SOURCE: Posner, Richard A. “The Reflection of Law in Literature.” In Law and Literature, revised and enlarged edition, pp. 11-48. Cambridge: Harvard University Press, 1998.

[In the following essay, Posner argues, citing numerous examples of fiction that encompass legal issues, that the law figures in literary works as a metaphor rather than as the center of thematic interest.]

Law is so common a subject of literature that one is tempted to infer a deep affinity between the two fields, giving the lawyer privileged access if not to the whole body of literature then at least to those works that are explicitly about law. But I shall argue that the frequency of legal subjects in literature is partly a statistical artifact and that law figures in literature more often as metaphor than as an object of interest in itself, even when the author is a lawyer (like Kafka) or a law “buff” (like Melville). This is in general, however, not in every case. Moreover, the validity of the generalization depends on the precise sense in which the word “law” is used—and also the word “literature.”

THEORETICAL CONSIDERATIONS

In matters of aesthetic judgment, even more than in other normative discourse, there is no “objective” procedure for resolving disagreements. The strongest defender of the possibility of reasoning to consensus on difficult political and moral questions—namely, Jürgen Habermas—acknowledges that aesthetic criticism, while it can be held to high standards of rationality, could not be expected to produce an evaluative consensus even if critics had forever to debate their evaluations.¹ I am persuaded by George Orwell, here following Samuel Johnson and David Hume, that literature can be judged great only by its ability to survive in the competition of the literary “marketplace.”² (The quotation marks are to make clear that I am speaking of reputation rather than the sale of commodities.) This is not to say that literary merit cannot be debated profitably, as a preference for blackberries over raspberries cannot be; the vast body of evaluative literary criticism, much of it of great distinction, shows that it can be; I offer my own aesthetic judgments from time to time in this book. But the debate achieves closure only with regard to very old works—suggesting that even the critics, in their hearts, accept only the verdict of time. Except by some radical critics, of whom more in a moment, the greatness of Homer or Dante or Shakespeare is no longer questioned. Tolstoy's attack on Shakespeare³ and T. S. Eliot's on Hamlet (“most certainly an artistic failure”)⁴ are curiosities that do not invite emulation. The effort of some New Critics to devalue Milton along with much Romantic and Victorian literature achieved a temporary success but eventually flopped; their efforts to revalue the Metaphysical and Augustan poets upward have succeeded. Feminist literary critics are trying to boost the reputation of a number of women writers, some hitherto unknown, but it is too early to say whether their efforts will succeed. That is always the case with literature and the arts; it takes many years to separate the wheat from the chaff.

The impression that many intellectuals today have of living in an age of trash may be an illusion produced by the fact that the winnowing effects of time have not had a chance to operate on contemporary literature. No doubt the English Renaissance produced a richer literature than has twentieth-century England, but the contrast is less stark than readers acquainted with only a handful of the best works of Shakespeare, Donne, Jonson, and a few others think. Plenty of literary trash was produced by the Elizabethans; most of it has disappeared (the original Hamlet [see next chapter] may be an example); what has survived physically is read today only by specialists. Some of the Elizabethan plays discussed in the next chapter, such as The Spanish Tragedy, have only modest merit and make a striking contrast to Shakespeare's mature works—as indeed does his early Titus Andronicus. It may not have been until Samuel Johnson brought out his edition of Shakespeare's plays in 1765 that it was settled as certain (as certain as these matters can be) that Shakespeare was great—that his best plays must have extraordinary qualities to be so riveting almost two centuries after their composition despite the intervening changes in language, taste, and social milieu. It is only today, more than seventy years after major writings by Kafka, T. S. Eliot, Joyce, Proust, and Mann, that we can say with some confidence, though more provisionally than in the case of Homer, Dante, Milton, and Shakespeare, that these men have written classics. And about some writers who only a few decades ago had the status of classic writers, such as Anatole France, John Dos Passos, and André Gide, there are growing doubts; their work is starting to date in a way that some of their contemporaries' is not.

Orwell's endorsement of the test of time rested partly on a preference for the judgment of the many over the expert few and partly on skepticism about the possibility of making objective judgments of literary merit. These are two reasons why few professional literary critics are enthusiastic about the test of time.⁵ A third, which is related to the first, is that specialists acquire a taste for obscure writers. Orwell's skepticism mirrored that of the logical positivists concerning the possibility of objective normative judgments, anticipated the skepticism about interpretation that I shall discuss in Chapter 7, and is supported empirically by the amazing vicissitudes in literary and artistic taste. His skepticism, in combination with his democratic sentiments, led him to suppose that aesthetic disputes should be settled by a form of majority vote; the significance of time is that it broadens and diversifies the franchise—making the test of time an application of sampling theory. Samuel Johnson, himself a skeptic in many areas with a surprisingly egalitarian attitude toward aesthetic judgments,⁶ had reached the same conclusion much earlier. But his ground was that the longer the perspective in which a work of art can be evaluated, the greater the possibility of comparison, and it is from comparisons that judgments of artistic greatness, which are judgments of less and more, emerge. “Of the first building that was raised, it might be with certainty determined that it was round or square, but whether it was spacious or lofty must have been referred to time.”⁷

We might say, joining Johnson's and Orwell's points, that when a work of literature demonstrates appeal to diverse audiences familiar with many other works with which to compare it, it must “have something.” So understood, the test of time illustrates epistemic democracy rather than mere nose-counting. (By the same token, it is a criterion, not a definition.) It is not the sheer number of people who have esteemed a work of literature but the cultural diversity of its readership that is telling. The more diverse the readership, the larger the range of potential objections and criticisms; if the work survives them all, this is robust evidence of merit.

Or is it? It is one thing to believe with Habermas, here following Charles Sanders Peirce, that if you give a community of disinterested and uncoerced inquirers enough time, they will reach a consensus that can fairly be regarded as “the truth.” But we have seen that Habermas himself does not believe that aesthetic disagreement lends itself to this method of resolution. The real skeptic will repose no greater confidence in majority vote than in expert opinion. Neither Orwell nor Johnson specified the conditions necessary for democratic opinion to come within miles of yielding reliable aesthetic judgments.

To state this problem in another way, if passing the test of time shows that a work of literature has something, why is the identification of that something so elusive? If the survivors in the marketplace of literary reputation have nothing in common, this suggests that reputations are bestowed for reasons unrelated to the actual quality of the works. And so it is claimed, especially by literary scholars of a radical bent. These scholars march today under many different banners, including neo-Marxism, radical feminism, critical theory, and poststructuralism, but I shall lump them all together under the label of “postmodernists.” They have in common a commitment to radical egalitarianism, hostility to the Enlightenment's faith in the power of reason, insistence on the primacy of politics—radical politics⁸—and skepticism about the traditional literary canon dominated by “dead white European males,” whom the test of time favors because they were the ones doing almost all the writing in past centuries. This last point echoes the law's concern with practices, not discriminatory in themselves, that perpetuate past discrimination: for example, a union apprenticeship program that favors the children of current members, who may have become members at a time when nonwhites were excluded. The literary canon may be biased in the same way.

The test of time has been called circular, because a work that endures shapes critical opinion and meets a social demand for cultural monuments. But this does not explain why the work endures, only why its durability may eventually become self-sustaining as the text becomes an influential and admired “survivor.” Gary Taylor has tackled this question, arguing that Shakespeare's reputation is a product of such lucky accidents as the number of people who speak English (itself a result, Taylor contends, of British imperialism), the variety of dramatic genres to which Shakespeare contributed (making his oeuvre a diversified portfolio more likely therefore to withstand the vicissitudes of taste), the closing of the theaters by the Puritans between 1642 and 1660, which reduced the output of plays that might have competed with Shakespeare's, the fact that in the eighteenth century Shakespeare was “taken up” by a prominent English publisher, and even erotic titillation, for women were permitted to act on the Restoration stage, as they had not been in Shakespeare's time, and a number of Shakespeare's heroines are disguised as men.¹⁰ Taylor's argument is overstated, contradictory, tendentious, implausible, in places inaccurate, at best highly speculative.¹¹ But he is right that the survival of works of literature is, broadly speaking, Darwinian, that Darwinian processes produce fitness but may not produce goodness, and that literary reputation—the mark of that survivorship—is something bestowed upon a writer for the purposes of the people doing the bestowing, rather than something earned by pure merit.¹² So one expects many inflated reputations. But is Shakespeare's one of them? Read his plays and then read the plays of his predecessors and contemporaries and then the representative plays of his successors and, if you can, plays in other languages. Few people who have taken this—Johnson's comparative or perspectival—route doubt that Shakespeare's reputation as the preeminent dramatist since (and probably including) Sophocles is earned. The opinion of the strong majority of informed readers over several centuries and across different cultures, an opinion defended not as ineffable or inspired but by rational arguments albeit not conclusive ones, provides some basis for a confident, though not an infallible, let alone a permanent, evaluation.

It is possible to be too skeptical about the value of evolutionary products. No more in literature than in biology can variation, adaptation, and selection guarantee a good result. Yet biological evolution has produced creatures of dazzling complexity, many of which seem beautiful to us; why should the more deliberate competitive process that shapes the literary canon do worse, merely because accidental and political factors enter into the quest for beauty and meaning? But as the proof of the pudding is in the eating, an alternative method of attacking the test of time is to challenge the greatness of classic authors, such as Shakespeare, which Taylor, however, does only implicitly, for the most part,¹³ by ascribing Shakespeare's reputation to factors unrelated to the merit of his work. If it can be shown that these authors are not as good as they are cracked up to be—if even at this late date they can be dethroned—the test of time cannot be a reliable guide to aesthetic value.

The attack (I shall continue to use Shakespeare as my example) proceeds in two steps. The first is to reject aesthetic criteria of literary merit as subjective and implicitly political and to claim that the only value of literature is its contribution to the struggle for equality.¹⁴ The second step is to argue, for example from the depiction of Caliban in The Tempest, or Edmund in King Lear, or Kate in The Taming of the Shrew, or the Roman mob in Coriolanus or Julius Caesar, that Shakespeare was a reactionary—a royalist, a racist, an imperialist, a misogynist.¹⁵

The first step is a peculiarly uncompromising version—reminiscent of Stalinist “socialist realism”—of the didactic school of literary criticism (see more on this in Chapter 9). The second step rests on a one-sided reading of the plays. The previous generation of critics had depicted Shakespeare as a subversive writer, evading Elizabethan censorship to question the values of his society with respect to Christianity, monarchy, Henry V's victorious war with France, homosexuality, commerce, and the status of women, blacks, and Jews.¹⁶ Oddly, it is quite possible, though unrewarding, to read Shakespeare either way—as reactionary or as radical. Little is known about Shakespeare's personal life and nothing of his private opinions. There is no authoritative text of the plays. None of the original manuscripts, that is, Shakespeare's autograph texts, survives. The copies from which printers worked were probably inaccurate, and the printers made many errors. It is not even clear that any of the plays ever had a single, definitive text, as different versions may have been prepared for different performances. The text of Hamlet, which is much longer than that of any of the other plays, may have been a kind of master text from which abridged versions were spun off for performance. And it is possible that the actors were authorized to ad lib lines, which would give the original text an inherently open-ended quality. The quest for authorial intentions is defeated by these textual uncertainties.¹⁷ A play, moreover, lacks a narrator to tell the reader what to think. And Shakespeare's plays were written in an era of social transitions and questioning of values. All plays had to be approved by the public censor as politically and religiously inoffensive, and such censorship both implies that there is dissent from orthodox beliefs and induces ambiguity and obliquity of expression.¹⁸ Shakespeare's “compulsive habit of creative interiorization,”¹⁹ moreover, gives his characters the kind of complexity that we encounter in living persons and that makes it difficult to classify most people as either “hero” or “villain.” For all these reasons, it is impossible to determine where Shakespeare “stood” on most issues.

This discussion shows the silliness of trying to pin an ideological tail on the Shakespearean donkey, but it also flags another objection to the test of time: ambiguous works of literature are more likely to pass it though they may be no better than unambiguous ones. They provide a challenge to readers that is independent of the quality of a work, and they are more adaptable to political and ideological change. The Merchant of Venice has been performed both in Yiddish theaters (once with Shylock speaking German and the Christian characters Yiddish!) and in Nazi ones.²⁰ But there is a quality of literature that is like ambiguity but distinct from it, and that is universality. I suggested earlier that the quest for a quality common to all great literature has failed. That is correct if what we are looking for is some particular structure, theme, or verbal texture to be the touchstone of literary greatness. But if what we are looking for is the property that enables a writing to pass the test of time and be received into the canon, a plausible candidate is an adaptability to new and different cultural settings that is a product sometimes of ambiguity but more often of the writer's having succeeded in dramatizing in a particularly striking way some universal aspect of the human condition that science has not yet been able to domesticate, such as love, fear of death, emotional maturation, and social maladjustment. Such a dramatization is less likely to “date,” more likely to “travel,” than a more topical work.

Universality should not be confused with abstraction. Most great literature is highly textured, richly particular, and even (an implication of the test of time) exotic. The world of Homer, for example, is presented to the reader in great detail; and it is emphatically not our world. Ancient literature, especially, is often rich in anthropological or historical interest. But that is different from literary interest. The great author makes us at home in his fictive world; that is his universality.

Other criticisms of the test of time should be noted.²¹ The first is that it privileges current aesthetic standards—the only works that survive into the present are the works esteemed great by current standards. The second is that it is made indeterminate by the vicissitudes of literary reputation: if the timeline of a writer's reputation exhibits troughs as well as peaks, what significance can be assigned to a current peak? Next year there may be another trough, and if the test of time is applied to the writer then, he will flunk it. The third criticism is that the test of time is biased in favor of works that are written in widely read languages and works that are easily translated; it is therefore biased in favor of drama and against poetry. This means that the test of time will yield different results—different lists of canonical literature—when administered in different cultures, as well as at different times. When I speak of the literary canon, therefore, it is the canon primarily as it is understood in England and America, and secondarily in Europe; not the canon as it is understood in India or China. Fourth—but this is really a limitation rather than an objection—the test of time doesn't tell us what we should read, because an ephemeral work, say of political satire, may be more important given our current interests than a classic. But this is just to say that our reading interests, even our fiction-reading interests, extend beyond literature.

I do not consider the objections to the test of time disabling—they just show that it is an imperfect test, but there is none better. But for present purposes all I need to show is that it is the operational test of greatness, for if so, it becomes easy to see why law is a common literary subject. It is a brute fact, whatever its normative significance, that a work of literature will survive in places and times remote from those in which it was created only if it deals with permanent (equivalently, “universal”) features of the human condition. This was Samuel Johnson's explanation for Shakespeare's greatness.²² It echoes Aristotle's distinction in the Poetics between history (concerned with particulars, with what actually happened) and poetry (concerned with probabilities, with the universal features of the human condition). Like love, maturation, accident, adventure, religion, friendship, alienation, death, war, and art itself, law is a permanent feature of human experience. Specific doctrines and procedures have changed greatly since distinct legal institutions first emerged in Western society, but not the broad features of law. The legal systems of Elizabethan England and even of Periclean Athens are readily accessible to a modern understanding. Between, on the one hand, the Austro-Hungarian procedures reflected in Kafka's Trial or the nineteenth-century Russian criminal procedures reflected in Crime and Punishment and The Brothers Karamazov, and, on the other hand, modern European and even American criminal procedure, the differences, while important to lawyers, would seem small to most lay people.

So between two otherwise similar works of literature of a time remote from our own, one about law and the other about burial customs or tool making, the first is more likely to be still read in the twentieth century. But one must be careful about “about.” Literature may contain many details of vanished social customs without being “about” them, or without being just about them. The Homeric epics explore the heroic code and contain a wealth of specific information, though much of it garbled, about Mycenaean culture. But if they were merely a depiction of vanished customs they would be read today just as historical or sociological source documents, as the Icelandic sagas largely are. And so would Moby-Dick, if it were just about the whaling industry and the pre-Darwinian understanding of the natural history of the whale.

John Ellis makes what turns out to be the related point that the question “what is literature?” is misleading.²³ There is no satisfactory analytical or definitional procedure for deciding whether a comic strip, Lincoln's second inaugural address, Pepys' diary, Gibbon's Decline and Fall, the Homeric epics, the Bible, Orwell's journalism, or Guys and Dolls, is literature. Literature is a label that we give to texts, of whatever character or provenance, that are meaningful for readers who were not in the writer's contemplation. Lincoln made a political address; we who may have no interest in the political setting and purpose of the speech—we eavesdroppers, as it were—value it for its imagery and cadences. Gulliver's Travels was written as a satire on eighteenth-century English politics; it is read today without reference to its satirical purpose. Alice in Wonderland was written for children and is read today by a great many adults as well. College courses with such titles as “The Bible as Literature” tell the whole story. The authors of the Bible did not think they were writing for future readers of “literature.” Even Shakespeare may not have thought so, at least when writing plays, as he made no effort to revise them for publication or to get them published.²⁴ He may have thought of them as strictly quotidian productions, a way of making money.

Ellis's definition must not be taken literally. If I use a Babylonian sacred text as a source for a history of Babylonia, I am not making a literary use of it. (I will be making a nonliterary use of Njal's Saga in the next chapter.) Aristotle wasn't writing for twentieth-century Americans; we read him, but not as literature. Ellis is right, however, to shift our attention from the intrinsic properties of the text to the uses made of it and to emphasize, as a necessary condition of a text's being literature, that it be read in a setting different from that of its creation. That is what I am calling “universality,” and it invites us, as we begin to think about the “legal” novel or play, to distinguish between concrete legal problems, which lawyers are expert at solving, and broader issues of legality, governance, and justice that are grist for moral, political—and literary—examination rather than for technical legal analysis. Every society has machinery for resolving serious disputes in accordance with rules or customs deemed authoritative, in some sense official. Every such machinery runs into problems of “fit” between formal rules and application. These problems include the difficulty of ascertaining the facts that constitute the predicate for applying a rule, and the tendency of a rule to take a dichotomous cut at a continuous problem: classifying a person as disabled or not disabled, literate or illiterate, distinguishing between a business gift and a personal gift, distinguishing “speech” from “action”—in short, drawing clear lines where there are no lines.²⁵ Related problems are the inflexibility of rules, which creates an irresistible demand for principles of “equity” (see Chapter 3) to reduce the rigidity of the purely “legal” rules, and the problem with officials' discretion that arises if rules cannot be bent and have to be changed (who shall be authorized to change them, and on what grounds?), or if it is infeasible or undesirable to enforce a rule in all cases to which the rule applies. Closely related is the problem of the gap between the ethical or political principle that underlies a rule and the rule itself, which for purposes of administrability is likely to be much cruder than the principle. Thus, from the principle that there ought to be an end to disputes, the legal system may derive a rule that a particular type of claim, is extinguished forever unless sued on within two years, no matter how meritorious the claim is or how trivial would be the inroads on the principle if a particular late suit (late by just a day, maybe) were allowed.

The frequent discontinuity between the spirit and letter of the law, or between its general aim and its concrete application, is one reason why law so often strikes laymen as arbitrary. And law's apparently arbitrary and undeniably coercive character, combined with the inevitable errors of fact and law in the administration of justice and the resulting miscarriages of justice, and with law's “otherness” (law, like language, the state, and the market economy, is a human institution frequently perceived as external to man, like a natural phenomenon), makes law a superb metaphor for the random, coercive, and “unfair” light in which the human condition—“life”—appears to us in some moods.

Moreover, literature is characteristically dramatic, and thus traffics in conflict. As a system for managing conflict, law provides a rich stock of metaphors for writers to use. It also provides a ready-made dramatic technique in the trial—especially the Anglo-American trial, which is more adversary, more theatrical, than its Continental counterpart.²⁶ Whether historically the trial is modeled on the theater and offers the litigants and society (the audience) the type of catharsis that the theater does, or vice versa, or whether both the trial and the drama have a common origin in religious rituals, few social practices are so readily transferable to a literary setting and so well suited to the literary depiction of conflict as the trial.²⁷ Particularly close is the parallel between the trial in literature and the play within the play (for example, in Hamlet). Both are techniques for creating an audience within the work of literature—the tribunal and spectators, in the case of the trial, the playgoers in the internal play—to play off against the audience for the work itself.

It does not follow that what is transferred when law is adapted for literary use must retain its legal character. Vittoria's trial for adultery in Webster's play The White Devil begins with the prosecuting lawyer mumbling incomprehensible legal jargon. The Cardinal, who is presiding, quickly shoos him off the stage and takes over the prosecutor's role. There is no more law talk in the trial. An analogy can be drawn to “academic” novels by such writers as Mary McCarthy, Bernard Malamud, C. P. Snow, and David Lodge. Despite these writers' first-hand familiarity with academic life, their novels convey little sense of what academics do that is different from what other people do. The focus—understandably, since the novelist is reaching out to an audience composed primarily of nonacademics—is on personal rivalries, foibles of character, comic predicaments, sexual adventures, and other aspects of conduct and character that academics share with other people, rather than on the things that set them apart.

And while the legal trial may have a dramatic structure, and some celebrated trials may have performed a cathartic role comparable to what Aristotle assigned to tragedy, the essential spirit of the law is not dramatic. Law's aim is to mediate, often to diffuse, but rarely if ever to aggravate, conflict. Most statutes represent compromises, and the vast majority of legal disputes are settled out of court. Judges in their decisions seek to reduce rather than increase social tensions. The resemblance between drama and trial may be superficial, making it all the more likely that any borrowing by the first from the second will be metaphoric.

Probably there is more great revenge literature than there is great literature about “official” law. Revenge has a form that can be imitated (in Aristotle's sense) by literature. Law is a complex of rules and institutions from which a writer can borrow but which does not lend itself to being imitated.

THE AMERICAN LEGAL NOVEL FROM TWAIN TO GRISHAM

The elaboration and qualification of these theoretical points will occupy me intermittently throughout this book, beginning in this chapter with a discussion of several works of fiction, American and French, old and new, popular and classical, that are overtly about law. I aim to give some sense of the variety of the genre that we might call “imaginative literature with a legal subject.” My sample is necessarily a small one and excludes interesting works by Auchincloss, Dreiser, Faulkner, Melville, Wouk, and Wright, to name only Americans, although I discuss Melville's Billy Budd in Chapter 5 and Richard Wright's Native Son in Chapter 9.

James Gould Cozzens's novel The Just and the Unjust (1942) is so pervasively and accurately “about” law that one might think the author an experienced lawyer. In fact he had no legal training and the book is not about law in any interesting sense. The novel is set in a small town in an unimportant rural county. A trio of repulsive hoodlums—Howell, Basso, and Bailey—has kidnapped Zollicoffer, a drug dealer. After the ransom has been paid, Bailey, deciding that it would be unsafe to return Zollicoffer alive, shoots him. Howell and Basso help Bailey weight Zollicoffer's body down with leg irons and dump him into a river. Bailey later dies fleeing the police. Although Howell and Basso do not deny having taken an active part in the kidnapping, it never becomes clear whether they authorized, knew about in advance, or participated in the murder. They are prosecuted by the county's assistant district attorney, Abner Coates, who is young and able, but a bit priggish. He emphasizes to the jury, in urging a verdict of first-degree murder (which would mean the electric chair), that the defendants' lack of participation in the actual murder is irrelevant. So long as they took part in the kidnapping, as unquestionably they did, they are guilty of first-degree murder because Zollicoffer was killed in the course of a felony in which they participated. To the disgust of Coates and the judge (who dresses down the jury afterward), the jury convicts Howell and Basso only of second-degree murder. The author leads us to understand, through one of the wise old codgers who people the novel, that the jury has exercised its prerogative of nullifying a law that it considers unjust—the felony-murder rule, a legal fiction that punishes a felon who is not a murderer as if he were one.

While the trial is wending its way to its surprising conclusion—for the reader is given no clue that the jury might fail to return a verdict of first-degree murder—Coates is both getting engaged and agreeing to run for district attorney (the incumbent is leaving for another job). It is understood that Coates cannot lose the election; he is a Republican, and Republicans always win in this county. But to agree to run, Coates must overcome his aversion to the local Republican boss, who Coates fears will interfere in the D.A.'s office, though in fact the boss is pretty straight. The suspense in the novel is focused not on the trial, which seems a foregone conclusion, but on whether Coates will overcome his priggish scruples against marrying his utterly charming childhood sweetheart and accepting the tremendous career opportunity opened up by the D.A.'s impending departure.

From this brief summary it should be plain that The Just and the Unjust is not really about trial strategy, the legal profession, the felony-murder rule, or the power of juries to acquit lawlessly, and thus that critics miss the point when they accuse Cozzens of “belligerent legalistic conservatism.”²⁸ This is a rite-of-passage novel, a Bildungsroman. The hero is a prissy kid at the beginning and a man at the end, having assumed family responsibilities and learned the difference between pure forms (of law, of career advancement) and sordid realities (law may diverge from the lay sense of justice, politics influences promotions), as well as the need to compromise, to moderate demands, to scale down ideals, to trim absolutes, to empathize—with the Republican boss, and above all with his sweetheart, to whose feelings Coates is remarkably insensitive at the beginning of the novel. The work has none of the resonance of Hamlet or the Iliad but is recognizably part of the same broad category of works in which (as we shall see in the next chapter) youthful idealism becomes tempered with realism through a series of crises.

That the law is rather a detail in all this can be made clearer by a comparison with another and finer novel by Cozzens, Guard of Honor, possibly the finest American novel about World War II. Set in Florida, it recounts a brief period in the administration of an air base by a young major general. He is champing at the bit to be sent overseas to do more fighting (he had held a major command in the North African campaign). But we soon understand that his command of the base, which involves dealing with domestic crises that have no martial dimension (race relations, a training accident), is an important preparation for the major combat command that he is slated to assume next—and that, with nice irony, is the command of fighter cover for the invasion of Japan, which of course never took place. Again it is a rite-of-passage novel, with the professional setting, in this case military, again incidental. The hero, at first insufficiently worldly-wise to handle senior administrative responsibilities, like Coates matures in the course of the novel by meeting the challenges of everyday life.

If either novel were about the professional challenges of its protagonists—if either one showed lawyers correcting their legal errors or generals correcting their military errors—neither would have much appeal even to members of those professions. A novelist with neither legal nor military training is unlikely to have significant insights to impart at the level of practice.

Written toward the end of the nineteenth century, Mark Twain's Pudd'nhead Wilson is set in Dawson's Landing, an imaginary Missouri town on the Mississippi River. The title character moves to the town as a young man in 1830, hoping to practice law. His hopes are dashed by a joke he makes. A dog is annoying people with its barking. Wilson says that he would like to buy half the dog, and kill his half. The townspeople (extremely gullible hicks to a one) think Wilson is serious, pronounce him a “pudd'nhead,” and refuse to give him any legal business. He bides his time, doing some surveying and accounting, and pursuing his hobby of finger-printing (a novelty in 1830).

At about the same time that Wilson arrived in Dawson's Landing, Roxana, a slave in the household of the town's leading citizen, had given birth to a son. Roxana is fifteen parts white and one part black, while the child's father (another leading citizen) is all white; so the son, whom she names Chambers, is only one thirty-second black. The wife of Roxana's master had given birth to a son, Tom, at the same time as Roxana and died a week later, so Roxana must take full care of both children. Fearful that her child might one day be “sold down the river” (that is, to owners of cotton plantations, who treat their slaves much worse than the slaveholders in Missouri), Roxana switches the babies. Her inattentive master does not notice. Roxana brings up her son, Chambers, as “Tom,” a white, and the real Tom as “Chambers,” a black. “Chambers,” the supposed black, turns out to be a sweet and noble character. “Tom,” the supposed white, is a devil. His principal vice is gambling, and it leads him to theft—and worse. Roxana's master has meanwhile died in debt, and “Tom” has been adopted by his (supposed) uncle, a wealthy man. Roxana's master had freed her in his will, yet “Tom,” with terrible, unconscious irony (considering the reason his mother had switched the babies in the first place), sells her down the river. “Tom's” career of crime reaches its culmination when he kills the uncle with a stolen knife during a botched attempt at theft.

Meanwhile the town had recently become home to—of all people—twin Italian counts. Bad blood has arisen between them and “Tom's” uncle, and they have the misfortune to be passing by the uncle's house when he is murdered. They hear his screams and rush in and are still there when the neighbors arrive. The murder weapon, which “Tom” has discarded in his flight, had been stolen from one of the twins. They are suspected of the murder and put on trial. Wilson defends them—it is his first big case. The evening before he is to put on what we are led to expect will be a hopeless defense, “Tom” is visiting him and happens to place his thumb on a glass slide from Wilson's fingerprint collection, leaving a print that Wilson immediately recognizes as the same one he had taken from “Tom” when “Tom” was seven months old. Wilson discovers the baby switch by examining the set of prints he had taken of Tom and Chambers when they were a few weeks old—for in that set Chambers has the same print as “Tom” and Tom, the real Tom, the same print as “Chambers.”

The next day in court, Wilson presents blowups of the fingerprints. The twins are immediately released, and “Tom” (who was in the audience) is arrested. He is convicted of murder and sentenced to life imprisonment. But the uncle's creditors (the uncle, too, died poor) insist that he is their property and should be sold, and he is—down the river. “Chambers” is restored to his status as a white man. But because his accent, gait, and manners are incurably those of a slave, he cannot adjust happily to his new lot. Roxana, who had regained her freedom and was in the courtroom when “Tom” was exposed as a slave and a murderer, is brokenhearted.

Although written a half-century before The Just and the Unjust, Mark Twain's novel seems more modern because of its irony, surrealism, and open-textured quality; it has a resonance (perhaps the serendipitous result of its author's careless revising!²⁹) and a fascination that Cozzens's novel lacks. The presence not only of the twin Italian counts but of Wilson himself in a southern backwater town is entirely incongruous; the townspeople are comically absurd; the treatment of white people as Negro slave (first Roxana and Chambers, then Tom) as if it were the most natural thing in the world—no one in the novel remarks on the oddness of treating a person who to all appearances is white as if he were black—is sinisterly absurd. Yet there is no overt criticism of slavery or racism; and maybe the reader is being invited to agree with Roxana that the false Tom's one thirty-second part Negro ancestry is responsible for his villainous behavior. But maybe instead it is his spoiled “white” upbringing that is responsible. And the fact that environment makes white “Chambers” more Negro than “Tom” may be intended as a mordant commentary on bigotry.³⁰ Roxana is the most impressive character in the novel, while the white people, except for Wilson, are yokels or freaks. Yet I wonder whether the book is essentially about slavery or racism at all, let alone about law, rather than about the debate—very lively in the late nineteenth century—over Nature versus Nurture (or genetics versus environment); about how easily people are taken in by appearances; and about the triumph of science and rationality, in the person of Wilson, over rural ignorance and complacency.

Robin West believes that the novel contains an implicit criticism of legalism.³¹ Wilson proves not only that the Italians are innocent (because the fingerprint on the murder weapon is “Tom's”) but also that the murderer is a slave. West argues that by exposing “Tom,” Wilson goes further than necessary to save his clients, and does so because, like most lawyers, he accepts uncritically the legal system, which happens to classify some people as slaves. Yet in light of what “Tom” had done to his mother, his being sold down the river is poetic justice; it is also a lighter punishment than he could have expected. And it is better that “Tom” should be exposed so that “Chambers” can be freed rather than being condemned to a lifetime of slavery, as he will be if the secret of the baby switching is buried with “Tom.” In order to clinch the case for his clients, moreover, Wilson must produce not just a discrepant fingerprint but the real murderer—and “Tom” as the slave who usurped the real Tom's place is a more plausible candidate than if he were believed to be the victim's nephew. It is hard to find in any of this a basis for criticizing Wilson or his profession. In any case the novel places no emphasis on Wilson's legal skills or his acculturation as a lawyer; he owes his triumph in the Italians' trial to his scientific hobby. He is the American as garage tinkerer, not as lawyer. Maybe the reader is meant to look askance at Wilson for having become so well assimilated (at long last) into the hick society of Dawson's Landing that he has come to internalize its dubious values of chivalry, slavery, and racism. But there is no indication that we are meant to infer that his legal education and scarcely employed legal skills are responsible.

The Just and the Unjust and Pudd'nhead Wilson are a half century and a century old, respectively, and I turn now to some contemporary American legal novels, beginning with Tom Wolfe's satiric The Bonfire of the Vanities (1987). The novel depicts its protagonist, Sherman McCoy, enmeshed in the coarse, dingy, and sordid operation that is, according to Wolfe, the Bronx criminal justice system today. McCoy had picked up his mistress, Maria Ruskin, at Kennedy Airport in his sports car and on the way back to Manhattan had gotten lost in the South Bronx. A couple of teenagers—one a drug dealer (“The Crack King of Evergreen Avenue”)—had thrown a tire in front of the car, and when McCoy got out to move it, they approached him in a menacing fashion. A scuffle ensued. Maria took the wheel. McCoy jumped back into the car, which as it pulled away hit the Crack King's companion. Maria didn't stop, and neither she nor McCoy reported the incident to the police. Eventually, McCoy is investigated, questioned, arrested, and indicated for vehicular manslaughter. The prosecutors, abetted by self-appointed black leaders, knee-jerk liberals and radicals (such as the “Gay Fist Strike Force Against Racism”), and a scandal-mongering press, portray the victim of the homicide to a credulous public as the honor student that he is not. After the first indictment of McCoy is dismissed because of false testimony before the grand jury, he is reindicted. An epilogue briefly recounts his trial, which ends in a hung jury; when the novel ends he is about to be retried.

Since The Bonfire of the Vanities was published so recently, it can't have passed the test of time. That test excludes the literature of the present day, whether it belongs to “popular” culture (as Shakespeare's plays originally did) or is aimed at a cultural elite. Today's popular culture is saturated with law, however, and there is no reason why the treatment of law in it should be less illuminating than the treatment of law in literary classics. But it is unlikely to be much more illuminating. The author of a classic accretes a large audience over time; the author of a best seller accretes a large audience in a short time; in either case the display of an esoteric or technician's interest in the workings of a social institution, even one as interesting and important as law, will reduce the appeal of the work, making it less likely that it will be either a best seller or a classic. But there is an important difference between these two classes of work. The legal system depicted in a best seller is almost always going to be the contemporary legal system, which suggests that popular literature about law may play a role in shaping popular understanding of law. It is teacher rather than just mirror, and we can ask whether it is a good teacher or, instead, presents either too pollyannish or too cynical a picture. The popular television series L.A. Law made the practice of law seem more exciting than it is. The dominant mood of today's popular novels about law is realism verging on cynicism.

The Bonfire of the Vanities is attentive to the criminal process and its personnel. Larry Kramer, the assistant D.A. who prosecutes McCoy, is one of the principal supporting characters in the novel, along with Kovitsky, the judge in the case. The novel's gallery of minor characters includes the publicity-seeking D.A. himself, other lawyers, other defendants, court officers, and a juror, “the Girl with Brown Lipstick,” whom Kramer pursues with a comic ineptness that culminates in scandal when he tries to rent for their trysts the rent-controlled “love nest” in which McCoy and Maria Ruskin had held their trysts. In addition to the proceedings directly involving McCoy, Wolfe treats us to an extended episode of plea bargaining and to a portion of a homicide trial.

Wolfe's novel makes several points that ought to interest lawyers in their professional capacity, as well as the broader public. These include the danger of misusing the legal process for political ends; the radicalizing effect (on McCoy) of being prosecuted (as the old saw goes, if a conservative is a liberal who has been mugged, a liberal is a conservative who has been arrested); the capacity of a public arrest to inflict profound, life-altering humiliation, making the actual outcome of the criminal process almost a side issue;³² the effect of racial hostility on the rule of law; the difficulty of attaining justice across large differences in social class; even the difficulty of reconstructing history by the methods of litigation. Wolfe writes about the contemporary American legal system with something approaching prophetic insight—the sort of thing we tend to ascribe to Kafka—although as yet it is short-term. Often today the stage on which American legal justice is played is a bizarre intersection of race, money, publicity, and violence, an intersection perfectly described in The Bonfire of the Vanities even though the book was written before the intersection had come into view.

The legal theme fits nicely with Wolfe's evident desire to skewer the diverse social classes and ethnic groupings that coexist uneasily in New York City. The book exploits to the hilt New York's most arresting characteristic—the juxtaposition of grotesque extremes of opulence and squalor, the former symbolized by McCoy and his Park Avenue-Wall Street set, the latter by the Bronx County Criminal Court with its crummy and overcrowded facilities, its clientele of black and Hispanic criminals, and its harried, underpaid, precariously middle-class personnel. Shuttling between the extremes is a rich cast of hustlers, social climbers, toadies, hangers-on, and con men, seeking to share in the opulence and avoid sinking into the squalor. There is an egregious quality about New York that provides a field day for a sharp-eyed and sharp-tongued social satirist. Wolfe has a particularly keen eye for prices and for how people dress, and for dialect. True, he exaggerates the sordidness of New York, and, prophet though he is, failed to predict the recent dramatic improvements in the quality of life in New York. But he exaggerates less by misdescribing—I am told on good authority that his portrayal of the Bronx County Criminal Court is essentially accurate, although its environs are not quite so hellish as he describes, and indeed that the entire book is a roman à clef populated by institutions and characters instantly recognizable to knowledgeable New Yorkers—than by suppressing complexity. And that is the satirist's privilege. Wolfe is in the tradition of Bosch and Swift in portraying humanity at its worst. It is therefore part of his method to present a one-sided view of his subject,

The Bonfire of the Vanities is not a “great” novel, if one's touchstone is Dickens or Dostoevsky. Its plot is merely a thread connecting a series of tableaux. Its characters are shallow and are revealed to the reader by the simplistic device of making him privy to their thoughts. The writing is pedestrian. And about two-thirds of the way through the novel the author's energy flags. Satire increasingly gives way to broad and eventually tedious burlesque. The scene in which a courtroom mob attacks Judge Kovitsky for dismissing the indictment against McCoy is overdone and implausible; the halo around Kovitsky's head at this point shines too brightly. And the hints of redemption for McCoy that Wolfe starts to drop are maudlin. The book peters out; Wolfe seems to have had no idea how to end it.

But this, the collapse of the book two-thirds of the way through, is the only criticism that counts. That the book lacks a rich plot and multidimensional characters and distinguished prose merely identifies it as a certain type of novel; for the same observations could be made about Nineteen-Eighty-Four. The “novel” is not a closed genre. The satirical or political novel—The Bonfire of the Vanities is both—should not be judged by its resemblance to novels of a psychological or philosophical character—or to novels deeply interested in law or justice. The depiction of the criminal process in The Brothers Karamazov is designed, as we shall see in Chapter 5, not merely to provide local color or narrative suspense, or to be a caricature or an exposé, but to contrast rational inquiry, exemplified by the criminal justice system, with religious insight—to the disadvantage of the former. The only religions in The Bonfire of the Vanities are the Reverend Bacon's extortion racket and the Wall Streeters' worship of Mammon. The law for Wolfe is simply another setting—no different in any material respect from a dinner party on Park Avenue, or a dinner at a fancy restaurant, or the “ant colony” where Larry Kramer lives with his wife, infant and au pair girl on his meager civil servant's salary—in which to observe the comic pratfalls of trivial people. Although the politicization of prosecutors' offices and the assembly-line character of criminal justice in the nation's big cities are genuine social problems that the novel vividly depicts, there is no suggestion that any of these problems might be alleviated, let alone solved.³³ On the contrary, the reader is led to believe that the present criminal justice system of the Bronx will soon give way to one dominated by the minority that is already a majority in the Bronx and that that system will be even worse than the present one, for there will be no Kovitskys in it. To stimulate social reform (other than by proposing some “invisible hand” mechanism that will turn private greed into social benefit) an author must convey the impression that there are some good people in the society. If there are none, not only is reform unlikely to succeed but there is no reason we should want it to succeed. New Yorkers, as depicted by Tom Wolfe, are mostly freaks and monsters who neither deserve a better system nor would profit from it, save in the mercenary sense.

Although we expect popular literature about law to tell us a lot about how lay people view law, we learn nothing from The Bonfire of the Vanities on this score that the classic legal novels, such as The Brothers Karamazov and Pickwick Papers, had not taught us already. We learn that lay people expect technicalities to matter (and it is on a technicality that the first indictment against McCoy is dismissed) and are not surprised when miscarriages of justice occur (McCoy, remember, is innocent of the homicide charge, and the real culprits are used as false witnesses by the prosecution), and that they expect legal proceedings to be interminable and excruciatingly expensive and are unillusioned about the moral and intellectual shortcomings of judges, lawyers, jurors, and other participants in the machinery of legal justice and about the corrosion of that machinery by political and personal ambitions. Judge Kovitsky does get to make a Law Day speech to Larry Kramer: “What makes you think you can come before the bench waving the banner of community pressure? The law is not a creature of the few or of the many. The court is not swayed by your threats.”³⁴ But he is duly punished for his independence: he is denied renomination. The public is more cynical about law than the profession is, and it is useful for legal professionals to be reminded of this from time to time.

William Gaddis's legal novel, A Frolic of His Own, is even more recent (1994) than The Bonfire of the Vanities. It is not, however, a work of popular culture. Allusive, erudite and even esoteric, syntactically complex, “high modernist” in style, it is a difficult read—the most difficult of any of the books discussed in this chapter. And yet, in tension with my discussion of the polarity between literature and topicality, it is even more saturated with contemporary American law than is Wolfe's novel. It depicts many more lawsuits and contains far more of the texture of the law. There are three long judicial opinions, a set of elaborate jury instructions, and a deposition. And all the litigation is civil litigation. Wolfe took the easy way out of public ignorance about law by using as the spine of his novel a criminal case. Criminal law and criminal procedure are more familiar to the lay person than civil law and civil procedure and generally less complex.

The legal theme is announced in the title. A “frolic,” as one of the characters explains, is a concept in the law of agency. An employer is not liable for a tort committed by an employee, even if it occurs during working hours, if the employee was on a “frolic,” that is, was engaged in an activity unrelated to his employment. Oscar Crease is on a “frolic” in a different sense, though a sense that turns out to be charged with legal significance. He is a disheveled, reclusive, unmarried, eccentric, selfish, childless, middle-aged skinflint who lectures on the history of the American Civil War at a small college and lives on a ramshackle but pricey property in Long Island, mainly on the income from a trust fund. His grandfather was, like Oliver Wendell Holmes, a Civil War veteran and Supreme Court Justice. His father is a 97-year-old federal district judge in South Carolina who has been nominated for the federal court of appeals (Nonagenarian district judges are not promoted, so here is an early clue that the novel has fantasy elements, along with a good deal of gritty realism—a combination familiar from Bleak House.) Oscar had years earlier written a play about his grandfather (the play was his “frolic”), who after being slightly wounded fighting for the South in the Civil War moves north to claim a coal mine in Pennsylvania that he has inherited. He hires a substitute to take his place in the Confederate army and then, threatened with being drafted into the Union army after his move to Pennsylvania, hires another substitute to fight for the Union. The two substitutes find themselves in opposing regiments at the battle of Antietam—and (in the play anyway, a wonderful Faulknerian mishmash garnished with passages lifted almost verbatim from Plato's dialogues on the trial and condemnation of Socrates) they kill each other, which grandfather regards as a kind of spiritual suicide of himself. The play, naturally, has never been produced.

When Oscar hears about a new movie that seems to bear a striking resemblance to his play, a copy of which he had sent many years ago to the movie's producer, he decides to sue for copyright infringement. The case looks absolutely hopeless. Oscar has not seen the movie and can't even find the letter from the producer acknowledging receipt of the play years earlier. He can't claim copyright protection for the Civil War or his grandfather's life,³⁵ let alone for his plagiarisms of Plato (presumably not reproduced in the movie, however). Oscar's lawyer, moreover, turns out to be an impostor and vanishes during the course of the litigation. Oscar is up against one of the biggest law firms in New York, and is ripped apart at his deposition by the brilliant young comer at the firm. Sure enough, summary judgment is granted against Oscar. But then his father takes a hand in the case (not for love of his son, but for love of the law—his only love), actually drafting the appeal brief. The appeal succeeds. The appellate court (the U.S. Court of Appeals for the Second Circuit, no less) recognizes the hand of a fellow judge, and the circuit judge who writes the opinion reversing the district judge dislikes female judges—the district judge in Oscar's case is a woman. Yet the opinion the circuit judge writes is very fine, and we understand that Oscar really did have a strong case all along. But another peripeteia is in store. The suit was for the profits of the movie and now they must be calculated. Through imaginative accounting the producer is able to convince the court that although the movie grossed almost $400 million there are no profits, and if there were, they would be attributable not to Oscar's stolen play but to the “Nordic-Eurasian tits” of the female star.

The copyright suit is one of more than a dozen suits described or mentioned in the book.³⁶ In another one of the suits Oscar is suing himself for an injury that he sustained when his car ran over him while he was jump-starting it. (He was too cheap to repair the ignition.) In another, his father is presiding over a wrongful-death suit brought against a minister by the family of a child who drowned while the minister was baptizing him. Judge Crease's instructions to the jury in that case intimate a possible liability of God, as the minister's principal. Judge Crease also presides over a series of suits arising from a bizarre accident in a hick town in his district. A sculptor—the sort of sculptor whom the National Endowment for the Arts likes to support—has erected a huge and hideous structure (it is meant to mock its setting, but the locals eventually discover and happily exploit its tourism potential), and a dog has wandered in and got stuck. The dog's owner summons the fire department to dismantle the structure with acetylene torches, but the sculptor obtains a preliminary injunction from Judge Crease.³⁷ Then lightning strikes the sculpture and kills the dog, ruining the chances for Judge Crease's promotion and even leading to calls for his impeachment.

The moral center of the novel is Oscar's stepsister, Christina, who tries to keep him and his dumb-blonde girlfriend out of trouble and whose description of the legal profession as a “self regulating conspiracy” appears to state the author's view. Christina's husband, Harry Lutz, a partner in the firm that represents the producer in Oscar's suit, and a nice guy, works himself literally to death. For nowadays being a partner in a large law firm is, as he explains, “like sailing through the strait of Messina between Scylla and Charybdis. You make partner, make senior partner with a fine old reputable white shoe firm used to mean you were set for life, now you've got the sea monster's cave on one side and a whirlpool on the other, liability as a partner you're on board risking being devoured by these monstrous suits and government regulators or sucked under and drowned in the unemployment pool” (p. 422). Christina is counting on Harry's $500,000 life insurance policy to tide her over. His firm tells her it's worried he may have committed suicide, a cause of death excluded from the policy's coverage. Christina provides the firm with convincing evidence that her husband's death was not suicide—only to discover that the beneficiary of the policy is not she, but the firm.

The paperback jacket copy describes A Frolic of His Own as “Swiftian.” That is accurate to the extent that Gaddis has a bleak vision of a nation devoured by greed, a nation whose legal system is completely characterized by Ambrose Beirce's definition of litigation as a process that you go into as a pig and come out of as a sausage. But the presiding spirits are Sterne and Joyce rather than Swift. One cannot help liking the nutty Uncle Toby-style Oscar, whose suit against the movie industry is, in its own crazy and lucre-tinged fashion, a quest for justice and a challenge to the hideous wave of popular culture that is engulfing his exurban world. But the quest is a failure, and not only because Hollywood gets to keep its profits. The television is always on in Oscar's house. He orders a fish tank, provoking this reflection from Christina—

a fish tank? when they could better be watched in living colour and much wilder variety spawning and feeding, fin ripping and vacant staring glassy eyed from far grander submarine vistas and exotic plant and coral strewn habitats right on his nature program, spared those custodial concerns for wind and wave, temperature and salinity, aeration, pH balance, light and filtration and the daily toll of all those mouths to feed confined, best of all, where they could be summoned and banished in an instant like those hordes of his own species crowding the channels elsewhere rather than actually having them all over the house here firing guns, spouting news events, telling jokes, doing pushups, deep knee bends, shuddering with diarrhea, howling half dressed and full of passionate intensity humping guitars like the monkey with the greased football loosing mere anarchy upon the world where three's a crowd even in a house as large as this one.

(pp. 282-283)

The movie stolen from Oscar's book is finally shown on television, and he watches it—rapt. The hyperrealistic battle scenes—the movie's producer is the king of gory special effects—enchant him. Gaddis's rendition of the battle scenes, like his descriptions of television programming (which are a leitmotif of the book), is dazzling.

Greed, litigiousness, media that lack any decorum or restraint, false values—all this sounds much like The Bonfire of the Vanities. Both Wolfe's and Gaddis's works are satiric novels, funny but bleak, that portray the contemporary American legal system, viewed as a microcosm of American (in Bonfire, of New York) culture, in unflattering colors. But the resemblance between the two novels is superficial. They reflect different sensibilities. Wolfe's characters are cardboard figures, and their lack of depth reflects the author's style—for the most part pedestrian journalese. The characters elicit no sympathy from the reader. The satire is also localized to New York City. Gaddis's characters, at least the main ones,³⁸ are human victims of a tawdry, frenetic, spiritually empty culture dominated by mind-destroying media and a Darwinian legal system. It is the culture of America circa 1990 as seen by Gaddis's too-jaundiced eye, but it could equally be the London of “The Waste Land” or even one of the circles of Dante's Inferno. The humor is often as broad as in Wolfe's novel, but A Frolic of His Own has greater depth, resonance, and humanity.

The legal detail is extraordinarily dense (it must be hard going for a reader who is not a lawyer), and except for the deliberate comic touches is realistic and accurate. Not only the copyright case, which raises issues that I'll be discussing in the last chapter, but also the cases arising from the immurement and subsequent death of the dog trapped in the sculpture, could be made the basis of law-school exam questions. The deposition of Oscar, in which the opposing lawyers spend most of their time interrupting each other, could be used in a course in pretrial procedure. And there is a marvelous description by Harry Lutz, forecasting the young hot shot's losing the case brought by Oscar, of what it can be like to argue a case before an appellate court:

I don't think he's ever handled a case before the Second Circuit Appeals Court. Probably march in there with a twenty page brief ready to read every word of his brilliant legal analysis to these three old black robes sitting up there looking down at him and I mean looking down, he's standing at a lectern down in the well and they're up in their highbacked thrones behind this polished mahogany sort of horseshoe courteous, relaxed, really forbidding, almost informal and that's what's formidable about it. He starts off with something like in order to fully understand this case one of them cuts him right off. We're familiar with the case, Counsel, is there anything you wish to add to what is contained in your brief? Your honour, if I may be allowed to outline the facts … I believe we understand the facts, Counsel. If it please the court, the public interest in the far reaching cultural implications of this case and [Judge] Bone cuts right in, I remind Counsel that we are here to serve the public interest. Your case is thus and so, goes right to the heart of it, sums up the argument in a couple of sentences and asks counsel to sit down, poor bastard's got himself up for a real performance and the place, the whole atmosphere's like a theatre but they're not there for a matinee and his whole star turn goes out the window, a few more questions and down comes the curtain.

(p. 347)

But as with most other works of imaginative literature that take law for their theme, the heart of this fascinating novel lies elsewhere than in its critique of law. The impression that lingers is of the hapless characters caught in the webs of modern American trash culture (of which law is one), rather than of the webs themselves.

At the border between the legal novel and the detective story—either a mystery proper, or a crime story in which the culprit is known to the reader at the start and the “mystery” is how he will be brought to justice—is the “legal thriller.” This is the most popular subgenre of the American legal novel. The Bonfire of the Vanities and even Pudd'nhead Wilson revolve around an unsolved crime, but in neither case is the process by which it is solved (in Wolfe's novel it is never solved) central to the reader's interest in the work. In contrast, Scott Turow's novel Presumed Innocent,³⁹ though written by an able and experienced lawyer and full of accurate legal detail, is au fond a murder mystery. In the popular novels of John Grisham, another lawyer, although the focus is on the solution of the crime, the law is such a pervasive presence that these novels are properly classified as legal thrillers rather than as detective stories. True mass-market best sellers, moreover, they provide insight into the depiction of law in popular fiction.

In Grisham's novel The Client (1993), an eleven-year-old boy, Mark, stumbles upon the attempted suicide of a “mob” lawyer. Before he finally succeeds in killing himself, the lawyer reveals to Mark the location of the body of a U.S. Senator assassinated by the mob. The mobster who did the “hit” has been indicted, but because the evidence against him is weak, the absence of the body is a major embarrassment to the prosecution. The U.S. Attorney and the FBI are desperate to find the body, and the mob is equally desperate to conceal its whereabouts. Mark, a street-smart lower-class son of an abused (now divorced) wife, is caught between two almost equally unsavory adversaries—federal law enforcement authorities led by a ruthless, publicity-mad, even sadistic U.S. Attorney (who “loved those moments when the power of the federal government shifted into high gear and landed hard on small, unsuspecting people”⁴⁰) and staffed by thuggish, lawless FBI agents, versus the tentacular, vengeance-obsessed Mafia. But with the aid of a divorced, middle-aged, formerly drug-addicted woman lawyer who devotes herself to representing juveniles who are in legal trouble, Mark triumphs over both the law and the outlaws. He produces the body to the FBI in circumstances that enable him to negotiate a uniquely favorable package of witness-protective provisions—not only plenty of money and new identities but also psychiatric care for his younger brother. En route a gruff, shrewd, heart-of-gold black juvenile-court judge modeled on Thurgood Marshall resists, for a time successfully, the efforts of the feds to obtain custody of Mark so that they can grill him about the whereabouts of the senator's body. The novel raises but does not resolve the question whether a subpoena issued to a witness by a federal district court can wrest a juvenile from the custody of a state juvenile court (it can).

The theme of The Client is the triumph of the underdog. A lower-class kid—a modern Huck Finn—and his déclassée female lawyer outwit the rich and powerful, including an unsavory legal establishment and its illegal counterestablishment. The novel thus is egalitarian and politically correct, even to the extent that the lawyer's secretary is a wimpish man. But these whiffs of ideology, along with the legal details, are minor variations on the standard adventure-yarn theme of the innocent hero who is being pursued by two sets of bad guys and manages eventually to turn the tables on both. The author's object in such a yarn is to keep the reader wondering how on earth the hero is going to triumph against such long odds. At this level, The Client succeeds. But at no other. The book is written at a child's reading level. Every character speaks alike, but it is uncertain whether Mark sounds just like the other characters because Grisham does not have an ear for an eleven-year-old's diction, or because the other characters have the diction of an eleven-year-old. The opening scene—the protracted attempted suicide—is so flat and preposterous that it is laughable. Neither the good guys nor the bad guys have any depth. The novel is set in Memphis and New Orleans, but it has no sense of place, and therefore cannot be read as a plausible or informed commentary on actual conditions in those cities or the nation as a whole.

Grisham's best-known novel, The Firm (1991), is tauter, more ingenious, more suspenseful than The Client. The story line, though, is basically the same. The innocent—this time an associate in a law firm—is pursued by the FBI and the mob and eventually negotiates a deal with the FBI that (along with a theft from the mob) enables him and his family to live in safety on $8 million. Mitch McDeere, a newly minted top-ranking graduate of the Harvard Law School, is hired by a small, discreet Memphis law firm that unexpectedly pays the highest salaries and offers the most generous perks of any law firm in the country. At first we think it is just the usual Faustian pact with a law firm: you get hooked on the money and don't realize till too late that in exchange you are going to have to work like a dog on dull and unrewarding projects and your marriage will break up because you are never at home. We soon discover that something far more sinister is involved. The law firm is owned by the Chicago mob (whose power, incidentally, the novel greatly exaggerates). The firm's function is to launder the money that the mob takes in from its illegal enterprises. The firm also has legitimate clients in order to maintain a respectable front. Brand-new associates work only on those clients' matters. But after a few years the associate is informed of the true nature of the firm. By then he is hooked by his high income; the law firm is careful always to hire young men who are married and come from poor backgrounds, and it encourages them to have children—so that they cannot afford to quit. Our hero is also compromised by having worked, all unknowingly, on illegal matters. No one has ever quit the firm. Anyone who tries is killed in a staged accident; there have been five such deaths. The FBI approaches Mitch and tells him what is going on and asks him to work for them as a confidential informant. He agrees, in part because he is told that otherwise he will be prosecuted as soon as the FBI gathers enough evidence to bust the firm. But, like Mark, he distrusts the FBI. The wisdom of his distrust is confirmed when it turns out that the FBI has a high-ranking mole who informs the mob that Mitch is working against it.

The Firm could be read as an allegory of professional greed and amorality, but is better read as an engaging potboiler. Its simple vocabulary and syntax, stick-figure good guys—always from the lower or lower-middle class, such as Mitch's brother, a convicted attempted murderer who saves the day for Mitch and Mitch's wife at the end of the book—and bad guys, cinematically swift pace, and raised lettering on the cover proclaim it a book aimed at the lowest common denominator of literary taste. The questions about today's legal profession at which The Firm glances—whether there are too many lawyers and whether their ethical standards are too low and their pay too high and the working conditions of young lawyers too exploitative despite the high pay—are difficult and are not illuminated by the novel. The people who will read it with real absorption are not likely to be influential on matters of professional regulation, and the highly educated and influential people who read it—and many will—will do so only to rest their brains when a television set is not at hand.

If you compare the depiction of law in sophisticated modern novels like The Bonfire of the Vanities and A Frolic of His Own with its depiction in Grisham's popular (and populist) fiction, you will not see much difference. In both sets of novels the depiction is negative: the law is a racket and lawyers are shysters. Here and there a ray of sunlight penetrates the fog. Wolfe has Judge Kovitsky, and Grisham has both Judge Roosevelt (the black juvenile-court judge) and Mark's lawyer, but both novelists emphasize the marginality of their “good” judges or lawyers to the profession. The negative depiction of lawyers in the modern American novel taps into a very old vein of hostility to the legal profession, a hostility strongly marked, for example, in Dickens, and a newer hostility to authority generally. The number and wealth of American lawyers today, their role in well-publicized miscarriages of justice, and the difficulty that lay people have grasping the social function of representation of criminals and other bad people may explain why lawyers have become such an attractive target for the darts of the satirist and the mass-market novelist. Lawyer-baiting in fiction belongs to the same genre as lawyer jokes, and is growing with them.⁴¹

CAMUS AND STENDHAL

Camus's celebrated short novel (novella) The Stranger (1940)⁴² was written at about the same time as The Just and the Unjust and is also centered on a trial for homicide. Yet the two works could not be more different morally and aesthetically, and this is a clue to the heterogeneous character of the genre (“imaginative literature on legal themes”) that I am examining. The Stranger is narrated by its protagonist, Meursault, a pied noir (a European as distinct from an Arab resident of Algeria, then still a part of France). It opens with the death of Meursault's mother. Through his reaction to her death we learn that he does not think about past or future, does not form deep emotional attachments, lacks ambition, piety, pretension—and for that matter a conscience. He is innocent, but as an animal is innocent. He's a loner, and amoral, but his passive, anesthetized manner belies any suggestion that he might be either a pagan sensualist or a rebel and nonconformist.

The day after his mother's funeral, Meursault begins sleeping with a new girlfriend, Marie. He later accepts her proposal of marriage, while admitting to her that he does not love her and would probably have accepted the same proposal from any number of other women. But before he and Marie get around to marrying, he and his pals get into a fight with a group of Arabs as a result of some disreputable business in which one of the pals had been involved—and had received Meursault's help, characteristically given when neither enthusiasm nor reluctance, but simply because he had been asked. Later that day Meursault finds himself walking alone on the beach, still carrying the friend's revolver lent him during the fight (in which no shots had been fired). He sees one of the Arabs lying ahead of him on the beach. The sun is beating down mercilessly. Meursault continues walking toward the Arab, without knowing why. The Arab draws a knife but makes no threatering gesture with it. There is no suggestion that Meursault feels endangered. Nevertheless he shoots the Arab, once—and, after a pause, four more times.

He is arrested, and in accordance with French procedure is questioned by an examining magistrate, a kind of cross between a judge and a prosecutor. The questioning brings out what the examining magistrate considers Meursault's disgusting callousness, demonstrated by his lack of emotional response both to his mother's death and the Arab's, his beginning his affair with Marie the day after his mother's funeral, and his rejection of Christianity. The prosecutor harps skillfully on these features of Meursault character at the trial, and the jury brings in a verdict of first-degree murder. Meursault is sentenced to be guillotined. In prison, awaiting execution, Meursault fiercely rejects the efforts of the prison chaplain to convert him to Christianity. He has lost his earlier inarticulateness. Awareness of impending death has given him a voice and made him for the first time fully conscious, fully human, and (paradoxically—since he's imprisoned and about to die) fully in control of his life.⁴³

The contrast with the other novels discussed in this chapter (even Grisham's), so far as the author's “take” on the criminal justice system is concerned, is striking. Camus tells his story through the eyes of the criminal and makes the trial a sinister farce in which the defendant is condemned not for committing murder but for rejecting bourgeois Christian values. The murder victim is nameless and faceless. The impending execution of Meursault—the only fully realized character in the novella—is made to seem a far worse crime than the murder, which indeed is made to seem an unimportant incident on a par with Meursault's having forgotten how old his mother was when she died.

What will strike an American lawyer as particularly odd is how evidence of Meursault's “bad” character (bad in the conventional sense rejected by the novella) is allowed into the trial and indeed becomes the decisive factor in his condemnation. In an American trial the character evidence so damaging to Meursault's chances would not have been let in. Character evidence is not admissible in our courts to show that the defendant acted in conformity with his character in the incident for which he is being prosecuted.⁴⁴ It is admissible to prove motive, knowledge, and other dispositions or facts that bear directly on an issue in the case rather than on the defendant's general propensity to do bad things, but Meursault's behavior toward his mother and his rejection of Christianity are too remote from the crime to be admissible for any of these purposes.⁴⁵ Yet the admission of this evidence was probably not a violation of French criminal procedure. French law does not limit evidence of bad character.⁴⁶ On the contrary, the French Code of Criminal Procedure provides that “witnesses shall testify only either on the facts charged against the accused or on his character and morals.”⁴⁷ And consistent with the inquisitorial tradition of Continental procedure, a French criminal trial begins with the interrogation of the defendant by the presiding judge in open court and so in the hearing of the jury, and no details of the defendant's personal history—many of which will be in a dossier compiled during the investigation of the crime—are out of bounds.⁴⁸ It is true that rules of evidence are less important in Continental legal systems than in the U.S. system because the rules are designed primarily for the control of juries, which are much less important to those systems. But this is irrelevant; the French use juries in criminal trial.

It does not seem to have been Camus's purpose to criticize the only type of criminal procedure that he knew anything about, although the novel is sometimes taken as a polemic against capital punishment.⁴⁹ The author disapproves of the verdict,⁵⁰ but not because of any procedural irregularity. He accepts the legal relevance of Meursault's character. What he rejects is the ethical system that pronounces that character bad. We the readers can, however, find in the novella a reason, not of course a conclusive one, for preferring the Anglo-American system of criminal justice (that he avoids demeaning and largely irrelevant inquiries into character); and this shows that the law and literature movement can contribute to the study of comparative law. But if one wanted to make a comparative evaluation of American and French criminal procedure, one would not do so primarily on the basis of novelistic depictions; one would study actual trials. Besides the trial of Meursault is, in at least one respect, profoundly unrealistic—not in the admission of but in the weight given to the character evidence. It is unlikely that a French colonial court would have convicted, and inconceivable that it would have condemned to death, a Frenchman who killed an armed “native.”⁵¹

All this is not to suggest that Meursault would have been acquitted, or even convicted of a lesser offense, in an American trial from which the character evidence would have been excluded. Although the Arab displays a knife, Meursault is not in reasonable fear of death or serious bodily injury when he shoots him, so there would be no basis for an acquittal on grounds of self-defense. An actual but unreasonable fear of death or serious bodily injury would at least mitigate his guilt; but Meursault has no fear. And those four shots fired after a pause are highly indicative of premeditation. It is true that Meursault shot the Arab in a sort of trance brought on by the fierce sun beating down on the beach, and did not intend to kill him, and that absence of lethal intent should reduce the killing to second-degree murder. But would a jury believe this version of what happened? Meursault testified at his trial but was unable to give a coherent account of the circumstances of the killing. And there were no witnesses.

“In a sort of trance. …” Until he is imprisoned, Meursault goes through life in a kind of trance. He lacks that rich interiority which we find in Shakespeare's characters. That lack invites reflection on what we mean by “premeditation” and by criminal responsibility more broadly. If we could peer into Meursault's mind shortly before, and during, and shortly after the shooting, we would see nothing. If we could peer into the mind of a more reflective, articulate murderer, we would usually find not a focused malignity but instead an elaborate superstructure of rationalization and excuse.⁵² Maybe the law does not really care about what is in the murderer's mind.⁵³ Maybe it is the deed rather than the state of mind that matters, that invites condemnation—the deed that in Meursault's case comprises not just the initial shot but also the four shots that followed it: four shots into an inert body.

That is one interesting legal angle to The Stranger; another, which turns out to be related, has to do with how the legal professionals—the prosecutor, the defense lawyer, and the judge—tell Meursault's story at the trial. Neither the accused nor the reader recognizes Meursault in the legal profession's retelling. Meursault implicitly rejects, and the reader is invited by the implied author of the novella to reject, “the state's ideology: that men are primarily spiritual beings endowed with souls and that men's actions possess a coherence.”⁵⁴ The law has its own purposes, which are not those of psychology. The basic purpose is to enforce social norms, and it requires a judgmental stance alien to the values of a Meursault. There is such a thing as being excessively judgmental, however, which leads Ernest Simon to argue that “what invalidates the prosecutor's interpretation of Meursault's reality is not its wrongness, for it does fulfill a prime requirement of both legal and literary discourse: it is ‘plausible.’ What invalidates it is its ease, its rhetorical glibness, its blindness to ambiguities, and its exclusion of any feeling for the accused. These are literary more than judicial failures.”⁵⁵ They may not be judicial failures after all. And notice that Simon's argument can be applied to Camus's own interpretation of Meursault's reality, an interpretation that while plausible is rhetorically glib, blind to ambiguities, and devoid of any feeling for the victim of a murder.

Simon helps us see that The Stranger supports a point of James Boyd White's, that law is (among other things—a qualification that White might not accept) a way of talking, and a way of talking that can be truer or less true to the things that it talks about. But descriptive accuracy, a cogent phenomenology of the criminal mind, is not necessarily the important thing for the law. The “literary” failures of the prosecution cannot excuse Meursault—a psychopath who is incapable of remorse for his action, indeed incapable of any feeling for a human being, whether it his mother, his lover, or the Arab. Is it not then shameful of Camus to invite the reader to take Meursault's part despite the crime and despite the criminal's lack of remorse, by depicting him as victim rather than killer and by depersonalizing the real victim? Not only shameful, but incoherent? As René Girard puts it, “If the murderer is not held responsible for his actions, why should the judges be held responsible for theirs?”⁵⁶ In other words, why is not the court's action in condemning Meursault as “innocent” as his action in killing the Arab?

Girard points out that since no reader would believe that Meursault would be sentenced to death for not crying at his mother's funeral, he must commit a capital offense, but must do so in circumstances that preserve his essential innocence, so that the reader will believe that Meursault's failing to cry at his mother's funeral, and his other defiances of bourgeois pieties were the real reasons for the conviction and sentence (p. 87).⁵⁷The Stranger flirts with the form of neoromanticism which makes heroes out of criminals, as does André Gide's novel Les Caves du Vatican, whose hero Lafcadio, shoves an inoffensive pilgrim to his death from a railroad carriage just for the hell of it. Meursault is another spokesman for, in Girard's words “a new and radical variety of Romantic solipsism” (p. 96).

Camus can be accused not only of taking murder too lightly but also of taking colonialism too lightly.⁵⁸ Not only is the Arab victim left nameless, Arab customs and culture are occluded. Mosques, souks, Arabic, the milling throngs of Arabs in the streets—all are ignored even though Arabs outnumbered Europeans in French Algeria by more than ten to one. The Stranger is a novella of “white bourgeois alienation.”⁵⁹

But wait a minute. All these criticisms are political or moral in character. They are wide of the mark unless the proper criteria for judging a work of literature are political or moral or unless The Stranger belongs to the order of ethical, political, or legal commentary rather than to that of imaginative literature. The Stranger is not just the best known of the books discussed so far in this chapter; it is, in my opinion, the best, even though it is the only one with an implied value structure that is odious to a civilized person. It dramatizes with great vividness and emotional force, and considerable subtlety (as in the tricks that Girard describes—dramatic artifice does not lose its emotional power by being exposed), a mood that overcomes most of us, the young especially, from time to time. It is the feeling of disgust with the “system,” that complex of mature values and established institutions that curbs the boundless egoism of the childlike “inner man.” Meursault's Nietzschean rejection of religion, introspection, guilt, and remorse; his refusal to cry at his mother's funeral; his refusal to accept a promotion that would take him to Paris (hence his rejection of the capitalist ethic); and his refusal to acknowledge the moral authority of law and religion and the terror of death (the foundation, according to Hobbes, of the social impulse in man)—these rejections culminate in a final wish, rich in exalted self-assertion and Achillean defiance, that “on the day of my execution there should be a huge crowd of spectators and that they should greet me with howls of execration.”⁶⁰ Through the power of literary art Camus makes all this crazy negativity wholly sympathetic to the reader.

And maybe it's not so crazy, or at least not so negative. The end of the novel evokes the Nietzschean doctrines of self-overcoming and eternal recurrence: “I … felt ready to start life over again. It was as if that great rush of anger had washed me clean, emptied me of hope, and, gazing up at the dark spy spangled with its signs and stars, for the first time, the first, I laid my heart open to the benign indifference of the universe. To feel it so like myself, indeed so brotherly, made me realize that I'd been happy, and that I was happy still” (p. 68). The triumphalist mood in which Meursault awaits his imminent death reminds one of the similar mood of Yeats's late poetry, also Nietzschean in flavor. In “Death,” for example, Yeats writes: “Nor dread nor hope attend / A dying animal … / A great man in his pride / … Casts derision upon / Supersession of breath; / He knows death to the bone—/ Man has created death.”

If we want to keep mining The Stranger for jurisprudential rather than metaphysical or psychological nuggets, we can compare Meursault to law's other great doomed refuser—the eponymous protagonist, a lawyer's office clerk whom today we would call a paralegal, of Melville's story “Bartleby the Scrivener.” Meursault and Bartleby are alike in not wanting to be a part of the normative system of their society. (Another literary example is Barnabas—whose name “Bartleby” may faintly be echoing—in Measure for Measure. The earliest example may be Achilles.) The “consent of the governed” is a powerful legitimating slogan; but 99 percent of the legal and social norms that pen us in, even those of us who are fortunate enough to live in this most democratic of large nations, the United States, have been imposed upon us rather than—given the costs of emigration or even of moving to another state to escape unwanted laws—consented to by us in any meaningful sense. The refusers, the internal exiles, the nonconformists impress us by the strength and independence of their character, their “spirit of defiance and protest,”⁶¹ and also challenge us to develop principled justifications for legal coercion.

Behind Meursault stands not only Lafcadio but also Julien Sorel, the protagonist of The Red and the Black (1830). At first glance, Stendhal's hero is the opposite of Camus's. Meursault, until sentence is passed on him, is affectless and unambitious, whereas Sorel is highly emotional and boundlessly ambitious (his hero is Napoleon). But both young men come from the lower class and are afflicted by an extreme egocentrism that expresses itself in a sense of profound estrangement from their society—a society that in both cases is despicable. Both are convicted for the wrong reasons—their nonconformity. Both are sentenced to death, and in both cases the sentences, though lawful, are made to seem excessive; and only in part is this because the convictions are motivated by hostility to the doer rather than to the deed. Sorel lightly wounds his former lover in a mad act of attempted revenge, and she promptly forgives him. (Under French law at the time, attempted murder was punishable by death, but it is unlikely that the punishment would have been imposed in the circumstances.) Both authors imply that life achieves dignity, value, and savor only in the contemplation of imminent, premature, and unjust death.

The establishment that crushes Julien Sorel is more garish and odious than that which does in Meursault—or so it will seem to a modern reader, though perhaps only because the bourgeois French (including pied noir) society of the 1930s is more like our society than is the France of the Bourbon Restoration. The variety of human and social types is also greater in Stendhal's novel, as is the emphasis on social class, clericalism, and love; and the author maintains a far more critical perspective on his protagonist than Camus does on his.

The Red and the Black is almost over before Julien commits the crime that results in his trial, sentence, and execution. As a result of the different balance in the two works between legal and non-legal themes, The Stranger, a lesser work, holds greater interest for law—greater interest, indeed, than any other work discussed in this chapter. Yet its heart, as is true for those other works, as in general for works of literature “about” law, lies elsewhere. That is an implication, I have argued, of the test of time, and it is supported by a close reading of “legal” literature.

Notes

1. See the interesting discussion in Georgia Warnke, “Communicative Rationality and Cultural Values,” in The Cambridge Companion to Habermas 120, 126-129 (Stephen K. White ed. 1995).

2. “In reality there is no kind of evidence or argument by which one can show that Shakespeare, or any other writer, is ‘good’ Nor is there any way of definitely proving that—for instance—Warwick Deeping is ‘bad’. Ultimately there is no test of literary merit except survival, which is itself merely an index to majority opinion.” Orwell, “Lear, Tolstoy, and the Fool,” in The Collected Essays, Journalism and Letters of George Orwell, vol. 4, pp. 287, 290 (Sonia Orwell and Ian Angus eds. 1968). See Samuel Johnson, “Preface to the Plays of William Shakespeare,” in Samuel Johnson: Selected Poetry and Prose 299, 300 (Frank Brady and W. K. Wimsatt eds. 1977); David Hume, “Of the Standard of Taste,” in Hume, Essays: Moral, Political, and Literary 226, 231-233 (Eugene F. Miller ed. 1985); Anthony Savile, The Test of Time: An Essay in Philosophical Aesthetics (1982).

3. See Tolstoy, Shakespeare and the Drama (1903), the subject of the Orwell essay cited in note 2.

4. Eliot, “Hamlet and His Problems,” in Eliot, Selected Essays 121, 123 (new ed. 1950). Of that verdict C. S. Lewis remarked, “If this is failure, then failure is better than success. We want more of these ‘bad plays.’” Quoted in Arthur Kirsch, “Between Bardolatry and Bardicide,” Times Literary Supplement, April 20, 1990, p. 421.

5. “Criticism conceived as magistrate kills the dead or breathes on the face of what is very much alive anyway … I would like to ask whether critics have been responsible for establishing the greatness of Dante, Shakespeare, or Michelangelo, or, on the contrary, the great number of their readers and spectators.” Benedetto Croce, Guide to Aesthetics 68 (1965 [1913]).

6. See William K. Wimsatt, Jr. and Cleanth Brooks, Literary Criticism: A Short History 325, 327-328, 331-333 (1957).

7. Johnson, note 2 above, at 300.

8. So John Beverley, in his book of literary criticism Against Literature (1993), thinks it germane to inform readers in his preface that he “had been involved since 1978 in solidarity work with Central American revolutionary movements.” Id. at ix.

9. See David Parker, Ethics, Theory and the Novel 21-22 (1994).

10. Gary Taylor, Reinventing Shakespeare: A Cultural History, from the Restoration to the Present (1989). See also Barbara Herrnstein Smith, Contingencies of Value: Alternative Perspectives for Critical Theory (1988). Taylor claims that this enabled actresses to appear in tight-fitting trousers that were more revealing of the female form than the dresses of the period. Taylor, above, at 18-19.

11. See Michael Shapiro, Gender in Play on the Shakespearean Stage: Boy Heroines and Female Pages 201, 270 n. 4 (1994); Laurence Lerner, “The New Shakespeareans,” 44 Comparative Literature 194 (1992); Kirsch, note 4 above; Anne Barton, “Inventing Shakespeare,” New York Review of Books, Feb. 1, 1990, p. 15.

12. Richard A. Posner, Cardozo: A Study in Reputation, ch. 4 (1990). Taylor elaborates his Darwinian view of cultural survival in a later book, Cultural Selection (1996).

13. He does make clear that he considers Shakespeare greatly overrated. Taylor, note 10 above, ch. 7.

14. See, for example, Beverley's book, note 8 above; Louis A. Montrose, “Professing the Renaissance: The Poetics and Politics of Culture,” in The New Historicism 15 (H. Aram Veeser ed. 1989). The pretensions of the postmodernist literary theorists to be engaged in revolutionary political action are ridiculed by Stanley Fish, the Mirabeau or Kerensky of radical literary theory, in his book Professional Correctness: Literary Studies and Political Change (1995). Here is a representative sally: “The language of literary theory is not subversive, but irrelevant; it cannot be heard except as the alien murmurings of a galaxy far away.” Id. at 91.

15. For cogent criticisms of these attacks on Shakespeare, see Graham Bradshaw, Misrepresentations: Shakespeare and the Materialists (1993); Brian Vickers, Appropriating Shakespeare: Contemporary Critical Quarrels (1993).

16. The generation before that, the generation of E. M. W. Tillyard, had portrayed Shakespeare as an orthodox spokesman of medieval Christian values. See Tillyard, The Elizabethan World Picture (1943). Yet Marx and Engels had greatly admired Shakespeare. See, for example, Letter from Engels to Marx, Dec. 10, 1873, in Collected Works of Karl Marx and Frederick Engels, vol. 44, p. 548 (Galina Kostryukova, Galina Voitenkova, and Natalia Sayenko eds. 1989): “The first act of the Merry Wives alone contains more life and reality than all German literature.” See also David McLellan, Karl Marx: His Life and Thought 15, 113, 267, 327, 456-457 (1973).

17. See David Bevington, “General Introduction,” in The Complete Works of Shakespeare lxxxiv-xcii (David Bevington ed., 4th ed. 1992); Jeffrey A. Masten, “Beaumont and/or Fletcher: Collaboration and the Interpretation of Renaissance Drama,” in The Construction of Authorship: Textual Appropriation in Law and Literature 361 (Martha Woodmansee and Peter Jaszi eds. 1994); Jonathan Hope, The Authorship of Shakespeare's Plays: A Socio-Linguistic Study 3-5 (1994).

18. Bradshaw, note 15 above, at 297 n. 49; Janet Clare, ‘Art Made Tongue-Tied by Authority’: Elizabethan and Jacobean Dramatic Censorship 214 (1990). Taylor could adduce this as another example of Shakespeare's good luck in the marketplace of reputations. One way that censorship fosters ambiguity in literary expression, as Clare points out, is by encouraging the writer to set his work in a culturally or temporally remote setting, such as ancient Rome, prehistoric England (King Lear), Italy, Vienna, or medieval (hence Catholic) Denmark. The exotic locale enables the writer to exercise a critical freedom that he would not enjoy if he were writing about contemporary events and institutions in his own society. At the same time, it reduces the topicality, and so enhances the universality, of the work. There is a parallel to the practice of Renaissance and Victorian artists in “us[ing] distance to deflect the censors—that is, they used mythical, legendary, or exotic personages and locales to disguise any implication that the artist was depicting the erotic behavior of his own society.” Richard A. Posner, Sex and Reason 361 (1992).

19. Bradshaw, note 15 above, at 132.

20. John Gross, Shylock: A Legend and Its Legacy 241, 276-282, 319-322 (1992). For a parallel example—Antigone played by both the Nazi occupiers of France and the French Resistance—see Theodore Ziolkowski, The Mirror of Justice: Literary Reflections of Legal Crisis 145-146 (1997).

21. The first two are made in Anita Silvers, “The Story of Art Is the Test of Time,” 49 Journal of Aesthetics and Art Criticism 211, 213-214 (1991).

22. Johnson, note 2 above, at 301.

23. Ellis, The Theory of Literary Criticism: A Logical Analysis, ch. 2 (1974).

24. See Bevington, note 17 above, at lxxxiv; S. Schoenbaum, William Shakespeare: A Compact Documentary Life 159, 188, 220 (1977). Shakespeare retired to Stratford several years before his death, a rather wealthy man, and could have taken steps to see to the preservation or publication of his plays. Absence of secure copyright protection, however, which I discuss in Chapter 11, may have been a factor. Shakespeare's sonnets, which were published in his lifetime, contain expressions—though possibly ironic ones—of a desire for the immortality of print. See the discussion of his Sonnet 65 at the end of Chapter 7. Ben Jonson, who greatly admired Shakespeare, published an edition of his own plays the year of Shakespeare's death. The first edition of Shakespeare's plays was published seven years later. Shakespeare died young (at 52); had he lived a few more years he might have arranged for their publication himself.

25. At common law, burglary was breaking into a house at night with the intention of committing theft or some other crime in the house. At what moment does day become night?

26. The ancient Greek trial, incidentally, is more like the Anglo-American trial than the Continental European trial (the roots of which are Roman): more in the nature of a private contest, a struggle, a drama, than an official inquiry.

27. Literal merger of trial and drama was achieved in a medieval “biblical drama in which a criminal playing the role of Hollophernes was actually beheaded on stage.” Jody Enders, Rhetoric and the Origins of Medieval Drama 103 (1992). On the theatricality of trials and the forensic character of drama, see Milner S. Ball, “The Play's the Thing: An Unscientific Reflection on Courts under the Rubric of Theater,” 28 Stanford Law Review 81 (1975); Kathy Eden, Poetic and Legal Fiction in the Aristotelian Tradition (1986); see also my discussion of John Brown's trial in Chapter 10, and the discussion of the isomorphism between litigation and drama in ancient Athens in S. C. Todd, The Shape of Athenian Law 9 (1993). It may even be helpful to an understanding of judicial behavior to think of the judge as a more informed, more detached spectator of a drama staged by the lawyers. Richard A. Posner, Overcoming Law 126-130 (1995).

28. John P. McWilliams, Jr., “Innocent Criminal or Criminal Innocence: The Trial in American Fiction,” in Carl S. Smith, John P. McWilliams, Jr., and Maxwell Bloomfield, Law and American Literature: A Collection of Essays 45, 114 (1983).

29. On which see Hershel Parker, Flawed Texts and Verbal Icons: Literary Authority in American Fiction 139-143 (1984).

30. On the difficulty of extracting Twain's views of race from Puddn'head Wilson, see Brook Thomas, American Literary Realism and the Failed Promise of Contract 199-208 (1997).

31. West, “Adjudication Is Not Interpretation: Some Reservations about the Law-as-Literature Movement,” 54 Tennessee Law Review 203, 219-244 (1987) (reprinted as chapter 3 of her book Narrative, Authority, and Law [1993]).

32. The mistreatment by the American criminal justice system of persons charged but not yet convicted of crime is an international scandal. People accused of white-collar crimes are arrested in the most public and shaming manner possible and led in handcuffs to jail to be booked, but are then released on bond. People accused of crimes of violence are generally though not always drawn from social strata in which a public arrest is not a conspicuous badge of shame, but neither are they released on bond; they are thrown into jail to languish, sometimes for many months and often in horrible conditions, while awaiting trial. It is curious that the arrest of Joseph K. in the first chapter of The Trial is more civilized than arrests in the land of freedom at the threshold of the twenty-first century.

33. This is also a limitation of Dickens's satire, as we'll see in Chapter 4.

34. Page 676 in the 1988 paperback edition of the novel.

35. See Matthews v. Wozencraft, 15 F.3d 432, 437-439 (5th Cir. 1994).

36. See Larry M. Wertheim, “Law as Frolic: Law and Literature in A Frolic of His Own,” 21 William Mitchell Law Review 421, 425-445 (1995).

37. Although ruling ultimately for the sculptor, the judge rejects the sculptor's defense of animal trespass, on the ground that the town's leash law “appears more honored in the breach, in that on any pleasant day well known members of the local dog community are to be observed in all their disparity of size, breed, and other particulars ambling in the raffish camaraderie of sailors ashore down the Village main street and thence wherever habit and appetite may take them undeterred by any citizen or arm of the law” (p. 31 of the paperback edition).

38. Trish, Christina's very wealthy, very madcap old school chum, could have stepped straight out of The Bonfire of the Vanities.

39. Perceptively discussed in Carol Sanger, “Seasoned to the Use,” 87 Michigan Law Review 1338 (1989).

40. Page 261 of the paperback edition.

41. Carl T. Bogus, “The Death of an Honorable Profession,” 71 Indiana Law Journal 911, 914-922 (1996), argues plausibly that the depiction of the lawyer in popular fiction is a good index to vicissitudes in the public respect for lawyers. See also David Ray Papke, “The Advocate's Malaise: Contemporary American Lawyer Novels,” 38 Journal of Legal Education 413 (1988). On the depiction of law in popular culture generally, see Lawrence M. Friedman, “Law, Lawyers, and Popular Culture,” 98 Yale Law Journal 1579 (1989); Sanger, note 39 above; Law and Literature: A Collection of Essays on John Grisham's The Rainmaker, 26 University of Memphis Law Review 1251 (1996). The Rainmaker (1995), a novel about the awful ethics of lawyers engaged in civil litigation, is less garish and sensationalistic than Grisham's other novels.

42. A misleading translation. The primary meaning of étranger, and the meaning that fits the novella, is “outsider,” “alien,” or “foreigner” (it is the word translated as “foreign” in “French Foreign Legion”). Meursault is an outsider or (spiritual) foreigner to his society.

43. See the excellent discussion in Robert C. Solomon, “L'Étranger and the Truth,” 2 Philosophy and Literature 141 (1978).

44. See Rule 404 of the Federal Rules of Evidence and the accompanying Note of Advisory Committee.

45. Inquiry into a defendant's religious beliefs or lack thereof would be unthinkable in an American court.

46. Roger Merle and André Vitu, Traité de Droit Criminel, vol. 2, pp. 155, 165-166 (3d ed. 1979).

47. The French Code of Criminal Procedure 116 (Gerald L. Kock trans. 1964) (article 331) (emphasis added). At the time Camus wrote The Stranger, the code did not contain any restriction on the scope of a witness's testimony. See Code d'Instruction Criminelle art. 317 (1932). The type of character evidence introduced in Meursault's trial would be admissible even today in a French criminal trial. Maurice Payrot, “Aux assises de Paris: Un accusé qui s'affirme non-violent repond d'une tentative de viol,” Le Monde, Sept. 12, 1987, at 11, describes a trial in the Cour d'Assises, the French felony court, for attempted rape. The tribunal consisted of three professional judges and nine lay judges (that is, jurors) sitting together, with a majority vote of the lay judges being required for conviction. There was extensive testimony about his character and personality—that he was nervous, sensitive, nonviolent, accommodating, suggestible, impulsive, and emotional. The pièce de résistance was the testimony of a popular singer, who had never met the defendant, but who, having been informed that the defendant was one of his fans, testified as follows: “I am opposed to all forms of violence. Those who care for me do so because this is my philosophy. What strikes me about the accused is his concern over being accused of an act of which he totally disapproves. If I am present today, it is because I am absolutely convinced that he is innocent.” Nevertheless the defendant was convicted.

48. See Merle and Vitu, note 46 above, vol. 2, at 165; A. V. Sheehan, Criminal Procedure in Scotland and France: A Comparative Study, with Particular Emphasis on the Role of the Public Prosecutor 27 n. 14, 28-29, 48-49, 73 (1975); cf. Fernand Chapar, Manuel de la Cour d'Assises 141 (1961).

49. Robert R. Brock, “Meursault the Straw Man,” 25 Studies in the Novel 92, 98 (1993).

50. More precisely the implied author, that is, the authorial personality that we reconstruct from the work itself, without reference to the author's personal opinions or biography, disapproves of the verdict. I do not consider the author the authoritative interpreter of his work, and often he is downright unreliable (see Chapter 7). In the case of The Stranger, however, the actual and the implied author coincide. See Albert Camus, “Preface to the American University Edition of L'Etranger,” in Albert Camus: A Study of His Work, Lyrical and Critical 251 (Philip Thody ed. 1987).

51. Brock, note 49 above, at 96.

52. For evidence, see Jack Katz, Seductions of Crime: Moral and Sensual Attractions in Doing Evil, ch. 1 (1988).

53. See A. D. Nuttall, “Did Meursault Mean to Kill the Arab?—The Intentional Fallacy Fallacy,” in Nuttal, The Stoic in Love: Selected Essays on Literature and Ideas 191 (1989); Richard A. Posner, The Problems of Jurisprudence 168-179 (1990). See also the discussion in the next chapter of moral luck and strict liability.

54. Patrick McCarthy, Albert Camus: The Stranger 67 (1988).

55. Simon, “Palais de Justice and Poetic Justice in Albert Camus' The Stranger,” 3 Cardozo Studies in Law and Literature 111, 123 (1991).

56. René Girard, “Camus's Stranger Retried,” in Albert Camus 79, 86 (Harold Bloom ed. 1989).

57. “How could Meursault premeditate murder, since he cannot premeditate a successful career in Paris or marriage with his mistress?” (p. 84).

58. See Conor Cruise O'Brien, Albert Camus of Europe and Africa 25-26 (1970); Jerry L. Curtis “Cultural Alienation: A New Look at the Hero of The Stranger,” Journal of American Culture, Summer 1992.

59. Alice Yaeger Kaplan, “The American Stranger,” 91 South Atlantic Quarterly 87, 92 (1992). But I can find no warrant in the text for Edward Said's argument that the sense of “tragically unsentimental obduracy” in the Stranger is due to Camus' having accepted the French overlordship of Algeria: “We have done what we have done here, and so let us do it again.” Said, Culture and Imperialism 185 (1993).

60. Albert Camus, The Outsider, in Collected Fiction of Albert Camus 1, 68 (Stuart Gilbert trans. 1960).

61. Graham Seal, The Outlaw Legend: A Cultural Tradition in Britain, America and Australia 197 (1996). “Outlaw” literature could well be classified as a subgenre of imaginative literature about law.