Introduction

April 2008 Special Edition: Legal Fiction Reviews

pp. 288-290

Editor’s Note

This marks the first special issue on Legal Fiction from THE LAW AND POLITICS BOOK REVIEW. Thanks to Mary Atwell and Jack Call (both at Radford University), who commissioned reviews and edited this special issue. This was a major undertaking, and Mary and Jack did a superb job of it. Finally, special thanks go to our 22 reviewers, whose reviews represent a most valuable resource to our larger community.

INTRODUCTION

Often during the fifteen years we have been colleagues in the criminal justice department at Radford University, we have talked about including works of fiction in our classes. Each of us has favorites. Jack is partial to RUMPOLE OF THE BAILEY and SNOW FALLING ON CEDARS. Mary often uses TO KILL A MOCKINGBIRD and A LESSON BEFORE DYING. We agreed it would be interesting to find out how others who teach courses in political science, criminal justice, or law use novels in their teaching.

We approached Wayne McIntosh to propose a special issue of the LAW AND POLITICS BOOK REVIEW devoted to fiction. In it, contributors would discuss specifically their interest and experience with novels as sources for student learning. In October we sent out a request for reviewers. Although we provided a list of books that seemed appropriate, we also asked for suggestions from potential contributors who might discuss novels they had used effectively. The response was immediate and enthusiastic. Professors from a variety of universities and disciplines either volunteered to consider a book from our list or suggested a work they and their students found particularly worthwhile. A list of all the proposed books, whether reviewed or not, is included below.

Thanks to our excellent contributors, the special issue includes twenty-two reviews of American, British, and European novels from the 19th, 20th, and 21st centuries.

It has been a pleasure to serve as guest editors. We hope readers of the LPBR will find this special issue interesting and informative.

Book, Author
1984, George Orwell
Advise and Consent, Allen Drury
All the King’s Men, Robert Penn Warren
Always Outnumbered, Always Outgunned, Walter Mosely
An American Tragedy, Theodore Dreiser
At End of Day, George V. Higgins
Billy Budd, Herman Melville
Bleak House, Charles Dickens
Bodega’s Dream, Ernesto Quinonez
Bonfire of the Vanities, Tom Wolfe
Brave New World, Aldous Huxley
The Caine Mutiny, Herman Wouk
Cat’s Cradle, Kurt Vonnegut, Jr.
The Cave, Jose Saramago
The Chamber, John Grisham
A Clockwork Orange, Anthony Burgess
The Constant Gardener, John Le Carre
Crime and Punishment, Fyodor Dostoyevsky
Darkness at Noon, Arthur Koestler
Defending Billy Ryan, George V. Higgins
Dr. Jekyll and Mr. Hyde, Richard Louis Stevenson
Famous All Over Town, Danny Santiago
The Fixer, Bernard Malamud
Giovanni’s Room, James Baldwin
The Good Terrorist, Doris Lessing
The Handmaid’s Tale, Margaret Atwood
Harry Potter and the Order of the Phoenix, J.K. Rowling
A House of Sand and Fog, Andre Dubus
The Human Stain, Philip Roth
I Never Promised You a Rose Garden, Joanne Greenberg
I, Robot, Isaac Asimov
Involuntary Witness, Gianrico Carofiglio
The Jungle, Upton Sinclair
Knock on Any Door, Willard Motley
The Last Hurrah, Edwin O’Connor
A Lesson Before Dying, Ernest Gaines
The Monkeywrench Game, Edward Abbey
The Once and Future King, T.H. White
The Ox-bow Incident, Walter von Tilburg Clark
Paradise, Toni Morrison
The Plague, Albert Camus
Presumed Innocent, Scott Turow
Protect and Defend, Richard North Patterson
Pudd’nhead Wilson, Mark Twain
Render the Body, Marianne Wesson
Rumpole of the Bailey, John Mortimer
Rumpole for the Prosecution, John Mortimer
Saturday, Ian McEwan
Seeing, Jose Saramago
Snow Falling on Cedars, David Guterson
The Stranger, Albert Camus
Love in the Time of Butterflies, Julia Alvarez
A Time to Kill , John Grisham
To Kill a Mockingbird, Harper Lee
The Reader, Bernhard Schlink
The Seven Who Were Hanged, Leonid Andreyev
The Trial, Franz Kafka
The Virginian, Owen Wister
Waiting for the Barbarians, J.M. Coetzee
Your Blues Ain’t Like Mine, Bebe Moore Campbell

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THE BONFIRE OF THE VANITIES

by Tom Wolfe. First published in 1990. New York: Picador, 2008. 552pp. Trade Paperback. $16.00. ISBN: 9780312427573.

Reviewed by David Schultz, Graduate School of Management, Hamline University. Email: Dschultz [at] hamline.edu.

pp.373-375

A period novel from the headlines of the 1980s, THE BONFIRE OF THE VANITIES overwhelms readers with all the drama, greed, ego, and excess of that decade with characters reminiscent of real life players in New York City. One finds in this Tom Wolfe novel Wall Street crooks, overzealous headline-grabbing prosecutors, ambitious muckraking reporters, and opportunistic preachers. Yet underlying this dramatic farce is a powerful story about race and class in the criminal justice system.

Originally published in 1987, THE BONFIRE OF THE VANITIES tells the story of a hapless Sherman McCoy. A self-described “master of the universe” because of his ability to sell bonds and make millions of dollars, almost effortlessly, he gives a poster child face to the “Greed is good” mantra of the Gordon Gecko Wall Street of the 80s. Sherman has it all. He is a Wall Street bond financier at Pierce and Pierce who lived with his wife and daughter at 816 Park Ave in a 14-room co-op featured in Architectural Digest. He drives a sleek black Mercedes, and of course, he has a girl friend on the side. Her name? Maria Ruskin, a young blonde bombshell from the south, who is married to the elder and quite wealthy Arthur Ruskin. Yet as smart as McCoy affects, he is not sly enough to master the ability to hide his affair from his wife.

The heart of the story unfolds when Sherman picks Maria up from JFK airport, takes a wrong exit into “Fort Apache” Bronx instead of Manhattan, and ventures through the borough that proves to be his heart of darkness. When he confronts a ramp cluttered with debris, he exits the car to clear it, only to find two African-American youths approaching him. Assuming they have designs to rob him, he throws some of the junk at them. Maria, now in the driver seat, backs up, hits one of the youths, and flees with Sherman. As they race away, McCoy speculates on whether they really hit anyone and whether they should report the incident. Maria says no on both counts as they retreat back to the rent-controlled love nest she illegally rents.

McCoy then begins the nervous process of reading though the papers, specifically the fictitious NEW YORK CITY LIGHT, a paper that looks to be a cross of the NEWS and POST, for a report of a hit and run in the Bronx. Soon the paper delivers on his fears as a Jimmy Breslin-like reporter, Peter Fallow, accounts the story of how a Henry Lamb, a high school senior in the Bronx, was unconscious with a coma in a hospital. Henry Lamb’s fate becomes the cause celebre for the BONFIRES. Enter now Reverend Bacon and DA Weiss. [*374]

Reverend Bacon, an African-American preacher with Al Sharpton instincts, is initially investigated for scamming $350,000 destined as seed money for a day care. To take heat off the investigation, he calls on the Bronx DA Weiss, who is facing reelection, to investigate the Lamb incident, calling the foot dragging and initial investigations “Weiss Justice” because the incident involves a Black youth and a Mercedes. Peter Fallow serves up the interests of both Bacon and Weiss when his paper manufactures trumped-up stories about Lamb to sell papers. Lamb, an average student from a poor school in the Bronx, is turned into a martyred honor student destined for college and future greatness.

McCoy’s downfall begins when the police, upon running the partial plate numbers on his car, question him. Sherman’s nervousness and evasiveness clue the police into realizing that they have their man, and they eventually tie him back to Maria, whose accented shouting of his name “Shuhmun” at the accident is recounted by one of the witnesses. From here, McCoy is treated to Weiss wishing to make a spectacle of him, including threatening a Rudy Giuliani-like arresting of him at his workplace and escorting him out shackled in a “perp walk.” Instead, a deal is struck for a private arrest and arraignment, but all that goes afoul as the DA plays the race and class contrasts to the media.

The strength of THE BONFIRES for law classes is its powerful irony in tackling race, class, and privilege in the criminal justice system. McCoy did not hit Lamb, Maria did, but she refuses to cooperate and efforts to tape conversations and introduce them into court raise a host of evidentiary questions that may be of some interest to students. However McCoy’s racism, as manifested in his fear of Black youths in the Bronx, or in jail, is part of what does him in. But more powerfully, race and class play out in numerous ways. Unlike people of color who are falsely accused of crimes they never committed, McCoy’s biggest crime is arrogance, affluence, and stupidity. His wealth and white privilege are used against him. While his attorney originally strikes a deal to get his client through booking and arraignment quickly and quietly, the egos of the media, Weiss, and Bacon make it impossible, and poor Sherman is forced to endure a few hours in jail before – unlike many other defendants – he is able to get and make bail. The scenes where McCoy is arrested, booked, and arraigned thus would be the best reading for a class; not for their literal truth in how most affluent white defendants are treated, but to begin a conversation on how Sherman’s treatment contrasts with the more typical client ensnared in the criminal justice system.

THE BONFIRE OF THE VANITIES is first a great satire of the personalities of the 1980s. It explores themes of greed that, while never out of style, were particularly ripe for skewering in the later 1980s. But the book also offers critiques of criminal justice that raised themes of class and race well before there was an O.J. Simpson trial. While students will find parts of the book engaging, at 550+ pages it is a hefty read given the lessons to be learned. Watching the awful movie version of the book is no substitute since it failed to capture its subtlety. The [*375] recommendation instead is to have students read chapters four, and 22-26, as they best capture the themes most relevant to the study of the criminal justice system.

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© Copyright 2008 by the author, David Schultz.

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ALL THE KING’S MEN

by Robert Penn Warren. Originally published in 1946. San Diego: Harvest Books, 1996. 672pp. Paperback $15.00. ISBN: 9780156004800.

Reviewed by Susan McWilliams, Department of Politics, Pomona College. Email: susan.mcwilliams [at] pomona.edu.

pp.370-372

ALL THE KING’S MEN begins, quite literally, on a straight and narrow path: Highway 58, “with the black line down the center coming at and at you.” Driving down this road, “if you don’t quit staring at that line and you don’t take a few deep breaths and slap yourself hard on the back of the neck you’ll hypnotize yourself” and lose control. You will crash and burn, not because you were distracted from your original goal, but because you were too intent upon it. You were looking too far down the straightaway. Focused on the end of your trip, you neglect to be careful about how you get there.

For students who know Lord Acton’s axiom that “power tends to corrupt” only in its most austere variation – “power corrupts” – Robert Penn Warren’s classic novel can be both a deepening and complicating read. While the conventional wisdom suggests that all politicians are corrupt, and therefore politics is a particularly grim and unsavory business, ALL THE KING’S MEN explores the relationship between political power and corruption on much more multifaceted and unnerving terms.

In those first few sentences, on the dangers that attend traveling a straight and narrow path, Penn Warren suggests that in practice, political corruption does not always arise from selfishness, ignobility, or base greed. Against thinkers dating back to Aristotle, who define corrupt regimes merely as those in which the ruler thinks of private gain rather than public good, ALL THE KING’S MEN suggests that the path to corruption may begin with an opposite, and more noble, impulse. If you focus on the glimmering end of the road with too much intensity, you might lose your grip on the wheel. If you focus on your political ends – even moral and public-spirited ends – with too much intensity, you might lose your grip on the means of getting there. You might lose your grip on yourself.

The very memorable public official at the center of the narrative, Willie Stark, emanates his real-world prototype Louisiana Governor Huey P. Long, Jr. in his unfailing populist commitments and his grand public visions. (Witnesses said that after he was shot, Long’s last words were: “God, don’t let me die. I have too much left to do.”) From his first awkward stump speech on, Stark remains constant in his assertion that all citizens have a right to decent health care. He sets his sights on building a hospital, a majestic and technologically advanced hospital, which will serve all those who need it. Stark amasses and manipulates power not merely for the sake of the power itself, but for that gallant and public-spirited goal. His disturbing transformation, from a temperate and naïve country boy into a hard-drinking and harder-bargaining boss man, happens in the service of his highest ideals, not in the abandonment of them. [*371]

This may in part explain why, even as Stark’s descent into sleaze begins to anguish and even betray those closest to him, most of those same people continue to see him in something of a hallowed light. Unlike his nemesis, Tiny Duffy, Stark does not occupy political office just for his own sake; he is always driven by his vision of public good. So even when he is at his most corrupt, in all conventional ways, there is a core of belief in him that remains noble if not transcendent. After all of his corruption and damage is done, even the people who he hurt the most continue to believe that he was “a great man.”

In teaching ALL THE KING’S MEN, I have made it a habit of asking my students how they responded to the catalytic moment of Stark’s political career, when he has learned that the party officials are running him as a gubernatorial candidate only to split a vote and prevent their enemy’s election. Stark spends a highly liquid evening, weeping and railing at the realization that he is a “decoy.” The next morning, hung over or maybe still drunk, he fumbles his way to the local fairgrounds and gives a raging diatribe in which, much to the party bosses’ chagrin, he tells an enraptured audience of what he has learned. To the people he calls “hicks,” he announces, “That’s what they think we’re for. To fool. Well, this time I’m going to fool somebody.” When I ask my students what they were thinking during this scene, inevitably they say that they were rooting for Stark. They were hoping he would go for the jugular, that he would say whatever he had to say to damage the party bosses as much as they had damaged him. They were hoping that Stark would fight, and they were hoping that Stark would win.

Of course, in rooting for Stark during this scene my students – like anyone else who reads the book – are rooting for the very behaviors and postures that enable and define his corruption. What makes Willie Stark admirable is difficult to extricate from what makes him contemptible. To the extent that Penn Warren gets his readers to root for Willie Stark in such moments, he demonstrates the extent to which certain kinds of political charisma trade on a simmering iniquity. The corrupt man is often a seductive man; what seduces you may well be what corrupts you.

The corruption in this story, accordingly, is not Stark’s alone. Perhaps the more important character in ALL THE KING’S MEN is Jack Burden, the former graduate student and newspaper columnist turned aide to Willie Stark, from whose perspective the novel is written. At no small cost to himself, Burden becomes complicit in some of Stark’s more dangerous plots. One of the most powerful dynamics in the novel is the Burden-Stark relationship, and the question of why a man as smart and pedigreed as Burden would give himself so wholly to Stark, even when it is clear to him that there are massive problems with Stark’s method. The answer has something to do with the fact that Burden, for all his privilege, is deeply alienated. He is rootless. Like so many Americans, Burden feels disconnected, disinherited, disenfranchised. And he finds in Stark a figure of order. Stark offers Burden the connection to a communal vision, and connection and communion are what Burden dearly lacks. Communion and connection on terms that are corrupt may be preferable, we learn, to no communion and connection at all. [*372]

As so many have testified, ALL THE KING’S MEN is a great American political novel – perhaps the greatest. There are many ways to incorporate it into the political science classroom, of which I have indicated only one. But given the conventional cynicism about politicians and politics which dominate so many students’ views, it might be a particularly important one. The common notion that “power corrupts,” that power and corruption are not just friends but equals, leads to a dim view of political life. In comparison, Penn Warren crafts a picture in which political corruption exists and maybe pervades, but in which politics retains – as does Stark – both force and charm.

Interestingly, Penn Warren may give Willie Stark the final word on these questions. From the book’s first pages, Stark seems fond of recounting the 51st psalm, albeit with some poetic license. “Man is conceived in sin and born in corruption and he passeth from the stink of the didie to the stench of the shroud,” runs his refrain. “There is always something.” In other words, Stark says, there is no such thing as an uncorrupt person. Willie’s challenge to the maxim that “power corrupts” is the assertion that human life itself is already corrupt. Politics does not do the corrupting. Politics is just one of many human crafts, and it is the humanity rather than the craft that is the trouble. For a democratic citizenry, this teaching may be most disturbing. But it also may be most true.

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© Copyright 2008 by the author, Susan McWilliams.

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CAT’S CRADLE

by Kurt Vonnegut, Jr. New York: Dell Publishing, originally published in 1963. Dell Pulishing, 1998. 304pp. Paper. $14.00. ISBN: 9780385333481.

Reviewed by Stephen McDougal, Department of Political Science/Public Administration, University of Wisconsin-La Crosse. Email: mcdougal.step [at] uwlax.edu.

pp.365-369

Maybe it’s because CAT’S CRADLE (first published in 1963) was one of Kurt Vonnegut’s earlier novels, and I found his later works so much more captivating.

Maybe it’s because so many of those New Left issues, which seemed so vital forty-something years ago, nowadays don’t.

Maybe it’s because I caught the flu over the holiday break, and I ended up re-reading the novel two or three pages at a time, which wasn’t bad since it is presented in 127 chapters of about two pages each.

Maybe it’s because years ago at Carroll College in Wisconsin, I had the privilege of introducing Vonnegut as the college’s annual “big speaker,” and as we visited beforehand, he admitted to me he didn’t really remember much about the novel.

But, for whatever reasons – and combinations of reasons – I found that as a fictional basis for undergraduate classroom exercises in law, courts and society, CAT’S CRADLE is probably pretty much a bust. I couldn’t keep myself from viewing it as something of a period piece, a reflection of the growing angst of the 1960s. The novel says much more about religion than about law. Law is a minor character in the narrative, and it is painted as only bombastic, superficial and ineffectual, yet perhaps (like the explicit depiction of religion) filled with very “useful lies” (ch.4). Aside from the literary merits of, the novel, all these things must be weighed carefully by anyone considering its classroom use.

But first, my story of Vonnegut’s story: Using a first-person narrative style, Vonnegut (calling himself Jonah, although his parents had actually named him John) tells of following a tenuous thread of human relations in pursuit of a book he once wanted to write about the lives of famous and ordinary people in the United States on the day Hiroshima was obliterated by the U.S. Army Air Force. He starts by contacting the children of Nobel Prize physicist Felix Hoenikker, one of the so-called fathers of the atomic bomb, only to learn how utterly dysfunctional Hoenikker’s life truly was. A visit to the family’s hometown fills in the story of Felix, the egomaniacal genius detached from human life both socially and emotionally, and his three alienated children: Frank, the eldest who spent all of his time in a model train shop before disappearing after his father died; Angela, whose life was ruined by being her father’s caretaker after their mother passed many years earlier; and Newt, whose various talents were never recognized by his father, much less acknowledged. No “law”, here, save perhaps a perspective of “moral law” violated in a father’s neglect of his children and his myopic, amoral commitment to professional science. [*366]

Just before his death, Dr. Hoenikker was working on one last project for the U.S. military – a technical means to make the muddy, sloppy ground of a battlefield hard and therefore easier to conduct operations upon. The Nobel laureate’s technical solution was “ice-nine” – a tiny seed of water crystal, wherein the atoms are arranged in a way entirely new on earth, and in a way from which they would form a solid up to 114°F. By tossing a seed of ice-nine into a mud bog, for instance, the seed would “teach” the atoms of the water molecules already there how to stack themselves into near-permanent solidness. The problem would be, of course, that any ordinary water molecule coming into contact with ice-nine would both change into ice-nine and continue the chain reaction by passing on to its neighbor molecules that same ability. From the mud bog to the streams and rivers, to oceans and lakes, to (I’d presume) sinks and toilets, all water would freeze into ice-nine. In short, to release ice-nine into (what we today call) “The Environment” would effectively end life on earth. Does this narrative create scientific issues? Only scientific issues? Or any genuine legal issues at all? Would any of them really matter at the end of Jonah’s story?

When Hoenikker died, his children divided his tiny supply of ice-nine among themselves.

As it happened, Jonah eventually finds Frank through a NEW YORK TIMES advertising supplement. Frank is serving as Minister of Science and Progress in the Republic of San Lorenzo – an island dictatorship somewhere in the middle of the Caribbean. On a plane flight to its capital, Bolivar, Jonah meets the newly appointed U.S. ambassador to San Lorenzo, who happens to have with him the only written history of the island. From the unpublished manuscript, Jonah learns of Bokononism, the dominant – and utterly illegal – religion of San Lorenzo. Practicing any form of Bokononism is punishable by death on The Hook – a giant iron fishhook hung from a crossbeam between two tall poles. The Condemned is impaled through the stomach and left to die. As one admiring American businessman on the plane comments, in terms most U.S. students will grasp as cultural intuition –

“No fines, no probation, no thirty days in jail. It’s the hook. The hook for stealing, for murder, for arson, for treason, for rape, for being a peeping Tom. Break a law – any damn law at all – and it’s the hook. Everybody can understand that, and San Lorenzo is the best-behaved country in the world.” (ch.43)

In Jonah’s tale, needless to say, everyone on San Lorenzo is a devoted Bokononist, “despite” this horrific punishment. In conventional law and society terms, the law of San Lorenzo has no efficacy whatsoever, and only slightly less efficacy than the speed limit signs along any U.S. Interstate. But, in Vonnegut’s world, this is not at all problematic; it is, rather, given – taken-for-granted. The law of the state is implicitly depicted as inherently alien to (some vague New Left-ish notion of) true human community, yet this is not Vonnegut’s theme, nor the outcome of the story.

Also on the plane are Dr. Hoenikker’s other children, traveling to their brother’s wedding, and both are carrying their slivers of ice-nine. (ch.77)

San Lorenzo turns out to be a worthless lump of rock to all but its native [*367] inhabitants. It is the only Caribbean island not fought over by the European colonial powers. Its population descends mostly from a British slave ship that was run aground in 1786 after the cargo successfully mutinied. When the Castle Sugar Corporation showed up in 1916, pursuing profits from the sugar boom during World War I, there was no government. Did there need to be? Vonnegut gives us no hints.

When two shipwrecked sailors – McCabe and Johnson – washed up naked onto the island in 1922 and declared that they were now in charge, no one complained and Castle Sugar quietly left. According to the manuscript, McCabe and Johnson wanted to make San Lorenzo a “true” utopia. So, McCabe overhauled the economy, while Johnson [now, Bokonon] invented a new religion. And, of course, their efforts failed in their eyes. (ch.60)

when it became evident that no governmental or economic reform was going to make the people much less miserable, the religion became the one real instrument of hope. Truth was the enemy of the people, because the truth was so terrible, so Bokonon made it his business to provide the people with better and better lies. (ch.78)

To this end, Bokonon convinced McCabe to make Bokononism illegal in order to make it more effective. Even The Hook was Bokonon’s idea, “something he’d seen in the Chamber of Horrors at Madame Tussaud’s” (ch.78). McCabe cooperated, and while Bokonon went into “cozy hiding,” McCabe organized the unemployed, which was just about everyone, into great Bokonon-hunts. Routinely, Bokonon would be surrounded and helpless, only to escape miraculously until next time, beloved of the people. There’s even an unpublished poem by Bokonon:

So I said good-bye to government,
And I gave my reason:
That a really good religion
Is a form of treason. (ch. 78)

Is this “resistance” as discussed in so much contemporary critical legal scholarship? Or, is it one more example of an elite using law as a form (albeit a unique form, perhaps) of formal law to mask “ultimate” power? Probably, yes on both counts, but I’m not sure Jonah cares.

Jonah arrives on San Lorenzo, and being one of very few U.S. citizens, he gains instant status, which he alone does not take for granted. He weaves his way through the halls of power – such as they are – and ends up being the presumptive new President of San Lorenzo. The current dictator, “Papa” Monzano, is dying, and his designated heir, Frank, doesn’t want the job.

More to the point, everywhere the narrator goes he encounters Bokononism, and everyone he talks to is a devoted Bokononist – Western migrants as much as natives – even as they publicly deny it. The law of the state – such as it is – means nothing! The contradiction is obvious, and so repeated as to only have been intended as an essential narrative characteristic. Even “Papa” Monzano (if made into the supreme symbol of legal positivism) contributes on his death bed; he rejects a conventional clergyman, declaring, “I am a member of the Bokononist faith...Get out, you stinking Christian.” (ch.97) [*368]

In the end, of course, and by the most bazaar circumstances, ice-nine is loosed, and in an instant, the world freezes. Tornadoes of ice-nine particles pummel the world and only a handful of people – including the narrator, of course – survive. Little pellets of ice-nine lay everywhere – which also turns out to perfectly preserve all food stuffs. Plants and animal carcasses, handled carefully and heated to 114°F, become safely edible. But, to touch the ground with one’s finger and then one’s finger to one’s lips is instant death.

In the final chapter – number 127 – the narrator finally meets Bokonon, who is trying to think of the last sentence of his extended Books of Bokonon, the sacred texts of Bokononism, because (as he says), “‘The time for last sentences has come.’...It read:

If I were a younger man, I would write a history of human stupidity; and I would climb to the top of Mount McCabe and lie down on my back with my history for a pillow; and I would take from the ground some of the blue-white poison that makes statues of men; and I would make a statue of myself, lying on my back, grinning horribly, and thumbing my nose at You Know Who.

Somebody cue that little bird!

This makes CAT’S CRADLE a bust in a law-related class? Could easily be! Maybe it’s because CAT’S CRADLE is a postmodern work created long before the term was coined, and certainly long before Vonnegut’s genius at it was fully honed. As a (proto?) postmodern work, of course, the novel carries no pointed theme or modernist plot. Characters are not developed for our benefit; they are just as they are at the narrative moment, with a little personal biography sometimes thrown in to highlight the narrator’s editorial insights.

This postmodern device of the off-hand comment is clearest in Vonnegut’s use of irony, which runs through all levels of his narrative. The text is replete with odd comments and observations which were pithy, controversial criticisms in the early Sixties, before U.S. society started its agonizing journey through Vietnam, Watergate, bungled energy policies, Reaganomics, Clinton scandals, oil wars, etc., etc. etc. But, how many of Vonnegut’s 1963 jokes would be hard to explain? Maybe, you just had to be there? More likely, Vonnegut’s 1960s insights have become the millennial generation’s conventional wisdom.

Todd Davis, a real literary critic, recently wrote that Vonnegut “is more concerned with our response to existence than with the philosophical nature of that existence.” (Davis, 2001, 151) As an ordinary reader of Vonnegut for decades, this seems very plausible to me, a useful insight into the great author’s artistry. But, if my purposes are teaching about law, the novel’s brilliantly segmented narrative and fragmented observations offer only a thin thread of legal commentary, far from anything plausibly argued as the artistic, literary purpose or effect of the novel.

Maybe, then, it’s the difference between the practices of postmodern literature and the practices of undergraduate university education.

Maybe, in my readings and intended use as a classroom device, the “postmodern point” is just clearer now. [*369]

Q: What does the novel mean?
A: Anything the reader makes of it; the meaning will reflect the reader more than the pretended intensions of the author.
Q: What can CAT’S CRADLE teach your students about The Law? Anything that you choose?
A: Not really!
Q: But, with so many possible themes – the uselessness of law, law as an oppressive power, law masking powerful political interests, resistance and the attraction of the illegal, the contestable claims of deterrence and control, even law as “useful lies” – how can you control the readings your students will create?
A: Why would I want to? The students must do it themselves, or worse, come to treat someone else as “authority” and let that “authority” do it for them, and not always to their advantage, either…as we all know. But, in Vonnegut’s spirit as an author (as read by Davis), I can only prod my students into thinking about law in the diverse ways contemporary scholarship of all stripes offers. The choice is – and should always be – theirs. Therein, as foil as much as insight, the novel may have classroom potential.

REFERENCES:
Davis, Todd F. 2001. “Apocalyptic Grumbling: Postmodern Humanism in the World of Kurt Vonnegut,” in Boon, ed.. AT MILLENIUM’S END: NEW ESSAYS ON THE WORKS OF KURT VONNEGUT. Albany: SUNY Press.

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© Copyright 2008 by the author, Stephen McDougal.

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PUDD’NHEAD WILSON AND THOSE EXTRAORDINARY TWINS

by Mark Twain. Originally published in 1893-1894 by Century Magazine in seven installments. New York: Barnes and Noble Classic, 2005. 256pp. $5.95 paper. ISBN: 9781593082550.

Reviewed by Christopher P. Banks, Department of Political Science, Kent State University. Email: cbanks6 [at] kent.edu.

pp.360-364

At first blush Mark Twain’s PUDD’NHEAD WILSON would not seem appropriate for inclusion in a special issue analyzing literature that contributes to political science or criminal justice pedagogy. Published in the United States in 1894 as THE TRAGEDY OF PUDD’NHEAD WILSON AND THE COMEDY OF THOSE EXTRAORDINARY TWINS, the book actually contains two tales, the sums of which arguably constitute “comic tragedy” (Railton 2002). The first story narrates events surrounding the protagonist’s life before the Civil War. In Dawson’s Landing, a village nestled between St. Louis and the mighty Mississippi, a fair-skinned slave nanny, Roxy (owned by Judge Driscoll’s brother), switches at birth Judge Driscoll’s nephew, Tom, with her own enslaved boy, Chambers. The shorter appendage, THOSE EXTRAORDINARY TWINS, continues the saga after the plot concludes in PUDD’NHEAD WILSON by examining the fate of Angelo and Luigi Capello, foreigners involved in the main story who become ensnared as principal suspects in Judge Driscoll’s murder trial.

Although critics have debated whether the separate stories are best considered as a unitary essay (O’Connell 2002), or whether PUDD’NHEAD WILSON is Twain’s most insightful exposition on slavery or racism (Spangler 1970) in conjunction with the ill-effect of public opinion (Coburn 1970), arguably the first chronicle is the most coherent story with the best potential for application in law and social sciences courses. The novel is an excellent literary devise to compare and contrast themes recurring in judicial process, law and society, or criminal justice courses. After a brief account of PUDD’NHEAD WILSON’s plot, the review will outline the particular ways in which the short novel can be put to use in those types of courses.

PUDD’NHEAD WILSON traces the tragic consequences flowing from the double-life that Tom lives as an undeserving and often monstrous heir to his rich uncle’s estate. He is undeserving because he is really a slave who can pass as a white; and he is a monster because he is relentlessly irresponsible and merciless in his cruelty towards his mother, Roxy. She is a slave who at great expense to her own security keeps Tom’s true identity secret. More than once, she gets Tom out of the trouble he causes by abusing his uncle’s finances and honorable reputation with a pattern of compulsive gambling and cowardice. Tom’s lack of courage ultimately brings him into conflict with his uncle, Judge Driscoll, who is forced to defend Tom’s honor in a duel when Tom refuses to fight after being humiliated in public by Luigi Capello. His lack of fortitude also [*361] is the reason why Judge Driscoll, and Tom, conspire to discredit Luigi publicly after the duel (which Driscoll and Luigi survive). It becomes part of a chain of events that leads to Tom killing his uncle and conveniently laying the blame on the Capello twins, who ran to assist the Judge who had been fatally stabbed by Tom. Tom had tried to steal the Judge’s money while his uncle slept in his house office.

Tom’s secret life, as not only a false heir but also as a thief, intersects with the protagonist, David Wilson, as the story unfolds. As Twain tells it, Wilson is a young lawyer whose reputation is sullied by making an innocuous but ill-considered remark shortly after arriving in town. The misstep causes the village residents to refer to him as “pudd’nhead,” a regrettable label that clings to him for the next twenty years and prevents him from practicing his calling. But, much later on, Wilson’s public reputation grows when he represents, and successfully defends Luigi at a public trial after he is falsely accused of killing the Judge.

Although Wilson is described as “college-bred”, Twain reveals little about his law training other than to say he “had finished a post-college course in an Eastern law school” (p.8) before coming to Dawson’s Landing. Twain expands on two of Wilson’s “pet fads” (p.10), however, which comprise “palmistry” and an unclassified habit “which dealt with people’s finger-marks” (p.11). The latter inclination, which for Pudd’nhead becomes more of a preoccupation, causes him to record meticulously the fingerprints of all of Dawson’s Landing inhabitants over their lifetimes. He kept them on small sheets of glass that were always in his possession or in his office. As it turns out, Wilson’s fingerprinting assumes central importance in exposing Tom as the Judge Driscoll’s murderer near the end of the story.

Several aspects of PUDD’NHEAD WILSON have exciting potential for classroom use. First, Twain’s decision to highlight fingerprinting as a central plot element was ahead of its time, as was Twain’s description of it as an evidentiary tool in a jury trial. As he wrote, “Every human being carries with him from his cradle to his grave certain physical marks which do not change their character, and by which he can always be identified…These marks are his signature, his physiological autograph…[that cannot] become illegible by the wear and the mutations of time” (p.133). In the story, the duplicity underlying Tom’s claim as an heir to his uncle’s estate because of Roxy’s decision to switch the babies at birth could not hide the truth that he was a murderer—a principle that lies at the core of the underlying assumptions of the truth-seeking adversarial model of the criminal justice system.

Under that model of adversarial justice, the prosecutors retain the evidentiary burden to prove Tom’s guilt in front of the jury representing a cross-section of the community (whether the jury in PUDD’NHEAD fairly represented anything other than male, slaveholding white folks is another issue for class discussion). Likewise, Wilson had the onus to rebut the prosecution’s case, which he did through an innovative strategy of forensic science that was still in its infancy at the time Twain wrote the book. In addition to reinforcing the basic [*362] tenets of criminal advocacy and procedure, instructors can use PUDD’NHEAD WILSON as a vehicle to introduce students to contemporary topics in forensic science and to show how lawyers relying upon it can vindicate those who are falsely accused of crimes with DNA “fingerprints” or the like. In the process, the classroom can become engaged in analyzing how scientific evidence is a problem of resources for counsel representing indigent clients, as well as the foundation for the rise of “innocence commissions” that work towards reversing wrongful convictions in criminal justice cases (Schehr and Sears 2005; Scheck and Neufeld 2002).

Next, because the events leading up to Tom’s murder trial track the ordinary sequence of facts that are put before a jury trying a criminal case, the novel can be an effective means to construct, and then dispel, the common perception that the truth, and perhaps justice, only emerge from adversarial criminal proceedings resulting in jury verdicts. As any lawyer or student of law and courts knows, most laymen falsely believe that the true facts of a criminal prosecution are exposed only after the jury discovers it with the help of skillful lawyer-advocates who are engaged in a trial supervised by an unbiased judge. That typical impression is reinforced on a daily basis on the law-and-order cop shows on cable television, and it finds expression in PUDD’NHEAD WILSON. After all, the bad guy was caught in a highly publicized trial that involved a jury and the skilled efforts of a courtroom advocate, just like on T.V. Yet, and as a result of the common misperceptions surrounding the judicial process, the book can be utilized as a myth-buster to illustrate that 95% or more of criminal adjudications are not settled by a singular trial event, but rather by plea bargains or behind the scenes deals that are cut between the prosecution and defense, without jury knowledge or input. Nor is it always accurate, one can also observe, that lawyers are even put in a position to succeed in high-profile criminal trials when the clients are often indigent, the caseload pressures are high, and the resources (and sometimes lawyer competency) are woefully inadequate to the task at hand.

In this light, the issue of why the trial process has become less a courtroom show, or perhaps (more charitably) less a naked exhibition of the raw legal talents of orators who spar for the truth in front of peers sitting in judgment of the accused may be fodder for a classroom debate about the transformation of the legal profession after the introduction of the casebook method as the principal means to train lawyers after 1870. In PUDD’NHEAD WILSON, the lawyer found the truth in an open courtroom and, in an earlier day, that forum typically was the venue for great status and reputation. But, with the rise of the casebook method in U.S. law schools, legal apprenticeship for law training dissipated, and so too did the chances for earning big wins in a courtroom, a phenomenon that coincided with the rise of more efficient, profit-minded Wall Street-modeled law firms. In essence, the book could be the starting point for an analysis of the transformation of the practice of law into the business of law. In addition, an identical classroom discussion could consider the thorny questions that arise over the fairness of prosecutorial discretion and plea [*363] bargains, the reduced role of juries as a source of community conscience and wisdom, and whether trials themselves have become relics of the past because of the costs, time, and caseload demands associated with modern litigation (Yeazell 2004).

Finally, PUDD’NHEAD WILSON can be an example in literature to mull over what many believe ought to be the true “end game” of criminal litigation: that justice is achieved. Although Luigi is set free by a jury of his peers, the trial could not erase the twenty-three years of slavery that Chambers endured because of Roxy and Tom’s deception. As Twain recounts, due to the trial Chambers “suddenly found himself rich and free”, but he “could neither read nor write, and his speech was the base dialect of the negro quarter. His gait, his attitudes, his gestures, his bearing, his laugh—all were vulgar and uncouth; his manners were the manners of a slave”, and the “poor fellow” only “felt at home and at peace nowhere but in the kitchen” (p. 140). Similarly, as Twain explains at the novel’s conclusion, Tom’s confession and subsequent life imprisonment only hurt the creditors who suffered a bigger loss in settling the murdered Judge’s estate after the murderer’s true identity was discovered, in large part because Tom was not rightfully considered a slave and estate property. If he was, he would not have been free to murder his uncle. “As soon as the Governor understood the case,” Twain writes, “he pardoned Tom at once, and the creditors sold him down the river” (p. 140).

In spite of Luigi’s acquittal, and as happens in many litigated matters in real life, PUDD’NHEAD WILSON illustrates that the application of law in a jury trial may sometimes led to unintended consequences and injustice. One of the case’s victims, Chambers, was not helped at all by the orderly application of adversarial justice in a criminal trial; and Tom, although he was punished, was sanctioned by the extralegal effect of a gubernatorial pardon arising from the overriding interests of creditors, a judgment that in the end was not what the jury intended through the imposition of a life sentence. The comic tragedy of PUDD’NHEAD WILSON, then, serves up the cold lesson that is often repeated in law and courts courses—sometimes the law, despite its best intentions, is a source of great misfortune for those who either intentionally or unwittingly become entangled in the judicial process.

REFERENCES:
Coburn, Mark D. 1970. “Training is Everything: Communal Opinion and the Individual in Pudd’nhead Wilson.” MODERN LANGUAGE QUARTERLY 31 (2): 209-219.

O’Connell, Catharine. 2002. “Resecting ’Those Extraordinary Twins: Pudd’nhead Wilson’ and the Costs of ‘Killing Half.’” NINETEENTH-CENTURY LITERATURE 57 (1): 100-124.

Railton, Stephen. 2002. “The Tragedy of Mark Twain.” NINETEENTH-CENTURY LITERATURE 56 (4): 518-544.

Scheck, Barry C. and Peter J. Neufeld. 2002. “Toward the Formation of ’Innocence Commissions in America.’” JUDICATURE 86 (September/October): 98-105. [*364]

Schehr, Robert Carl and Jamie Sears. 2005. “Innocence Commissions: Due Process Remedies and Protection for the Innocent Critical.” CRIMINOLOGY 13: 181–209.

Spangler, George M. “Pudd’nhead Wilson: A Parable of Property.” AMERICAN LITERATURE 42 (1): 28-37.

Yeazell, Stephen C. 2004. “Getting What We Asked For, Getting What We Paid For, and Not Liking What We Got: The Vanishing Civil Trial.” JOURNAL OF EMPIRICAL LEGAL STUDIES 1: 943-971.

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© Copyright 2008 by the author, Christopher P. Banks.

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THE STRANGE CASE OF DR. JEKYLL AND MR. HYDE

by Robert Louis Stevenson. Martin A. Danahay (ed) 2d ed.. First published in 1886. many editions available. Peterborough, Ontario: Broadview, 2005. 215pp. Paper $10.95. ISBN: 9781551116556.

Reviewed by Simon Stern, Faculty of Law and Department of English, University of Toronto. Email: simon.stern [at] utoronto.ca.

pp.356-359

Those who know of Stevenson’s THE STRANGE CASE OF DR. JEKYLL AND MR. HYDE from the versions circulating in popular culture will think of it as a medical or psychological case history, the story of a split personality. The book can also usefully be approached, however, as a legal case—and Stevenson hints at that possibility by using the title “The Carew Murder Case” for the chapter that describes Mr. Hyde’s most heinous crime, an unprovoked, lethal attack on Sir Danvers Carew (p.46). Because of the way in which Stevenson presents the relation between the Jekyll and Hyde personalities—and because one of the central actors in the plot is a lawyer—the novella provides an excellent vehicle for exploring questions about mens rea in criminal law.

Stevenson’s tale was first published in 1886 and many editions are available, but the Broadview edition is particularly useful, for reasons discussed at the end of this review. While the story hints cryptically at numerous crimes to be laid at Hyde’s door (see, e.g., p.54), the main events animating the plot are an assault and two deaths. The assault is described retroactively in the first chapter, in a conversation between Enfield and his old friend Utterson, who happens to be Jekyll’s lawyer. Enfield explains that he witnessed the assault on a dark night in a lonely part of London. A “little man who was stumping along” encountered “a girl of maybe eight or ten” and “calmly trampled over the child’s body and left her screaming on the ground” (p.33).

Enfield adds that he “collared” the malefactor and took him back to the scene of the crime, where a crowd had formed. The girl was more frightened than hurt, but the crowd demanded £100 compensation for her family, and the offender, one Mr. Hyde, paid part in gold and made up the difference with a cheque drawn on Dr. Jekyll’s account. (Although Hyde had been detained until the next morning, when the cheque could be cashed, there seems to have been no thought of charging him with assault.) Enfield in fact declines to mention Jekyll’s name when he recounts the story, but Utterson guesses at the connection because he has long been troubled by Jekyll’s will, which provides in the event of his own “disappearance or unexplained absence” (p.37) that all of his assets should become Hyde’s property.

The Carew murder occurs about a year later, and again is described by an eyewitness, this time a serving maid who saw the whole thing from her window. She says that she saw Hyde (whom she recognized from a previous meeting) out on another nocturnal perambulation.[*357] When he came across Sir Danvers Carew, Hyde behaved like a “madman” and struck him with a cane. “And the next moment, with ape-like fury, [Hyde] was trampling his victim under foot and hailing down a storm of blows, under which the bones were audibly shattered” (p.46). The police undertake a search for Hyde, but he is nowhere to be found. Finally, near the tale’s close, Jekyll’s servant, Poole, becomes convinced that Hyde has done away with Jekyll and has locked himself up in Jekyll’s laboratory. Poole persuades Utterson to join him in breaking into the laboratory to confront Hyde, but as they do, Hyde commits suicide.

The lawyer finds a new will, in which Jekyll devises his assets to Utterson rather than Hyde, and a pair of manuscripts explaining how Jekyll began to study “those provinces of good and ill which drive and compound man’s dual nature” (p.76). Using a “simple crystalline salt” and a “blood-red liquor” (p.71), Jekyll learned how to enjoy the “indescribably new and . . . incredibly sweet” sensation of turning into Hyde (p.78), of taking on the body and personality of “a being inherently malign and villainous” (p.81). Another drink turned him back into Jekyll. What began as a secret indulgence became a fearful “slavery” (p.80). Then the transformation began to come on involuntarily and with increasing frequency. Jekyll’s account concludes at the point when, having consumed his supply of the salt and unable to get more, he anticipates that a final transformation in the hideous Hyde will “bring [to an end] the life of that unhappy Henry Jekyll” (p.91).

Jekyll conjectures, in the last paragraph of his manuscript, that his alter ego may “die upon the scaffold” (p.91), but what about his own liability? Jekyll takes pains to distance himself from Hyde, emphatically designating him, at one point in the manuscript, in the third person: “He, I say—I cannot say I” (p.88). At other points, however, Jekyll refers to Hyde in the first person (“I was unable to conceal the alteration in my stature,” p.82), and one of the most significant clues to the mystery involves the resemblance between Jekyll’s and Hyde’s handwriting (pp.53, 87). The novella’s title, similarly, hints at the inseparability of the two figures: like the word “hide,” “case” also carried the sense of “body” or “skin.”

To what extent, then, could Jekyll be charged with the murder of Sir Danvers? In his manuscript, Jekyll seems to anticipate this question, but his answer is ambiguous. “No man morally sane could have been guilty of that crime,” he avers, in what seems to amount to a plea of not guilty because of temporary insanity (p.85). Yet he immediately adds, “But I had voluntarily stripped myself of all those balancing instincts” (p.85) that would have prevented the attack—and he compares his condition to that of a “drunkard” (p.84). (That analogy is even more explicit in Bliss 1891, which retells the story with a happy ending “to correct the shortcomings” of Stevenson’s tale, and which uses alcohol rather than drugs to explain the transformation.)

Around the time of Stevenson’s novella, English courts had begun to consider the possibility that mental conditions resulting from voluntary intoxication may negate specific intent, though not [*358] general intent. For example, in an influential 1887 judgment, Justice Stephen explained that when “the intention of the party committing [a crime] is one of its constituent elements,” the trier of fact may look to the defendant’s drunkenness in determining “whether he formed the intention necessary to constitute the crime” (REGINA V. DOHERTY). Under the split personality theory, Jekyll and Hyde may share the same case, but the former cannot be said to have acted voluntarily during any of his violent acts—and Stevenson emphasizes that possibility by making him turn into Hyde spontaneously in the latter phase of the story. On the other hand, the understanding of Jekyll as a kind of drug addict, voluntarily nursing his habit, would at least leave him liable for manslaughter.

The same logic would seem to apply to Hyde. If he exhibited, as the eyewitness to Carew’s murder reports, an “ape-like fury” (p.46), and if he was not “morally sane” (p.85), as Jekyll insists, then perhaps the Hyde aspect of a split personality would no more deserve to be hanged than the Jekyll aspect, but instead should be treated as insane. The answer is complicated, however, by the question of how insanity should be understood. According to the M’NAGHTEN rule, the prevailing standard when Stevenson was writing, the question is whether the accused “was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or . . . [not to] know he was doing what was wrong” (M’NAGHTEN’S CASE). Stevenson appears to track this standard when he describes Hyde’s “complete moral insensibility and insensate readiness to evil” (p.84), but Hyde’s increasingly panicked efforts to become Jekyll once again—even after the transformation has begin to occur spontaneously—seem to show that Hyde is aware of the moral status of his behavior. One of the questions that JEKYLL AND HYDE can be used to raise, then, involves the difference between the M’NAGHTEN approach and an approach that focuses more generally on the defendant’s ability to adhere to legal requirements.

To extend the question further, what if Hyde is regarded as embodying a mental condition precipitated by Jekyll’s voluntary act—and by the story’s end as a permanent mental condition that Jekyll had never imagined possible? (The Carew murder occurs while Jekyll is still able to control the transformation, but one of the hypothetical questions that can be raised when considering the story involves the liability that would attach to Hyde’s conduct if he committed a murder after the change became permanent.) In that case, Hyde begins to resemble the accused in STATE V. MAIK, in which the New Jersey Supreme Court held that insanity, rather than merely inability to form a specific intent, is the proper characterization when a party’s “psychotic state . . . continue[s] after the direct or immediate influence of [a] drug”. But Hyde’s case may not be quite the same, because the MAIK court concluded that “the underlying illness from which the psychotic episode emerged was not caused by the use of drugs”, but was already latent and had been brought to the surface by drug use.

Again, though, in reviewing his history, Jekyll insists that his research was [*359] originally provoked by his awareness of the “two natures that contended in the field of [his own] consciousness” (p.77). Perhaps Jekyll did begin with an underlying illness, so that his voluntary ingestion of the drugs, as in Maik’s case, should be seen as a confounding detail that is to be ignored when deciding liability. The issue is further complicated, however, by Jekyll’s speculations about the “thorough and primitive duality” of humans in general (p.77). Much of the interest in Stevenson’s tale lies in its status as a moral allegory about the human character, not as an exploration of Jekyll’s uniquely conflicted psyche. If Jekyll’s “underlying illness” is universally shared, should it be taken into consideration when we ask whether Hyde’s crimes were brought about by a voluntary act? JEKYLL AND HYDE thus opens up extensive vistas for discussion of different degrees of criminal liability.

The Broadview edition helpfully includes several other documents that can also be brought to bear on these issues. Stevenson’s article, “A Chapter on Dreams” (1888), discusses how he came to write the novella, and offers further reflections on “man’s double being” (p.102). Comments by contemporaneous book reviewers also support the idea of Jekyll’s developing addiction (e.g., “a feeble but kindly nature steadily and inevitably succumbing to the sinister influences of besetting weaknesses,” p.138). Finally, in addition to cases featuring current-day disputes about the role of voluntariness in assessing liability and the meaning of insanity as it bears on that question, teachers of criminal law may find it useful to assign the 1888 decision in STATE V. YARBOROUGH, a first-degree murder case that centers on the question of voluntary intoxication, and that devotes half a page to JEKYLL AND HYDE. In upholding the trial court’s guilty verdict, the Kansas Supreme Court asked, “Should it be said that Dr. Jekyll was not responsible, and that Mr. Hyde, after all, and Mr. Hyde alone, was the guilty one?” (STATE V. YARBOROUGH).

REFERENCE:
Edgar Janes Bliss. 1891. THE PERIL OF OLIVER SARGENT. New York: Webster.

CASE REFERENCES:
REGINA v. DOHERTY, 16 Cox C.C. 306 (Central Criminal Court 1887).

M’NAGHTEN’S CASE, 8 Eng. Rep. 718 (H.L. 1843).

STATE v. YARBOROUGH, 18 P. 474 (Kan.1888).

STATE v. MAIK, 287 A.2D 715 (N.J. 1972).

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© Copyright 2008 by the author, Simon Stern.

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HARRY POTTER AND THE ORDER OF THE PHOENIX

by J.K. Rowling. New York: Scholastic Paperbacks, 2004. 870pp. Paper $9.99. ISBN: 9780439358071.

Reviewed by Bruce Peabody, Department of Social Sciences and History, Fairleigh Dickinson University. Email: bgpeabody [at] msn.com.

pp.351-355

At over 4,000 pages, and with more than 400 million books sold, the seven part Harry Potter series is an expansive cultural inkblot – largely unavoidable and open to diverse, and, at times, contradictory interpretation. This review of J.K. Rowling’s fifth Potter book, HARRY POTTER AND THE ORDER OF THE PHOENIX, presumes that whatever the literary merits or deficiencies of the saga, its widespread and, at times, feverish consumption makes it relevant as an object of scholarly study and reflection. In five years or so, millions of students who have attentively followed Harry’s exploits will be on their way to college. Seen in this light, Rowling’s work can serve as a literary conduit for engaging a coming cohort who grew up with Potter as their figurative companion.

Prior commentaries on the legal and political themes in the Potter novels have pointed to the presence of contract law principles in the books, their depiction of punishment and torture, the author’s hostility to bureaucratic forms of rule, and the undercurrent of libertarianism coursing throughout the lengthy tale (see, e.g., HARRY POTTER AND THE HALF-CRAZED BUREAUCRACY; HARRY POTTER, LAW, AND CULTURE). This review takes a somewhat different tack, noting themes of likely interest to a wide audience of law and courts scholars and offering particular teaching strategies for using Rowling’s work. In order to make the sprawling series more accessible and manageable, the emphasis here is on specific approaches teachers might adopt in exploring the perennial legal themes embedded in just one of the novels.

HARRY POTTER AND THE ORDER OF THE PHOENIX opens with the protagonist defending himself and his cousin against a pair of wraith like “dementors.” Harry staves off their assault, but only by employing magic in an area populated by “Muggles” (non-magical humans), an act that is prohibited by “paragraph C of the Decree for the Reasonable Restriction of Underage Sorcery” and “section thirteen of the International Confederation of Wizards’ Statute of Secrecy” (p.140). Harry’s use of sorcery, in apparent violation of these prohibitions, is scrutinized and initially punished by the Ministry of Magic, the bureaucratic and lawmaking body in charge of regulating all things magical.

In the mean time, Harry learns about the Order of the Phoenix, a secret society pitted against his nemesis, Voldemort, who is, in turn, scheming to consolidate power. The Ministry of Magic features prominently in this struggle, with much of the novel’s plot turning on the Ministry’s corruption, amorality, and inefficacy, shortcomings that make it blind to Voldemort’s rising menace. [*352]

These failings are presented in an extreme form through the character of Dolores Umbridge. Umbridge is a Ministry official who initially helps lead the prosecution of Harry and subsequently installs herself at his cherished school, Hogwarts. Gradually, Umbridge’s personal aggrandizement comes at the expense of the school’s operation and the students’ magical education. By the end of the novel, Harry and his classmates revolt against her increasingly autocratic and arbitrary rule.

In this narrative and in the Potter tales in general, law is a quiet but insistent presence. Throughout the series, many of Harry’s most important decisions turn on whether to break or uphold various school rules or Ministry decrees. Indeed, Harry is often depicted as someone outside of the normal law. “The usual rules do not seem to apply with you, Potter,” declares his recurrent tormentor, Severus Snape (p.531).

Three legal themes are especially prominent in HARRY POTTER AND THE ORDER OF THE PHOENIX. First, Rowling invites us to reconsider the traditional dichotomy between the rule of law and the rule of individuals. In general, Rowling’s work evinces a high regard for the choices and autonomy of individuals in opposition to formal institutions, including legal organizations. Indeed, laws and regulations often work best when their authority is synonymous with the authority of a single person. For example, in the first four novels of the Potter series, Albus Dumbledore, the headmaster of Hogwarts, presides over the school with minimal external constraints or formal guidelines.

But in HARRY POTTER AND THE ORDER OF THE PHOENIX, Rowling shows greater concern for how the rule of law can be denigrated when it becomes subsumed by the capricious choices of individuals. In the book, legal and moral transgressions typically follow when the impersonal and formal equality of the rule of law is replaced with the agendas and vindictiveness of specific characters. Dumbledore, for example, chastises the Minister of Magic for deviating from past traditions in holding a full criminal trial against Harry for a “simple matter of underage magic” (p.149). As he further admonishes, “[i]n your admirable haste to ensure that the law is upheld, you appear, inadvertently I am sure, to have overlooked a few laws yourself” (p.149).

The danger posed by the unfettered rule of ambitious individuals is also embodied in the figure of Dolores Umbridge. Umbridge initially comes to Hogwarts as an officious teacher seeking to reform its educational system. In short order, however, she is appointed by the Ministry as “Hogwarts High Inquisitor” with sweeping and ever increasing power. As Rowling puts it, Umbridge consistently exhibits a “furious desire to bring every aspect of life at Hogwarts under her personal control” (p.551). The result of this conflation of the law at Hogwarts with the predilections of the High Inquisitor is calamitous. The students and staff are, in turn, bored, stifled, and terrified by Umbridge’s restrictive decrees (p.351, 416) and highly personalized rule.

As a cognate issue, Rowling seems to recognize that as a form of social regulation, law possesses distinctive traits and claims to authority. Among [*353] the features distinguishing and legitimating the Ministry’s law from, say, the decisions and agreements Harry makes with his friends, is its written-ness, specificity, and formalism. When Harry is first informed that he has violated the Decree against Underage Sorcery, the official Ministry notice outlines the particulars of his offense, the forms of law he has broached, and the terms of his preliminary and pending sanctions (p.26). This letter is almost immediately opposed by a short, scrawled message Harry receives from the father of his best friend. But this note’s command (exhorting Harry to stay where he is and not use magic again) is only backed by Harry’s personal relationship with the author, and the vague promise that Dumbledore is “trying to sort it all out” (p.28).

A second major theme throughout the novel is the complex and often divergent relationship between law and justice. Even Harry’s uncharitable Uncle, Vernon Dursley, is perplexed upon hearing that Harry has been disciplined for using magic to protect himself and Vernon’s son, Dudley. “If it was demenders [sic] who hurt Dudley, how come you’ve been expelled?” he inquires (p.35). At Harry’s judicial hearing, it becomes clear that the Minister of Magic wishes for a speedy resolution of Harry’s case, preferably with a finding of guilt. But Dumbledore, serving as Harry’s legal advocate, urges a more circumspect and deliberative approach. “[N]aturally,” he coolly suggests, “you would not care how many times you heard from a witness, if the alternative was a serous miscarriage of justice” (p.148).

Harry is ultimately cleared of all charges, temporarily vindicating due process and lending credence to the association of law with just outcomes. On other occasions, however, this relationship is by no means secure. Harry’s godfather, Sirius Black, remains hunted throughout the novel for crimes he did not commit. When Harry and several of his friends fight with Draco Malfoy, a despised classmate, Umbridge hands out sentences that Rowling depicts as widely divergent, harsh, and unfair. In still another case, a suspect accused of terrorizing Muggles with “regurgitating toilets” is not prosecuted in return for his delivering information about Harry’s clandestine and illegal efforts to teach his classmates how to defend themselves against the “dark arts” (pp.614-615).

Finally, Rowling’s fifth novel is distinguished by its somewhat ambiguous evaluation of law. On the whole, Rowling does not offer positive assessments of the performance of law, or its role in our lives. In the final book of the Potter series, Harry’s friend Hermione rejects the suggestion that she might pursue a career in “Magical Law,” retorting that “I’m hoping to do some good in the world!”

In HARRY POTTER AND THE ORDER OF THE PHOENIX law and legal forums are generally depicted as dark and convoluted. Legal procedures are at once threatening and removed – important legal decisions and commands are issued at a distance. When Harry enters the chamber for his hearing, he is greeted by “shadowy figures,” an “ominous silence,” and a large body of inquisitors who stare “down their noses at him” (p.137). He sits at a chair with chains designed to magically bind [*354] individuals accused of even more serious crimes.

At the same time, law is portrayed as being somewhat absurd. Complex regulations seem to govern every aspect of magical life. When Umbridge is confronted by a group of irate centaurs, she feebly invokes “Law Fifteen B” and other regulations, but this only has the effect of enraging the creatures further (pp.754-755). In Rowling’s world, the law is ultimately no match for the raw, unadulterated power implicit in natural forces and entities.

But these critiques are somewhat tempered by Rowling’s portrayal of other aspects of the legal system. Law and legal decisions are depicted as swift and decisive. Harry is given notice of his hearing efficiently, and he is tried and acquitted in a single morning. At a number of turns, Rowling also concedes that the law can be distinctively powerful – it possesses a comprehensive reach and is backed by the force of official institutions such as the Ministry and the Wizengamot, the Ministry’s highest tribunal.

Furthermore, the law is not without an inner logic. Harry’s defense turns, in part, on a stipulated exception to the normal rule that wizards can not perform magic in Muggle areas. His behavior is exonerated because of recognized “exceptional circumstances” including events that threaten the life of the accused wizard or Muggles (p.148). Moreover, Dumbledore is depicted as an agile and commendable legal advocate, who defends the credibility of Harry’s witness, insists upon due process and recognizes the trial court’s limited jurisdiction. In short, while Rowling casts the law as something that can be perverted in the wrong hands, it is also capable of rendering fair outcomes when proper procedures are followed.

HARRY POTTER AND THE ORDER OF THE PHOENIX would be appropriate for inclusion in any class that touches upon the themes delineated in this review. In particular, the novel could fit in well with law and society courses, especially discussions about the nature of law and legal authority. The book would also be suitable for a law and literature class, and could be interestingly paired with other, more traditional fictional selections, such as THE DEVIL AND DANIEL WEBSTER or THE TRIAL. Since the Potter series is situated in the United Kingdom, and since the wizarding world is itself a distinctive milieu, HARRY POTTER AND THE ORDER OF THE PHOENIX could also be used in courses examining comparative legal issues, although, given the fictional backdrop, this would obviously need to be handled with some care. Finally, the presence of a popular movie version of the book could be of use to faculty wishing to teach the novel’s themes in a law and film or law and popular culture class.

With respect to more specific teaching strategies, one obvious approach would be to assign students portions of the book rather than asking them to read nearly 900 pages. Even if they are not familiar with the novel as a whole, undergraduates should be able to engage its principle legal themes by focusing on a handful of chapters including those detailing Harry’s attack by the dementors, his being served official legal notice, the resulting hearing, and Umbridge’s efforts to bring the [*355] Hogwarts academy to heel through her draconian decrees. Finally, as intimated earlier, the most helpful suggestion with respect to HARRY POTTER AND THE ORDER OF THE PHOENIX may be simply to wait. In the course of a few years, incoming undergraduates are more likely than contemporary students to be familiar with Harry’s tale – and will therefore be better positioned to grasp its powerful cultural hold and relevance.

REFERENCES:
Barton, Benjamin. 2006. “Harry Potter and the Half-Crazed Bureaucracy.” MICHIGAN LAW REVIEW 104: 1523-1538.

Benet, Stephen Vincent. 1999 [1937]. THE DEVIL AND DANIEL WEBSTER AND OTHER WRITINGS. New York: Penguin Books.

Kafka, Franz. 1998 [1925]. THE TRIAL. New York: Schocken Books.

Thomas, Jeffrey E., et. al. 2005. “Harry Potter, Law, and Culture: Harry Potter and the Law.” TEXAS WESLEYAN LAW REVIEW 12 (1): 428-484.

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© Copyright 2008 by the author, Bruce Peabody.

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KNOCK ON ANY DOOR

by Willard Motley. DeKalb, Illinois: Northern Illinois Press, 1989 (original edition 1947). 515pp. Paper. $19.95. ISBN: 9780875805436.

Reviewed by Walter J. Kendall, III, The John Marshall Law School. E-mail: 7kendall [at]jmls.edu.

pp.348-350

Brian Tamanaha’s General Jurisprudence “presupposes very little about law, leaving that open to conventional identification, and subsequent conceptual analysis and empirical study. Instead of dictating what law is, it asks how groups of people talk about law. Instead of assuming what law does, it examines what people do with law.” (Tamanaha, 156). This view brings within the realm of jurisprudence, among other cultural formations, novels and the facts and truths in fiction. (Denning, xx). Critics recognize that the details of the experiences of the protagonist in Willard Motley’s KNOCK ON ANY DOOR are grounded in fact on the streets of Chicago, in juvenile institutions, and in the criminal justice system (Fikes, 511-12).

Nick Romano, the protagonist of KNOCK ON ANY DOOR was one of three children of an early twentieth century immigrant couple. He was a good child, perhaps too good; obedient, studious, and an enthusiastic altar boy. Then his father’s small food import business failed. The family moved to a less affluent neighborhood and Nick was transferred to a new school in a new parish. Four hundred eighty nine pages before his death by electrocution for killing a policeman Nick is ensnared in one of those moments of moral and ethical choice experienced by many people. Tony, a classmate and Nick’s best friend, in an act of then not uncommon grade school misbehavior, shoots a bent pin at Sister Ignatius. At that moment Father Scott, the pastor, walks into the classroom.

Tony pulled the rubberband from his fingers and threw it on the floor. It landed in the aisle, halfway between Tony and Nick. Nick reached out with his foot, remembering that Tony would be expelled. His toe barely reached it, the rubberband was stubborn and jelly-like beneath his toe as he tried to pull it under his desk. He stepped over and picked it up, palming it quickly. As he straightened Father Scott’s bony fingers closed on his collar.
‘Did you do that?’ It was an accusation. Y-y-yes Father.’ (p.15).

This quote captures both the style and substance of the novel. The style is Naturalism. It “collect(s) a huge body of evidence, that multiplie(s) similar incidents and amasse(s) detail in order to create its effect.” (Fleming, 119). Its effect is the limiting, but not quite determinative impact of powerful social forces on the choices open to the novel’s protagonist.

Its substance is that of the Chicago School of Urban Sociology. The Chicago school of pre-World War II America sought “to counter the traditional view of the modern American city as chaos, invisibility, unnatural nature, and outside history.” It “conceptualized the city as harmonious [*349] space and intelligible time.” Yet the studies of the Chicago School found the slums as “a natural disorder … contagious, degenerative, and (of) unintelligible fragment(s).” They tried to make sense of these discordances by “case studies” of people’s decision-making in this dangerous and constraining environment. (Cappetti, 36).

Motley and KNOCK ON ANY DOOR are also important to an understanding of the Midwest-based renaissance of African-American literature beginning in the thirties, inspired especially by the early writings on Richard Wright. (Werner, 132-33). Wright in explaining Bigger Thomas, his paradigmatic character in NATIVE SON says he was “not black all the time; he was white too and there were literally millions of him everywhere.” (Hapke, 236). Thus we have Nick Romano, a white ethnic character illustrating urban working class pathology in a novel by an African-American.

Nick’s eight year more or less “forced” march to his death at 21 covers the initial confinement in an abusive and dangerous juvenile home for a crime he did not commit and the move from Denver to Chicago where he falls in with a tough crowd and does a second stint in a reformatory. That experience is the training program for his subsequent life of petty urban street crime, assault, and burglary. Along the way, there’s a good hearted social worker, a caring homosexual friend, a marriage to an innocent girl, often abusive and corrupt police, particularly Officer Riley, and a caring family but one lacking in any understanding of Nick’s experiences and emotions.

The last 160 of the 504 pages of the book concern Nick’s capture, interrogation, confession, trial, conviction, sentencing, and execution for killing Officer Riley. These are presented with the same detailed attention to the reality of the legal processes as the earlier portions of the book presented the urban sociology of poverty.

KNOCK ON ANY DOOR presents in stark detail a picture of both early twentieth century sociological theory and the pre-Warren Court criminal justice system. The first 343 pages can readily be used as a case study against which to analyze and critique contemporary sociological, psychological, and philosophical views of the relationship between environment and criminal behavior in its many permutations, especially juvenile justice. (Heffernan and Kleinig). The last 160 pages can serve as a benchmark or initial position from which to measure the impact of the Warren Court criminal justice decisions on police and court practices. (Thomas). They could thus serve as a case study in courses in criminology, constitutional law, and political sociology.

KNOCK ON ANY DOOR was a best seller when published in 1947, selling almost 50,000 copies in its first month. It was made into a successful movie two years later starring Humphrey Bogart. The film could meet the needs of Professors who have moved away from textbooks and other print materials. Coincidently, the movie was shown on the Turner Classic Movie channel earlier this year, so it is still generally available and of interest. [*350]

REFERENCES:
Cappetti, Carla. 1993. WRITING CHICAGO: MODERNISM, ETHNOGRAPHY, AND THE NOVEL. New York: Columbia University Press.

Denning, Michael. 1998. THE CULTURAL FRONT: THE LABORING OF AMERICAN CULTURE IN THE TWENTIETH CENTURY. New York: Verso.

Fleming, Robert. 1995. “Willard Motley” in Bloom, ed., MODERN BLACK AMERICAN FICTION WRITERS. New York: Chelsea House.

Fikes, Robert. 1997. “Willard Motley” in Andrews, William, Foster, Frances Smith, and Harris, Trudier eds., THE OXFORD COMPANION TO AFRICAN AMERICAN LITERATURE. New York: Oxford University Press.

Hapke, Laura. 2001. LABOR’S TEXT: THE WORKER IN AMERICAN FICTION. New Jersey: Rutgers University Press.

Heffernan, William and Kleing, John eds. 2000. FROM SOCIAL JUSTICE TO CRIMINAL JUSTICE. New York: Oxford University Press.

Tamanaha, Brian. 2001. A GENERAL JURISPRUDENCE OF LAW AND SOCIETY. New York: Oxford University Press.

Thomas, George C. ed., 2005. “Symposium. The Warren Court Criminal Justice Revolution: Reflections A Generation Later,” Ohio State Journal of Criminal Law 3:1. pp. 1-200.

Werner, Craig. 1997. “Chicago Renaissance” in Andrews, William, Foster, Frances Smith, and Harris, Trudier eds., THE OXFORD COMPANION TO AFRICAN AMERICAN LITERATURE. New York: Oxford University Press.

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© Copyright 2008 by the author, Walter J. Kendall, III.

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BILLY BUDD, SAILOR

by Herman Melville. Originally published, 1924. 160pp. Many editions available. Paper. $4.95. ISBN: 9781416523727.

Reviewed by Stephen A. Simon, Department of Political Science, University of Richmond, ssimon [at] richmond.edu.

pp.344-347

Herman Melville’s BILLY BUDD can serve as an excellent basis for discussions about fundamental questions in law and politics. For those (like myself) who somehow managed to avoid reading the story during high school or college, it may be best to begin with a very brief summary. Billy Budd is a young man impressed from a merchant ship in 1797 and made foretopman on the INDOMINATABLE – a warship in the British Navy. In a conversation with the Captain, Edward Fairfax Vere, the ship’s master-at-arms, Jon Claggart, accuses Budd of mutinous conspiracy. Skeptical of the accusations (given Budd’s easy-going and cheerful bearing), Captain Vere invites Claggart to make the accusations in Budd’s presence. Given the opportunity to rebut the accusations, Budd, who suffers from an inability to speak under duress, is unable to do so. Frustrated and angry, Budd strikes Claggart, killing him. Though believing Budd innocent of mutiny and free of any intent to kill Claggart, Vere quickly convenes a drumhead court to try Budd, who is convicted and hung the next morning.

One set of jurisprudential questions centers on the justice of Budd’s conviction and execution. Budd is an extraordinarily sympathetic character. He is happy-go-lucky, well-liked, and devoid of cynicism or ill will towards others. We know him to be innocent of the charges of mutiny. Claggart’s accusations are not only false but malicious, as Claggart is a man controlled by envy, determined to destroy Budd. Moreover, we know of Budd’s difficulty with speaking in times of great stress, and what greater stress than to be accused falsely to one’s face, with no warning, of a capital crime. In short, in purely moral terms, we may view Budd as the innocent party, and Claggart as the guilty one who receives his comeuppance. But then there is the fact, witnessed by the Captain himself, that Budd struck and killed a superior officer aboard a warship in plain contravention of enacted law.

This set of facts makes a good jumping off point for discussions about the relationship between human-made law and principles of justice that exist independently of convention. In addition, since the action centers on a trial decided by a three-judge panel, the story also provides a ready entree into the related question of how judges should interpret and apply the law. What considerations are relevant to the determination of Budd’s guilt or innocence? Does it matter that Budd may have been morally free of guilt? Are the judges entitled or obliged to consider the justice of Budd’s actions, or is their authority limited to strict application of the letter of the law? Nor must the reader conjure up these themes with imaginative interpretations of obscure text; Melville hand-delivers [*345] them. In describing the situation confronting Vere after Claggart's death, for example, Melville writes:

[I]nnocence and guilt personified in Claggart and Budd in effect changed places. . . The essential right and wrong involved in the matter, the clearer that might be, so much the worse for the responsibility of a loyal sea-commander inasmuch as he was not authorized to determine the matter on that primitive basis.

Thus, the story line serves well as the basis for discussion of fundamental questions in the philosophy of law. At the same time, BILLY BUDD also affords the opportunity to explore fundamental questions in political philosophy. This additional layer of questions is opened up by the manner in which the chief characters are described. Budd, who is compared to Adam before the fall, brings to mind that familiar figure of modern philosophy – the human being in a pre-political state of nature. Of course, different philosophers have written this character differently – Budd is in many respects more like the one we meet in Rousseau's DISCOURSE ON THE ORIGIN OF INEQUALITY AMONG MEN than the one to which Hobbes introduces us in LEVIATHAN. Budd is, for example, neither fearful nor fearsome; rather than inclining to strife, Budd's mere presence brings peace and tranquility. The notion that Budd stands outside civilization is suggested in a number of ways, including repeated animalistic descriptions: “Of self-consciousness he seemed to have little or none, or about as much as we may reasonably impute to a dog of Saint Bernard’s breed.” Though unable to read, Budd "could sing, and like the illiterate nightingale was sometimes the composer of his own song." Budd, too, is untouched by the corrupting influences of civilization: "Billy in many respects was little more than a sort of upright barbarian, much such perhaps as Adam presumably might have been ere the urbane Serpent wriggled himself into his company.”

That Budd is taken from a ship called RIGHTS OF MAN and thrust into the highly regimented world of a warship, the INDOMINATABLE, provides opportunities to discuss the compromises made when individuals trade their natural liberty in return for the order promised by the establishment of government. The contrast between Budd and his new environment is striking. Immediately upon his arrival on the warship, Budd witnesses the flogging of a novice seaman who had been absent from his post. Budd is chastened by the event, determined never to suffer the same fate. A veteran seaman who befriends Budd ponders "what might eventually befall a nature like that, dropped into a world not without some man traps and against whose subtleties simple courage lacking experience and address and without any touch of defensive ugliness is of little avail."

The character of Captain Vere also represents fascinating contrasts with Budd. Where Budd knows nothing of his parents or origins, Vere comes from nobility. Where Budd is illiterate, Vere is a contemplative intellectual who loves reading about history and philosophy. Where Budd seems less an actual individual than a symbol of primitive humanity, Vere is the embodiment of political order and strict application of enacted law. He brooks no delay in trying and executing Budd. At the trial, [*346] he persuades the judges to consider nothing beyond the bare facts of the matter – that Budd’s fist caused Claggart’s death – since the applicable law places no weight on intent. Sensing the judges’ moral qualms about convicting Budd of a capital crime, Vere argues:

But in natural justice is nothing but the prisoner's overt act to be considered? How can we adjudge to summary and shameful death a fellow-creature innocent before God, and whom we feel to be so? -- Does that state it aright? You sign sad assent. Well, I too feel that, the full force of that. It is Nature. But do these buttons that we wear attest that our allegiance is to Nature? No, to the King.

Vere can also be seen as representing public order and the general welfare pitted against Budd, the individual. When the court raises the possibility of mitigating Budd’s sentence, Vere counters by noting the potentially dangerous consequences of displaying weakness to the other sailors.

Adding even greater richness to the tale is the mutual respect that Vere and Budd show for each other. When Budd tells the court that Claggart’s charges of mutiny were unfounded, Vere jumps in to say “I believe you, my man," prompting Budd to reply "God will bless you for that, Your Honor!” In his last words before hanging, Budd proclaims “God bless Captain Vere,” and we are told that Vere’s last words before dying of a battle wound were simply “Billy Budd, Billy Budd.”

The story, then, opens the door to provocative questions at the broadest level about the nature and purposes of law and political community. What makes BILLY BUDD such an engaging way to approach these questions is that, in doing so, one can easily navigate between the “big” questions and more specific inquiries about the characters themselves. What is the significance of the fact that Budd and Vere seem to respect each other so deeply, despite their strikingly different characters, and Vere’s role in bringing about Budd’s hasty execution? Why does Claggart so detest Budd? If Budd represents primitive humanity and Vere civilization, then does Claggart represent the risks of corruption and arbitrary power inherent in the establishment of government? And how should we feel about Budd’s death? Does Budd’s execution amount to the unjust slaying of an innocent man? If so, does this injustice represent something vital that is inevitably sacrificed in the name of political order? The story also provides an easy entree into questions about criminal [*347] responsibility and the purposes of punishment. Can Budd’s homicide be justified on the grounds of self-defense, or excused on the grounds that the extraordinary circumstances led him to act essentially without volition? In a digressionary chapter of one page, Melville even alludes to the “intricacies involved in the question of moral responsibility; whether in a given case, say the crime proceeded from the mania in the brain or rabies in the heart.” Indeed, Vere’s own sanity is repeatedly drawn in question.

BILLY BUDD seems an especially good fit for courses on philosophy of law, but could also work well in any course addressing the range of questions noted, including, for example, criminal justice courses dealing with criminal responsibility, or any courses on constitutionalism or political thought that engage social contract theory or the tensions between enacted law and natural justice. In addition to its substantive content, two other features of BILLY BUDD make it well-suited for classroom use. First, as a novella well under a hundred pages, it makes for a remarkably efficient assignment. Second, the philosophical themes are readily accessible without having an expertise in Melville or in literature generally. Melville does not hide the ball, he throws it at your head.

I recently assigned BILLY BUDD in an undergraduate, seminar-style Political Science course on “Jurisprudence.” On the day we were slated to discuss the story in class, students were required to turn in a short (two-page) paper. The paper asked students, imagining themselves as a judge at Budd’s trial, to present arguments supporting either Budd’s innocence or guilt. The class discussion was one of the liveliest I have seen on any topic. Not only were the students thoroughly engaged in debating the immediate question concerning the verdict at Budd’s trial, but they also effectively connected the story with jurisprudential theories we had discussed earlier in the course, and raised additional issues beyond the more obvious “big” questions suggested by the story. One student, for example, contended that Budd was denied procedural justice because Vere effectively acted as both prosecutor and sole prosecution witness at the trial, while other students debated the extent to which the verdict should hinge on the exigent circumstances of a warship at sea. We spent a second class debating a set of discussion questions on the story. BILLY BUDD lends itself especially well to class discussion because the action centers on a dramatic trial, and because the text is abounding in juicy quotes. For instance, when Vere realizes that Budd has killed Claggart, he exclaims: “Struck dead by an angel of God! Yet the angel must hang!” It not only marks a dramatic turning point, but encapsulates one of the story’s central tensions in twelve words, thus serving as a ready-made conversational starting point.

One cautionary note – the writing style can make for difficult reading at times. The flowing complexity of the sentences often rises to the level of high art, but other times is just plain hard to follow, at least for these eyes, and I suspect for many students as well. With the aim of preventing students from becoming discouraged with the story’s early chapters, when the connections with a law-related course have not yet become clear, I encouraged students to stick with the story until the “good parts,” at least from a jurisprudential standpoint. I think this may help to ensure students stay around long enough to be grabbed by the drama of Budd’s trial. With that one caveat, I highly recommend BILLY BUDD for use in the classroom for courses in law and politics, and especially for courses engaging questions about natural justice and positive law, social contract theory, and criminal responsibility.

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© Copyright 2008 by the author, Stephen A. Simon.

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SATURDAY

by Ian McEwan. NewYork: Anchor Books, 2006. 304 pages. Paper 14.95. ISBN: 9781400076192.

Reviewed by Lynne S. Viti, Writing Program, Wellesley College. Email: lviti [at]wellesley.edu.

pp.340-343

Ian McEwan’s compact novel, set in London soon after 9/11, portrays twenty-four hours in the life of middle-aged neurosurgeon Henry Perowne, whose privileged and seemingly protected world is disrupted by a series of events, each more disturbing than the last. Perowne awakens before dawn and out of his window, observes what seems a bad omen, a plane appearing to fall from the sky, provoking in him fleeting images of fundamentalist hijackers. (The television news commentator later explains that a Russian cargo plane engine has caught fire and forced the aircraft to land). As the day begins, Henry’s thoughts turn to current politics as well as family matters. Tony Blair is keen on Britain’s joining the U.S. invasion of Iraq to bring down Saddam Hussein, and thousands of Londoners are taking to the streets this day for a mass protest of Britain’s involvement in the Iraq military action. The Perowne family is gathering for a visit home from Henry’s daughter Daisy. In her twenties, an Oxford graduate and poet whose first volume has just been published, she’s arriving from Paris. Her younger brother Theo, a blues guitarist with an international following, is home to play a gig in London. Henry’s wife Rosalind, a successful lawyer for a London newspaper, and her father John Grammaticus, a distinguished poet with an appetite for spirits and wine, is also expected for the family celebration this night. Through all of these vignettes runs Henry Perowne’s incisive intelligence, not knowledge of poetry, of which he knows little despite his daughter’s attempts to educate him, but about the workings of the human neurological system, what can and does go wrong, and what can be done to repair those who suffer from brain tumors, lesions, cerebral bruises, crushed skulls.

What at the novel’s outset promises to be a routine Saturday for Henry—a strenuous game of squash with an American colleague from the hospital, visiting his elderly, Alzheimers-afflicted mother in her nursing home, stopping at the fishmonger’s to buy the makings for the evening’s festive meal—devolves into two separate harrowing encounters with criminal elements from London’s seedier side. As he motors to his squash date, a policeman waves him down a closed-off street near the anti-Blair demonstration. Henry drives “with unconscious expertise into the narrow column of space framed on the right by a kerb-flanked cycle path and on the left by a line of parked cars, “but he misjudges the distance between his Mercedes and a parked car. He hears “the snap of a wing mirror cleanly sheared and the whine of sheet-steel surfaces sliding under pressure as two cars pour into a gap wide enough for one” (p.81). It’s a common enough urban fender-bender—Henry’s car has knocked off the side mirror of a red BMW, “a vehicle he associates for no [*341] good reason with “criminality, drug dealing” (p.88). A bit arrogant and high-handed, impatient to get to the gym, Henry suppresses his road rage. He curtly informs the men he won’t give them cash, only his insurance details. Presently, Henry is punched by Baxter, the BMW owner, who delivers “a blow that’s aimed at Perowne’s heart...lands on his sternum at colossal force...They slam his back against a chain-locked double door in a recess”(pp.92-92). As the men ready themselves to beat him, Henry notices Baxter’s odd and unpredictable movements and quickly diagnoses these as the deteriorating effects of Huntington’s disease with its attendant tremors and sudden emotional outbursts. Taking a chance, knowing that “early onset tends to predict the paternal gene,” Henry confronts Baxter: “Your father had it. Now you’ve got it too” (p.95). The thug sends his fellows down the street; a curbside medical consultation ensues. Henry explains to an incredulous Baxter that there are new procedures, medications, exercises that can forestall his complete descent into the disease. Before Baxter can call his men to take up where they left off, Henry slips away “while the possibility remains that he can still rescue his game” (p. 100).

Perowne’s routine Saturday routine resumes, but with an undercurrent of discomfort. Over the course of the day the red BMW ominously appears and reappears in his rear view mirror. That evening, Baxter and his mate Nigel accost Mrs. Perowne as she is returning from work and force their way into the house. A chilling interplay between the enraged thug, Baxter, and the Perowne family rivets the reader for the next thirty pages. Even as Baxter breaks the father-in-law’s nose and holds a knife to Rosalind Perowne’s neck and threatens to use it, Henry can’t help dwelling on his clinical diagnosis of the intruder: “the unique disturbances, the individual expression of his condition—impulsiveness, poor self-control, paranoia, mood swings, depression balanced by outbursts of temper” (p.217).

After the intruders force Daisy to strip naked, presumably to sexually assault her, she succeeds in distracting and then calming Baxter by twice reciting Matthew Arnold’s “Dover Beach.” Promising to show Baxter the details of a new clinical trial for Huntington’s patients, Henry lures him upstairs to the study. Henry disarms Baxter and together, Henry and his son hurl the intruder down a flight of stone stairs to unconsciousness. Henry Perowne calls an ambulance, stabilizes his assailant until the medics arrive and, in the end, is called to the hospital to operate on the man. This allows the reader to reflect at length on Henry’s belief that Baxter acts as he does because of his medical condition, and thus bears scant responsibility for his crimes. As Henry sees it, “No amount of love, drugs, Bible classes or prison sentencing can cure Baxter or shift him from his course,” the inevitable and premature slide into hallucinations, round the clock nursing home care, assuming there’s the money for it, and an utterly undignified death (p.217).

This novel lends itself well to class discussion and student research within several sorts of law-based courses: law and literature; criminal law; law and medicine; and philosophy of law. The [*342] shadow of the law and snippets of urban crime loom large over every section of the book. This is the metropolis of London in the early days of our new century. A teenage drug addict and her abusive boyfriend argue in the square outside Perowne’s window. The Cockney cleaning lady at Perowne’s hospital claims her son was wrongfully fingered for an armed robbery though he has an alibi. Baxter and his cohorts emerge from the Spearmint Rhino, a strip club, moments before Henry Perowne’s fateful shearing-off of the red BMW’s side-mirror. Crime follows crime: an assault and battery first on Henry, and later on his father-in-law; the home invasion; the assault on Rosalind and the others with the French kitchen knife Baxter holds against her throat; criminal trespass, and the measures Henry and his son take to defend themselves. The police in London heartily approve of this self-help remedy: “The detective laughed out loud when Theo asked him whether he and his father had committed any crime in throwing Baxter down the stairs” (p.240).

Additionally, McEwan’s focus on what crime feels like from the victims’ side is revealing. When Henry is called to the hospital to perform emergency surgery and he reveals to his wife that the patient with the brain swelling is indeed Baxter, she says, “You’re not thinking about doing something, about some kind of revenge, are you?” (p.246) After Henry returns from the successfully procedure on Baxter, Rosalind admits that she was the one who wanted revenge, though at last she relents a bit, happy that Baxter will “ live to face charges” (p.275). The after-effects of the Perownes’ shared suffering at the hands of Baxter and Nigel manifest in their desire to get back to normal as quickly as possible. At the end of this evening all sit down to their meal of seafood and wine. They want to be “retuned to the web of kindly social and familial relations, without which they’re nothing” (p.238).

In SATURDAY, McEwan raises troubling and complex questions about Huntington’s disease, mens rea and criminal responsibility. Students of law and political science are keenly interested in discussing the relationship between a neurological condition and crime. Can someone like Baxter whose mental status is questionable, be truly capable of forming a criminal intent? Does his Huntington’s disease, a condition he has inherited from his father, constitute a permanent and ever-intensifying diminished capacity defense for his actions against Henry Perowne and the Perowne family? If the Perownes were to be unsuccessful in persuading the Crown Prosecutor not to bring charges against Baxter, if he were brought to trial, could he make a successful plea of not guilty by reason of Huntington’s? In the end, Henry does not wish “to pursue charges” against Baxter: “Baxter has a diminishing slice of life worth living, before his descent into nightmare hallucination begins” (pp. 287-288). McEwan argues that Perowne and his wife, his children and his father-in-law would “all be diminished by whipping a man on his way to hell.” (p.288) Baxter should not be prosecuted, but pitied. As Perowne muses about his assailant, “…because the door of his consciousness is beginning to close, he shouldn’t pursue his claim from a cell, waiting for the absurdity of his trial to begin” (pp.288-289). [*343]

Indeed, McEwan asserts that society’s very notion of what constitutes a crime may be faulty, and ought to be revised in light of the knowledge today’s neuroscience provides. Understandably, students are deeply uncomfortable with these questions and the lack of clear answers. What better starting point for a genuine exploration of what the law is and should be, what the law should do to protect citizens, what constitutes a crime, and when the law should take notice of deep and irremediable flaws in the offender’s genetic code?

REFERENCES
Jensen, Per et al. 1998. “Crime in Huntington's disease: a study of registered offences among patients, relatives, and controls,” in JOURNAL OF NEUROLOGY, NEUROSURGERY AND PSYCHIATRY 65: 467-471.

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© Copyright 2008 by the author, Lynne S. Viti.

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