democratic rights” to vote and seek election; “legal” and “equality” rights to move throughout Canada, to enjoy security of person, and to combat discrimination. The Charter establishes, therefore, legal limits that prevent the repetition of events such as the ones recounted in the novel. Although it would be very venturesome to claim that Obasan had any influence on the legal process that led to the Charter of Rights and Freedoms, what seems clear is that both the novel and the Charter originate from the same climate of social unrest and recognition of Canada’s legal deficiencies. Yet, the novel, whose didactic impetus is directed towards the reconstruction of history from the viewpoint of the oppressed Japanese Canadian minority, does transcend the realm of the literary and enters the political arena, prompting the reader to action in order to correct the effects of a misrepresentation of history. Thus, Davidson argues, just as Obasan places us, as Canadians in a hall of shame, it also shows us at least partly how to get out. The indictment of the book is, by extension, a call to action, a demand that something be done to oppose, to set right, as much as possible, the wrongs exposed. (14)

Obasan, therefore, stands “at the intersection of history, politics and literature” (215), as Marilyn Russell Rose aptly notes. Since the issues of representation and voice, the construction of history and fiction, and the difference between facts and truth are the central concerns of the novel, critics such as Donald Goellnicht, have pointed at Obasan’s condition as a historiographic metafiction. Linda Hutcheon’s term refers to prism of women studies in Kuribayashi’s Creating Safe Space: Violence and Women’s Writing (1997), Jerilyn Fisher, et al.’s Analyzing the Different Voice: Feminist Psychological Theory and Literary Texts (1998), Sandra Kumamoto Stanley’s Other Sisterhoods: Literary Theory and U.S. Women of Color (1998), Vevaina & Godard’s Intersexions: Issues of Race and Gender in Canadian Women’s Writing (1996), Elaine Hedge, et al.’s Listening to Silences: New Essays in Feminist Criticism (1994), and Janice Morgan, et al.’s Redefining Autobiography in Twentieth-Century Women’s Fiction: An Essay Collection (1991); Obasan’s position within postcolonial studies is represented in Andrew Blake and Nyaman’s Text and Nation: Essays on Postcolonial Cultural Politics (2001), and John C. Hawley’s Cross Addressing: Resistance Literature and Cultural Borders (1996).

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“a fiction that questions the making of both fiction and history” (Davidson 19). The deconstruction of mainstream history, and its subsequent reconstruction, is grounded in the perusal of official documents—government letters, presidential speeches—, pamphlets, newspaper headlines and articles, both interspun and set in clear contrast with personal letters, Aunt Emily’s diary, family photographs, and Naomi’s memories. Inasmuch as the nation’s historical authority is drawn from the printed word, Emily seeks to legitimize her historical counter-narrative with more written documents produced by the Japanese Canadian community and by herself as its representative. This personal historical discourse set in contraposition to the official narrative of history raises gradually to the surface of the novel’s narrative as Naomi reads the documents sent to her by her activist aunt, Emily. The parcel filled with Aunt Emily’s documents reaches Naomi in Obasan’s old house in Alberta at the time of Uncle Isamu Nakane’s death in September 1972. In the couple of days that precede the family reunion for Uncle’s funeral, the present is disclosed to be painfully rooted in the past. Naomi’s feeling of irreparable loss caused by Uncle’s death and by Obasan’s visible physical and mental decay is overshadowed by her reading of Emily’s documents and by the memories they elicit. Emily’s counter-writing is composed of a sixty-pages manuscript entitled “The Story of the Nisei in Canada: A Struggle for Liberty,” where her main statement is I am Canadian. In addition, the parcel she sent Naomi also contains an old scrapbook with clippings of articles either protesting against or defending the measures taken in the 1940’s against Japanese Canadians; Emily’s correspondence addressed at Prime Minister Mackenzie King and other authorities of the time; two letters in Japanese sent, as Naomi—and the reader—will learn at the end of the novel, by Grandma Kato from Japan after the dropping of the atomic bomb in Nagasaki had surprised herself and Naomi’s mother in that city; and finally, Emily’s diary in the form of letters to “Nesan”—her sister and Naomi’s mother. The novel, however, refutes the absolute authority of the written word by privileging the subjective reading of such documents vis a vis Naomi’s lived experience and memories. One example is the confrontation between Naomi’s memories of her extremely hard life as a displaced Japanese Canadian in Alberta in 1945 and the way a mainstream newspaper renders this reality with the photograph of a smiling Japanese Canadian family and the caption: “Grinning and Happy” (231). The blatant contradiction between her experience and how it is recounted leads Naomi to remark: “That is one telling. It’s not what it was” (236). Hence, memory becomes the key intangible “document” capable of exposing the biases, erasures and gaps in the official version of history. Thus, Kogawa, like other minority or “postcolonial” writers, claims memory as the means to retrieve the truth behind the received version of history; but unlike writers such as Toni Morrison, Maryse Condé, or Stuart Hall, who must rely on

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fantasy, myth and imagination when the collective memory that assists them in their reconstruction of history, does not seem enough to fill in the gaps left out by the received official version of history,6 Kogawa has her own personal memories of the experiences that have marked the lives of the Japanese Canadians. Like Kogawa, Aunt Emily in the novel is well aware of the value of memory in order to redress historical wrongs. Consequently, she repeatedly exhorts Naomi with arguments such as “We have to deal with all this while we remember it” (43), or “ ‘You have to remember…’ You are your history. If you cut any of it off you’re an amputee. Don’t deny the past. Remember everything. If you are bitter, be bitter. Cry it out! Scream! Denial is gangrene” (60). However, Naomi’s memories are so painful that she can hardly handle them, as she acknowledges when looking back at her days in Alberta as a twelveyear-old girl: “I cannot bear the memory. There are some nightmares from which there is no waking, only deeper and deeper sleep” (232). As Marilyn Russell Rose pinpoints, Naomi’s experience “is so frozen within her as the novel begins that it cannot be released into ‘freeing’ language—spoken language, recorded words, public speech” (219). Naomi’s experience, however, is released through her dreams, the symbolism of her poetic language, and the legends and stories that marked her childhood. Fantasy and imagination, therefore, play a fundamental role in the process of (re)membering history, placing Obasan within the scope of the authors mentioned above. Although Naomi’s silence and incapacity to act derive mainly from the straining contradiction between the reality as she lived it and the way it has been officially represented and told, some critics have also pointed out to the central metaphor of rape to explain her paralysis. Among other instances linked to the figure of rape in the novel, the episode portraying Old Man Gower as the violator of four-year-old Naomi stands out as an event that helps to explain the victim’s assimilation of blame and consequent silence. After enticing her into his yard with the excuse of applying a band-aid to Naomi’s scratched knee, Gower molests her while she “passively complies to his requests” (Fairbanks 89). This is the only incident in Naomi’s short life that the girl keeps secret from her 6

Toni Morrison explains in her article “The Site of Memory” that only through fiction, which is presumably the product of imagination, can she “find and expose a truth about the interior life of people who didn’t write it” (Plasa 47). Since facts can be tampered with in order to sanction the received version of history, Morrison specifies that “the crucial distinction for me is not the difference between fact and fiction, but the distinction between fact and truth” (47). Maryse Condé also points at the biased construction of history where her diasporic people is involved, rejecting presumed facts and official histories: “Being a black person, having a certain past, having a certain history behind me, I want to explore that realm and of course I do it with my imagination and with my intuition” (Scarboro 201). More widely known is Stuart Hall’s assertion that the past “is always constructed through memory, fantasy, narrative and myth” (395).

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mother. Hilda L. Thomas remarks that “Old Man Gower has his counterpart in the Canadian Government which, using the excuse that they are protecting them, uproots men, women, and children and interns them in the abandoned ghost towns of the B.C. interior” (104). According to this explanation, “the abuse of Japanese Canadians by white Canada is a kind of sociopathic rape in response to which victims can only reel in silent shame” (Rose 222). Another factor contributing to Naomi’s numbness is the torment surrounding her unanswered question “Why did my mother not return?” (31). After an ill-timed visit to her aging grandmother in Japan in September 1941, Naomi’s mother stops all correspondence with her family in Canada, and neither Naomi nor her brother Stephen will know what happened to her until September 1972, when the family reunites again at Uncle Isamu’s funeral. Not until then would they learn that both their mother and their grandmother were caught in the Nagasaki bombings of August 9, 1945, and that the horror they lived after it and until their deaths led them to a protective silence that was only broken by Grandma Kato’s eerie 1949 letter. Naomi’s loss of her biological mother is emphasized and made worse by the refusal of her motherland, Canada, to accept her and the Japanese Canadian community as full citizens and dutiful children. Deprived of her mother and rejected by her own country, Naomi’s life is marked by a double feeling of alienation.7 Only the acknowledgement of her own history and the reconstruction of her mother’s narrative of love can help Naomi to overcome this alienation and reassert her own position as a beloved daughter and a dignified Canadian citizen, as she does by the end of the novel. Thus, spurred by the death of her uncle Isamu Nakane and by the package of documents sent by her Aunt Emily, Naomi starts searching the caverns of her mind, as she puts it (61), which leads her to a reconsideration of Canada’s construction of Japanese Canadians as enemy others, and of her own identity as a (Japanese) Canadian. What springs from the narrative is not only the identification of the ways in which history and the dominant ideology have been fabricated, but also the multifaceted character of truth. Thus, the novel exposes at least four main versions of what is really “true.” These versions are shaped 7

Naomi’s situation as a Sansei, or third-generation Japanese Canadian, contributes greatly to her feeling of disconnection both from her roots in Japan and from her identity as a Canadian. If the issei, or first immigrant generation, represented by her aunt Obasan, are strongly attached to Oriental values and are afraid to involve themselves with their adopted Canadian society, the sansei were born and raised in Canada. They hardly speak Japanese, and their education and values are mostly those of the Western world. In comparison with the nisei, or second generation, who were closer to the Japanese culture through their parents, spoke Japanese fluently and suffered the effects of World War II as adults, the sansei have blurry recollections of that dark episode in their history, since their forbears have tended to silence it “for the sake of the children” (26).

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by the official account of history, by Aunt Emily’s activism, by Aunt Obasan’s silence, and by Naomi’s evolution towards understanding. For Naomi, the most difficult task is to be able to connect and integrate the stances of her two very different aunts—“One lives in sound, the other in stone” (39),—because although she feels much more comfortable in the world of nonverbal communication mastered by Obasan,8 she must also acknowledge Emily’s articulateness before she can find the words that liberate her from the past and allow her to face the future. Whereas Obasan represents the obedience and gratefulness of the Issei or first generation of Japanese immigrants, Emily defies any government or individual who may deny her own or the community’s Canadianness. She stands for the Nisei, or second generation. In contrast to the stances of either the Issei or the Nisei, Naomi, a Sansei or third generation Japanese Canadian, confusedly confesses: “The truth for me is more murky, shadowy and grey” (38). Even though she recognizes that she and Obasan are trapped by the past, or “by our memories of the dead—all our dead—those who refuse to bury themselves” (30), Naomi refuses to connect the past with the present when she thinks to herself that “Crimes of history … can stay in history. What we need is to concern ourselves with the injustices of today” (50). Exasperated by Naomi’s stance, Emily is determined to make her niece understand that “The past is the future” (51). As Naomi reads her own history in the documentation compiled by Aunt Emily as part of her life-long struggle for justice, the history of Japanese Canadians becomes vivid through Naomi’s personal memories. In spite of herself, Naomi is not blind to the double talk practiced by the government and by mainstream society in order to justify or disguise their mistreatment of the Japanese Canadians. However, whereas Emily’s identification of the government’s manipulation of language—when the incarceration of Japanese Canadians is referred to as “Interior Housing Projects”, for instance—prompts her to action and rage, Naomi remains paralyzed by her own identification of the Canadian government’s linguistic maneuvers to dispossess, imprison, disenfranchise, “repatriate” and scatter her people. In most cases, her awareness of the official linguistic disguising of crimes only provokes bitter irony. An example is Naomi’s reading between the lines of a toneless official letter signed by a Mr. B. Good in reply to Emily’s inquiry about her own mother’s house. Mr. B. Good coldly states in a short note that “all property belonging to her in Canada vests in the Custodian” (44). Naomi’s ironic deconstruction of the letter is “Be good, my undesirable, my illegitimate children, be obedient, be servile, above all don’t send me any letters of inquiry about your homes, while I stand on guard (over your property) in the true north strong, though you are not free. B. Good” (45). 8 For a study of “the non-verbal lexicons of touch, space and time” in Obasan, see Helena Grice.

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With the final parody of the “patriarchal/patriotic” (Darias-Beautell, “East/West” 157) national anthem, Naomi highlights the government’s betrayal of the nation’s ideals while pointing at the official manipulation of patriotism in order to make Japanese Canadians complicit in their own subjugation.9 In their desperation to prove themselves Canadian, Japanese Canadians obediently accepted the terms imposed by the government and let themselves be removed from their homes, incarcerated, dispossessed and disenfranchised. They even volunteered to serve as soldiers during the war and “volunteered” again when they were asked to peacefully comply to their deportation to Japan. Emily exposes in two critical moments of the removal and repatriation policies the euphemistic language used by the government in order to hide its force and violence against the Japanese Canadian community. The first instance refers to the time when all persons of Japanese ancestry who lived in the “protected area” of the Pacific coast were ordered to leave their homes: “All Nisei are liable to imprisonment if we refuse to volunteer to leave. At least that is the likeliest interpretation of Ian Mackenzie’s ‘Volunteer or else’ statement. He is the Minister of Pensions and National Health” (103). The second example is a report in the Vancouver Daily Province dated in June 1, 1946, where the grief of the “voluntary repatriates” is misleadingly taken for “indifference” (221). Although obedience and submission to the law was the widespread attitude, the novel demonstrates that not all Japanese Canadians accepted the “legal positivism [that] says that what is right is what the law says is right” (Chief Justice Antonio Lamer of the Supreme Court of Canada as quoted in Kamboureli 101). Aunt Emily, modeled after the real-life activist Muriel Kitagawa and her collection of letters, shows how the more politically-minded sector of the Japanese Canadian community struggled from the beginning to denounce the government’s betrayal of the country’s ideal of freedom and equality.10 Their fight continued into the 1970’s, the present of the novel, that stages Emily still blandishing pamphlets such as the one entitled “Racial Discrimination by 9 Chen Lok Chua studies the use of irony in “Witnessing the Japanese Canadian Experience in World War II: Processual Structure, Symbolism, and Irony in Joy Kogawa’s Obasan.” 10 According to Joy Kogawa’s own account, while in Alberta she had a dream telling her to visit the Public Archives of Canada in Ottawa. Once there she came across the journals and letters of Muriel Kitagawa. Not only did Kogawa shape Aunt Emily after this champion of Japanese Canadian rights but, as Marie Lo remarks, “much of chapter 14 of Obasan is taken from Kitagawa’s journals, with minor editing to fit Kogawa’s narrative” (“Obasan” 102). In the page that precedes the narrative of the novel, Kogawa thanks a number of people and “the Public Archives of Canada for permission to use documents and letters from the files of Muriel Kitagawa, Grace Tucker, T. Buck and Gordon Nakayama,” thereby emphasizing the authenticity of the story that she is about to tell. Muriel Kitagawa’s collection of wartime letters was edited by Roy Miki and published in 1985 under the title This is My Own.

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Orders-in-Council” and demanding a Bill of Rights that would provide legal protection to all Canadian citizens: “The American Japanese were interned as we were in Canada, and sent off to concentration camps, but their property wasn’t liquidated as ours was. And look how quickly the communities reestablished themselves in Los Angeles and San Francisco. We weren’t allowed to return to the West Coast like that. We’ve never recovered from the dispersal policy. But of course that was the government’s whole idea—to make sure we’d never be visible again. Official racism was blatant in Canada. The Americans have a Bill of Rights, right? We don’t.” (40–41)

Even though Emily’s demand was actually met in 1982 with the addition of the Canadian Charter of Rights and Freedoms to the Constitution, she still feels that she must keep up the fight. This occurs in Itsuka, Kogawa’s 1992 novel, where Naomi’s energetic aunt draws her to a more public and political position within the Japanese Canadian movement for an official apology and compensation. The counterpoint to Emily’s unceasing efforts and struggle is Naomi’s disquieting and distrustful position. By the end of Obasan, Naomi’s wound is still open, as she remarks that “the ‘old sores’ remain” (237). As a result of Aunt Emily’s persuasive arguments and documentation, Naomi concedes “I can remember since Aunt Emily insists that I must” (238), but her disappointment, not only in Canada’s legislation, but in human nature leads her to doubt that there may be a chance of redemption: Greed, selfishness, and hatred remain as constant as the human condition, do they not? Or are you thinking that through lobbying and legislation, speechmaking and storytelling, we can extricate ourselves from our foolish ways? Is there evidence for optimism? (238)

Even though Naomi is aware of the positive changes taking place in the 1970’s, she is not fooled by the country’s celebration of multiculturalism. She rejects, for example, the patronizing aspect of the multicultural policy as represented by Mrs. and Mr. Barker, the owners of the beet farm where Naomi’s fragmented family is relocated after the war. Their condescending, though well-intentioned, attitude towards Obasan—shouting at her in broken English in order to make themselves understood—and their comments about “our Japanese” (270) fetishize this ethnic group even as they draw well-defined boundaries between the mainstream and the minorities, between themselves and the Other. Suspicious of the effects of the multiculturalism policy, by the end of the novel Naomi is still taking sides with inarticulate Obasan who “does not come from this clamorous climate. She does not dance to the multicultural piper’s tune or respond to the racist’s slur” (271).

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In spite of Naomi’s reluctance, after the re-encounter with her mother through the letters that are read to her, there seems to be space for hope in the midst of death and destruction: “The letters tonight are skeletons. Bones only. But the earth still stirs with dormant blooms. Love flows through the roots of the trees by our graves” (292). Thus, Kogawa insists on reconciliation and forgiveness after having shown the bottomless grief caused by the betrayal of trust. The imagery in Naomi’s last scene suggests that she has gone through the nadir—or lowest point—of her life and is now experiencing a transition described as “a new hour filled with emptiness” (295) which draws a line between the world of grief and death that she has inhabited so far and the integrated world of the living that will shape the future. Naomi decides to embrace life when she ponders: “This body of grief is not fit for human habitation. Let there be flesh” (295). Wrapped in Emily’s coat, symbolizing articulateness and activism, and reasserted in her mother’s love, Naomi has finally followed “the stream down and down to the hidden voice” (iv), and is prepared to turn the word of stone into the freeing word. Nevertheless, as Kogawa herself recognizes in an interview, “Naomi is hardly transformed” (Darias-Beautell, Division 162), because both her own experience and Obasan’s influence on her are still very powerful. Not until Itsuka, the sequel to Obasan, will Naomi shyly develop in Aunt Emily’s public and outspoken direction. The postscript memorandum that closes the novel unsettles, to a certain extent, the potentially happy ending that we envision for Naomi in 1972, as Eva Darias-Beautell perceptively notes (“East/West Paradigms” 155). In sharp contrast with Naomi’s intimate lyrical voice, this document, sent to the House and the Senate of Canada in 1946, returns the reader to a past where the Canadian Government was simultaneously issuing Orders for the deportation of Japanese Canadians and “considering legislation to enhance the value and dignity of Canadian citizenship” (298). While exposing this implicit contradiction, the document “foregrounds the ongoing play between fact and fiction, leaving the reader with a degree of indecision which destabilizes once more any previous loci of authority, and alerts readers, in so doing, to the complexities and paradoxes implicit in the present exercise of revision” (DariasBeautell, “East/West” 155). However, the memorandum coincides with Naomi’s memories and intimate voice in pointing at the gaps, cracks and contradictions of the official Canadian national discourse, providing an alternative to the official version of history. Furthermore, the fact that the memorandum is signed by three Anglo male names demanding that the Canadian Parliament require the Governorin-Council to withdraw the Orders for the deportation of Japanese Canadians seems to draw a circle of Canadian fellowship by arguing that the Ordersin-Council “constitute a grave threat to the rights and liberties of Canadian citizens” (297), and more specifically, “to the security of every minority in

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Canada” (299). There is hope in the fact that Japanese Canadians are not alone in their claim of Canadian citizenship. If Emily had never entertained doubts concerning her Canadianness—“For better or for worse, I am Canadian” (48),— Naomi eventually claims her nationality in a lyrical indictment of the country: Oh, Canada, whether it is admitted or not, we come from you we come from you. From the same soil, the slugs and slime and bogs and twigs and roots. We come from the country that plucks its people out like weeds and flings them into the road-side. We grow in ditches and sloughs, untended and spindly. We erupt in the valleys and mountainsides, in small towns and back alleys, sprouting upside down on the prairies, our hair wild as spiders’ legs, our feet rooted nowhere. We grow where we are not seen, we flourish where we are not heard, the thick undergrowth of an unlikely planting. Where do we come from, Obasan? We come from cemeteries full of skeletons with wild roses in their grinning teeth. We come from our untold tales that wait for their telling. We come from Canada, this land that is like every land, filled with the wise, the fearful, the compassionate, the corrupt. (271)

As the positions of both aunt and niece converge in their reassertion of their Canadian identity, the memorandum undermines the idea of a gradual healing, pointed at by Naomi’s progression. Instead, by contraposing personal and collective healing, the memorandum implies that, unless the Canadian Government addresses its past crimes, national consensus will never be reached. This official recognition took place in 1988, the same year when the Canadian Multiculturalism Act “for the preservation and enhancement of multiculturalism” (Hutcheon 368) was assented to by The Canadian Parliament. After the committee for redress of the National Association of Japanese Canadians (NAJC) and the Canadian government reached an agreement, Prime Minister Brian Mulroney formally apologized for “the past injustices,” and the Canadian Government awarded a restitution of $21,000 to each of the 12.000 Japanese Canadian survivors. It was at this time when, as a confirmation of the novel’s astride position at the crossroads of history, politics and literature, “parts of Obasan were read in the Canadian House of Commons” (Goellnicht 306 n28), as “a fitting tribute to the novel’s role in achieving this end” (Davidson 15). As this study suggests, Obasan achieves a double objective. On the one hand, the novel corrects and interprets the national Canadian discourse by contraposing the official documentation with the personal testimony of its minority characters, thereby exposing “the delusions of the dominant culture” (Kilgore 45) concerning its objectivity and its faithfulness to the country’s ideals of equality and democracy. On the other hand, Obasan also problematizes the claim for a Canadian identity based on the legal acknowledgment, sanction and protection of difference and on support of cultural pluralism. Even when ethnicity has been legitimated in Canada, Obasan warns about the ways in which legitimation may be endorsed and implemented, exposing the covert thrust to

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keep ethnic minorities invisible both under the assimilationist and the multicultural policies. The open ending of the novel indicates the need to constantly defer assumptions about the other in order to avoid the crystallization of stereotypical definitions derived from ethnocentrism. The revision of the law is revealed as a powerful tool in this enterprise, which must be necessarily accompanied by a change in mentality. If the big challenge for Canada today is to bridge the difference between multiculturalism as legislated by the state and multiculturalism as it operates within the state, this gap, Kogawa suggests, can be bridged by “the attainment of mutuality” (Kogawa in Hutcheon 98), or in Aunt Emily’s words, by “the mutual recognition of facts” (219).

Works Consulted Amoko, Apollo O. “Resilient Imaginations: No-No Boy, Obasan and the Limits of Minority Discourse.” Mosaic 3.3 (September 2000): 35–55. Beedham, Mathew. “Obasan and Hybridity: Necessary Cultural Strategies.” The Immigrant Experience in North American Literature: Carving Out a Niche. Eds. Katherine B. Payant & T. Rose. Westport, Connecticut: Greenwood Press, 1999. 139–150. Chua, Chen Lok. “Witnessing the Japanese Canadian Experience in World War II: Processual Structure, Symbolism, and Irony in Joy Kogawa’s Obasan.” Reading the Literatures of Asian America. Eds, Sherley Geok lin Lim, et al. Philadelphia: Temple UP, 1992. 97–111. Darias-Beautell, Eva. “East/West Paradigms of History and Fiction: Joy Kogawa’s Obasan and Sky Lee’s Disappearing Moon Café.” Literature and Ethnic Discrimination. Ed. Michael J. Meyer. Amsterdam-Atlanta. GA: Rodopi, 1997. 151–169. ——. Division, Language, and Doubleness in the Writings of Joy Kogawa. La Laguna: Universidad de La Laguna, 1998. Davidson, Arnold E. Writing Against the Silence: Joy Kogawa’s “Obasan”. Toronto: ECW Press, 1993. Fairbanks, Carol. “Joy Kogawa’s Obasan: A Study in Political Efficacy.” The Journal of American and Canadian Studies 5 (Spring 1990): 73–92. Goellnicht, Donald C. “Minority History as Metafiction: Joy Kogawa’s Obasan.” Tulsa Studies in Women’s Literature 8 (1989): 287–306. Grice, Helena. “Reading the Nonverbal: The Indices of Space, Time, Tactility and Taciturnity in Joy Kogawa’s Obasan” MELUS (Winter 1999) http://www. findarticles.com/cf_0/m2278/424/63323861/p1/article.jhtml?term⫽Obasan Hall, Stuart. “Cultural Identity and Diaspora.” Colonial Discourse and Post-Colonial Theory. Eds. Patrick Williams and Laura Chrisman. N.Y.: Harvester/Wheatsheaf, 1994 (1993). 392–403. Hutcheon, Linda & Marion Richmond. Eds. Other Solitudes: Canadian Multicultural Fictions. Toronto: Oxford UP, 1990. Kamboureli, Smaro. Scandalous Bodies: Diasporic Literature in English Canada. Oxford: Oxford UP, 2000.

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Kilgore, Kathryn. “A Long Way Away from Home.” Rev. of Obasan. Village Voice 22 June 1982: 45. Kitagawa, Muriel. This is My Own: Letters to Wes and Other Writings on Japanese Canadians, 1941-1948. Ed. Roy Miki. Vancouver, B.C.: Talonbooks, 1985. Kogawa, Joy. Obasan. N.Y.: Doubleday, 1981. Lo, Marie. “Obasan.” A Resource Guide to Asian American Literature. Eds. Sau-ling Cynthia Wong & Stephen H. Sumida. N.Y.: The Modern Language Association of America, 2001. 97–108. Morrison, Toni. “The Site of Memory.” Toni Morrison: Beloved. Ed. Carl Plasa. Cambridge: Icon Books, 1998. 43–47. Mukherjee, Bharati. Darkness. Markham, Ontario: Penguin Books Canada, 1985. Rose, Marilyn Russell. “Politics into Art: Kogawa’s Obasan and the Rhetoric of Fiction.” Mosaic 21.3 (1988): 215–226. Scarboro, Ann Armstrong. “Afterword.” I, Tituba, Black Witch of Salem. By Maryse Condé. Trans. Richard Philcox. N.Y.: Ballantine Books, 1992. 187–225. Sollors, Werner. Beyond Ethnicity: Consent and Descent in American Culture. N.Y.: Oxford University Press, 1986. Thomas, Hilda L. Rev. of Obasan. Canadian Literature 96 (1983): 103–104. Williamson, Janice. Sounding Differences: Conversations with 17 Canadian Women Writers. Toronto: University of Toronto Press, 1993.

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PRIOR CLAIMS AND SOVEREIGN RIGHTS: THE SEXUAL CONTRACT IN EDITH WHARTON’S SUMMER ALICIA RENFROE

This essay explores Edith Wharton’s critique of a right-based model of justice in her novella, Summer. Wharton employs legal discourse, particularly the language of contractual obligation and rights, to depict relationships among characters, to examine the ways in which characters define themselves, and to challenge contemporary accounts of justice.

“People ain’t been fair to me—from the first they ain’t been fair to me” (Lawyer Royall in Edith Wharton’s Summer)

At first glance, Edith Wharton’s work seems an unlikely space within which to explore the intersection of law and literature. Though many critics highlight Wharton’s work as a compelling source of social critique, few address Wharton’s attention to the law. Writing about The House of Mirth, Richard Moddelmogg contends that “the law serves as one of the discourses structuring Wharton’s novel.” 1 He focuses specifically on the ways in which contemporary legal debates about the right of privacy can inform our understanding of The House of Mirth as well as Wharton’s representation of female subjectivity; however, a close analysis of Summer reveals that Wharton’s understanding of the law is not limited to privacy issues. Indeed, Wharton often employs legal discourse, particularly the language of contractual obligation and rights, to depict relationships among characters, to examine the ways in which characters define themselves, and to challenge contemporary accounts of justice. Wharton critiques a rights-based model of justice in one of her most controversial novels, Summer (1917), in which Wharton describes the quasi-incestuous

1 Richard Moddelmogg. “Discovering Personality: Privacy and Subjectivity in The House of Mirth,” American Literature 70 (1998): 340.

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relationship between lawyer Royall (his occupation often acts as his first name), a leading citizen of the small town of North Dormer, and Charity Royall, who comes to live with lawyer Royall and his wife after he successfully prosecutes a criminal case in which the defendant is Charity’s father. Her father asks Royall to go to the mountain, a “colony of outlaws” (65), to get his child so that she could be “reared like a Christian” (73).2 Though Charity uses lawyer Royall’s last name, he never legally adopts her, and a few years after his wife’s death, Royall attempts to initiate a sexual relationship. When he returns to North Dormer after winning a case in a nearby town, he enters Charity’s bedroom, and, when she asks what he wants, he explains that he is “a lonesome man” (29). Charity refuses to let him in her room, and, though Royall subsequently proposes marriage, Charity uses the incident to bargain for a job as the town librarian and to convince Royall to allow a woman, the deaf Verena Marsh, to stay in the house with them. Later, Charity falls in love with an architect, Lucius Harney, who is visiting North Dormer, and eventually becomes pregnant with his child. Though she contemplates an abortion, Charity finally decides to marry lawyer Royall, at least partially because she learns of Harney’s engagement to another woman, Annabel Balch.3 Though Charity initially believes that “compared to her sovereign right Annabel Balch’s claim seemed no more than a girl’s sentimental fancy” (228), Charity changes her position after she receives

2 Edith Wharton, Summer (New York: Harper, 1979). All parenthetical references are to this text. 3 Wharton’s ending provoked substantial commentary from contemporary reviewers, and current literary critics continue to debate possible interpretations of Charity’s affair with Harney and marriage to Royall. Surprisingly, some critics view the marriage in a positive light. For instance, Cynthia Griffin Wolff, who connects the novel’s themes to Wharton’s problems with the men in her life, suggests that Summer “offers a suggestion for attainable happiness.” More specifically, Royall “does offer a finite but attainable form of fulfillment.” See Wolff’s A Feast of Words (New York: Oxford, 1977), 232, 243. Other critics, however, question the nature of whatever fulfillment the marriage may provide. John W. Crowley argues against contemporary reviews of Summer that viewed the novel’s plot as “ ‘a conventional romance of seduction and betrayal’ ” and extends his critique to literary critics who read Charity’s marriage in a positive light. Crowley suggests instead that Summer is a “radically feminist novel” and agrees with Lawrence Gilman’s assertion that Wharton “uses the hackneyed conventions of the romance of seduction and betrayal for her own ironic purposes.” For Crowley, positive readings of Charity’s marriage overlook “the enforced nature of Charity’s ‘participation’: her ‘salvation’ by marriage incarcerates her in North Dormer, a society built on the sexual and economic hegemony of men over women” (87). See Crowley’s “The Unmastered Streak: Feminist Themes in Wharton’s Summer,” American Literary Realism 15.1 (1982): 86–7. Similarly, in Edith Wharton’s Argument with America, Elizabeth Ammons provides a scathing indictment of the marriage, arguing that “the final union between Charity and Royall is not merely depressing; it is sick.” See Ammons 133.

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a letter from Harney in which “every word and every reticence was an avowal of Annabel Balch’s prior claim” (230). Thus, for Charity, “Annabel Balch’s prior claim” then trumps the “sovereign right” embodied in her child, and Charity’s right becomes no right at all, a reversal of a rights claim that occurs several times throughout the novel, particularly in discussions of marriage. Given Wharton’s use of rights discourse throughout Summer, it is important to consider what it means to claim a right, to recognize a right, and even to define a right. In Rights Talk, Mary Ann Glendon points out the limitations of rights discourse. However, for Glendon, the solution is not abandoning the entire tradition of rights. Since rights discourse “captures our devotion to individualism and liberty, but omits our traditions of hospitality and care for the community,” Glendon believes that the best answer lies in renewing “our strong rights tradition” in a way that takes into account traditions of civic virtue that current rights discourse overlooks.4 In Residues of Justice, Wai-Chee Dimock states the case against rights claims even more forcefully than Glendon. Like Glendon, Dimock questions the dominance of a rights-based model of justice and suggests that “what flows from the language of right is an absolute principle of justice, one that extends to all areas of life, and knows neither compromises nor concessions.” 5 In her discussion of Kate Chopin’s The Awakening, Dimock notes that Edna Pontellier often phrases rights in the negative so that “the right holder turns out to be a non-subject, a nonentity, a ‘nobody (who) has any right.’ ” Dimock says that this construction of rights is typical of an “adversarial grammar” that “in assuming a constitutive opposition between persons, must assume as well a constitutive opposition between two kinds of rights: rights possessed by one’s self and rights possessed by others.” 6 Wharton’s use of rights discourse in Summer exemplifies many of the same problems noted by Glendon and Dimock. However, Wharton does not share Glendon’s qualified faith in civic virtue nurtured within specific communities as a viable means through which rights discourse can be revitalized. Unlike Glendon, Wharton’s critique of rights depends upon an equally devastating critique of specific communities. Indeed, both North Dormer and the mountain foster negative, not positive, liberty. More often than not, Charity claims not specific rights to exercise her own liberty but points out instances in which other people have no right to infringe on her freedom. Charity’s reliance on rights to secure her freedom becomes particularly problematic in her relationship with lawyer Royall. Royall proposes to Charity several times during the novel, and Wharton uses rights discourse throughout

4

Mary Ann Glendon, Rights Talk (New York: The Free Press, 1991), xii. Wai-Chee Dimock, Residues of Justice (Berkeley: U of California P, 1996), 183. 6 Dimock, 193. 5

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their discussions of the marriage contract. According to Carole Pateman, “contract is the means through which modern patriarchy is constituted” .7 She deconstructs John Locke’s famous account of the social contract to argue that, for Locke and other contract theorists, “there is a natural foundation” for the subjugation of women. For Pateman, Political right originates in sex-right or conjugal right. Paternal right is only one, and not the original, source of political power. A man’s power as a father comes after he has exercised the patriarchal right of a man (husband) over a woman (wife). The contract theorists had no wish to challenge the original patriarchal right in their onslaught on paternal right. Instead, they incorporated conjugal right into their theories and, in so doing, transformed the law of male sex-right into its modern contractual form.8

Pateman highlights the limitations of contract as an instrument for feminist reform, and her work points out that women are excluded from participation in the social contract and thus do not enjoy the same status in civil society as autonomous citizens that some men possess. According to Pateman, then, male sex right forms the basis of the social contract and, by extension, many other guarantees of rights for women. By linking rights discourse and the marriage contract, Wharton calls attention to the limits of rights as a means to achieve equality for women. Royall’s first proposal occurs shortly after the incest scene in which he asserts his “sex right” to Charity and then proposes marriage in an effort to legitimize and justify a sexual relationship with her. In contrast, Royall’s second proposal, which occurs after Charity has been seen leaving Lucius Harney’s boarding house at a very late hour, seems to undermine his earlier claim. Indeed, in an effort to get Charity to accept his proposal, he concedes “I’ve no claim on you” (117), a move that implicitly acknowledges Charity’s desire to view herself as autonomous, even as he undercuts the autonomy she seeks. In the third discussion about marriage, rights claims explicitly provide the vocabulary to describe their situation. When Royall again hints at marriage and points out that her behavior with Harney is ruining her reputation in North Dormer, Charity contends “You’ve got no right to talk to me. I can do what I please” (204). Ever the lawyer, Royall counters with his own version of their respective rights: See here, Charity—you’re always telling me I’ve got no rights over you. There might be two ways of looking at that—but I ain’t going to argue it. All I know is I raised you as good as I could, and meant fairly by you always—except once, for a bad half-hour. There’s no justice in weighing that half-hour against the rest, and you know it. If you hadn’t, you wouldn’t have gone on living under my roof. 7 8

Carole Pateman, The Sexual Contract (Stanford: Stanford UP, 1988), 2. Pateman, 3.

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Seems to me the fact of your doing that gives me some sort of right; the right to try and keep you out of trouble. I’m not asking you to consider any other. (205)

Though Royall claims that he will not “argue” his point, he does provide a justification for the right he believes he has with regard to Charity; according to Royall, Charity’s actions (or lack thereof since she continues to live with him) amount to tacit consent, an unwritten contract that provides for the terms of their relationship. Charity, however, refuses to recognize his right, and when Harney arrives, Royall urges her to “ask him when he’s going to marry” her, a question he knows Charity is afraid to ask (207). Royall’s long speech about rights indicates the significance of rights discourse as a way to describe and to structure their relationship, and the last proposal further reinforces this point. After Charity realizes she is pregnant with Harney’s child, she returns to the mountain because she is unable to go through with an abortion and does not believe she can return to North Dormer. When Royall finds her, he proposes again, but Charity cannot articulate fully her response. She only says “I can’t—” and then stops mid-sentence because “she was not sure if she was rejecting what he offered, or already struggling against the temptation of taking what she no longer had a right to” (270). In the first case, Charity thinks of the proposal as a contract open to rejection, and the contractual language implies that Charity still wants to think of herself as autonomous, despite the limited options available to her. Similarly, in the second case, Charity’s sense that marriage is an option that she may or may not have “a right to” exercise indicates her desire for autonomy even as she understands that a no-right limits that autonomy. In both cases, Wharton explicitly establishes that a right typically is understood to refer to a claim on a particular thing, a point that forces careful consideration of Wharton’s use of rights discourse throughout the novel. These examples of rights claims in discussions of marriage represent only a partial account of Wharton’s use of rights discourse. Of all the characters in the novel, only Charity, lawyer Royall, and an elderly man from the mountain, who will be discussed later, make claims on and against each other in terms of rights. Royall’s dependence on rights discourse could certainly be attributed to his occupation. However, Wharton also characterizes Charity in particular as one who wants to see herself as a possessor of rights that often turn out to be negative rights, no-rights, in order to prevent intrusions by others. Indeed, in only one instance does Charity assert a right to a specific thing—her name, a name to which she has no legal right until she eventually marries lawyer Royall. When Charity takes Harney on a tour of architecturally-significant local homes, they visit Liff Hyatt’s house, located halfway between North Dormer and the mountain. When one of the women refers to her as “the girl from Royall’s,” Charity reintroduces herself as “ ‘Charity Royall’, … as if asserting her right to the name in the very place where it might have been most open to question” (84).

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In other cases, Charity defines her rights by ascribing a “no right” to someone else. For instance, Charity believes that her position as town librarian carries with it specific rights and responsibilities. For example, when Charity meets Harney for the second time, also in the library, she discovers that he let himself in with a key that Miss Hatchard, Harney’s aunt and a prominent North Dormer citizen, gave to him. For Charity, Miss Hatchard’s actions go beyond her rights: “Miss Hatchard’s got no right to give her key to other folks, anymor’n I have. I’m the librarian, and I know the by-laws. This is my library” (46). Here, Charity does not assert her own right to act in a certain way; instead, she describes Miss Hatchard’s “no right” to act, which suggests that Charity can make only an indirect claim for her own autonomy. Charity believes, at the same time, that she has the power to decide whether or not to recognize the rights of others. For instance, when Royall tries to ask Charity about her relationship with Harney, Charity responds with “silence, determined not to recognize his right to question her” (100). In each of these examples, Charity’s actions suggest that she believes that by virtue of being a right holder, she can also determine when to recognize and thus call into being the rights of others. Put another way, Charity’s logic implies that a right does not exist unless someone else is willing to recognize it as such. When framed as negative liberty (i.e., a no right), rights discourse facilitates Charity’s view of herself as autonomous by masking her inability to assert rights and situating her in opposition to a community against which she must protect herself. Indeed, the novel begins by calling attention not to Charity herself but the place in which she is situated: “A girl came out of lawyer Royall’s house at the end of the one street of North Dormer…” (7). Then, a few sentences later, Wharton describes a few trees scattered along the street that “cast almost the only roadside shadow between lawyer Royall’s house and the point where, at the other end of the village, the road rises above the church and skirts the black hemlock wall enclosing the cemetery” (8). Thus, from the novel’s opening page, Charity is described specifically in relation to the lawyer’s house and the church, both of which symbolize institutions that define the community of North Dormer by determining community rights and duties. Though Charity once visited Nettleton, a nearby town, and then understood that “North Dormer was a small place,” she eventually realizes, despite a brief “thirst for information,” that it is “easier to take North Dormer as the norm of the universe than to go on reading” (10). As the norm of Charity’s universe, North Dormer once again seems small when she sees Lucius Harney for the first time: The sight of the stranger once more revived memories of Nettleton, and North Dormer shrank to its real size. As she looked up and down it, from lawyer Royall’s faded red house at one end to the white church at the other, she pitilessly took its measure. (10)

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Again, Wharton calls attention to civil law and and religious law (the church) as the major reference points within North Dormer. Wharton also relies heavily on legal discourse to situate Charity in relationship to the community. The law provides an adversarial grammar through which Wharton describes Charity’s interactions with others. When Lucius Harney arrives in town, he visits the library and finds the books growing moldy, the light inadequate, and the building in general disrepair. He complains to his aunt, Miss Hatchard, who then attempts to inspect the library on an afternoon when Charity has already locked the building before the official closing time. When Royall brings these complaints to Charity’s attention, she describes them as “charges against her,” a description that captures her adversarial relationship with the other members of the community (43). Later, after Charity learns that Harney is the one who complained, Charity asks why he, specifically, would do that to her: I could understand Orma Fry’s doing it, because she’s always wanted to get me out of here since the first day. I can’t see why, when she’s got her own home, and her father to work for her; nor Ida Targatt, neither, when she got a legacy from her stepbrother on’y last year. But anyway we all live in the same place, and when it’s a place like North Dormer it’s enough to make people hate each other just to have to walk down the same street every day. But you don’t live here, and you don’t know anything about any of us, so what did you have to meddle for? (47).

For Charity, such a complaint can only be a personal charge and not a disinterested comment about the condition of the library. Her response again points out the limitations of North Dormer as a viable community, even as she partially attributes its failings to individual grudges.9 As Charity’s response indicates,

9 The best examples of the ways in which North Dormer fails Charity are its responses to her changing relationship with lawyer Royall and her affair with Harney. For instance, after the near-rape incident, Charity does seek help from Miss Hatchard, who once tried—after Mrs. Royall’s death—to get Charity to leave North Dormer and lawyer Royall to attend boarding school. Charity asks Miss Hatchard “to be appointed librarian” because she “want[s] to earn enough money to get away” or, if she cannot leave, “to have another woman in the house” (30). Miss Hatchard does not know how to respond and can only suggest that the housework must be too difficult for Charity; Charity, in turn, simply agrees because “she understood that Miss Hatchard had no help to give her and that she would have to fight her way out of her difficulty alone” (31). With the housework in place as an excuse, Miss Hatchard “promise[s] to do what she….[can]” (31). However, she is also quick to note that “there were people she must consult: the clergyman, the selectmen of North Dormer, and a distant Hatchard relative at Springfield” (31). Miss Hatchard’s response clearly suggests that Charity’s predicament is a community problem, but the community simply cannot address the issue of incest, which remains unstated throughout the scene. Miss Hatchard also suggests that Charity is at least partially to blame for her

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Wharton often makes it difficult to determine whether these limitations lie with particular individual responses or with a particular community. Wharton’s critique becomes more obvious when one compares the two communities represented in the novel. Wharton often describes North Dormer in opposition to Charity’s birthplace, the mountain, specifically “the scarred cliff that lifted its sullen wall above the lesser slopes of Eagle Range,” a setting that “seemed almost to cast its shadow over North Dormer” (11–12). North Dormer’s citizens do not hesitate to remind Charity repeatedly about her origins; indeed, “Charity Royall had always been told that she ought to consider it a privilege that her lot had been cast in North Dormer” because “compared to the place she had come from, North Dormer represented all the blessings of the most refined civilization” (11). Even though she has lived in North Dormer since she was a small child, she is still associated with the mountain. Even her name serves to remind her of her origins: she had been christened Charity (in the white church at the other end of the village) to commemorate Mr. Royall’s disinterestedness in “bringing her down” and to keep alive in her a becoming sense of her dependence. (24)

As a child of the mountain, Charity remains somehow apart from North Dormer and never fully included in the community, and, once again, the law and the church provide the frame within which North Dormer is situated. According to lawyer Royall, the mountain community represents that which is outside the law and consists of “a little colony of squatters” that “had contrived to keep the law at bay” (71). He tells Harney that “the Mountain belongs to this township, and it’s North Dormer’s fault if there’s a gang of thieves and outlaws living over there, in sight of us, defying the laws of their country” (71). More specifically, county officials, such as the sheriff, tax collector, and coroner, are afraid to go up the mountain, and, according to Royall, “when they hear of trouble on the Mountain, the selectmen look the other way, and pass an appropriation to beautify the town pump” (71). In addition to ignoring legislatively enacted laws, those on the mountain also apparently ignore religious laws.

present situation because she refused to go away to school, and she reminds Charity of her duty to Royall, both by using Charity’s name and by drawing attention to Charity’s origins: “I know Mr. Royall is … trying at times; but his wife bore with him; and you must always remember, Charity, that it was Mr. Royall who brought you down from the mountain” (31–32, ellipses in original). Charity actually gets the position as librarian not because of Miss Hatchard’s assistance but through a bargain with lawyer Royall: “he had obtained the place for her at the cost of considerable manoeuvering, as she guessed from the number of rival candidates, and from the acerbity with which two of them, Orma Fry and the eldest Targatt girl, treated her for nearly a year afterward” (37). Once again, Charity defines herself against the community.

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Royall points out that though “they think a lot of Christian burial,” they do not ask the “minister up to marry them. And they never trouble the Justice of the Peace either. They just herd together like the heathen” (71). Thus, both the secular and sacred law of North Dormer, and civil society in general, seem to stand in opposition to the lawlessness of the mountain.10 Royall’s characterization of the mountain hints at the narrative of the origin of civil society, described by many social contract theorists in opposition to the state of nature, and implies that one origin of rights discourse is in a social contract that replaces the state of nature with a civil society governed by law, a point that Wharton emphasizes further in the Fourth of July scene. Wharton’s attention to the United States’ narrative of revolution and independence highlights one origin of rights discourse in the Declaration of Independence with its Lockean guarantee that “all men are created equal” and “are endowed by their Creator with certain unalienable Rights,” including the rights to “Life, Liberty, and the Pursuit of Happiness.” Many political theorists attribute Jefferson’s ideas to some combination of the thoughts of Locke (particularly his emphasis on individual rights) and Jean Jacques Rousseau (particularly his emphasis on civic virtue and responsibility) on the social contract and the civil society it creates. However, Wharton’s critique of rights discourse exposes a model that owes more to Thomas Hobbes, particularly his characterization of the state of nature and emphasis on power relations, than to his more benign successors. For instance, Royall’s earlier description of the mountain residents “herding together like heathen” suggests a Hobbesian state of nature in which “there are supposed no laws of matrimony.” 11 Quite literally, Hobbes suggests that, in the state of nature, the “condition of man … is a condition of war of every one against every one…[;] every man has a right to every thing; even to one another’s body” (86–87). Hobbes’ account of the state of nature could well apply to life on the mountain. More specifically, Carole Pateman critiques the social contract because it depends upon a sexual contract. Indeed, Pateman points out that Hobbes’ account of the social contract reveals what both Locke and Rousseau elide: “for Hobbes, all political power was absolute power, and 10 Many critics note that the Mountain and North Dormer exist in opposition. For instance, Nancy A. Walker sees the Mountain, North Dormer, and the larger society as “the three distinct worlds” that Charity “inhabits, actually or imaginatively,” throughout the novel. See Walker’s “Seduced and Abandoned: Convention and Reality in Edith Wharton’s Summer,” Studies in American Fiction 11 (Spring 1983): 108. Makowsky and Bloom argue that the Mountain represents “the natural world” to which Charity “retreats.” See Veronica Makowsky and Lynn Z. Bloom’s “Edith Wharton’s Tentative Embrace of Charity: Class and Character in Summer,” American Literary Realism 32 (Spring 2000): 229. 11 Thomas Hobbes, Leviathan (Oxford: Oxford UP, 1996), 133.

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there was no difference between conquest and contract.” 12 Contract and conquest then merge in the sexual contract; indeed, “political right originates in sex-right or conjugal right” (2), and this conjugal sex right is the source of the subjection of women: “the ‘original’ political right of government” Pateman concludes, “was, therefore, not paternal but conjugal” (93). In the Fourth of July scene, Wharton makes explicit these connections between political right and sex right. Charity goes with Harney to the nearby town of Nettleton to attend the annual Fourth of July celebration, and, though she wants her decision “to assert her independence,” she still tells everyone that she plans to attend a picnic in a different town (126). To emphasize political right, Wharton fills the scene with references to American history, particularly the American Revolution, and to highlight its connection to sex right, she couches those references in extremely sexual language. Charity’s first impressions are of bus drivers who offer to take tourists to “Eagle House” and “Washington House” and who must yell to be heard over “the popping of fire-crackers, the explosion of torpedoes, the banging of toy-guns, and the crash of a fireman’s band trying to play the Merry Widow” (131). The fireworks display, the highlight of celebration, climaxes with a scene from the American Revolution: For a moment the night seemed to grow more impenetrably black; then a great picture stood out against it like a constellation. It was surmounted by a golden scroll bearing the inscription, “Washington crossing the Delaware,” and, across a flood of motionless golden ripples, the National Hero passed, erect, solemn and gigantic, standing with folded arms in the stern of a slowly moving golden boat. (148)

The phallic image of Washington is reinforced by the description leading up to this sexualized culmination of the celebration. Just before Washington appears, “a murmur of expectation ran through the crowd,” and a voice in the crowd “excitedly” says “Now—now” as if on the verge of an orgasm while “Charity, grasping the hat on her knee, crushed it tight in an effort to restrain her rapture” (148). The scene also directly connects the narrative of national independence to sexual power, a move that calls to mind Pateman’s feminist critique of the social contract as a sexual contract. Indeed, Wharton, in the same scene, presents a sexual contract that directly links law and sex by having lawyer Royall appear in the company of a known prostitute, Julia Hawes. According to North Dormer gossip, Julia became pregnant out of wedlock and apparently turned to prostitution as a means of support. When Royall sees Charity with Harney, he calls her a “damn—bare-headed whore” (151), a comment Charity ignores when she simply asks him to “come home” (152). By calling Charity a whore,

12

Pateman, 44.

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Royall unequivocally situates Charity as a party to a sexual contract, and in the next scene, Charity enters just such a contract.13 Later that night, Charity is so troubled by his accusation that she decides to leave North Dormer. The next morning, on her way to the mountain, she accidentally meets Harney. When Harney asks her to return with him to North Dormer, Charity refuses and explains that Royall would not have called her a whore if he had not wanted her “to be like those other girls” so that “he wouldn’t have to go out” (168). Harney, though shocked by her “vile” revelation, does not hesitate to consummate their relationship (168). However, shortly after they begin their sexual

13

I might also point out here that, in addition to her sexual relationship with Harney, Charity is also a party to several exchanges akin to Pateman’s idea of a sexual contract. As I mentioned earlier, Charity had the opportunity to leave North Dormer to attend boarding school, but she tells Miss Hatchard that she “decided not to leave North Dormer” because “Mr. Royall’s too lonesome” (26). When Miss Hatchard implies that “there are other reasons” to leave that Charity is “too young to understand,” Charity replies that she does, in fact, understand what Miss Hatchard cannot verbalize. Even as Charity’s answer causes her to blush, Miss Hatchard does tell Charity “you can always come to me” (27). Shortly after learning of Charity’s decision to stay, lawyer Royall gives Charity her first gift, a “Crimson Rambler” (27). Though no terms are explicitly discussed, this exchange establishes the foundation for the bargain Charity enters with Royall after he makes sexual, quasi-incestuous advances. She demands her own terms: “I want you should get Miss Hatchard and the selectmen to take me at the library: and I want a woman here in the house with me” (33). However, Royall counters with a marriage proposal that makes the potentially sexual dimension of their relationship explicit. Charity rejects his proposal, claiming “I suppose you think it would be cheaper to marry me than to keep a hired girl, …but I guess you’re not going to get your mending done that way twice” (34). Eventually, Royall capitulates to Charity’s demands, and throughout this exchange, Wharton foregrounds the economic dimension of this exchange by suggesting that Charity believes she can mitigate the limitations of her situation by earning her own money. Indeed, it is this bargain with Royall that leads to Charity’s position as librarian, a position from which she derives some of her rights and responsibilities. The economic issues are highlighted further in subsequent exchanges among Charity, Harney, and Royall in which payments and gifts become interchangeable. For instance, when Harney rents a horse from Royall, Royall gives Charity the money, and “she immediately guessed that the unwonted present—the only gift of money she had ever received from him—represented Harney’s first payment” (70). John Crowley points out that Royall “makes a connection … between the use of his horse and the use of his ward” and that through his gift, he is both “implicitly reminding Charity that he will reward her loyal submission” and “warning her not to forget that she belongs to him” (89). Another key exchange concerns the blue pin Harney buys for Charity. When he presents her with the gift, Charity recalls “other girls whom she had heard planning to extract presents from their fellows,” and she is afraid that Harney will think “she had leaned over the pretty things in the glass case in the hope of having one given to her” (135). As it turns out, the pin becomes a down payment on their sexual relationship and later provides the collateral to secure a consultation for Charity with Dr. Merkle, a female physician who performs abortions.

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relationship, Harney leaves North Dormer, and for Charity, his “reiterated promises to return seemed almost wounding” (212). Eventually, Charity learns that Harney is engaged to Annabel Balch. Though she is initially angry, she realizes that “Annabel Balch was, if not the girl Harney ought to marry, at least the kind of girl it would be natural for him to marry” (220). Charity’s response emphasizes Harney’s prior commitment; she writes Harney, “I want you should marry Annabel Balch if you promised to…. I feel I’d rather you acted right” (221). Charity, however, soon changes her mind when the reality of her pregnancy hits home after her visit to Dr. Merkle. As “the mother of his child,” Charity can see herself “as Harney’s wife” (228). Indeed, “compared to her sovereign right Annabel Balch’s claim seemed no more than a girl’s sentimental fancy” (228). However, Annabel’s “prior claim” ultimately trumps Charity’s “sovereign right,” a point that suggests, as Thomas Hobbes does, that all rights flow from contracts. With no hope of a marriage to Harney, Charity faces the reality of her situation; she has “no right” and no real options. Alone, pregnant, and unable to go through with an abortion, she decides that her best option is to return to the mountain, to something like the state of nature, where “the harsh code of the village was unknown” (238), rather than become a prostitute like Julia Howes. However, the harsh code of the village is complemented by the equally harsh code of the mountain. In order to understand Charity’s marriage to lawyer Royall, it is important to consider Charity’s decision to return to the mountain and her experiences there. In the Hobbesian world of the mountain, the “general inclination of all mankind” is “a perpetual desire and restless desire of power after power, that ceaseth only in death.” 14 On the mountain, the desire for power manifests itself as an animalistic instinct for survival. Indeed, Wharton typically describes the mountain residents in animalistic terms. For instance, Mr. Miles, the preacher who drives Charity to her mother’s cabin, lights a candle that illuminates “the pale aguish heads that started out of the shadow like the heads of nocturnal animals” (248). Further, Charity arrives only to find her mother dead, her face a death mask: “There was no sign in it of anything human: she lay there like a dead dog in a ditch” (250). Against the backdrop of Miles’ funeral speech, Charity’s kinfolks fight about the ownership of a stove that may have belonged to her mother. Indeed, this is the only scene in which someone other than Charity or Royall asserts a right. First, an older man claims “I bought the stove. […] I wen’ down to Creston’n bought it…n’ I got a right to take it outer her…n’ I’ll lick any feller says I ain’t…” (252, ellipses in original). The man’s defense of his claim could be taken straight from Hobbes’ account of the state of nature in which individuals fight for what they desire: “if any two men desire the same thing, which nevertheless they cannot both

14

Hobbes, 66.

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enjoy, they become enemies; and in the way to their end, …endeavor to destroy, or subdue one another.” 15 Indeed, the mountain man asserts his right to the stove as well as his right to defend his right by force. Just as he asserts his right to the stove, another man in attendance seems “to assert some sort of right of kinship with the dead woman,” and together they carry her body to her grave (253). This strange gesture merges property rights and kinship rights as both men stake a claim of some kind. This scene exposes the code of the mountain—the natural right of selfpreservation—and contributes to Wharton’s critique of the version of community provided in North Dormer. By presenting the mountain as a Hobbesian state of nature, Wharton undercuts any appeal to natural law as an ethical supplement to the “harsh code” of North Dormer. Wharton allows no return to an idyllic state of nature to solve Charity’s problems or to provide the model for a meaningful community. Indeed, within this Hobbesian world, natural law merely provides for the right of self-preservation during a state of war. Not surprisingly, in the last chapters of the book that lead up to the funeral on the mountain, Wharton turns to deterministic language to describe Charity’s situation. With Harney, Charity experiences “a fatalistic acceptance of his will” (175). When she later learns that he is engaged, this sense of fatalism intensifies: “the more she thought of these things [his engagement and Annabel Balch] the more the sense of fatality weighed on her: she felt the uselessness of struggling against the circumstances” (220). More specifically, Charity cannot “imagine what a civilized person” would do because she feels “herself too unequally pitted against unknown forces” (221). By the time she agrees to marry Royall, she feels “only a confused sensation of slipping down a smooth irresistible current” (273). Against this irresistible current, the marriage contract provides the only lifeline left for Charity. In Summer, all rights flow from contracts, and Charity’s marriage to lawyer Royall reenacts the transition from Hobbes’ state of nature to civil society. With their marriage comes justice as they pronounce each other “good” in one of Wharton’s most bizarre conclusions (290–91), and eventually, her child, the “sovereign right” Charity cannot claim against Harney, becomes the legal property of Royall, North Dormer’s version of royalty.

Works Consulted Ammons, Elizabeth. Edith Wharton’s Argument with America. Athens: U of Georgia P, 1980. Bauer, Dale. Edith Wharton’s Brave New Politics. Madison: U of Wisconsin P, 1994.

15

Hobbes, 83.

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Blackhall, Jean. “Charity at the Window: Narrative Technique in Edith Wharton’s Summer.” Edith Wharton: New Critical Essays. Eds. Alfred Benedixen and Annette Zilversmit. New York: Garland, 1992. 115–26. Crowley, John W. “The Unmastered Streak: Feminist Themes in Wharton’s Summer.” American Literary Realism 15.1 (1982): 86–96. Dimock, Wai Chee. Residues of Justice: Literature, Law, Philosophy. Berkeley: U of California P, 1996. Glendon, Mary Ann. Rights Talk: The Impoverishment of Political Discourse. New York: The Free P, 1991. Hobbes, Thomas. Leviathan. Oxford: Oxford UP, 1996. Lewis, R. W. B. Edith Wharton: A Biography. New York: Harper, 1975. Makowsky, Veronica and Lynn Z. Bloom. “Edith Wharton’s Tentative Embrace of Charity: Class and Character in Summer.” American Literary Realism 32. 3 (2000): 220–33. Moddelmog, William E. “Discovering Personality: Privacy and Subjectivity in The House of Mirth.” American Literature 70 (1998): 337–363. Pateman, Carole. The Sexual Contract. Stanford: Stanford UP, 1988. Walker, Nancy A. “Seduced and Abandoned: Convention and Reality in Edith Wharton’s Summer.” Studies in American Fiction 11 (1983): 107–14. Wharton, Edith. Summer. 1917. Introd. Cynthia Griffin Wolff. New York: Harper, 1979. Wolff, Cynthia Griffin. A Feast of Words: The Triumph of Edith Wharton. NY: Oxford, 1977.

SITUATING ATTICUS IN THE ZONE: A LAWYER AND HIS DAUGHTER READ HARPER LEE’S TO KILL A MOCKINGBIRD NANCY LAWSON REMLER AND HUGH LAWSON

In Harper Lee’s only novel, Atticus Finch advises his daughter to understand different points of view by climbing in another person’s skin and walking around in it. Not surprisingly, collaborative reading advocates and facilitates a similar practice. In this essay, Nancy Remler, an English professor, and her father Hugh Lawson, a federal court judge, employ Smagorinsky’s cultural theory of reading and discover the transactional zones and contact zones that emerge in their reading of To Kill a Mockingbird. However, while Smagorinsky concentrates on multiple readers working in a common context, Remler and Lawson’s collaboration demonstrates how reading from disparate contexts complicates the transactional zone emergent in the reading act. Their examination also reveals that contact zones develop even where their cultural differences preclude mutual understanding of the text. Examining Atticus Finch—the lawyer, the father, and the citizen—Remler and Lawson demonstrate how their personal differences in age, gender, and professional background complicate meaning-making and illustrate the complexities surrounding people’s perceptions of both reading acts and the meaning of meaning.

“… if you can learn a simple trick, Scout, you’ll get along a lot better with all kinds of folks. You never really understand a person until you consider things from his point of view— “Sir? “—until you climb into his skin and walk around in it.” 1

With the above advice, Atticus Finch teaches his six year-old daughter to get along with her first grade teacher. He also hopes that she’ll remember such advice as she confronts Maycomb’s harsh criticism of her father for defending a 1

Harper Lee. To Kill a Mockingbird. (Philadelphia: Lippincott, 1960) 36.

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black man accused of rape by a white woman. Although Atticus wants his children to cope well with adversity, his advice to Scout indirectly applies to quality reading experiences; engaged readers can imagine themselves in their character’s skins. In this respect, Atticus’s advice reflects philosophies underlying a cultural theory of reading.2 During a recent collaborative reading with my father, I discovered the complexities that culture contributes to literary meaning. Recently, my father, a federal court judge, and I read To Kill a Mockingbird together. It was his first experience with the novel, and he began reading it knowing that we would discuss the novel, face to face and online, for my purposes of writing this essay. However, he had no knowledge of Harper Lee’s life, nor had he read any literary criticism or legal criticism about the novel. On the other hand, I had read the novel at least half a dozen times prior to this collaborative endeavor. Not only had I read literary criticism about the novel, but I had also studied critiques of Atticus Finch in law reviews and legal journals. I approached this most recent reading experience having already questioned Atticus’s motives and decisions. I was interested to see how my impression of the character would influence my father’s and vice versa. What I discovered was that our two widely varied ways of knowing revealed not only the complex ways meaning develops but also how people perceive the act of reading and the concept of meaning. At the outset of this project, I recognized the influence my theoretical framework would have on reading discussions with my father. I embrace Louise Rosenblatt’s transactional theory, which holds that textual meaning emerges from a transaction among the text, the reader, and the context in which the reader engages the text.3 I also embrace Bakhtin’s notion of heteroglossia, a phenomenon occurring when internal voices, the readers’ voices, converge with external voices, such as “authorial speech, the speeches of narrators, inserted genres, the speech of characters” .4 Also influencing my theoretical framework is Althusser’s notion of ideology.5 Although Althusser discusses the notion of ideology in economic and social terms, I believe the term, along with the theory behind it, pertains to all aspects of life. Ideology is the “system of the ideas and representations which dominate the mind of a man or a social group”.6 In other

2

Peter Smagorinsky. “If Meaning is Constructed, What’s It Made From? Toward a Cultural Theory Reading.” Review of Educational Research 71 (2001): 133. 3 Louise Rosenblatt. The Reader, The Text, The Poem: The Transactional Theory of the Literary Work. (Carbondale and Edwardsville: Southern Illinois University Press, 1978) 16. 4 Mikhail Bakhtin. The Dialogic Imagination (Austin: University of Texas Press, 1981) 263. 5 Louis Althusser. “Ideology and Ideological State Apparatuses.” Lenin and Philosophy and Other Essays (New York: New Left Books, 1971). 6 Althusser, 158.

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words, a person’s ideology is what seems obvious to that person. Everything we do, say, think, or read is influenced by our obviousnesses. Recognizing my theoretical framework, I expected my reading experience to differ from my father’s; in fact, I was curious to see how this southern attorney’s opinions about Atticus Finch differed from the opinion of his academic daughter. What I discovered was that our different reading experiences, along with the conversations and e-mail exchanges following those experiences, invoked Smagorinsky’s cultural theory of reading. During a reading experience, “reader and text conjoin in an experiential space,” which “provides an arena in which cultural mediation takes place”. In this experiential space, readers, texts, and “the cultural practices through which both have been produced and through which the two become engaged” jointly facilitate the reading experience.7 Because context influences the reading experience, “different readings of the same text vary, not just from reader to reader but from reading to reading by the same reader, depending on how each reading is emplotted and configured within the reader’s experience”.8 From this theoretical framework, not only will my reading of To Kill a Mockingbird differ from my father’s because we are different people with different ideologies, but each reading I conduct of the novel stands to differ because my cultural knowledge and experience change over time. Because “no text or reader comes to the experience alone” but is always “in dialogue with the cultural predecessors” surrounding texts and readers, meaning is a cultural, not individual phenomenon: “meaning is a function of work conducted among readers and texts rather than between reader and text”.9 Smagorinsky further asserts that as readers articulate the sense they make of a text, they compose new texts, tangible or intangible, such as written expressions, speech, or drawings. These secondary texts are meaningful, for they are fixed representations of the readers’ associations with the originals. They may facilitate further reflection on the initial text and could result in new sense of that initial text.10 These newly composed texts also represent the transactional zone in development. Upon reviewing transcripts of conversations with my father, I noticed that although we developed a transactional zone, the experiential space was much different from the one Smagonrinsky described. Whereas Smagorinsky’s study examined students’ literary studies within a common context, the high school English classroom, my examination investigates two readers working from

7

Smagorinsky, 141. Smagorinsky, 141. 9 Smagorinsky, 141. 10 Smagorinsky, 150. 8

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different contexts. Although Dad and I share some cultural history and practices, we also know varied discourses. That difference, compounded with the different contexts in which we read Lee’s novel, meant that at times one of us came to new understandings when the other didn’t. Those differences also resulted in moments when neither one of us could grasp the other’s perspectives. Our ideologies were too different. Hence, although we offered each other opportunities to walk around in each other’s skin, at times, we couldn’t do so. Sometimes, especially when readers’ ideologies differ, the transactional zone includes spots of turbulence, which could account for one reader’s new evocation of meaning and another’s lack of new understanding. These spots of turbulence strongly resemble what Mary Louise Pratt calls contact zones: “social spaces where disparate cultures meet, clash, and grapple with each other”.11 As readers meet in these contact zones, as Dad and I did several times, they struggle with the varied cultural differences surrounding each reading experience. These contact zones can make or break a shared understanding not only of the literature but also tangential issues surrounding the literature. So although a reader like my father may not feel motivated to reflect further on To Kill a Mockingbird or any other work of literature, after composing a subsequent text expressing his sense of it, he may reflect on tangential issues surrounding the novel. Within the texts Dad and I created, we revealed ideological influences on our perceptions of To Kill a Mockingbird and its characters. Although we shared a common discourse as educated white people raised in the same small Southern town, our differences in gender, age, and professional discourse resulted in strikingly varied perceptions of Lee’s novel. Specifically, those differences emerged in our discussion of Atticus’s explanation of the law, his attitude toward women, and his parental decisions. Chapter 23 of the novel particularly interested me during my most recent reading of To Kill a Mockingbird, for I was surprised at Atticus’s explanation to his children about the selection of a jury: Well, what if, say, Mr. Link Deas had to decide the amount of damages to award, say, Miss Maudie, when Miss Rachel ran over her with a car. Link wouldn’t like the thought of losing either lady’s business at his store, would he? So he tells Judge Taylor that he can’t serve on the jury because he doesn’t have anybody to keep the store for him while he’s gone. So Judge Taylor excuses him. Sometimes he excuses him wrathfully.12

11

Mary Louise Pratt. Imperial Eyes: Travel Writing and Transculturation (London: Routledge, 1992) 4. 12 Lee, 234.

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Having heard many times my father’s complaints about people’s lame excuses for avoiding jury duty, and having grown up hearing repeatedly that I should not shirk my own civic responsibility, I was surprised at what seemed to me Atticus’s casual acceptance of Maycomb’s typical jury selection. I brought up these issues with my father during our initial discussion of the book. Our conversation revealed ideological influences on our readings. I asked him, “[Atticus] seems to be inconsistent—maybe not in his practice of the law—but he seems inconsistent in the practice of his values … Does it seem that way to you?” Drawing on professional experiences, Dad explained his perception of that passage: “His story about the store keeper who does not want to alienate two women who were litigants against each other is very typical. For example, every time I hold a term of court, I have somebody who runs a one-man shop and calls me and wants to get off because he doesn’t want to leave the store.” Dad went on to recall a recent incident where his close friend sat on a jury “in a civil case in which the sons of some people she knows were sued because they hadn’t paid a bill … It nearly ran her crazy”. Whereas I understood Atticus to be “explaining [jury selection] to Scout and Jem in such a manner that he thinks it is okay,” Dad read the passage differently: “I think he’s explaining to Scout and Jem the way things are, not that he necessarily approves of it.” Dad’s professional experiences with similar circumstances influenced his ability to walk around in Atticus’s skin, and his explanation of his reading helped me to form a new understanding of Atticus’s attitude about judicial procedure. New understandings, however, were not as easy to come in other discussions of the same chapter. During the same conversation with his children, Atticus seems chauvinistic and also seems to transfer this chauvinism to Scout. Atticus explains why women do not serve on juries: “I guess to protect our frail ladies from sordid cases like Tom’s. Besides … I doubt if we’d ever get a complete case tried—the ladies’d be interrupting to ask questions.” Not considering herself a member of the population Atticus disparages, Scout concurs: “I thought of Mrs. DuBose in her wheelchair—‘Stop that rapping, John Taylor, I want to ask this man something.’ Perhaps our forefathers were wise”.13 Of course, as a woman who embraces feminist theories, I was not only taken aback by Atticus’s remark, but I was also distraught by Scout’s amusement by it. Atticus’s attitude seems not only inconsistent with his values; it mars his otherwise respectable character. Atticus’s comment about women, in light of his persistent respectful attitude toward other marginalized populations, startled me. My father, on the other hand, saw the comment differently, and his ideology influenced his perception; his knowledge of history strongly influenced his reading: “That’s the way things were in the 1930’s. There were no women

13

Lee, 234.

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on the jury roll … And you’ve got to remember that less than twenty years before women were empowered to vote.” Dad’s point that social practices and attitudes change slowly in spite of legal progress revealed his knowledge of the law merging with his historical knowledge and personal background: “The Supreme Court of the United States ruled in 1954 that segregation was illegal … But it was twenty years after that before integration reached [my home town].” Threading Dad’s historical and legal knowledge was his understanding of male attitudes: “The things that he says, for example, about women asking questions, well, that’s a typical male attitude of the time, probably a typical male attitude of many men in 2001. But that doesn’t make him inconsistent.” Clearly, gender made for one contextual difference resulting in widely varied readings of the novel and widely different perceptions of Atticus Finch. Age also strongly influenced the contextual differences surrounding our readings, as our different ideologies influenced our perceptions of Atticus as a father. As a mother of small children in a more dangerous and cautious world than the one my father was raised in, I was a bit disconcerted by some of Atticus’s decisions. For instance, Atticus’s response to Scout’s inquiry about rape was not what I would have expected: “He sighed and said that rape was carnal knowledge of a female by force and without consent.” 14 Although I recognized Atticus’s answer as a means of honestly avoiding the issue, I found his false honesty inconsistent with his usual forthright manner with Scout and Jem. However, Dad was not as disturbed by Atticus’s comment: “Why must poor Atticus be hauled over the coals for making that decision?” He continued, “Atticus Finch chose to deal with Scout’s question about rape in a round-about way. When he answered the question; he gave her a truthful answer that he knew she couldn’t understand. I thought that was a pretty good way to deal with it, frankly.” Our exchange about this passage also revealed that Dad’s childhood experiences partially influenced his ideology as he made connections to the novel through memories. A lawyer’s child himself, Dad was at times exposed to legal practice much the same way Scout and Jem are in the novel. Our conversation reveals how this passage in Chapter 23 sparked one of those memories for Dad: “I remember the first time I ever saw my father in court … he was trying a rape case … I was more than six but probably less than twelve [years old]. But I remember him saying to the jury that this man had had carnal knowledge of this woman without her consent … I didn’t have the faintest idea of what he was talking about … That [memory] ran through my mind when I read that part.”

Another of Atticus’s parental decisions striking me as odd was his lack of interest in Scout’s performance in the fall pageant: “When Halloween came, 14

Lee, 145.

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I assumed that the whole family would be present to watch me perform, but I was disappointed. Atticus said as tactfully as he could that he just didn’t think he could stand a pageant tonight, he was all in.” 15 I was also disappointed as he permitted Scout and Jem to walk by themselves after dark to their school: “He thought Jem might escort me if I asked him.” 16 Although “things did settle down after a fashion” following the Tom Robinson trial, Bob Ewell had threatened Atticus’s life.17 After Tom Robinson’s death, Bob Ewell commented that “it made one down and about two more to go”.18 What’s more, by revealing in court that Ewell, not Robinson, beat Mayella, Atticus portrayed Ewell as a threat to children. Considering all these prior events, I was surprised at Atticus’s lack of concern for the children’s security; I would never send my two sons off in the dark without adult supervision, especially after a death threat from a physically abusive person. In explaining his understanding of Atticus’s lack of trepidation, Dad recalled his school days’ experiences. Like Jem and Scout, Dad grew up in a small southern town and lived within walking distance of his school. Therefore, he didn’t “find that [security] hard to understand … he’s lived all his life in this little town. People are safe; everybody knows each other”. Even considering Bob Ewell’s threat, Dad understood why Atticus didn’t fear for his children: “Let’s assume my father had a bad case like that, and Halloween came, and they were having a carnival across the street in the gymnasium, over there. I doubt if my father would have any reservation about [my sister and me] walking across there in the dark. That’s the way I read that part of the book.” Although our experiences widely differed, Dad’s references to his own experiences reminded me of the safety of small towns in the past, thereby enabling me to form a new understanding of Atticus’s decision. Our conversations about To Kill a Mockingbird also revealed heteroglossia surrounding our readings. Dad’s portions of our conversation invoked voices of his past as well as his knowledge of history and the law. My inquiries about Atticus revealed my feminist tendencies as well as my emotions as a contemporary mother. Through conversation, Dad and I created our own text, which developed within our transactional zone. At the same time, our text revealed where our ideologies collided; these contact zones reflected not only instances where we grappled with the concept of meaning but also with the notion of reading purpose. As we developed a transactional zone, Dad and I allowed each other to see the novel through each other’s eyes, or in Atticus’s terms, to walk around in 15

Lee, 247. Lee, 247. 17 Lee, 261. 18 Lee, 254. 16

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each other’s skin. We afforded each other opportunity to reconsider aspects of the novel, and, in some places, I came to some new understandings of it. However, during other parts of our conversations we encountered contact zones seeming too problematic to foster new understandings of the novel. Gender differences influenced some of those contact zones. Whereas my father was not disturbed by Atticus’s joke about women interrupting court procedure with persistent questioning, as a feminist, I was disturbed by Atticus’s reversion to “typical male attitude of that time” when talking about women, especially when his behavior throughout the book is more admirable than that of typical men of his time. Even though Dad encouraged me to examine Atticus in a 1930’s context, I still contended that if Atticus insisted on showing utmost respect for the most reviled citizens of Maycomb, like Bob Ewell, his joke about women was inconsistent for his character. Three of Atticus’s staunchest supporters, Miss Maudie, Calpurnia, and Aunt Alexandra, are women, and it seems not only inconsistent but inconsiderate of Atticus to insult them. Where gender issues were concerned, Dad and I did not agree, nor did we come to new understandings of the novel or of feminist issues. Another contextual element influencing our varied reading experiences was our approaches to the reading task. Our different approaches invoked Rosenblatt’s theory of reading intentions.19 On one end of a continuum is efferent reading, which is reading for information, much in the way one would read instructions. On the other end of the continuum is reading purely for pleasure. That kind of reading is aesthetic reading.20 Although Dad knew he was reading To Kill a Mockingbird for purposes of writing this essay, his initial reading of the novel, in addition to his lack of experience with literary analysis, seemed to prompt a reading near the aesthetic side of the scale. On the other hand, my prior readings of the novel, my history of having taught the novel in literature classes, and especially my interest in analyzing not only the novel but our perceptions of it, prompted me to read more efferently than my father did. These two reading intentions influenced not only our perceptions of Atticus’s character but also how closely we examined him as we read. Different professional discourses also contributed to these contact zones. One interesting example involved the concept of literary meaning. As a scholar of literature, I routinely inquire into its meaning and examine the many ways meaning is made. However, as a jurist, Dad has neither the need nor the inclination to delve into the various critical perspectives of literary study.

19 Rosenblatt, Louise. “The Aesthetic Transaction.” Journal of Aesthetic Education 20: 4 (1986): 122. 20 Rosenblatt, 124.

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His knowledge of literary criticism is as limited as my knowledge of law. Therefore, when I asked him to what extent his legal knowledge influenced the meaning he made of the novel, he was at first perplexed: “What do you mean by ‘meaning’ or ‘interpretation of the novel’?” Then he grappled with his own concept of meaning, connecting it to a message: “I don’t regard the book as being one that was written with a particular moral in mind, do you?” Dad’s uncertainty about meaning seemed manifold. Perhaps it was tied to habits of legal practice; as a jurist, he privileges hard evidence over subjective data. Dad’s approach to literary examination seemed strongly text-based. In fact, he refused to draw conclusions about Atticus Finch without being able to point to evidence on the pages of the book: “The only thing we know of Atticus Finch that’s really important is what he did vis-a-vis Tom Robinson. And everything else that we know about Atticus Finch other than the fact that he can draw a tight will and reads a lot is an extrapolation to me.” Perhaps Dad’s textbased approach to literature was also indicative of his education. He attended college and took his literature classes during the late 1950’s and early 1960’s, the heyday of New Criticism. In addition to associating literary meaning with textual evidence, Dad also connected meaning with authorial intent. In fact, Dad seemed most frustrated with literary criticism, to the extent that he had read it (“I have not read much literary criticism since college and probably did not read much then.”), because to him it attempted to obviate what the author meant in the literary work: “Critics say the author obviously meant this or the author obviously meant that … there are a lot of people in this country, lawyers and otherwise, who read the book and feel compelled to draw a lot of conclusions about it and make a lot of assumptions about it that I doubt ever crossed the mind of the author.” Although Dad made a valid point, what made our contact zone so dense is that even though we agreed our cultural practice and ideology influenced our readings, I discussed To Kill a Mockingbird all the while considering the reader as the dominant influence on meaning rather than the author. Dad, on the other hand, persisted in focusing on what Harper Lee meant as she wrote. My perception of meaning was evident in my repeated return to topics revolving around Atticus’s parental decisions. Dad found these topics tangential: “This book is not about Atticus as a parent.” As I questioned Atticus’s parenting decisions, I saw them as part of the big picture of Atticus Finch, for how he behaved as a father dramatically influenced his behavior as a lawyer: “If I didn’t [defend Tom Robinson] … I couldn’t even tell you or Jem not to do something again … I could never ask you to mind me again.” 21

21

Lee, 83.

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Dad’s emphasis on textual evidence and authorial intent precluded him from walking around in my skin; he just did not perceive meaning that way: “There is nothing to indicate that the author meant anything other than what appears on the surface of the text.” Hence, his understanding of the novel “[was not] changed by our conversations”. Smagorinsky contends that when multiple readers examine literature together, thereby creating a transactional zone, they compose their own texts, which allow them to reflect on the literature and develop new understandings of it. Smagorinsky, however, considers readers working in one context, such as students in a high school English class encountering a literary work for the first time. When the reading contexts differ, as they did when my father and I read To Kill a Mockingbird, there still develops an experiential space where meaning resides. However, that space is a turbulent one, fraught with contact zones that may impede or even preclude consensus about the literature. Although the collaborative examination of the literature still facilitates composition of secondary texts, those texts may not guarantee new understandings of the literature. In fact, creating those texts may not even foster reflection on the literature. My experience with the novel this most recent time, as well as my discussion of it with my father, prompted me to reflect on it in a new way and also led me to form new understandings of it. Learning about the Depression era South through my father’s recollections of his childhood experiences allowed me to understand Atticus Finch and the setting of 1930’s Maycomb. Although I’ve often discussed the time period with my students and cautioned them to consider that context when forming opinions of the characters, hearing my father connect the novel’s events to his own childhood enhanced my knowledge of the rural South during the early twentieth century. Although the contact zones where my father and I met precluded some changes in my reading of Lee’s novel, this collaboration allowed me to make new sense of it in some way. My father, on the other hand, reported no new understanding of To Kill a Mockingbird as a result of our discussions of it: “My reading of the novel has not been changed by our conversations”. Although Dad attributes this lack of change to his limited knowledge of literary criticism (“My mind is insufficiently complex to appreciate literary criticism, I think”), I contend that his reading of the novel resides not so much by the complexity of his mind but also in the complexity of the context surrounding his reading experience as well as his approach to reading the novel. Dad’s concept of meaning revolves around the author’s intent; therefore, meaning doesn’t change. If meaning is static, one’s understanding of the text may remain intact as well. In spite of the contact zones evident in our discussions, Dad and I read the novel in a transactional zone. Although our ideologies prompted us to see Atticus differently, we shared enough obviousness to draw similar conclusions

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about the noble attorney, conclusions Dad expressed well: “Nobody ever said Finch is perfect. He’s just a human being like everybody else, … I don’t think Atticus was necessarily a perfect father or a perfect neighbor nor in all of his judgments perfect. But within the context of the book and the little we know of him, he was evidently a good man, and he had an interesting story.” Dad and I weren’t always able to walk around in each other’s skin to take a look at Atticus Finch, but as we developed our transactional zone, we did walk around in each other’s skin enough to share this impression of Harper Lee’s beloved character.

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CHALLENGING THE COURT: CHARLES CHESNUTT’S MARROW OF TRADITION GWEN MATHEWSON

This essay repudiates the perceived differences between the discourse of law and literature that interfere with an understanding of literature, as well as law, as participating meaningfully in inquiries into justice and injustice. By analyzing the work of Charles Chesnutt, it demonstrates that not only can literature elucidate law’s missteps, but also that it can offer persuasive alternative renderings of a just society. In The Marrow of Tradition (1901), Chesnutt dramatized the race antagonism that underlay the South’s system of racial segregation while simultaneously challenging the logic of the law that kept it intact. Chesnuttt particularly questions the reasoning of Plessy vs. Ferguson, the 1896 United Supreme Court ruling that anchored Jim Crow laws in America’s legal system for more than half a century. Chesnutt’s story of a young African-American doctor whose professional efforts are thwarted and whose personal life is tragically disrupted by racial antagonisms offers an argument on behalf of integration as the necessary first step towards the achievement of racial equality. Chesnutt’s description of Jim Crow train travel, which reveals the fallacies in the Court’s acceptance of “separate but equal,” reveals that the Court’s objective view of segregation had a decidedly subjective casr that reflected particular racist cultural assumptions. Chesnutt’s work exemplifies the deployment of literary imagination in an effort to prompt cultural and legal change, and testifies to the persuasive power of literature to influence laws.

The (inter)discipline of law and literature calls upon us to reconsider existing divisions between argumentation and storytelling, legal scholarship and literary criticism, and judicial opinions and fiction. While law is purported to rest on solid “objective” and “logical” foundations, literature is presumed to deal with the imaginary, subjective and emotional. One deals with reality, and the other with fancy. One solves problems, and the other entertains (when it is popular literature) or educates (when it is, for lack of a better descriptive term, literary literature). One is rule bound, and the other is transcendent to the point of practical irrelevance. True?

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The question is critical, because belief in such clear dichotomies would suggest that literature can have no bearing on law. As Judge Richard Posner emphasized in an early article, one certainly would not turn to literature to learn anything specific about law.1 But as Stanley Fish has noted in criticism of Posner, distinctions between law and literature, and between legal and literary language and interpretations, are historically determined, not naturally so.2 What we do (or do not do) with literature depends entirely on the cultural habits or disciplinary constraints that demarcate possibilities—that tell us how to read, interpret, evaluate, apply, make connections, draw conclusions and so on. If literature does not mean anything in legal discourse, it is because the rules of legal discourse do not grant it authority, not because literature is inherently unable to address legal issues in ways that lawyers might beneficially heed. Moreover, to distinguish between law and literature partly on the grounds that the “literary” is such because of its universality, as Posner does, is to condemn literature to meaning “nothing in particular.” 3 On the contrary, it is literature’s ability to elucidate details and difficulties of historical moments that gives it unique power to illuminate specific, time-bound justices and injustices. A task of law and literature, then, is to shed light on literature’s actual and potential contributions to jurisprudential thought. This paper attempts to contribute to that effort by describing one author’s literary challenge to the most authoritative judicial tribunal in the United States, the Supreme Court. The author is Charles Chesnutt, whose work demonstrates how false is the notion that literature cannot offer instruction on matters of law and cannot meaningfully and specifically engage in debate over legal principles. His 1901 novel The Marrow of Tradition, despite its being fiction (indeed, because of its being fiction), is “a particularly powerful kind of rational argument,” as Steven Winter says of narrative generally.4 Its subject is late nineteenth-century racism as expressed in law and in the everyday events of the post-Reconstruction South. Of particular historical and personal significance to Chesnutt were race riots in Wilmington, North Carolina in 1898 and the United States Supreme Court decision in Plessy v. Ferguson (1896),5 1 “If I want to learn about fee entails I do not go to Felix Holt.” Richard Posner, “Law and Literature: A Relation Reargued.” Virginia Law Review 72 (1986): 1356. This article preceded his book, Law and Literature: A Misunderstood Relation (Cambridge: Harvard University Press, 1988), which in turn was substantially revised, expanded and published as Law and Literature (Cambridge: Harvard University Press, 1998). 2 Stanley Fish, “Don’t Know Much About the Middle Ages: Posner on Law and Literature.” In Doing What Comes Naturally (Durham: Duke University Press, 1989), 303–305. 3 Fish, 297. 4 Steven L. Winter. A Clearing in the Forest: Law, Life and Mind (Chicago: University of Chicago Press, 2001), 106. 5 Plessy v. Ferguson, 163 U.S. 537 (1896).

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which would anchor the entire Jim Crow system for more than half a century.6 To these he devoted considerable attention in The Marrow of Tradition in order to debunk the racist logic underlying them. In challenging Plessy v. Ferguson, Chesnutt shows that the boundaries of legal discourse are more permeable than they might seem. The Marrow of Tradition demonstrates that the law is another form of story, that (in Winter’s words) “reason is a faculty that occurs only in embodied social creatures situated in and interacting with a physical and social environment” and that understanding “resides in the imaginative processes by which we order experience and make it meaningful.” 7 Winter’s recent claim about the cognitive processes by which we make sense of our world recalls Hayden White’s lesson about the difference between chronology and history: absent connection in narrative, a series of events has no meaning.8 Read alongside the legal landscape it critiques, The Marrow of Tradition demonstrates that law no less than literature revises its subject; each is shaped by “the trajectories plotted upon material reality by our imaginations.” 9 Both experiential facts and legal “facts”— authoritative texts like constitutions, statutes, and precedential cases—need to be interpreted and explained. Imagination along with reason, both inevitably guided by a cognitive background of cultural knowledge, shape the resulting story and determine the consequent legal imperative. Through The Marrow of Tradition, Chesnutt attempted to intervene in cultural conversations concerning race—both the jurisprudential and the everyday, especially the common conversations among whites that circulated prevailing attitudes about black inferiority and the suppression of the “New Negro.” It is such interventions that

6

Chesnutt was a North Carolina native; he had extended family who lived through the Wilmington riots and reported to him their harrowing experiences. Sylvia Lyons Render, Charles W. Chesnutt (Boston: Twayne Publishers, 1980) , 110–11. He subsequently condemned North Carolina’s “outbreak of pure, malignant and altogether indefensible race prejudice, which makes me feel personally humiliated and ashamed for the country and the state.” Letter from Chesnutt to Walter Hines Page. Ernestine Pickens, Charles W. Chesnutt and the Progressive Movement (New York: Pace Univ. Press, 1994), 51. Because he was a lawyer and citizen deeply concerned about race relations, Chesnutt would have known Plessy v, Ferguson well and would have been profoundly disappointed by the limitations of the Court’s imagination and concerned about the continued racial stratification that Plessy portended. 7 Winter, 106. 8 See Hayden White, “The Value of Narrativity in the Representation of Reality.” In On Narrative, ed. W.J.T. Mitchell, (Chicago: Univ. Chicago Press, 1981), 1–23. See also Paul Ricoeur, Time and Narrative vol. 1, trans. Kathleen McLaughlin and David Pellauer (Chicago: University of Chicago Press, 1984), 65. 9 The phrase is Robert Cover’s, repeated by Steven Winter. Winter, A Clearing in the Forest, 106, quoting Robert M. Cover, “The Supreme Court 1982 Term—Forward: Nomos and Narrative,” Harvard Law Review 97 (1983): 4.

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inspire change, that shape the assumptions that will become normative in the future. As a lawyer, Chesnutt knew that courts could take refuge in discursive insularity: if they choose to ignore non-legal writings, they can. In this way, courts ostensibly retain the integrity of the legal analytical process: when only certain legal texts count as authorities, and only certain types of facts count as evidence, analysis will not rest on unproved grounds. But Chesnutt also knew— as analysis of a case like Plessy itself will show—that both spoken and unspoken bases for a legal decision can be non-legal in origin. Ideas prevalent in the culture at large form assumptions and guide reasoning that lead to legal pronouncements. It is at this stage of the cultural/legal production of change—the idea circulation stage—that Chesnutt sought to be influential. At the turn of the twentieth century, Chesnutt observed that “The lines of caste in the South are being drawn tighter and tighter, and with every forward step the Negro takes, in certain directions at least, he but enlarges the area of the prejudice which he must encounter.” 10 The promise of Reconstruction— the ten years after the Civil War in which the government protected the newly acquired rights of the emancipated blacks—had faded with the end of federal administration of the South. In its place was massive white resistance to change in the forms of economic oppression, revocation of voting rights, segregation and violence.11 In 1899 Chesnutt described the South’s recent history this way: Life was secure [during Reconstruction]; there were no lynchings and burnings, and men charged with crime were tried by the courts and punished or acquitted as the testimony warranted. All men were equal before the law. The free school system was established, and the township form of government. Under the system of “white supremacy” now in vogue, murder and lynching abound, repressive and degrading legislation against the Negro is the order of the day, the civil rights which have heretofore been largely denied the colored race by mere force of custom and prestige and judicial decision, are now being steadily taken away from him by legislative enactment, until soon his boasted liberty, so dearly bought, so freely bestowed, so nobly maintained for a few brief years will have faded away like a vision of the night.12

Where there had been hope of progress toward racial equality after the Civil War, there was none anymore. The racist backlash was so formidable that even

10 “A Plea for the American Negro” (originally published in The Critic, February 1900). In Charles W. Chesnutt: Essays and Speeches, eds. Joseph R. McElrath, Jr., Robert C. Leitz, III, and Jesse S. Crisler, (Stanford: Stanford Univ. Press, 1998), 119. 11 Leon F. Litwack, Trouble in Mind: Black Southerners in the Age of Jim Crow (New York: Vintage Books, 1998), xiii. 12 “Liberty and the Franchise” (1899). In Essays and Speeches, 105.

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the pretense of neutral laws could no longer be maintained. The law of the South, Chesnutt argued, had deteriorated to nothing more than racist mob rule: Several hundred colored men and women and children—not even babes at the breast were spared—have been put to death by unlawful mobs during the past two or three years, most of them because they or their relations or friends, were charged with or suspected of certain crimes, mainly criminal assault, or murder, or attempted murder, or office-holding, or being black. … In most of these cases suspicion is equivalent to a charge, a charge is equivalent to a conviction, and an execution follows post-haste, sometimes so rapidly that the participants do not stop long enough to be sure they have the man who is suspected.13

In addition to the violence, there were less extreme indignities, the “innumerable daily affronts and humiliations that people suffered from the most casual contact with the white world.” 14 This was the “ ‘nadir’ of African American history,” according to the historian Leon Litwack, in which “a new generation of black Southerners shared with the survivors of enslavement a sharply proscribed and deteriorating position in a South bent on commanding black lives and black labor by any means necessary.” 15 Thus Reconstruction’s promise of a biracial democracy was extinguished, and in its place were deprivation, suffering and fear.

13

Essays and Speeches., 103. Delaney, David. Race, Place, and the Law: 1836–1948 (Austin: University of Texas Press, 1998), 96. 15 Litwack, xiv. Delaney similarly describes the period 1890–1915, refering to “the multifaceted intensification of oppression that characterized this period, the nadir of African American history” (95). See also Randall Kennedy, Interracial Intimacies: Sex, Marriage, Identity, and Adoption (New York: Pantheon Books, 2003). Kennedy summarizes post-Reconstruction racial inequality this way: The ascendancy of racial reactionaries led to the exclusion of African Americans from voting, jury service, or any other form of participation in governance. Businesses and unions kept blacks out of “white” jobs and relegated them to the lowest-paying, least prestigious, and most menial positions—so-called Negro jobs. Segregation laws separated whites from blacks in schools, in hospitals, in cemeteries, in taxis, in telephone booths, at water fountains, in lavatories, at restaurants, and in hotels. In some courthouses, authorities insisted that blacks and whites use different Bibles for the taking of oaths. Whites entered the homes of blacks by the front door, but blacks were expected to use the back door at white people’s houses. Blacks were supposed to show whites deference when speaking to them, by calling them “Mr.” or “Mrs.” or “Miss”; whites, by contrast, were expected to address blacks casually or by their first names or as “boy” or “girl,” regardless of their age or station. White men frequently resorted to extralegal violence to enforce Jim Crow etiquette, expecially the unwritten rule that black men must take care to avoid white women. The most lethal of the terroristic weapons used against blacks was lynching … (75). 14

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In these bleak historical circumstances, Chesnutt turned to literature as a medium through which individual hearts and minds might be swayed and the racist culture might begin to be reformed. Chesnutt was himself only one-eighth African-American, so light-skinned that he could have passed for fully white and left racial hatred and injustice for others to suffer under and to solve.16 Instead, he identified as black and devoted himself to the tasks of being an exemplary model of black ambition and achievement and also an effective social activist.17 Trained and licensed as a lawyer (but held back by racial prejudice), he was successful in the legal stenography business, so much so that he was able to leave it at the age of forty-one and devote himself fully to his writing.18 In short stories and novels, Chesnutt sought to empower blacks and to enlighten and encourage whites. He believed, according to one of his editors, that “if whites could truly understand the black situation—could live it vicariously from within—they could be moved to change it.” 19 In a late 1899 speech on “Literature in Its Relation to Life,” Chesnutt credited literature with being both “an expression of life, past and present, and [] a force directly affecting the conduct of life, present and future.” He said, “History is instructive, and may warn or admonish; but to this quality literature adds the faculty of persuasion, by which men’s hearts are reached, the springs of action touched, and the currents of life directed.” 20 Only a portion of the text of this speech survives, so his elaboration of this thesis in this speech can only be imagined. But there is no doubt that Chesnutt was moved by these hopes for literature in general and his own work in particular. A year later, responding to a friend’s comparison of his novel The House Behind the Cedars (1899) to Uncle Tom’s Cabin, Chesnutt wrote: “If I could write a book that would stir the waters in any appreciable degree like that famous book, I would feel that I had vindicated my right to live and the right of the whole race.” 21 Chesnutt had begun writing The Marrow of Tradition, which he hoped would help redirect the flow of southern racism.22 But in the arena of words, he

16

See the editors’ introduction to Essays and Speeches, xxvi. An interesting comparison to Chesnutt is his own protagonist in his final novel The Quarry, completed in 1928 and finally published for the first time in 1999. The character, Donald Glover, rejects “passing” as a best alternative for someone who lives on the color line. He chooses instead produce work that he fervently hopes will help the advancement of American blacks. Charles Chesnutt, The Quarry (Princeton: Princeton University Press, 1999). 18 Chesnutt retired from his business in 1899, but disappointing sales of his novels necessitated his return to it in 1902. Essays and Speeches, xxvi–xxviii. 19 Dean McWilliams (editor of The Quarry, Chesnutt’s final novel, first submitted in 1928, finally published by Princeton U Press in 1999, in his introduction at xiv). 20 Essays and Speeches, 114. 21 Pickens, 50; Chesnutt to James P. Green, December 1, 1900. 22 Pickens, 50. 17

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faced formidable foes: the judiciary, the press, politicians, science and social science all presented obstacles, all testified to the “natural” inferiority of blacks, to their fitness only for menial tasks, to their dangerousness as perpetrators of sexual assault and other crimes, and to the consequent necessity for the safety of whites and their culture of keeping blacks “in their place” by limiting their opportunities and by using force if necessary. When the U.S. Supreme Court decided Dred Scott v. Sanford in 1857, ruling that blacks lacked all rights and privileges of citizens, its written opinion represented “the most articulate and authoritative defense of the precept of black inferiority ever mounted by the American legal process” and “the apogee of more than two hundred years of racial oppression and slavery.” 23 Judge Leon Higginbotham points out that “Chief Justice Taney made twenty-one references to African Americans as inferior and to whites as dominant or superior.” 24 Of course the Civil War and the Reconstruction Amendments appeared to grant blacks the very rights, and more, that were at issue in Dred Scott. But the Court continued to enforce blacks’ legal subjugation.25 When the Court addressed the Civil Rights Act of 1875, which prohibited race-based denials of service or access, it held the Act unconstitutional on the ground that it interfered with private spaces subject, at most, to state but not federal interference.26 In attempting to control “private” behavior, the Court reasoned, the act overstepped federal authority. Even the new 13th and 14th amendments to the Constitution, which tipped the balance of powers away from states and toward the federal government, did not authorize such tinkering with “private social relations.” Meanwhile, newspapers circulated images of “‘the Negro’ as criminal, as buffoon, and, increasingly, as retrogressing beast.” 27 And efforts to “improve” blacks (through education particularly) were deemed, at best, destined to fail and at worst, inherently destructive of the natural order. Litwack, in describing at length the southern resistance to education for blacks, notes the concerns of a prominent white educator who warned that education would encourage blacks to develop the same “instincts and drives” as whites and that that would be “worse than foolhardy” and “not unlike placing a loaded magazine rifle in the arms of a chimpanzee.” 28 Another white educator, also protesting the

23

Higginbotham, A. Leon, Jr. Shades of Freedom: Racial Politics and Presumptions of the American Legal Process (New York: Oxford University Press, 1996), 61. 24 Higginbotham, 65. 25 See generally Higginbotham’s exhaustive study in Shades of Freedom. 26 The Civil Rights Cases, 109 U.S. 3 (1883). 27 Delaney, 96. 28 Litwack, 92.

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education of blacks, argued that education would make them inappropriately dissatisfied with their economic and social inferiority: If a man is engaged in work below his education, he feels degraded by it, and that sense of degradation compels him to do inferior work. … The bootblack is not a better bootblack, but a worse one, the ditcher is not a better ditcher, but a worse one, if he can also calculate a solar eclipse or read with a critic’s ken the choral odes of the Greek dramatists. … The cook, that must read the daily newspaper will spoil your beef and your bread; the sable pickaninny, that has to do his grammar and arithmetic, will leave your boots unblacked and your horse uncurried.29

This was an argument that would be repeated in various forms over the course of half a century; and for many whites “it was nothing less than practical good sense.” 30 Blacks who managed to make economic headway despite enormous obstacles 31 faced white resistance to their exceeding their social boundaries— resistance that could be vicious. That viciousness, in turn, was used to justify further repression couched as benign paternalism. Only blacks who sought economic or social advancement, the argument went, would incite whites’ anger.32 Blacks who remained unthreatening, on the other hand, would not be in the path of danger. Thus, in 1903 a former governor of North Carolina railed against education, even industrial education of the type modelled at Booker T. Washington’s Tuskeegee Insitute: The truth is the negro is going to fare best and be happiest when his position is most subordinate. Financial and industrial equality is as bad in the eyes of the whites as social equality. The negro who gets very prosperous is to be pitied, for straightway he is in a situation where danger confronts him. Let him own a fine farm, blooded horses and cattle, and dare to ride in a carriage, and if I were an insurance agent I would not make out a policy on his life. In plain English, to get above his ordained situation in life is, generally speaking, to invite assassination. The Anglo-Saxon element North and South is not going to brook much elevation of an inferior race.33 29

Litwack, 96. Litwack, 96. 31 See Litwack’s lengthy description in his chapter on “Working.” 32 Litwack: “[T]he real danger posed by Negroes, in the eyes of many whites, lay in the possibility that they might actually succeed, and any such success would be at the expense of whites and subversive of southern society.” (149) 33 From an interview with former governor Daniel L. Russell, published in the Washington Post and reprinted in the Raleigh News and Observer, Jan. 14, 1904. Quoted in Litwack at 149–150. Similar arguments were used to justify prohibitions against interracial marriages. Such marriages, the argument went, would prompt a justifiably brutal response and 30

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Arguments such as this that perpretuated myths of the safe and happy black servant also naturalized race prejudice and relieved whites of any obligation to redress it. Chesnutt peopled his Marrow of Tradition with figures representing various strains of such anti-black rhetoric and various stakes in the perpetuation of white supremacy. Placing common arguments in the mouths of stock characters whose shortcomings are abundantly clear, Chesnutt characterized the arguments themselves: paranoid, self-interested, bigoted. First in a trio of Wellington citizens who orchestrate a white-supremacist campaign is Major Carteret, a Civil War veteran whose formerly prosperous family (several generations back, owners of “ninety thousand acres of land and six thousand slaves” (30)) was impoverished by the war and whose wife’s unacknowledged octoroon half-sister is a source of family consternation. Carteret disseminates racist social and political positions through his influential newspaper, The Morning Chronicle, launched earlier in his career with his wife’s money. Carteret represents the white upper crust, deeply damaged by the war, seeking to perpetuate privileged social and political status, and resentful of perceived challenges. He is concerned about his own political party’s loss of power in recent elections, in which blacks have been elected to state offices (the “smaller places”), “their people” having voted as a block. (30) (“In spite of the fact that the population of Wellington was two thirds colored, this state of things was gall and wormwood to the defeated party, of which the Morning Chronicle was the acknowledged organ. Major Carteret shared this feeling.” (30)) In one editorial, for example, Carteret argues that blacks are unfit to participate in government because of limited education, lack of experience, criminal tendencies and mental and physical inferiority to whites (31), and consequently that the races could never live together “except in the relation of superior and inferior” (31). Next is General Belmont, representing the professional class, a lawyer and active participant in state and local politics. Like Carteret, Belmont is a former

therefore should be prohibited not only to protect the white race from impurities but also to protect blacks from violence. In 1912, for example, Representative Seaborn A. Roddenberry of Georgia used this argument in advocating passage of his proposed constitutional amendment prohibiting miscegenation: We can do no greater violence, we can offer no more ill-fated injustice, to the negro in this land than to let our statutes permit him to entertain the hope that at some future time he or his offspring, or she or her offspring, may be married to a woman or a man of the white race. It will bring conflicts in the coming years—black, dark, gruesome, and bloody. … This slavery of white women to black beasts will bring this Nation to a conflict as fatal and as bloody as ever reddened the soil of Virginia or crimsoned the mountain paths of Pennsylvania. Randall Kennedy, Interracial Intimacies: Sex, Marriage, Identity, and Adoption (New York: Pantheon Books, 2003) 84 (quoting Congressional Record 49 (1912): 502).

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slave-owner from a “good family.” Unlike Carteret, who generally “desired the approval of his conscience, even if he had to trick that docile organ into acquiescence,” Belmont “permitted no fine scruples to stand in the way of success” (33–34). Belmont fears diminishment of the market for his services because of competition for criminal court business from black lawyers and is particularly outraged that a black man has begun work as a justice of the peace and has summoned a white man to appear before him. Last in this trio is Captain McBane, son of a plantation overseer seeking to overcome an undistinguished background by muscling his way up and pushing others down. His physical appearance betrays his rough and unsavory nature: His broad shoulders, burly form, square jaw, and heavy chin betokened strength, energy, and unscrupulousness. … A single deep-set grey eye was shadowed by a beetling brow, over which a crop of coarse black hair, slightly streaked with gray, fell almost low enough to mingle with his black, bushy eyebrows. His coat had not been brushed for several days, if one might judge from the accumulation of dandruff upon the collar, and his shirt-front, in the middle of which blazed a showy diamond, was plentifully stained with tobacco juice. (32)

McBane has made a fortune through a contract with the state for its convict labor (a contract he made profitable by methods that led to an investigation of him on cruelty charges), but has lost that source of revenue as a result of the recent elections and the victorious party’s abolishment of the convict labor system. McBane aspires to political office and social recognition. Of the three, he makes the least effort to sugar-coat his intentions. While Belmont claims “We are conscious of the purity of our motives, but we should avoid even the appearance of evil” (81), McBane is far more forthcoming: “We are going to put the niggers down because we want to, and think we can. … I’m no hypocrite myself,—if I want a thing I take it, provided I’m strong enough” (81). The claims of these three in support of their white supremacist arguments are plentiful. Among them are that blacks are not trustworthy (Carteret, 24), fit only for a “servile career” (Carteret, 24). Whites inevitably experience “spontaneous revulsion … against the rule of an inferior race” (Carteret, 33) and black advancement is paramount to an alarming reversal of the social hierarchy. The “good negro” is one who is “respectful, humble, obedient, and content with the face and place assigned to him by nature” (Belmont 87). Their principal target is black suffrage, for by eliminating African-American political participation whites could ensure enforcement of their social inferiority. Chesnutt’s narrator explains their reasoning thus: Negro citizenship was a grotesque farce—Sambo and Dinah raised from the kitchen to the cabinet were a spectacle to make the gods laugh. The laws by which it had been sought to put the negroes on a level with the whites must be swept away

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in theory, as they had failed in fact. If it were impossible, without a further education of public opinion, to secure the repeal of the fifteenth amendment, it was at least the solemn duty of the state to endeavor, through its own constitution, to escape from the domination of a weak and incompetent electorate and confine the negro to that inferior condition for which nature had evidently designed him. (79)

Carteret continues, “If we are to tolerate this race of weaklings among us, until they are eliminated by the stress of competition, it must be upon terms which we lay down.” (86) Thus their aim was nothing short of a total rollback of blacks’ post-war gains and a return to de facto slavery.34 In dramatizing the power of race hatred to rip apart a social fabric that was still new and tentative, Chesnutt elaborated in fiction ideas he expressed elsewhere in nonfictional form. In his 1899 essay entitled “Liberty and the Franchise” Chesnutt lamented the state of race relations in the South: No one can deny the situation in the Southern States is deplorable. That it must sooner or later be corrected is certain. That, like slavery, the future of the colored race is a problem for the whole nation, must soon be admitted. That the Southern white people alone cannot be trusted to solve it with justice to the colored man, may, in the light of the past and the present, be safely assumed. It is well, in dealing with an evil, to get, if possible, at the root of it. And the root of this evil, it must be apparent to the most casual observer, is the race

34

Scholars have noted that the campaign dramatized in The Marrow of Tradition accurately reproduces the political movement that seeded the Wilmington riot. The plot that culminated in the Wilmington Racial Massacre was begun by a “Committee of Democrats” dubbed the “Secret Nine”; through the Wilmington Messenger and Wilmington Star, these conspirators created “an environment that would justify the white citizens’ buying firearms for the protection of their homes, and that would also justify the organization of vigilance committees” (Prather 54). The immediate object of the Democrats was to defeat the “coalition of Populists … and Republicans” which had dominated the city’s legislature since 1894; the method was to appeal to the deep-seated colonial racism of the white population of the city and state (34). After the right “environment” had been created by the local press, the Democrats issued “the first statewide call for white unity” in November of 1897; they called for the re-establishment of “Anglo-Saxon rule and honest government in North Carolina,” and for “every patriot [to] rally to the white man’s party” (56). And in the Secret Nine’s “Wilmington Declaration of Independence,” read by Alfred Waddell (generally thought to be Chesnutt’s model for the aristocratic General Belmont), those (white) patriots were called upon to take back their city, because “the enfranchisement of an ignorant population of African origin” went against the original intent of “the Constitution of the United States” (108). This conspiracy—and the cynical and calculated appeal to the racism of the masses through which it was carried to its bloody conclusion—are quite accurately reenacted by the Big Three in The Marrow of Tradition. Jae H. Roe, “Keeping an “old wound” alive: ‘The Marrow of Tradition’ and the legacy of Wilmington.” African American Review (1999) Available at Looksmart.com. See also, Pickens, 72–75. Pickens

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The hate-mongering Big Three represent these white people whose race prejudice distorts their judgment and diminishes their humanity. The heroes of The Marrow of Tradition, Dr. William Miller and his wife Janet, disprove the theory that “nature” has determined racial hierarchy. The Millers, in other words, are Chesnutt’s response to the bigoted claims of the Big Three and, by extension, to the ubiquitous racial prejudice of the white South. William Miller is an African-American doctor who did his medical training in Europe, away from the prejudice that would have foiled his efforts in the States. After returning to his hometown, he established a hospital to serve Wellington’s black population and earned a significant amount of respect even among whites (even if only because of white doctors’ gratitude for his taking impoverished black patients off of their hands). Janet Miller is the unacknowledged half-sister of Major Carteret’s wife Olivia. Though she suffers the pain of race-based familial rejection, she grants her sister extraordinary charity in the end, and so rises above not only the primitive black character of white supremacist fantasy, but also the narrow “Christianity” of Wellington’s most respected whites. After six months of his racist campaign, Carteret is surprised not to see a vigorous response. The white population of Wellington is less concerned than

notes that Wilmington was just one of a number of cities that endured white supremacist campaigns and consequent violence: [T]he campaigns waged by Chesnutt’s Big Three are in keeping with the white supremacy movements and the immorality of those movements throughout the South during the Progressive era. C. Vann Woodward reports that southern Progressives, such as Charles B. Aycock of North Carolina and James K. Vardaman of Mississippi, rose to power on “the white supremacy issue and waves of racial bitterness” (Vann Woodward, Origins 315). Wilmington was not alone in its racial upheavals. For all over the South, during the Progressive era, clashes between white supremacist ideals and black progressive efforts resulted in riots and lynchings. Vann Woodward states that the election of politicians promoting white supremacy in Georgia caused a similar situation to the one in Wilmington, except the “Atlanta mobs looted, plundered, lynched and murdered for four days” (350). In 1900, two years after Louisiana passed the grandfather clause aimed at disfranchising blacks, mobs of white men roamed the streets of New Orleans for three days, looting, burning, shooting, and assaulting blacks (351). Pickens, 75. 35 “Liberty and the Franchise” in Essays and Speeches, 105–06.

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Carteret, Belmont and McBane about the state of race relations. Among the population are even “thoughtful men, willing to let well enough alone, who saw no necessity for such a movement. They believed that peace, prosperity, and popular education offered a surer remedy for social ills than the reopening of issues supposed to have been settled” (79). There were also, each with their own reasons for not participating in Carteret’s campaign, “timid men” and “busy men” and even a “few fair men, prepared to admit, privately, that a class constituting half to two thirds of the population were fairly entitled to some representation in the law-making bodies” (79–80) Carteret, Belmont and McBane appear to represent a minority, suggesting Chesnutt’s faith that most white people need not make fomenting racial strife a priority. Still, the white supremacy campaign has horrible consequences. When riots break out, no black person is safe, even those least likely to have angered violent whites. The Carteret’s servant Jane, for example, expects that her having served the family humbly and faithfully for several generations will ensure her peace and safety, an expectation confirmed by Carteret: “You have have friends upon whom, in time of need, you can rely implicitly for protection and succor,” he assures her. (44) But this is an empty promise; even Carteret cannot control the white supremacist fervor he helped to foment: “not all her reverence for her old mistress, nor all her deference to the whites, nor all their friendship for her, had been able to save her from this raging devil of race hatred which momentarily possessed the town” (297). Jane is killed in the street while trying to make her way to the Carteret’s house. Lives lost also include that of Miller’s only child, who is hit by a stray bullet. Miller is shattered. But in a remarkable climax, Chesnutt displays in the doctor’s wife, Janet, an astonishing strength and exceptional generosity. Despite her new grief, she pushes her husband away from her side and sends him to save another child whose life is endangered (by illness, in this case): the only son of Carteret himself and Janet’s half-sister Olivia, whose rejection has been so painful to Janet. Through this act of charity, Janet proves the honor of an entire race. She becomes, in other words, Chesnutt’s representative of the very best of humanity. Through her, as much as through her successful husband, Chesnutt shows again that it is not nature but, rather, an elaborate cultural apparatus that enforces racial hierarchy. The arguments of the “Big Three” were ones articulated at the highest levels of American law and culture in the years when Chesnutt was writing. Chesnutt’s project was to illuminate their fallacies and their motives. In one particularly interesting chapter of The Marrow of Tradition, Chesnutt directly challenges the reasoning of the United States Supreme Court in its 1896 decision in Plessy v. Ferguson, the case that would anchor the system of segregation for more than half a century. Plessy was the case of an African-American (but white-appearing) traveler who attempted unsuccessfully to ride in a train

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car marked “whites only.” 36 His lawsuit challenged mandatory racial segregation on railroads, claiming that it deprived blacks of rights guaranteed by the Thirteenth and Fourteenth Amendments to the U.S. Constitution: freedom from slavery, equal protection, and due process.37 At stake was not only the freedom not to be segregated on trains, it was blacks’ freedom from being relegated to second-class facilities throughout the South. Segregation—separate and, in practice, unequal—was the rule for “rooms, toilets, buildings, parks, and cemeteries … streetcars, trains, and later buses and airplanes … schools … bars, YMCAs, libraries … phone booths, and elevators … waiting rooms, jails, theaters, some hospitals. …” 38 In Plessy, the Supreme Court deemed such legislation “resonable” and held that it contravened no constitutional rights. Acting “with reference to the established usages, customs and traditions of the people [of Louisiana], and with a view to the promotion of their comfort, and the preservation of the public peace and good order,” the Court determined that the law had been “enacted in good faith for the promotion of the public good, and not for the annoyance or oppression of a particular class.” 39 Chesnutt undoubtedly had studied Plessy closely. Not only was Plessy a milestone in the history of American civil rights adjudication, it was the most significant legal barrier to racial equality for more than half a century.40 Striking similarities between the details of Chesnutt’s railroad car scene and the facts of Plessy, and between the arguments at issue in Plessy and those implicit in Chesnutt’s narrative, show that Chesnutt was deliberately writing against Plessy—both by persuasively articulating in literature those arguments that failed before the Court and by suggesting criticisms of the Court’s method of exercising its adjudicative authority.

36

The controversy was staged by the “Citizens’ Committee to Test the Constitutionality of the Separate Car Law.” The railroad, which disliked the separate car law because of the extra expense it incurred in having to attach more cars than passenger demand warranted, had agreed to cooperate and had been informed of the plan. See C. Vann Woodward, “The Case of the Louisiana Traveler,” in John Garraty, ed., Quarrels That Have Shaped The Constitution (Gloucester, Mass.: Peter Smith Publishers, 1964). 37 The Citizens’ Committee selected Judge Albion Tourgee to act as lead counsel. Charles Chesnutt had by this time established a correspondence with Tourgee, whom he admired as the author of A Fool’s Errand. Frances Richardson Keller, An American Crusade: The Life of Charles Waddell Chesnutt (Provo, Utah: Brigham Young University Press, 1978) 70, 120–21. Chesnutt probably followed the efforts of Tourgee and the Citizens’ Committee to set up a constitutional challenge to Louisiana’s law, and likely read the brief Tourgee eventually filed with the United States Supreme Court on behalf of Plessy. 38 Delaney, 96–97. 39 Plessy, 163 U.S. at 550. 40 Plessy was overturned by Brown v. Board of Education, 347 U.S. 483 (1954).

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Chesnutt’s response to Plessy appears in a chapter entitled “A Journey Southward”—a title that refers to a train trip from New York to Virginia and that underscores, as race-based regulations arise as the train moves south, that the South is the locus of blacks’ most intense subjugation and that the North might provide relief from it. Dr. Miller has been in New York buying equipment for his new hospital. Traveling home, he encounters on the train one of his medical school professors, Dr. Alvin Burns, who had taken a special interest in Miller, his only black student, and had been impressed with his work. Delighted to see one another, the two men sit together and pass several hours of the journey in conversation. They discover they have the same destination, Miller’s home town of Wellington, and Burns invites Miller to assist him in an operation for which he has been called there. After the train enters Virginia, Miller and Burns are forced to separate by a train conductor who requires Miller to move into a “colored” car and refuses to allow Burns, who is white, to sit anywhere but in the “white” car. The statute enforced against Dr. Miller in Chesnutt’s Virginia appears almost identical to the Louisiana statute reviewed in Plessy. In dramatizing the statute at work, Chesnutt says much about how such Jim Crow statutes operated and what motivated them that the Court did not address. Louisiana’s law required all railways in the state to provide “equal but separate accommodations for the white, and colored races,” prohibited individuals from occupying seats other than those in cars assigned to them, required railway officials to enforce the segregation, authorized officials to refuse to carry passengers who refused to comply, and exempted the railroad from any liability for such refusal.41 An apparently identical statute is in force in Chesnutt’s Virginia.42 Miller is forced out of a “white” car and into a “colored” one; the conductor is obligated to enforce the statute; it applies to whites as well as blacks (Dr. Burns is prevented from accompanying Miller to the “colored” car); the conductor is authorized to remove offending passengers by force; and the railroad is not subject to civil suits for injuries caused by its enforcement (“‘If I should choose to put him off the train entirely, in the middle of a swamp, he would have no redress— the law so provides’” the conductor says) (54–55). The conductor claims to be legally obligated to enforce the law: “I am bound by it as well as you. I have already come near losing my place because 41 Act No. 111 of the Laws of Louisiana, session of 1890 (entitled “an Act to promote the comfort of passengers on railroad trains”). 42 With one small exception: Chesnutt’s statute appears to exempt all black servants traveling with white employers (the conductor asks Burns whether Miller is his servant (53) and Miller notes that “a colored nurse found a place with her mistress” (59)); Louisiana’s statute exempted only black nurses caring for white children.

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of not enforcing it, and I can take no more such chances, since I have a family to support” (54). But a short while later he fails to carry out his enforcement duties. Captain McBane has come into the “colored” car, where Miller sits alone, to smoke a cigar. Miller protests, and the conductor, “frowning irritably,” agrees to speak to McBane, and informs him that he may not “ride in the nigger car” (58). “ ‘I’ll ride where I damn please,’ ” responds McBane; “ ‘I’ll leave this car when I get good and ready, and that won’t be till I’ve finished this cigar. See?’ ” (58). The conductor hurries away, apparently more afraid of McBane than of the possibility of losing his job for failing to enforce the law. Had Miller not protested, the conductor certainly would not have said anything at all to McBane; Chesnutt implies that a white man’s smoking in the “nigger car” is commonplace (the porter confirms that “ ‘they comes in here sometimes’ ” (57)). Enforcement is one-sided. The conductor apparently feels bound to enforce the law only when blacks (or liberal whites like Burns) are the violators. McBane’s handling of the conductor shows what authority holds sway: intimidation. The statute’s exemption of the railroads from liability is central, according to Plessy’s brief to the Supreme Court, to the achievement of segregation: Our contention is that no individual or corporation could be expected or induced to carry into effect this law, in a community where race admixture is a frequent thing and where the hazard of damage resulting from such assignment [to a colored car] is very great, unless they were protected by such exemption. The State very clearly says to the railway, “You go forward and enforce this system of assorting the citizens of the United States on the line of race, and we will see that you suffer no loss through prosecution in OUR courts.” Relying on this assurance, the company is willing to undertake the risk.43

This argument, like many in Plessy’s brief, depends on the frequent invisibility of “race admixture,” an issue raised in Plessy because Plessy was not visibly black. Chesnutt does not pick up this line of arguments. He makes Miller visibly black and so does not raise issues surrounding the possibility of a white person’s being mistakenly classified as “colored” or a “colored” person’s interests in passing as white.44 However, Chesnutt’s inclusion of specific mention of the exemption shows he nevertheless considered it significant. The prospect of civil liability ordinarily encourages “reasonable” behavior (or at least it is intended to do so); in the absence of the possibility of suit, there is no constraint on the enforcement methods of railroad officials—they may use unlimited force. Chesnutt implies 43

Brief of the Plaintiff, Plessy v. Ferguson (“Brief ”), 35. Chesnutt’s argument is more radical, in that it begins not from the injustice that would be perpetrated by incorrect racial classification, but from the proposition that racial classifications are unjust per se. 44

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that this is his concern: The conductor can leave a passenger “in the middle of a swamp” if he chooses, despite any consequent harm to the passenger, and despite (perhaps because of) the tendency of such an action to intimidate blacks rather than further any legitimate state interest. As if the conductor’s specific mention of his authorization to use force is not enough to get the point across, Chesnutt emphasizes through the inclusion of the exemption what the Court did not address: that the statute legitimizes violence. “‘The beauty of the system lies in its strict impartiality—it applies to both races alike’” (55), says the conductor in response to Dr. Burns’s protests, implying that the law is immune from challenge as unlawfully discriminatory because the Fourteenth Amendment will not invalidate a law that places equal burdens on the rights of all citizens. In light of Plessy, the conductor is correct. The Court declined from viewing the segregated car law as imposing any burden solely on blacks; on the contrary, it suggested that segregation is for the mutual benefit of both races, and that neither is injured by it. The Fourteenth Amendment, the Court said, was not intended to enforce “commingling of the two races upon terms unsatisfactory to either.” 45 The Court suggests that those who challenge segregation are a minority rebelling against “customs and traditions,” and that their perception of segregation as harmful results only from their misinterpretation, their error, their failures of self-esteem: [The legislature] is at liberty to act with reference to the established usages, customs and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order. … We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.46

Chesnutt dramatizes the burden the Court refused to see, and thereby shows where the Plessy majority went wrong. Inequality of enforcement and illtreatment combine with inequality of the required separate accommodations to make the black traveler’s experience of degradation acute—certainly not imaginary or self-imposed. Sitting alone in the “colored” car, Miller feels “branded and tagged and set apart from the rest of mankind upon the public highways, like an unclean thing” (57)—a sensation mirrored in the dirtiness of the space he is forced to occupy: It was an old car, with faded upholstery, from which the stuffing projected here and there through torn places. Apparently the floor had not been swept for several days. 45 46

Plessy, 163 U.S. at 544. Plessy, 163 U.S. at 551.

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The traveler’s sense of humiliation (and discomfort) at being relegated to this filthy car was likely heightened by the knowledge that the car served no purpose other than to facilitate his isolation. Passenger demand certainly did not require it; and economics did not justify it: There was no other passenger in the car, and Miller occupied himself in making a rough calculation of what it would cost the Southern railroads to haul a whole car for every colored passenger. It was expensive, to say the least; it would be cheaper, and quite as considerate of their feelings, to make the negroes walk. (56)

As long as it remained necessary only to effect segregation, the condition of the “colored” car would not improve. Saddled with the economic burden of having to attach unnecessary cars to its trains, the railroad certainly would not increase its losses by paying for their maintenance. Thus Chesnutt illuminates a problem with any “separate but equal” system: if “separate” is not economically justified, “equal” will be sacrificed. Chesnutt takes his critique of segregation a step further, showing that it is neither merely the inevitable shabbiness of “colored” cars nor merely the hostile treatment of small-minded whites that makes the separate car law unacceptable, and in doing so addresses the most significant legal arguments Plessy put before the Court: Separate car laws effect deprivations of property without due process of law. Plessy claimed that the statute deprived him of property by damaging his “white reputation” and destroying economic opportunities flowing therefrom 47—an odd argument, but one which in the legal climate of the time made strategic sense.48 Chesnutt dramatizes a variation on this claim. Miller is visibly black, so he has no property interest in passing as white; however, Miller does have a property interest in his professional development, which depends in part on his association with other doctors and on his access to patients. By placing Dr. Miller on the train with his white mentor and friend Dr. Burns, who as a consequence of their meeting there invites Miller to assist in an operation, Chesnutt demonstrates the roles of professional friendships and informal meetings in creating opportunities for professional growth. Denial of Miller’s 47 In The Quarry, Chesnutt, by contrast, rejects “passing” as a best alternative for someone who lives on the color line (but for personal reasons, not economic ones). 48 Brief, 35. Throughout the early history of judicial interpretation of the Fourteenth Amendment, up to and including Brown v. Board of Education, 347 U.S. 483 (1954), successful civil rights suits generally were presented as claims for protection of property interests.

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opportunity to associate with Burns imperils Miller’s ability to enjoy the benefits of earned professional respect. Missing an opportunity to converse with a mentor means missing an opportunity to learn from him and “network” through him. Chesnutt said in a speech given years after the publication of The Marrow of Tradition, “The fate of nations has more often been settled in clubs and parlors than in courts and parliaments,” and “many a valuable business or professional acquaintance is made around the social board or in the club room.” 49 Isolating black professionals from primarily-white professional communities, hampering their formation of professional friendships that cross racial boundaries, mandatory segregation thus denies blacks access to professional opportunities and to remuneration for consequent client services. Though Chesnutt does not use a white-appearing protaganist like Plessy in “A Journey Southward,” he nevertheless takes up the issue of blurred racial divisions and suggests that white efforts to maintain the color barrier were increasingly desperate. Lacking its most effective mechanism for maintaining a caste system based on race—slavery—the state enacted new methods of enforcing racial divisions, including the segregated car law and the graphic means of its enactment: The car was conspicuously labeled at either end with large cards, similar to those in the other car, except that they bore the word “Colored” in black letters upon a white background. The author of this piece of legislation had contrived, with an ingenuity worthy of a better cause, that not merely should passengers be separated by the color line, but that the reason for this division should be kept constantly in mind. Lest a white man should forget that he was white,—not a very likely contingency,— these cards would keep him constantly admonished of the fact; should a colored person endeavor, for a moment, to lose sight of his disability, these staring signs would remind him continually that between him and the rest of mankind not of his own color, there was by law a great gulf fixed. (56)

Plessy’s brief argues that race may be indecipherable, and implies that the decisions of railroad officials in classifying passengers as either “white” or “colored” are often arbitrary.50 But arbitrary or not, the decision cannot be contested by the passenger. Regardless of whether the passenger classified as “colored” identifies himself accordingly, the associated stigma is thrust upon him. Moreover, regardless of the “colored” passenger’s success in overcoming the “disability” created by racial injustice—success seemingly embodied in Miller,

49 Sylvia Lyons Render, Charles W. Chesnutt (Boston: Twayne Publishers, 1980), 109, quoting “The Courts and the Negro” and “Social Discrimination” from the Chesnutt Collection at Fisk University Library, Nashville. 50 Brief, 35–36.

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the doctor—Jim Crow’s “brutal drawing of the color line” will keep him from rising above bigotry: [I]f a classification of passengers on trains was at all desirable, it might be made upon some more logical and considerate basis than a mere arbitrary, tactless, and, by the very nature of things, brutal drawing of the color line. It was a veritable bed of Procrustes, this standard which the whites had set for the negroes. Those who grew above it must have their heads cut off, figuratively speaking,—must be forced back to the level assigned to their race; those who fell beneath the standard set had their necks stretched, literally enough, as the ghastly record in the daily papers gave conclusive evidence. (61)

The mythological Procrustes tortured captured travelers by placing them on a bed and stretching them to fit it if they were too short, or cutting off their limbs if they were too long. In thus figuring racial segregation as a bed of Procrustes, Chesnutt links it to the most violent form of racial repression, lynching. Blacks who travel outside of their prescribed paths may be figuratively cut to size or literally stretched by the hangman’s rope. That a head might be cut off emphasizes once again that the head of the black professional—the physical site of education and professional skill—is special prey for Procrustean legislation whose purpose is the prevention of upward mobility. One of the axe-wielders is, not surprisingly, Captain McBane, of whom Chesnutt provides an illuminating and foreboding glimpse in the railroad scene. While the train is stopped, Dr. Miller observes a man he recognizes who has been riding as a stowaway on the trucks of the train. He is Josh Green, a heroic but perhaps foolish character whom Chesnutt casts as a foil for Miller. Green hurries to drink from a trough and get back to his place before the train pulls out: Miller, who had seen this man from the car window, had noticed a very singular thing. As the dusty tramp passed the rear coach, he cast toward it a glance of intense ferocity. Up to that moment the man’s face, which Miller had recognized under its grimy coating, had been that of an ordinarily good-natured, somewhat reckless, pleasure-loving negro, at present rather the worse for wear. The change that now came over it suggested a concentrated hatred almost uncanny in its murderousness. With awakened curiosity Miller followed the direction of the negro’s glance, and saw that it rested upon a window where Captain McBane sat looking out. (59)

With the image of Green’s hatred of McBane, so acute it has transformed a “good-natured” and “pleasure-loving” man into a visibly murderous one (exactly the transformation that whites feared), the railroad scene becomes more meaningful still. It does not dramatize discriminatory treatment that wounds only a doctor’s pride. Rather, it portrays bigotry as an evil—one whose mere spectre crosses Green’s face and which the reader recognizes only as embodied, somehow,

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in McBane. Implicitly, Chesnutt shows that the stakes are higher than the Supreme Court recognized in Plessy. McBane’s rude behavior on the train reflects only the surface of his racial hatred (the depth of which the reader learns about only later—McBane murdered Green’s father while riding with the Klan). Justice Harlan, in his dissenting opinion in Plessy, noted that the segregated car rule was symptomatic of bigotry. In McBane, Chesnutt brings that bigotry to life. And through the avenging violence of Green’s gaze, Chesnutt warns that what happens on a railroad train is just a shadow of an evil more dangerous than any the Court considered. Power and violence are forces at work in Chesnutt’s Virginia, as undoubtedly they were in Plessy’s Louisiana as well. But the majority of the Supreme Court justices who reviewed the separate car legislation refused to see them. Only Justice Harlan, the lone dissenter in Plessy, recognized (or at least admitted) the inherent brutality of the legislation. He refused to perpetuate the pretense that the legislation was not harmful to the liberty, property or dignity of black travelers, and prophesied a future of continuing race hatred fueled by such exercises of state power: The present decision, it may well be apprehended, will not only stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens, but will encourage the belief that it is possible, by means of state enactments, to defeat the beneficent purposes … [of] the recent amendments of the Constitution. … What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments, which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens? 51

Chesnutt shares Harlan’s grim outlook. In The Marrow of Tradition there is a connection, of course, between the segregated car statute—one of the state enactments that “defeat the beneficent purposes” of the Civil War amendments—and the hate-mongering of whites like McBane, Carteret and Belmont. When states legitimize prejudices of the people, and grant prerogatives unequally, then they strengthen the already overbearing and weaken the already degraded. Ending as it does with a race riot, The Marrow of Tradition dramatizes the Court’s prophesy of aroused “race hate.” Chesnutt’s alignment with Justice Harlan—or the fact that Harlan based his reasoned opinion on concerns similar to those that apparently motivated Chesnutt to dramatize the segregation problem—shows that the different disciplines of law and literature, and the different interpretive practices they involve, do not necessitate different apprehensions of human questions. They do not, 51

Plessy, 163 U.S. at 560 (Harlan dissenting).

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moreover, inevitably tend toward different conclusions. With respect to segregated railroads, at least, no specific literary or legal insights inhere in the nature of the discourses. Neither is more apt to enable both a full understanding of the problem and a just resolution—one that is compassionate and principled, contextual and fair, creative and logical, sympathetic and practical. Both, then, need to be seen as important contributors to public discourse. In writing against Plessy, Chesnutt achieves what Martha Nussbaum suggests is the promise of literature when she says that “the literary imagination … [is] an essential ingredient of an ethical stance that asks us to concern ourselves with the good of other people whose lives are distant from our own.” 52 The Marrow of Tradition effectively places a human face on the racial prejudice the Court failed to see, and dramatizes the essence of Jim Crow legislation as an instrument not of benign tradition but rather of bigotry and force. Thus Chesnutt wrote the narrative that the legal text silenced, and in doing so formulated an example of the “particularly powerful kind of rational argument” that literature can communicate.53 Chesnutt illuminated fallacies in the Court’s reasoning in support of segregation that were rooted deeply in stubbornly held beliefs. Moreover, he offered an alternative vision of progress toward a multiracial community, one in which the intelligence and honor of individuals like William and Janet Miller lead the way.

52

Martha C. Nussbaum, Poetic Justice: The Literary Imagination and Public Life (Boston: Beacon Press, 1995), (xvi). 53 Winter, 106.

ABOUT THE AUTHORS

Michael J. Meyer, editor, is completing his sixth and seventh book in this series. An adjunct professor of English at DePaul University and Northeastern Illinois, Meyer holds a Ph.D. from Loyola University Chicago and is the author of Scarecrow’s Hayashi Steinbeck Bibliography, 1982–1996. His essays on Steinbeck have appeared in several collections and his study of Steinbeck’s use of the Cain and Abel myth was published by Mellen in 2000. Presently he is completing work on The Steinbeck Encyclopaedia for Greenwood where he serves as co-editor of the project. Gwen McNeill Ashburn is an associate professor and Chair of the Literature and Language Department at the University at North Carolina at Asheville. Her Ph.D. in linguistics is from the University of North Carolina at Chapel Hill. She has published scholarly articles on language and regional literature in The Companion to Southern Literature, Reader’s Guide to Literature in English, Effective Teaching, Thomas Wolfe Review, and The Arts Journal. An earlier venture into the arena of language and law was published as “Using Language Judiciously Is Important In All Worlds” in the Kentucky English Bulletin. Susan Ayres, associate professor of law at Texas Wesleyan University School of law, holds a J.D. from Baylor University and a Ph.D. from Texas Christian University. Her essays on law and literature have appeared in several journals, such as Albany Law Review and Texas Journal of Women and the Law. She has also written about the poetry of Muriel Rukeyser. Karen C. Blansfield holds a Ph.D. from the University of North Carolina at Chapel Hill, where she teaches in the Department of Dramatic Arts and also serves as dramaturg for PlayMakers Repertory Company. She is the author of books on O. Henry and Michael Frayn as well as essays and chapters in numerous publications, including South Atlantic Review, African American Dramatists: A Bio-Bibliographical Critical Sourcebook, Encyclopedia of Modern Drama, Southern Writers: A Biographical Dictionary, Contemporary Gay American Poets and Playwrights, Companion to American Drama, Woody Allen: A Casebook, Gender & Genre: Essays on David Mamet, Journal of American Drama & Theatre, and Studies In American Humor. She has also contributed

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About the Authors

reviews and articles to many newspapers and magazines. Her conference presentations include the Modern Language Association, Association for Theatre in Higher Education, Eugene O’Neill Fifth International Conference, Rocky Mountain MLA, South Central MLA, 26th Comparative Drama Conference, and Mid-America Theatre Conference. Beth Widmaier Capo is an Assistant Professor of English at Illinois College. She earned her Ph.D. in English from the Pennsylvania State University in December of 2001. She has published articles in The Faulkner Journal and The Journal of American and Comparative Cultures and has contributed to The Pearson Custom Library of American Literature and The William Carlos Williams Encyclopedia. Currently Beth Capo is working on a book about modern American literature and the birth control movement. She won a national Woodrow Wilson Dissertation Grant in Women’s Studies in 2001. Brian Conniff is Professor of English and Chair of the English Department at the University of Dayton. He has also taught extensively in Ohio state prisons. He received a B.A. from Rutgers University, an M.A. from the University of Scranton, and a Ph.D. from the University of Notre Dame. Conniff is the author of a book, The Lyric and Modern Poetry (Lang, 1988), and essays on modern and contemporary literature that have appeared in a wide range of journals, including American Literature, Modern Fiction Studies, Religion and Literature, and Christianity and Literature. The essay in this volume derives from a chapter in a book-in-progress entitled Before the Law: Race, Violence, and Morality in Contemporary American Prison Writing. Jenifer S. Cushman is Assistant Professor of German and Russian at the University of Minnesota, Morris. She received her M.A. and Ph.D. in German from the Ohio State University in 1992 and 1996 respectively. Her publications include: “ ‘Dann sang er:’ Das Marienleben from Rilke to Hindemith” (Literature and Musical Adaptation, ed. Michael J. Meyer, NY: Rodopi, 2002), “Beyond Ekphrasis: Logos and Eikon in Rilke’s Poetry” (College Literature 29.3, Summer 2002, 83–108), “Rilke’s Non-Nationalism: A Bohemian Model” (Kosmas: Czechoslovak and Central European Journal 15:2, Spring 2002, 13–26) and “The Avant-Garde Rilke: Russian (Un)Orthodoxy and the Visual Arts” (Unreading Rilke: Unorthodox Approaches to a Cultural Myth, ed. Hartmut Heep, NY: Peter Lang, 2001). She is currently completing a book on Prague national groups in Rilke, Kafka and Hasek. Ana María Frailé-Marcos received her Ph.D. from the University of Salamanca, Spain, where she currently teaches American and Postcolonial Literatures, as well as English language. She has written a number of articles on canon

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formation, ethnicity, and gender for different journals and has contributed to the Rodopi Perspectives of Modern Literature series with chapters about the works of Zora Neale Hurston, Alice Walker, and Gayl Jones. She is the editor of bilingual (English/Spanish) editions on the works of Jacob A. Riis, Cómo vive la otra mitad (2001), Langston Hughes, Oscuridad en España (1998), and Zora Neale Hurston, ¡Mi gente! ¡Mi gente! (1994). Deborah Hecht publishes articles and essays in magazines and newspapers including The American Scholar, The Writer, The Second Draft (Bulletin of the Legal Writing Institute), The New York Times, and Newsday. Her short stories appear in quarterlies including Colorado-North, The Denver Quarterly, Fine Print, in*tense, and The North Atlantic Review. She received her degree at SUNY/Stony Brook, where her dissertation Beyond the Bounds: A Reassessment of Edith Wharton won the President’s Award. Dr. Hecht is the Director of the Writing Resources Center at Touro Law Center in Huntington, N.Y. Hugh Lawson holds a J.D. from Emory University. He has been practicing law in central Georgia since 1965. Since 1995 he has served on the United States District Court for the Middle District of Georgia. Gwen Mathewson is a Ph.D. Candidate in English at the University of Washington. She also holds a J.D. from the University of Chicago and a B.A. from Yale University. She has taught at the University of Washington in the School of Law and the Departments of English and Women Studies. She is a member of the California Bar and has published in The University of Chicago Legal Forum and in Argumentation. Nancy Lawson Remler is an Associate Professor of English at Armstrong Atlantic State University in Savannah, Georgia where she has taught for eleven years. She also directs the Coastal Georgia Writing Project, Savannah’s local site of the National Writing Project. She holds a Ph.D. in English Education from the University of Georgia, and her research interests revolve around constructivism, especially with respect to first year college students’ development of writing skills and literary interpretations. Alicia Mischa Renfroe received her Ph.D. from the University of Tennessee and J.D. from the University of Florida College of Law. She has published work on Law and Literature in Cycnos and Soundings: An Interdisciplinary Journal. She is currently a Lecturer at the University of Tennessee, Knoxville. Eric Sterling (Ph.D., Indiana University) is a faculty member in the English department at Auburn University Montgomery, located in Montgomery,

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Alabama. He has published one book, The Movement Towards Subversion: The English History Play from Skelton to Shakespeare (1996). In addition, he has published articles on Shimon Wincelberg (in Literature and Ethnic Discrimination), Arthur Miller’s Incident at Vichy, bystanders during the Holocaust (in Problems Unique to the Holocaust), Denise Levertov’s “During the Eichmann trial,” Peter Barnes’s Auschwitz, Martin Sherman’s Bent, Stephen Spielberg’s adaptation of Schindler’s List, the kindertransports (in Children and War: A Historical Anthology), Rolf Hochhuth’s The Deputy, and others. “His book, Life in the Ghettos During the Holocaust, will be published in 2004 by Syracuse University Press.” Joseph Suglia has devoted his life to the writing and understanding of literature. He received his Ph.D. in Comparative Literary Studies and German at Northwestern University in 2002. His doctoral thesis concerned “the logic of self-sacrifice” in the work of Friedrich Hölderlin and Maurice Blanchot. He is currently a lecturer in Chicago, Illinois at DePaul, Roosevelt, and Northwestern Universities, where he teaches courses in German, composition, literature, and film. His literary criticism has been published in diacritics, Germanic Notes and Reviews, German Life and Letters, The American Catholic Philosophical Quarterly and has been accepted for publication in The Facts on File Companion to the American Novel. He has just completed his first full-length novel. Eric Witt practices law with the firm of Jobard, Chemla, et Associés in Paris and teaches Negotiation and International Private Law at the University of Paris X. He received his B.A. from the University of Michigan and his J. D. from the school of Law at the University of North Carolina at Chapel Hill. He also studied French law at the University of Paris II Assas. He is a member of the bar of the state of Connecticut and of the Paris bar. Mary Ann Frese Witt is Professor of French, Italian, and Comparative Literature and Director of Graduate Programs in the Department of Foreign Languages and Literatures at North Carolina State University at Raleigh. Her Ph.D., in Comparative Literature, is from Harvard University. Her publications include Existential Prisons: Confinement in Mid-Twentieth Century French Literature (Durham: Duke University Press, 1985), The Search for Modern Tragedy: Aesthetic Fascism in Italy and France (Ithaca: Cornell University Press, 2001) as well as essays on Camus, Kafka, Sartre, Genet, Pirandello, and other twentiethcentury writers.