Law and Literature Part 11

The Punishment of Satan and His Followers For trying to overthrow the "Throne and Monarchy of G.o.d," Satan and his followers are Hurl'd headlong flaming from th' Ethereal Sky With hideous ruin and combustion down To bottomless perdition, there to dwel*In Adamantine Chains and penal Fire . . .

A Dungeon horrible, on all sides round As one great Furnace flam'd, yet from those flames No light, but rather darkness visible Serv'd only to discover sights of woe . . .

. . . torture without end. (I.4448, 6164, 67) Milton ascribes this punishment to "Eternal Justice" (I.70), but it is more illuminatingly described as a demonstration of unlimited power. Satan and his followers-and the good angels as well-are shown that the ruler of the universe is unconstrained by physics ("from those Flames / No light, but rather darkness visible") or biology (G.o.d later turns Satan and all the other devils into snakes). h.e.l.l is infinitely deep ("bottomless"), eternal, and unrelenting ("torture without end").

Monarchical punishment, such as G.o.d metes out to Satan and the other bad angels, is characterized by extravagantly cruel and protracted public punishments designed to overawe the monarch's subjects by a display of unlimited power over the subject's body. Once the brightest ange**in heaven, Satan is now a hulking monster bearing "ritual marks of vengeance" on his body7 as symbols visible to everyone of that monarchical power, which Hobbes thought the essential guarantor of social peace. A third of the angels had rebelled with Satan. G.o.d cannot prevent the remaining angels from likewise rebelling without thereby crushing their free will-and so he has recourse to the methods of human monarchs. And indeed when the loyal angels see how Satan has been punished, their loyalty to G.o.d "though [already] firm, stood more confirm'd" (XI.71).

So they are deterred. But there is also a failure of deterrence. Satan, the first criminal, having had no examples of G.o.d's power and wrath, complains that he was tricked into rebelling by G.o.d, who "still his strength conceal'd,/Which tempted our attempt, and wrought our fall" (I.641642). Why hadn't G.o.d explained in advance the futility and fell consequences of rebellion, and thus deterred it? The answer is bound up with the issue of free will. If you know the exact consequences of a choice, it becomes foreordained: you know what will produce the greatest surplus of benefits over costs (both terms being understood here in their broadest sense). If Satan is deterrable, then his being given full information about the future will "compel" him to abandon thoughts of rebellion, while if he is undeterrable, giving him full information will have no effect. G.o.d wants Satan, as he will later want Adam, to obey not because it is in Satan's self-interest but because he freely chooses to obey.

G.o.d could at least have achieved "specific deterrence," which means deterring a criminal from repeating his crime. He failed because he didn't reveal that any future crimes of Satan and his followers would evoke further punishment ("treble confusion, wrath and vengeance" [I.220]). This enabled Satan to incite the rebel angels to further crimes by telling them to "fear no second fate" (II.17).

The punishment of Satan does have one effect on his future behavior, however: it causes him to switch tactics. As he explains to the other fallen angels (I.643647): Henceforth his might we know, and know our own So as not either to provoke, or dread 7. Foucault, note 5 above, at 130.

New War, provok'd; our better part remains

To Work in close design, by fraud or guile What force effected not.

Foucault remarks the shift from a criminality of force to one of fraud as methods of surveillance improve and forcible crimes therefore become more detectable.8 And G.o.d did use deterrence effectively against Satan once. Gabriel, dispatched to guard Eden, detects Satan lurking just outside its gate. As the two prepare to fight, Gabriel points to G.o.d's scales of justice in the sky (IV.9961004, 10131015): Th' Eternal to prevent such horrid fray Hung forth in Heav'n his golden Scales, . . . in these He put two weights The sequel each of parting and of fight; The latter quick up flew, and kicked the beam . . .

The Fiend looked up and knew His mounted scale aloft: nor more; but fled Murmuring . . .

The Punishment of Man The punishment of Adam and Eve, unlike that of Satan, is designed to deter further disobedient acts and to rehabilitate the offenders so that they and their descendants will become obedient subjects. We are in the presence of Foucault's corrective or utilitarian model of punishment. The pain of punishment is calibrated to exceed the expected returns of crime and thus to deter most potential offenders, but it is not made so severe as to extinguish free will and preclude rehabilitation-or, in religious terms, salvation.9 In exchange for creating Adam and Eve and giving them sovereignty Id. at 77.

Id. at 9294, 130131.

*over Eden and a promise of immortality, G.o.d exacted two promises: they must tend the trees, plants, and flowers in the garden, and they must refrain from eating the fruit growing on the Tree of Knowledge of Good and Evil. These conditions are the "laws," one imposing a positive obligation, the other a negative one, that they must obey. The positive obligation is trivial, since Adam and Eve have no other occupation. The negative obligation is just a test, indeed a tease, since G.o.d does not tell the couple why they shouldn't eat the fruit of that mysteriously named tree and why it is a bad thing to understand good and evil. Nor does he adequately explain the consequences of disobedience. He warns that the consequences will be bad, but the details (such as painful childbirth and the mortality of the couple's descendants) are withheld. The failure of notice is conspicuous10 and plays into the hands of Satan. It enables him to tell Eve that G.o.d must have been kidding when he said that eating the forbidden fruit would be punished by death, for he ate it and he's fine. Adam and Eve had been led to believe that eating the fruit would lead to immediate death, a misconception that is easily corrigible by G.o.d but that not being corrected sets up Eve to be deceived.

The serpent tells Eve that he learned to speak by eating the fruit, showing that knowledge is a good thing to acquire. In Milton's world it can be a bad thing; it puts the serpent above himself, as it were, since animals are supposed to be dumb. The Bible's acute anxiety (as in the tale of the Tower of Babel), echoed in Paradise Lost, about challenges to hierarchy leads to the exaltation of obedience as the supreme virtue of every living thing except G.o.d himself. Though Milton had once been a rebel-or maybe because he had once been a rebel-he exalts obedience and hierarchy to a degree incomprehensible to most modern people.

Milton's Eve is intelligent; though she is supposed to be less so than Adam, she has an inquiring mind and he does not-it is an example of an author's incomplete conscious control over his material. Milton provides "liberalizing perspectives" on relations between spouses,11 whether con Eve "does not know what is at stake, and will fall through triviality." William Empson, Some Versions of Pastoral 186 (1950).

Barbara Kiefer Lewalski, "Paradise Lost and Milton's Politics," 38 Milton Studies 141, 160 (2000).

sciously or not.12 The angel Raphael had been ordered to tell Adam enough about the gravity of disobeying G.o.d's command to "render Man inexcusable" (V. Argument and ll. 243245). But Eve was absent during most of Raphael's conversation with Adam-leading Raphael to advise him to "Warn / Thy weaker" (VI.909). She had overheard Raphael warning Adam about "such an Enemy we have, who seeks / Our ruin" (IX.274275), but had missed the story of G.o.d's punishment of Satan. The result is that while Adam's thirst for knowledge is quenched by Raphael's revelation, Eve's thirst is not, making her susceptible to Satan's blandishments.

Being left in the dark doubles the test of Eve's character. Adam's only duty (besides gardening) is not to eat the forbidden fruit. Eve has the further duty of obeying Adam. Perfect obedience would be accepting as an adequate explanation for a command "because I say so." Eve fails that test. (Good for her!) She wanders off against Adam's wishes and is promptly "seduced." Even worse from the standpoint of maintaining male authority, she eats the forbidden fruit in the belief that acquiring knowledge will put her on a more equal footing with Adam (IX.817825): . . . So to add what wants In Female s.e.x, the more to draw his Love, And render me more equal, and perhaps, A thing not undesirable, sometime Superior: for inferior who is free?

Adam eats the fruit because he cannot bear to live without Eve. Uxoriousness leads him into sin.13 The moral is that independent-minded women and uxorious men are the ultimate source of human misery. (But would we think more highly of Adam had he abandoned Eve? If not, does this show we're d.a.m.ned?) Adam and Eve's willful disobedience of a direct order by G.o.d is trea 12. The issue of the authority of an author's conscious intentions in the interpretation of his work is acutely presented by Paradise Lost. See next chapter, where I argue that a possible interpretation makes Eve the hero of the poem.

13. Lewis, note 6 above, at 126.

*son (I.207). And the punishment for treason is death. As G.o.d explains (III.209212): He with his whole posterity must die, Die he or Justice must; unless for him Some other able, and as willing, pay The rigid satisfaction, death for death.

(The "some other" of course is the Son as Jesus Christ.) An added humiliation is that when Adam and Eve die, they will return to dust. They degraded themselves by disobeying G.o.d, and their punishment degrades them to the base component from which Adam was created. (Yet Eve has a loftier origin-Adam's rib.) Why their posterity must also suffer, die, turn to dust, etc., is unclear. But it was a common practice in Milton's time to punish the family of traitors by confiscating their wealth in order to increase the severity and hence the deterrent effect of punishment for this gravest of all crimes. Anyway the fact that Adam and Eve's disobedience is punished by subjecting their descendants to war, famine, cancer, and the other human miseries is one of those undeniable facts in the Genesis narrative that Milton, as a believing Christian, had to accept whether or not it made sense to him.

But to stop with declaring Adam and Eve traitors who must be executed forthwith would be to deprive man of all hope (indeed of life beyond the first generation, since Eve has not yet given birth), as well as to contradict the New Testament. The compromise that Milton, and Christianity, make between the duty to punish traitors and the promise of redemption is a sacrifice designed to appease the divine wrath. The Son offers to die for man's sin and G.o.d accepts the sacrifice. To "redeem" humankind's "mortal crime," the Son will die a mortal death (III.203265).

To justify the lenience for man that he had denied to the fallen angels, G.o.d explains that the latter . . . by their own suggestion fell, Self-tempted, self-deprav'd: Man falls deceiv'd By th' other first: Man therefore shall find grace, The other none: in Mercy and Justice both, But Mercy first and last shall brightest shine. (III.129134) Seventeenth-century thinkers distinguished between sins of willfulness and of infirmity.14 Adam and Eve's are not mere sins of infirmity; but in contrast to the fallen angels, who were "self-tempted" (another clue to Milton's exalted conception of free will), Adam and Eve are "deceived" by a sophisticated and wily adversary. They were innocent; had they not been deceived by an outsider, they would not have sinned.15 G.o.d's mercy toward Adam and Eve replicates an aspect of monarchical punishment. The power to pardon for crimes is, as we know, a traditional monarchical prerogative. The combination of savage punishment with arbitrary remission is an especially vivid symbol of power, and Milton's G.o.d, having faced rebellion, is preoccupied with demonstrating his power.

Two of the numerous punishments visited on Adam and Eve and their descendants16 require elucidation: gender inequality and political oppression. (They turn out to be connected.) Eve is to be made subject "to thy Husband's will. Thine shall submit, he over thee shall rule" (X.195196). Yet it had been made clear before the fall that Adam and Eve were unequal. Adam's physical appearance "declar'd absolute rule," while Eve's appearance "implied subjection"; Adam had been created "for G.o.d only, Harold J. Berman, Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Tradition 321 (2003).

Richard Strier, "Milton's Fetters, or, Why Eden Is Better Than Heaven," 38 Milton Studies 169 (2000). Questions crowd in on the critical reader: If Satan was created good (like Lucifer), why was he any less innocent than Adam and Eve? And since they were supernatural too, being immortal, before the fall, why were they not the intellectual equals of Satan? Why did G.o.d create them to be inferior to Satan?

Besides death, (1) women shall experience pain in childbirth (X.194195); (2) men shall rule over women (X.196); (3) human beings shall have to toil for their food (X.198202); (4) they shall endure tyrants and enslavement (XII.9096); (5) spring shall no longer be the eternal season (X.678691); and (6) Adam and Eve must leave Eden (XI.48149, 107108) so that they'll have no opportunity to eat of the fruit of the Tree of Life and thereby foil the death sentence (XI.9495). The explanation for (6) is weak, since G.o.d could simply have destroyed or removed the tree or made it not bear fruit.

*she [Eve] for G.o.d in him [Adam]" (IV.295, 296, 299301, 307308, 330). So what did the sentence add?

The answer lies in a discussion that Adam and Eve have after the fall. He reminds her that had she not insisted on going off to garden by herself he would have protected her from temptation. Eve (modern woman avant la lettre) replies: "Was I to have never parted from thy side? / As good have grown there still a lifeless Rib" (IX.11531154). And invoking G.o.d's description of Adam and Eve's relationship as that of head to body, she asks Adam, "Why didst not thou the Head / Command me absolutely not to go?" (IX.11551156). Adam replies: "Force upon free Will hath here no place" (IX.1174, emphasis added). In Eden, man cannot force a woman to do anything against her will. But once man and woman are expelled from Eden, woman's additional punishment is subjection to man's physical force. Man is similarly punished by being subjected to the force of tyrants (XII.93).

The subjection of woman to man's force and man to another man's force are consequences of the fall's having deprived humankind of the ability to conform to natural law. A government of men must take the place of a government of (natural) laws. As Eve explains to Satan, the prohibition against eating the fruit of the Tree of the Knowledge of Good and Evil was "Sole Daughter of [G.o.d's] voice; the rest we live / Law to ourselves, our Reason is our Law" (IX.650654). Milton explains that in Eden "it was the disposition of man to do what was right, as a being naturally good and holy." Made in the image of G.o.d, man had "implanted and innate in him . . . the law of nature, which is sufficient of itself to teach whatever is agreeable to right reason, that is to say, whatever is intrinsically good."17 That was lost in the fall, and so human coercion, often tyrannical, is needed to make men and women "do what was right" (XII.8395).

Since thy lapse, true Liberty Is Lost, which always with right Reason dwells Twinn'd, and from her hath no dividual being: Reason in man obscur'd, or not obey'd, 17. John Milton, The Christian Doctrine, in Milton, note 3 above, at 993.

Immediately inordinate desires And upstart Pa.s.sions catch the Government From Reason, and to servitude reduce Man till then free. Therefore, since he permits Within himself unworthy Powers to reign Over free Reason, G.o.d in Judgment just Subjects him from without to violent Lords; Who oft as undeservedly enthral*His outward freedom.

Can the severity of Adam and Eve's punishment be squared with modern penal notions? Fifty years ago an influential school of penology regarded criminals as sick people, rather than as bad people deserving of moral condemnation, and urged that punishment be replaced by treatment.18 This view was challenged in an influential essay by Henry Hart.19 He argued that "what distinguishes a criminal from a civil sanction . . . is the judgment of community condemnation which accompanies and justifies imposition [of the criminal sanction] . . . The condemnation plus the added consequences may well be considered, compendiously, as const.i.tuting the punishment" (pp. 404405). He thought the treatment approach would undermine the role of the criminal law in educating people in their basic responsibilities as members of society, a role it plays by exhibiting "the community's solemn condemnation of the accused as a defaulter in his obligations to the community" (p. 411). The ultimate purpose of imposing criminal sanctions is "training for responsible citizenship" (p. 417).

One might think that people who deserve "the community's solemn condemnation" should be punished severely. But because he regarded the condemnation itself (the p.r.o.nouncement of guilt) as a significant punishment, Hart instead recommended lenity-and to a remarkable degree. "A suspended sentence with probation should be the preferred form of See, for example, Sheldon Glueck, "Predictive Devices and the Individualization of Justice," 23 Law and Contemporary Problems 461 (1958).

Henry M. Hart Jr., "The Aims of the Criminal Law," 23 Law and Contemporary Problems 401 (1958).

treatment, to be chosen always unless the circ.u.mstances plainly call for greater severity" (p. 438); "a fine should always be the preferred form of the penalty, unless the circ.u.mstances plainly call for a prison sentence" (id.); "perhaps a suspended prison sentence, with probation, may be the best form of treatment even for a convicted murderer, as it certainly may be for a convicted manslaughter" (p. 427); and since "the treatment of criminals . . . should encourage, rather than foreclose, the development of their sense of responsibility . . . this consideration will point inexorably in the direction of eliminating capital punishment and minimizing the occasions and the length of incarceration" (p. 426). He would have been appalled by Milton's G.o.d.

But something is missing. The moral force of a punishment (what is sometimes referred to as the "expressive" effect of punishment-punishing an act signals social disapproval of it)20 cannot be divorced from the punishment's severity. The more severe the punishment, the greater the disapproval. If both petty theft and murder are punished with suspended sentences, the moral significance of a conviction for murder is diminished. The punishment visited on mankind by Milton's G.o.d does seem excessive, though it is an inescapable inference from the biblical account. But a mere slap on the wrist would not have impressed Adam and Eve and their descendants with the importance of obedience.

The Punishment of the Animals The logic of punishment in Paradise Lost breaks down when it comes to the fate of animals. The reason is Milton's commitment to the historical accuracy of the Bible and his awareness of the brute facts of life.

We should distinguish, however, between the punishment of the serpent (condemned to crawl on his belly) and that of the other animals, especially those who upon expulsion from Eden become prey rather than predators, though most predators are the prey of other animals. In the 20. See, for example, Nathan Hanna, "Say What? A Critique of Expressive Retributivism," 27 Law and Philosophy 123 (2008); Dan M. Kahan, "What Do Alternative Sanctions Mean?" 63 University of Chicago Law Review 591 (1996).

Bible the serpent is properly punished because he is the tempter; he is not a tool of Satan, who barely figures in the Old Testament. In Paradise Lost, however, he is the unwitting tool of Satan; remember that he was asleep when Satan entered his mouth and took control of him. Satan chose the serpent because the serpent was the most intelligent animal and therefore unlikely to arouse Eve's suspicions when he turned out, unlike the other animals, to be able to speak. When the temptation of Eve is complete, Satan abandons the serpent, who presumably awakes with no sense of the use that has been made of him. Why then is he condemned to crawl on his belly? There is no good answer except that Genesis says that he is punished (and in that way) and Milton cannot, without courting a charge of heresy, contradict a factual claim made in the Bible. He cannot speculate that the Bible story is based on men's fears of seduction of their wives or daughters, symbolized by the temptation of Eve by an animal that resembles a phallus.

But moral condemnations are not limited to acts motivated by an evil design. The cla.s.sic case is that of Oedipus, depicted as having done terrible wrongs in killing his father and marrying his mother-wrongs that require that he be punished by exile (and, in his view, by blinding as well)-even though he had no reason to believe that he had committed parricide (or even murder, if he was acting in self-defense) and incest. And so it is with the unfortunate serpent. His innocent but deadly role in the fall of man demands punishment, though he is even more innocent than Oedipus, whose killing of his father and marriage to his mother were volitional acts; the serpent had no volition. Imagine a strong man grabbing Oedipus's hands and tightening them around Laius's throat. Would that make Oedipus a murderer? Milton might have thought so. He seems to have thought that the terrible use to which Satan put the innocent serpent's body had polluted that body irrevocably. (Recall the pollution that is visited on Thebes in the form of a plague, as a result of Oedipus's sins, and kills innocent Thebans.) "To judgment he [G.o.d] proceeded on th' accused / Serpent though brute, unable to transfer / The guilt on him [Satan] who made him instrument / Of Mischief, and polluted from the end [purpose] / Of his creation; justly then accursed" (X.164168).

Justly? Henry Hart believed that criminal punishment could never be *justified "if the individual's conduct affords no basis for a judgment of moral condemnation."21 Hart thus anathematized crimes of strict liability, as when "the porter who innocently carries the bag of a hotel guest not knowing that it contains a bottle of whisky is punished as a criminal for having transported intoxicating liquor."22 This "case" is Hart's tendentious variant of a real case, in which a driver employed by a common carrier was punished for violating a statute that forbade common carriers or their employees to transport liquor to certain localities. The court explained that the legislature had been at its wits' end to prevent the illegal transportation of liquor, had doubted there were many instances in which the carrier or its employee didn't realize its truck was carrying liquor, and had hoped by imposing strict criminal liability to induce common carriers and their employees to be more careful. So there are reasons for sometimes imposing criminal liability without regard to the absence of fault, reasons such as the difficulty of proving knowledge, skepticism that the defendants in such cases really are ignorant of the critical facts, and the incentive to take extra care that strict liability creates. Thus it is not a defense to statutory rape that the defendant reasonably believed that the minor with whom he had s.e.x was of age. The effect is to induce men to steer well clear of young-looking women, a form of care they would be less likely to use if ignorance were a defense. This steering-clear effect of strict criminal liability reduces the likelihood of inadvertent commission of reprobated acts.

Hart may have been right that voluntary compliance with criminal law would decline if people stopped thinking of that law as legitimate and that they would stop if the focus of that law ceased to be on morally blameworthy conduct.23 So should not the punishment of the serpent have undermined the legitimacy of G.o.d's punitive response to Adam and Eve's disobedience-especially since none of the justifications for strict criminal liability applied? Perhaps not. Hart tied criminal responsibility to Kant's notion of moral responsibility, which in turn derives from Chris Hart, note 19 above, at 412.

Id. at 422, citing Commonwealth v. Mixer, 93 N.E. 249 (Ma.s.s. 1910).

23. See, for example, Paul H. Robinson and John M. Darley, "The Utility of Desert," 91 Northwestern University Law Review 453 (1997). For experimental evidence, see Janice Nadler, "Flouting the Law," 83 Texas Law Review 1399 (2005).

tian theology and makes the morality of conduct depend on the thinking that motivates it rather than on its consequences or on the community's evaluation of it. But moral responsibility is more complex than Hart thought. We know from the discussion of "moral luck" in chapter 2 that the morality of one's actions is a matter of consequences rather than just of one's state of mind. The concept of moral luck, along with notions of pollution such as found in the Oedipus story, may go some distance toward explaining (justifying?) the punishment of the serpent, but not that of the rabbits, deer, mice, and countless other vegetarian animals who upon the fall of man become prey because Satan sends Death, Discord, and Sin to the world outside of Eden, and as a result "Beast now with beast gan war" (X.710). The animals had nothing to do with the fall of man. No penal theory can explain their being made subject to death.

part ii

Legal Texts as Literary Texts

chapter 8.

Interpreting Contracts, Statutes, and Const.i.tutions

n this partof the book I examine from the perspective of literature two kinds of legal text-the legally operative doc.u.ment (whether a legislative enactment, statutory or const.i.tutional, or a contract) and the judicial opinion. Legislative enactments that become the subjects of celebrated or controversial judicial decisions are often deeply ambiguous texts, as are many works of imaginative literature. Such enactments raise the question of objectivity in interpretation, a question that has long preoccupied literary critics and scholars as well as judges and legal scholars. The specter of hopeless indeterminacy, of rampant subjectivity, hovers over the key texts of both fields. This chapter asks whether schools of literary interpretation, such as the New Criticism, intentionalist criticism, and deconstruction, can be adapted to legal interpretation.

Judicial opinions, although sometimes opaque, are not canonical texts and can therefore be clarified or modified in subsequent opinions without much fuss. The literary issue raised by the judicial opinion is not that of meaning but that of style. Is style an integral, or merely an ornamental, characteristic of the judicial opinion? Are there fruitful stylistic or rhetorical parallels between judicial opinions and works of imaginative literature? Is there such a thing as a "literary" judge, and is such a judge an improvement over the nonliterary judge? Have the "great" judges been 273.

more the former or the latter? These questions are taken up in the next chapter.

Interpretation Theorized When I wrote this chapter for the first edition more than two decades ago, interpretation was a hot topic, both in literary criticism, which had been deeply penetrated by deconstruction (whose premise has been waggishly described as "all texts are allegories of their own unreadability"),1 and in legal scholarship. A strong conservative attack on the freewheeling jurisprudence of liberal Supreme Court Justices was being mounted by Robert Bork and others under the banner of "original intent" and as vigorously reb.u.t.ted by liberal legal scholars such as Ronald Dworkin. The bridge between legal and literary interpretive concepts was Stanley Fish, an interpretive skeptic as hostile to Dworkin as to Bork.

The topic of interpretation has cooled in both fields. The focus of literary theory has shifted from deconstruction, now widely believed pa.s.se, to feminist and multiculturalist criticism of the literary canon and to exploration of the historical contexts of literary works (the "new historicism"), while a conservative Supreme Court has restored respect for text and caused "noninterpretivists" to retrench, so that interest has shifted from techniques of interpretation to the interpretive fidelity of particular case outcomes. Another coolant has been the near-exhaustion of the subject. Though it continues to attract the attention of able legal scholars,2 the harvest from all that has been written about legal interpretation is meager. It seems that almost everything that needs to be said about interpretation can be boiled down to just two principles: 1. Interpretation is always relative to a purpose that is not given by the interpretive process itself but that is brought in from the outside. The purpose of interpreting directions for a.s.sembling a stereo system is to a.s.semble the system, and it is best achieved by using the directions to infer the procedure for a.s.sembly that the author of the directions had in mind.

1. Gerald Graff, Professing Literature: An Inst.i.tutional History 241 (1987).

2. See references in my book How Judges Think 191203 (2008). See also Einer Elhauge, Statutory Default Rules: How to Interpret Unclear Legislation (2008).

But whether a modern orchestra playing music written in the eighteenth century should try to re-create the experience of an eighteenth-century audience by performing on the original instruments rather than on their modern, improved successors depends on whether the goal of musical interpretation is historical or aesthetic. Whether the Bible should be interpreted literally or figuratively (a figurative interpretation would have enabled Milton to present a more convincing theodicy in Paradise Lost) depends on whether the goal of biblical interpretation is to defend biblical inerrancy or to conform the Bible to modern moral understandings. And whether in interpreting a written contract the court should listen to the testimony of the parties as to what they intended when they negotiated the contract may depend on whether the purpose of contractual interpretation is to re-create the parties' intentions or to encourage contracting parties to embody their agreement in a complete and clearly written doc.u.ment; if (more plausibly) both are purposes, the question becomes how to weight them.

Richard Weisberg and Robin West want to enlist Melville and Kafka, respectively, in a political cause because of the prestige of those writers. The proper interpretive focus of that endeavor is on what Melville and Kafka intended to get across in these works. That might require a biographical study. Biographical data may also be essential to determining whether a work of literature should be understood as ironic. Someone who read Swift's "A Modest Proposal" without knowing anything about the author might conclude that he was advocating cannibalism. More commonly, however, an ironic intention can be inferred without inquiring into the author's conscious intentions. Cleanth Brooks, in interpreting Andrew Marvell's poem "An Horatian Ode upon Cromwell's Return from Ireland,"3 wasn't interested in Marvell's conscious thoughts about Cromwell. Brooks's interests were aesthetic rather than polemical, and as he noted, "the poet sometimes writes better than he knows."4 Marvell may have admired Cromwell unqualifiedly yet been induced by unconscious reservations to qualify his admiration with the undercurrent of 3. Brooks, "Marvell's 'Horatian Ode,'" in Seventeenth-Century English Poetry: Modern Essays in Criticism 321 (William R. Keast ed. 1962).

4. Id. at 322.

criticism (as in: "This [the execution of Charles I] was the memorable hour / Which first a.s.sured the forced power"; or the closing couplet, "The same arts that did gain / A power must it maintain") that Brooks's interpretation brings to the surface. Maybe Shakespeare did mean his audiences to think that the ghost in Hamlet was a devil and Hamlet the Vice figure from medieval morality plays; we strain against this interpretation in part because it would diminish the aesthetic appeal of the play, and it is as an aesthetic object that the play mainly interests us. Nothing in the nature of interpretation requires us to give primacy to a writer's conscious intentions-except, as I have said, when as in the case of "A Modest Proposal" the meaning of the work inheres in the tension between the literal meaning of the text and those intentions.

2. Interpretation is not much-and maybe not at all-improved by being made self-conscious, just as one doesn't become a better reader by studying linguistics. The interpretation of a written or oral statement, a dream, a musical composition, a painting, a poem, or a legal doc.u.ment is a natural, intuitive activity rather than one best performed by consciously following rules. Not that these aren't rule-governed activities: modern linguistics has exposed the vast structure of implicit rules that const.i.tute the actual grammar of speech. But one doesn't become a better speaker by bringing the rules to the surface. Competent interpretation may require a great deal of knowledge, skill, and practice (obviously so in the case of music), but it is not improved by algorithmic procedures. The relevant competences involve the study of the works that are to be interpreted rather than of "interpretation" at large.

What Can Law Learn from Literary Criticism?

Although largely pa.s.se in literary studies, deconstruction retains a theoretical interest as the most skeptical of interpretive methods and continues to attract some legal scholars5 and to alarm others-such as those who think it a synonym for destructive criticism or textual indeterminacy. So 5. See Jack M. Balkin, "Deconstruction's Legal Career," 27 Cardozo Law Review 719 (2005); Nouri Gana, "Beyond the Pale: Toward an Exemplary Relationship between the Judge and the Literary Critic," 15 Law and Literature 313, 328 (2003). The older literature is let me begin with it, distinguishing first between deconstruction as philosophical theory, as literary practice, and as legal practice.6 The philosophical theory, insofar as it bears on interpretation (some deconstructionists have even bigger game in their sights, such as the correspondence theory of truth), attacks orthodox language theory. According to that theory we create from our perceptions concepts-for example, the concept of the tree that stands in front of my house-that are independent of time and s.p.a.ce and distinct from the perceptions out of which they are made; the concept of the tree in front of my house exists apart from the particular angles and distances from which I have seen the tree. At first the concept is imprisoned in my mind. If I want to share it with another person I have to encode it in some physical form ("signifier")- writing, sound, or gesture. Upon hearing or seeing the signifier, the other person will decode it, re-creating the concept in his own mind.

The orthodox theorist of communication acknowledges that communication is not quite so simple as this. Understanding a communication requires more than simple decoding, as when a language lacks a signifier for a particular signified.7 English, for example, lacks words for the concepts that lie behind such Greek words as polis, basileus, and tyrannos. The English words by which they are usually translated, "city," "king," and "tyrant," signify other concepts in our culture. Even within the same language community, particular words may have different connotations for different speakers. A further complication is that a sign carries more information than is necessary for conveying the concept. When I say "tree," my listener may be put in mind of family trees, decision trees, or shoe trees, as well as nature's trees; every word is a signifier of other concepts besides the one the speaker means to convey by a particular use of a ill.u.s.trated by Deconstruction and the Possibility of Justice (Drucilla Cornell, Michel Rosenfeld, and David Gray Carlson eds. 1992); Duncan Kennedy, A Critique of Adjudication (Fin de Siecle) 348350 (1997); J. M. Balkin, "Transcendental Deconstruction, Transcendent Justice," 92 Michigan Law Review 1131 (1994); Balkin, "Nested Oppositions," 99 Yale Law Journal 1669 (1990).

For friendly descriptions of deconstruction, see Henry Staten, Wittgenstein and Derrida (1984), and Christopher Norris, Derrida (1987); for a hostile one, see John M. Ellis, Against Deconstruction (1989).

Peter Carruthers, Language, Thought and Consciousness: An Essay in Philosophical Psychology 75 (1996).

*word. Since conversation is a two-way exchange, the person to whom I am speaking can seek clarification. But this course is unavailable when the signifiers are written rather than spoken and the writer is dead or otherwise unavailable to be quizzed about his intentions. Hence Socrates' distrust of written language (Phaedrus 275d275e). Collaborative writing, which is more common in literature than is generally believed8-and of course ubiquitous in some other expressive media, such as film-further complicates the signifying process.

Orthodox language theory regards these impediments to conceptual transfer as impurities or corruptions to be overcome. This is the point against which deconstruction mounts its attack, insisting that to regard the properties of signifiers that impede communication as secondary is arbitrary. It is just as logical, just as natural-deconstruction claims-to subordinate the communicative function of discourse to the communication-impeding effects of the signifiers that the speaker or writer uses and thus to attend to the relation between them and concepts other than the one intended to be signified. The pract.i.tioner of deconstruction may take an ostensibly serious prose pa.s.sage and fasten on the first word, which might be a h.o.m.onym or a false cognate or carry a secondary meaning (perhaps deeply buried in its root) at war with the surface meaning. He may become fascinated with the visual pattern that the words make on the page. He may juxtapose pa.s.sages unrelated at the level of communication in order to jar the reader out of his conventional response, or even treat an earlier writing as a commentary on a later one. Deconstruction thus is playful (though not funny); some prefer to regard it as perverse.

Consistent with its program of redirecting attention to the covert, even the noncommunicative, aspects of language, deconstruction insists on the problematic character of regarding an author as "present" in his text in the same way that we suppose a speaker to be present in his utterance. By virtue of its permanence in comparison to speech, writing can outlive the communicative occasion that brought it forth by outliving the author, the 8. See, for example, Jonathan Hope, The Authorship of Shakespeare's Plays: A Sodo-Linguistic Study 35 (1994); Jeffrey A. Masten, "Beaumont and/or Fletcher: Collaboration and the Interpretation of Renaissance Drama," in The Construction of Authorship: Textual Appropriation in Law and Literature 361 (Martha Woodmansee and Peter Jaszi eds. 1994).