Law and Literature Part 16

their New Critic admirers. The aim of a scientific vocabulary, unlike that of "Newspeak" (Orwell's parody in Nineteen Eighty-Four of Basic English) or the euphemistic description of the rape-murder in the c.o.x Broadcasting case, is not to hide disturbing realities but to achieve a.n.a.lytical precision. Mathematicians do not talk about numbers rather than things in order to conceal the social or political consequences of mathematical theorizing. The economist's dry definitions are useful because they enable economic phenomena to be modeled in exact terms. The layperson's "cost" is too vague for this purpose; the economist's "opportunity cost," "long-run marginal cost," and "average total cost" are precise. In contrast, the bureaucratic impersonality of legal prose may convey an impression of precision to the unschooled, but the purpose (whether acknowledged or even conscious) and effect are to obfuscate.

Conceptualizing does involve abstraction from the physical world. The economic concept of "marginal cost," for example, is not an entry on a company's books; it is an invention of economists. But the purpose is to improve the understanding of business behavior. The economic approach insists on the gritty realism that New Critics taxed poets like Sh.e.l.ley with trying to evade. The economist's vision of human behavior is a "constrained vision," in contrast to Romanticism's "unconstrained vision."87 In its insistence that self-interest, and hence incentives, are important in motivating human action and that in a world of scarcity everything has a cost, and in its consequent skepticism about utopian projects, economics reflects a sense of human finitude and a decided absence of romantic uplift. This is what makes it repugnant to the heirs of Romanticism but should make it congenial to admirers of W. H. Auden, from whose poem "Lullaby" I quote the first stanza: Lay your sleeping head, my love, Human on my faithless arm; Time and fevers burn away Individual beauty from Thoughtful children, and the grave Proves the child ephemeral: 87. Thomas Sowell, A Conflict of Visions (1987).

*But in my arms till break of day Let the living creature lie, Mortal, guilty, but to me The entirely beautiful.

Ill.u.s.trative of the economist's Audenesque realism, the economics of household behavior is being used by feminists to demystify the family and housework and place women's welfare on a more secure foundation than a husband's love.88 Shouldn't Peter Teachout applaud?

What is true is that although the articulation of economic principles in mathematical models is indispensable to a.n.a.lyzing complex phenomena and invaluable in forcing economic theorists to make their a.s.sumptions explicit, for some economists mathematization has become an end it itself. A tendency to employ a specialized vocabulary incomprehensible to outsiders is a typical professional deformation ill.u.s.trated in literary studies by theorists' heavy use of an esoteric and pretentious vocabulary borrowed from European philosophers.89 Supplying a scientific vocabulary and a conceptual scheme in which any social practice can be a.n.a.lyzed does facilitate thinking about the unthinkable. But this means that while Newspeak shrinks the possible range of thought, econospeak expands it.90 Although critical of discussing spring guns and other life-and-death matters in economic terms, Teachout makes no suggestion for a better way to discuss them. In his mentor See, for example, Jill Elaine Hasday, "Intimacy and Economic Exchange," 119 Harvard Law Review 492 (2005); Martha Ertman, "Love and Work: A Response to Vicki Shultz's Life Work," 102 Columbia Law Review 848 (2002); Katharine Silbaugh, "Turning Labor into Love: Housework and the Law," 91 Northwestern University Law Review 1 (1996); Nancy C. Staudt, "Taxing Housework," 84 Georgetown Law Journal 1571 (1996); Ann Laquer Estin, "Love and Obligation: Family Law and the Romance of Economics," 36 William and Mary Law Review 989 (1995); Elizabeth S. Scott, "Rational Decisionmaking about Marriage and Divorce," 76 Virginia Law Review 9 (1990).

For criticism, see, in addition to references in earlier chapters, Louis Menand, "How to Make a PhD Matter," New York Times Magazine, Sept. 22, 1996, p. 78; Wendell V. Harris, Literary Meaning: Reclaiming the Study of Literature, ch. 9 (1996) ("Publishing the (Highly) Perishable").

Robert Timothy Reagan, "Judge Posner's Formula for Preliminary Injunctions: Physics Envy or a Different Voice?" San Francis...o...b..rrister, Dec. 1995, p. 2.

James Boyd White's extensive writings about the relation of law to literature one likewise finds no proposals for improving the law's treatment of sensitive issues beyond exhortation to the judge and the lawyer to be more sensitive, empathetic, imaginative, and humane. What good is it to be told that "the language that the lawyer uses and remakes is a language of meaning in the fullest sense," or that the judicial opinion "might be far more accurately and richly understood if it were seen not as a bureaucratic expression of end-means rationality [that is, in economic terms] but as a statement by an individual mind or a group of individual minds exercising their responsibility to decide a case as well as they can and to determine what it shall mean in the language of the culture?"91 The promise of the richer understanding (note the buried economic allusion!) has yet to be redeemed.

It is unclear whether White and Teachout object merely to an economic vocabulary or to economic reasoning however expressed. If the former, the objection is trivial. If the latter-if they believe that economic reasoning leads inevitably to conservative politics-they are wrong. Think of the mult.i.tude of liberal economists. Think of the feminist law professors I cited who use economics to bolster feminist policies. Think of free speech law, built to a great extent on Holmes's economic model of speech: When men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the compet.i.tion of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Const.i.tution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think 91. James Boyd White, Heracles' Bow: Essays on the Rhetoric and Poetics of the Law 36, 41 (1985). The vagueness of this pa.s.sage is typical of White. We shall encounter similar examples in chapter 12.

*that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.92 Realists know that American judges are policymakers as well as appliers of rules, that many of the policies they deal with are economic in character, and that sensible economic policies are based on economic principles and reasoning. How could judges escape from economics in dealing with issues presented to them for decision?

If White is too hard on the language of "end-means rationality," he is too soft on traditional legal rhetoric. Plato's dialogue Gorgias is about the rhetoric used by litigants' ghostwriters-the forerunners of the modern litigator-in the litigious society of ancient Athens.93 Plato was savagely critical of this rhetoric, to which he attributed among other bad things the condemnation of Socrates. White defends lawyers from Plato's criticisms: "The task of the lawyer is not simply to persuade, using whatever cultural devices lie at hand, but to persuade a judge or jury that one result or another is the best way to act in the cultural situation defined by these facts or this evidence and by this set of statutes and opinions and understandings . . . [The lawyer] speaks to the judge or jury not as they are defined by their individual interests, pa.s.sions, and biases but as they are defined by their role, which is to do justice."94 The forensic oratory that Plato attacked was addressed to a jury, sometimes of hundreds, not much if at all superior in understanding to the Roman mob in Julius Caesar. The audience for a modern oral argument or judicial opinion is more reflective. But so ill-defined a concept is "justice" that much room is left for appeals to "individual interests, pa.s.sions, and biases," especially, of course, in jury trials. So modern legal rhetoric is emotive too, and White's advice is bad advice to the lawyer who wants to get ahead.

92. Abrams v. United States, 250 U.S. 616, 630 (1919) (dissenting opinion).

See S. C. Todd, The Shape of Athenian Law 147153 (1993). Gorgias was one of the most ill.u.s.trious. See The Greek Sophists,ch. 3 (John Dillon and Tania Gergel trans.2003).

James Boyd White, When Words Lose Their Meaning: Const.i.tutions and Reconst.i.tutions of Language, Character, and Community 270 (1984).

Not that there isn't a place for unscientific justice talk in lawyers' arguments and judges' opinions. The unscientific language of free will in the discourse of criminal law serves the ethical purpose of differentiating criminals from other dangerous things, such as animals and avalanches, and by doing so of discouraging casual invocation of dangerousness as a warrant for harsh punishments. Concepts such as human dignity that are too vague for the economist's scientific purposes have a function in the language game called law.

part iii

How Else Might Literature Help Law?

chapter 10.

Literature as a Source of Background Knowledge for Law

e saw inPart I that works of literature that are about law (or in the case of revenge, prelaw) can yield jurisprudential insights, and in Part II that literary sensitivities can improve judicial opinion writing, though literary criticism and literary theories are unlikely to help lawyers and judges interpret legal texts. In this part we shall be exploring additional ways in which literature might be helpful to law, beginning in this chapter with works of literature that though not about law are about controversial subjects of legal regulation and can help lawyers and judges understand those subjects. At the same time I shall be warning against disregarding or distorting literary meaning in the quest for professional relevance.

The idea that judges and lawyers might benefit professionally from immersion in the "great books," imagined to embody wisdom that might be useful in any human activity, is an old one. It received its canonical expression for the legal profession by Learned Hand when he said, "I venture to believe that it is as important to a judge called upon to pa.s.s on a question of const.i.tutional law, to have at least a bowing acquaintance with Acton and Maitland, with Thucydides, Gibbon, and Carlyle, with Homer, Dante, Shakespeare and Milton, with Machiavelli, Montaigne and Rabelais, with Plato, Bacon, Hume and Kant, as with the books which have 389.

been specifically written on the subject."1 I examine an aspect of Hand's suggestion in chapter 12. But in this chapter I shall be focusing on books (and a movie) that engage more directly with subjects of current or potential legal regulation.

Arch of Triumph Among the most fraught legal disputes with which judges are contending are challenges to denial of asylum. Foreigners who might not be admissible to the United States other than as visitors-that is, who would not be ent.i.tled to establish permanent residence and having done so apply after a waiting period for U.S. citizenship-are nevertheless ent.i.tled to remain in the United States if they have a well-founded fear of political, religious, or certain other forms of persecution should they be sent back to their native country. Chinese Christians and members of Falun Gong, Muslim "heretics" from Pakistan, Jehovah's Witnesses from Eritrea, and other religious minorities; African women unwilling to undergo c.l.i.toridectomy and infibulation and Chinese women threatened with sterilization for violating their nation's one-child policy; losers in civil wars; and members of unpopular ethnic minorities are all common examples of today's asylum seekers. If the immigration authorities deny an alien asylum and order him removed (deported), he can seek judicial review in a federal court of appeals, and the court will vacate the order if persuaded that the denial of asylum at the administrative level was unreasonable.

Although the law of asylum and the standard of judicial review are supposed to be uniform across the twelve regional federal courts of appeals, there is remarkable disparity in the success of asylum seekers in the different courts.2 In my court, in recent years, more than a third of the denials of asylum have been reversed; but in another court of appeals the figure is only 2 percent.3 These differences persist after correction for differences in type of case in the different circuits.4 The only plausible explanation Learned Hand, "Sources of Tolerance," in Hand, The Spirit of Liberty: Papers and Addresses of Learned Hand 66, 81 (Irving Dilliard ed. 1952).

Jaya Ramji-Nogales, Andrew I. Schoenholtz, and Philip G. Schrag, "Refugee Roulette: Disparities in Asylum Adjudication," 60 Stanford Law Review 295 (2007).

Id. at 363.

Id. at 366.

is that sympathy for persons who claim to be fleeing persecution varies across federal court of appeals judges. The variance would not matter greatly if the merits of such claims were easy to determine. But they are not. The asylum seekers tend to be poorly represented, and even when well represented often find it difficult to obtain evidence beyond their own say-so to support their claim of persecution. Persecution often is clandestine; witnesses may be inaccessible or intimidated; doc.u.mentary evidence may be un.o.btainable because of poor record-keeping in the alien's native country; and immigration judges are overworked and often know little about foreign customs and conditions. As a result, evidence both in support of and in opposition to asylum claims, and the weighing of the evidence by the immigration judges, are often unsatisfactory, and under uncertainty a judge's sympathies or antipathies toward a particular cla.s.s of litigants may be decisive.

Such feelings might be influenced, though probably to only a slight degree, by the literary depiction of the plight of refugees from persecution, as in Erich Maria Remarque's novel Arch of Triumph (1945), set in Paris on the eve of World War II. The protagonist is a highly skilled German surgeon who though not Jewish had fled n.a.z.i Germany after being apprehended by the Gestapo for helping two friends to escape. No country will grant him asylum. He lives in Paris, an illegal immigrant, under an a.s.sumed name ("Ravic"), stateless (Germany had revoked his citizenship), with no papers. He works as a "ghost" surgeon for less able French physicians and lives in a hotel that caters to paperless refugees. From time to time he is apprehended by the police and deported to Switzerland, but each time he manages to sneak back into France. The novel ends, just after the war begins, with him and other refugees being rounded up by the police and transported to an internment camp. Ravic's future is bleak because he murdered the Gestapo officer who had tortured his girlfriend to death in Germany, when he saw the officer in Paris on the eve of the war; and the reader knows that France will be conquered and interned German nationals deported to Germany.5 Arch of Triumph is not a modernist novel; Remarque was not a Joyce or a Mann. Its affinities are to the European realist novels of the interwar 5. Oddly, Ravic shows up in Remarque's last novel, Shadows in Paradise (1971), practicing medicine in New York during the war.

*period: bleak, disillusioned, political, the dialogue clipped and flattened- Hemingway and Malraux come to mind. Remarque was himself a refugee from the n.a.z.is; they burned his novel All Quiet on the Western Front because of its pacifism. Although he lived comfortably in Switzerland until 1939 and in the United States until after the war (returning then to Switzerland, not Germany), he felt the bitterness of exile. The novel, a bestseller in the United States when published in 1946 in an English translation,6 not only generates sympathy for unwelcome refugees by its depiction of Ravic as a skilled healer and a good person, though not a saint, but also powerfully conveys the plight of refugees by its harrowing description of the illness, doom, and death that Ravic encounters in his surgical practice, a description that functions as an allegory of the psychological misery of refugees.

Of course someone with Ravic's history would be eligible for asylum in numerous countries today, including the United States. That is not just because asylum law has been liberalized; it is also because there is no doubt that Ravic is a victim of political persecution. But the factual uncertainty in many asylum proceedings creates a risk that someone who has as good a moral (and today a legal) claim to asylum as Ravic did will be turned down by mistake and either sent back to the country that persecuted him-perhaps to be killed-or go underground in this country. The stronger the impression that Arch of Triumph has made on a judge (though I imagine few judges have read it), the more conscious the judge will be of the cost of a false negative. He may rate that cost higher than that of the false positive, that is, the mistaken admission of an asylum seeker who does not have a well-founded fear of being persecuted if sent back to his native country.

Now it could be objected-not just to my discussing Arch of Triumph in reference to current asylum litigation, but to this entire chapter-that judges who desire to learn something about the real-world context of their cases should consult works of history or social science, or even the better journalism, rather than works of fiction. Yet such a project might entail research that not only was laborious but failed to create an empa 6. For these and other details about the book, see Hans Wagener, Understanding Erich Maria Remarque 5966 (1991).

thetic awareness of the persons who were the subject of the research, in this case asylum seekers. Ravic, though fict.i.tious, is richly human. And we must not forget Aristotle's dictum that the difference between poetry (and literature more generally) and history (and social science more generally) is that the latter deals with the actual but the former with the probable; and it is the probable-the central tendencies rather than the extreme observations (in statistical terms, the mean of the distribution rather than the tails)-that is important to the understanding of a subject.

This point was noted long ago by the legal scholar John Wigmore: "The novel-the true work of fiction-is a catalogue of life's characters. And the lawyer must know human nature. He must deal understandingly with its types, its motives. These he cannot find-all of them-close around him; life is not long enough, the range is not broad enough for him to learn them by personal experience before he needs to use them. For this learning, then, he must go to fiction, which is the gallery of life's portraits."7 That is why a novel written more than half a century ago about people caught up in a bygone political crisis can speak to us today, and why, as we are about to see, works of science fiction can speak to us about current problems.

From Huxley to The Matrix Satire, as we know from the discussion of A Frolic of His Own and The Bonfire of the Vanities in chapter 1, directs the reader's attention to flaws in his society or in human society more generally. Often, as in such cla.s.sics of the genre as Gulliver's Travels, the setting is a fantastic world remote in time or place from the writer's world. Aldous Huxley's novel Brave New World (1932) and George Orwell's novel Nineteen Eighty-Four (1948), though set in the future (600 years and 36 years, respectively), are 7. John H. Wigmore, "A List of One Hundred Legal Novels," 17 Illinois Law Review 26, 31 (1922). His point has implications (a few briefly explored in the next chapter) for legal education. See Stacey A. Tovino, "Incorporating Literature into a Health Law Curriculum," 9 Journal of Medicine and Law 213 (2005); John R. Dorocak and S. E. C. Purvis, "Using Fiction in Courses: Why Not Admit It?" 16 Law and Literature 65 (2004)-including continuing legal education of judges. See also Martha Minow, "Words and the Door to the Land of Change: Law, Language, and Family Violence," 43 Vanderbilt Law Review 1665, 16881694 (1990).

*warnings about tendencies visible in the writer's own society. By imagining the possible end point of those tendencies the author dramatizes and vivifies them. The tendencies may be ones that judges encounter in some of their cases and need to understand better.

In both Huxley and Orwell's novels, as in many other satires, there is a satirist character-someone who denounces the flaws to which the author wishes to invite the reader's attention but is not necessarily the author's alter ego. Often he is a gloomier, shriller figure than the author and sometimes he embodies some of the flaws he denounces. Brave New World has two main satirist characters-the Savage, who like Gulliver, and like Oscar Crease in A Frolic of His Own, is an outsider, and Bernard Marx, an insider misfit.8 In Nineteen Eighty-Four the satirist character is also an insider, Winston Smith. Like Bernard, he is a misfit (though in a considerably lower key), and also like Bernard he has a taste for solitude, which both authors regard as a precondition for independent thinking. As is also typical of satire, both novels drop an anchor in the real world by dwelling on familiar objects, such as the Savage's copy of Shakespeare's complete works and in Orwell's novel the paperweight, thrush, statue of Oliver Cromwell, real coffee, chocolates wrapped in silver foil, and other objects left over from before the Revolution.

Being set in the future, both novels emphasize technology, though Huxley's more than Orwell's. Brave New World depicts three types of futuristic technology. The first is reproductive. Contraception has been made foolproof yet does not interfere with s.e.xual pleasure, and so s.e.x has been separated reliably from procreation at last-and procreation from s.e.x: ova are fertilized in a laboratory and the fertilized ova are brought to term in incubators. The procedure has enabled eugenic breeding to be perfected, yielding five genetically differentiated castes, ranging from high-IQ Alphas to moronic Epsilons and enabling a perfect matching of 8. Marx is bitter, marginal, excessively intelligent, insecure, timid, boastful, and socially in-ept-all apparently stemming from his being short. "'They say somebody made a mistake when he was still in the bottle-thought he was a Gamma and put alcohol into his blood-surrogate. That's why he's so stunted.'" Aldous Huxley, Brave New World 46 (1932). (My quotations are from the 1998 HarperCollins Perennial Cla.s.sics edition.) Probably he is meant to remind the reader of a Jew, though there are no Jews as such in the society depicted in the novel.

genetic endowment with society's vocational requirements. "We decant our babies as socialized human beings, as Alphas or Epsilons, as sewage workers or future . . . Directors of Hatcheries" (p. 13).

The second type of technology comprises techniques for altering mind and body, such as hypnopaedia (hypnosis during sleep), Pavlovian conditioning, radical cosmetic surgery, and happiness pills (soma, similar to our Prozac, but nonprescription and taken continually by everyone). For the elderly there are "gonadal hormones" and "transfusion of young blood" (p. 54).

Third is entertainment technology, not only television but also synthetic music, movies that gratify the five senses (the "Feelies"), and, for the Alphas, personal helicopters for vacation use.

The three types of technology interact to produce mindless contentment grounded in guiltless s.e.xual promiscuity, intellectual and cultural vacuity, and political pa.s.sivity. Marriage, the family, and parenthood-all depicted as sources of misery, tension, and painfully strong emotions- have gone by the board. A tiny elite of "Controllers" exercises dictatorial control over social, political, and economic life and uses its control to produce material abundance as a foundation for happiness. "'Yes, everybody's happy now,' echoed Lenina. They had heard the words repeated a hundred and fifty times every night for twelve years" when they were children (p. 75).

The Controllers are the successors to Dostoevsky's Grand Inquisitor. Their slogan is "Happiness is a hard master-particularly other people's happiness" (p. 227). "The higher castes . . . [must not] lose their faith in happiness as the Sovereign Good and take to believing, instead, that the goal was somewhere beyond, somewhere outside the present human sphere; that the purpose of life was not the maintenance of well-being, but some intensification and refining of consciousness, some enlargement of knowledge" (p. 177). But while the properly socialized people in the brave new world are happy, they are also fatuous. Miserable but vital, the Savage is a misfit in a collectivist society because he is an individual.

Brave New World was written in the depths of a world depression that Keynes was teaching had resulted from insufficient consumer demand and could be overcome only by aggressive government intervention in the economy. Capitalism had failed to prevent depressions because its in *ability to coordinate production efficiently had caused destructive compet.i.tion. There was also anxiety (shades of Buck v. Bell) about a possible dilution of the quality of the human gene pool because poor people and racial "inferiors" were breeding too rapidly and their betters barely at all.

Brave New World mirrors these concerns. The Controllers promote planned obsolescence and a "throwaway" mentality ("ending is better than mending" [p. 49]) in order to keep up consumer demand. Everything is planned and directed from the center, down to the smallest detail of culture, technology, and consumption, in order to rationalize production and avoid any mismatch between demand and supply. Eugenic breeding has been adopted in order to solve the gene-pool problem as well as to rationalize labor markets.

Brave New World is thus a parody of the reform measures advocated by advanced thinkers in England and other countries during the 1930s depression. But it remains a good read because it uncannily foreshadowed salient features of twenty-first-century British and especially American life, albeit magnified by the lens of parody. s.e.x has been made largely safe for pleasure by the invention of methods of contraception that are reliable yet do not interfere with the pleasure of s.e.x, while a variety of other technological advances, ranging from better care of infants and pregnant women to household labor-saving devices, advances in the medical treatment of infertility, and the automation of the workplace, have (along with the contraceptive advances and abortion on demand) freed women from restrictions on their s.e.xual and vocational freedom. "In some areas, despite its being a dystopia, Brave New World offers women a better deal than the contemporary British society of the 1930s. There is no housework, no wifely subjugation, no need to balance children and a career."9 Like Huxley's happy thoughtless philistines, twenty-first-century Americans are awash in happiness pills, of both the legal and the illegal variety, augmented by increasingly aggressive cosmetic surgery to make us happier about our appearance. We too wish to pursue happiness right to the edge of the grave and so might like the "Park Lane Hospital for 9. June Deery, "Technology and Gender in Aldous Huxley's Alternative (?) Worlds," in Critical Essays on Aldous Huxley 103, 105 (Jerome Meckier ed.1996).

the Dying . . . , something between a first-cla.s.s hotel and a feely-palace" (pp. 198199). In our society too "cleanliness is next to fordliness" (p. 110; see note 12 below). We have a horror of physical aging and even cultivate infantilism-adults dressing and even acting like children. "Alphas are so conditioned that they do not have to be infantile in their emotional behaviour. But that is all the more reason for their making a special effort to conform. It is their duty to be infantile, even against their inclination"

(p. 98). Our slogan too might be, "Never put off till to-morrow the fun you can have today" (p. 93). We are enveloped by entertainment technology to a degree that even Huxley could not imagine. Popular culture has triumphed over high culture and the past has been forgotten. Consumerism is our culture and shopping our national pastime-even our national religion, Christmas being its holy day and the malls its cathedrals.

We have our Alphas, Betas, Gammas, Deltas, and Epsilons, and they are growing apart-Alphas thin, rich, long-lived, Betas through Epsilons progressively fatter, poorer, shorter-lived. The cla.s.ses may even be growing genetically more distinct, although not by the mechanism depicted in Brave New World-yet that mechanism is becoming feasible too (cloning, "designer babies"). With the decline of arranged marriage and the disintegration of taboos against interracial, interethnic, and religiously mixed marriage, prospective marriage partners are being sorted more by "real" affinities, including intelligence.10 Since IQ has a significant heritable component, the implication of more perfect a.s.sortative mating is that the IQ distribution will widen in future generations.

But all this is happening without foresight or direction, contrary to Huxley's vision. His equating of efficiency with collectivization11 was a mistake. A society can attain "Fordism"12-the rationalization of production, once symbolized by the a.s.sembly line-without centralization, and as the failure of the Soviet experiment suggests, probably not with it. Our On the tendency to "a.s.sortative" mating-likes mating with likes-see Gary S. Becker, A Treatise on the Family, ch. 4 (enlarged ed. 1991).

James s.e.xton, "Brave New World and the Rationalization of Industry," in Critical Essays on Aldous Huxley, note 9 above, at 88.

Henry Ford is the Karl Marx of the society depicted in Brave New World. Instead of making the sign of the cross, the denizens of the world make a T, which stands of course for Ford's Model T. A lower-case "t" is a cross.

*society has no utilitarian master plan or planner yet is moving seemingly inexorably along the path laid out by Huxley.

Conspicuous features of American society are thus thrown into high relief by Huxley's ingenious novel, to become objects of reflection for thoughtful readers, some of whom may be judges and lawyers. Neither branch of the legal profession is directly concerned with the basic economic and technological framework of society; that framework evolves in directions and at a pace that are beyond the power of any human being to control. But judges and lawyers deal extensively with issues involving the control of technology and of economic activity, issues that include reproductive technology, consumer choice, women's rights, s.e.xual regulation, and the contractual and inst.i.tutional arrangements for production. An understanding of the culture that generates these issues may influence the response to them, and it is an understanding that can be sharpened by reading Huxley's novel.

By 1948, when Nineteen Eighty-Four was published, the depression of the 1930s had ended and concern with rationalizing production and stimulating consumption had diminished. It is true that one of the intellectual sources of Orwell's novel is the concept much touted in his day of "managerialism," which predicted incorrectly that capitalism would evolve into a centralized economic system indistinguishable from that of the Soviet Union.13 But as was common among politically conscious people, Orwell's thinking was dominated less by economic concerns than by vivid recent memories of World War II and by the menace of the Soviet Union, the model for the dystopia depicted in the novel. The dinginess of the London of the novel is recognizably that of the city during and immediately after the war, a time of shortages, rationing, and a prevailing grayness of life; rocket bombs are falling on London in 1984 just as they were in the last year of World War II.

13. See James Burnham, The Managerial Revolution: What Is Happening in the World (1941). Burnham's prediction that World War II (then in progress) would result in a division of the world into three indistinguishable superstates-see, for example, id. at 264265-is another of Orwell's borrowings.

The contrast with the consumer's heaven of Brave New World is striking. But Orwell depicted the future London as he did not because he was prescient about the incapacity of socialist central planning to bring about abundance-he never relinquished his belief in democratic socialism- but because he was highly sensitive to squalor. His ambivalence toward members of the lower cla.s.s (the "proles" in Nineteen Eighty-Four), whom he seems to have found at once appalling and appealing, is marked.

The world of 1984 is depicted as technologically retrograde, and this is explained14 by its being an oligopoly of three perfected totalitarian superstates, Oceania, Eurasia, and Eastasia, which despite their mutual enmity have tacitly agreed to impose rigid thought control on their populations and by doing so have stifled the inventive spirit. Yet we learn that this development was predestined by technology itself, which in the form of machine production enables the effortless creation of wealth (shades of Huxley). For when wealth is abundant, people cease believing in the necessity of a hierarchical society with marked inequalities. So the private acc.u.mulation of wealth must be prevented, and the superstates' rulers do this by channeling the overproduction enabled by technology into warfare. That has the further advantage that in times of war people are readier to submit to government control. So technology leads to totalitarianism, though by a more indirect route than by fostering centralization at all levels because of a supposed greater efficiency of technocratic methods.

Orwell was right that the conditions of a totalitarian society, in particular its suppression of freedom of thought, inquiry, and communication, are inimical to scientific and technological progress. That is one of the lessons of the fall of communism-many of the technological successes of the Soviet Union in the domain of weaponry, virtually the only domain in which it had such successes, were due to espionage rather than to Soviet science. The other half of the novel's technology thesis, however, is wrong: the great increase in material wealth since Orwell wrote has re 14. In The Theory and Practice of Oligarchic Collectivism-the treatise ostensibly written by Emmanual Goldstein (the Trotsky figure in the novel) but actually forged by the Inner Party-from which Winston reads a long selection aloud to Julia shortly before they are arrested.

*sulted in greater economic inequality in many countries without impairing their political stability.

The only technological innovation that figures largely in Nineteen Eighty-Four is two-way television (the "telescreen") by which the securities services keep watch over the members of the Party;15 the remaining population consists of the proles, who are of no account. The telescreen is a powerful metaphor for the loss of privacy in a totalitarian state. But it is not central to the novel's political theme, which is the feasibility of thought control through a variety of means: in addition to electronic surveillance they are propaganda, education, psychology (including behavioral modification), informers (including children), censorship, lobotomizing, stirring up war fever, compulsory reeducation, and, perhaps most important, the manipulation of historical records and of language. Newspeak is intended to make dangerous thoughts unthinkable by eliminating the words for them.16 None of the instruments of thought control described in the novel, except the telescreen and possibly the lobotomizing machine that excises portions of Winston Smith's memory, involves a technological advance over Orwell's time. All but the telescreen and the lobotomy machine were in use in the Soviet Union of the 1930s and 1940s, though in a less thoroughgoing form than in Orwell's imagined world.

Because there is so little futurism in Orwell's novel, he had no need to set it in the remote future. He was extrapolating only modestly from contemporary conditions; one can imagine Soviet leaders reading Nineteen Eighty-Four for ideas about controlling the Soviet population.17 Yet Huxley's far-futuristic extravaganza comes closer to describing the world of today. The reason is that science is the story of our time, and Huxley, the scion of a distinguished scientific family and a former medical student, was both interested in and knowledgeable about it.

15. Peter Edgerly Firchow, Modern Utopian Fictions: From H. G. Wells to Iris Murdoch 121 n. 29 (2007), traces the idea behind the telescreen to Bentham's panopticon, a pyramidal or cone-shaped prison design in which the prisoners, in cells without ceilings, would be under continuous surveillance by guards stationed at the apex of the prison.

For a comprehensive discussion, see John Wesley Young, Totalitarian Language: Orwell's Newspeak and Its n.a.z.i and Communist Antecedents (1991).

An ill.u.s.trious defector from the Polish Communist Party claimed that party leaders, who alone could easily obtain copies of Nineteen Eighty-Four, were fascinated by Orwell's "insight into details they knew well." Czeslaw Milosz, The Captive Mind 40 (1990).

Although Soviet-style brainwashing shaped the minds of many people in communist countries,18 its ultimate ineffectuality was shown by the rapidity and completeness with which beginning in 1989 communism collapsed everywhere but in Cuba and North Korea. Soviet thought control had begun eroding when Stalin died,19 four years after Nineteen Eighty-Four was published. Neither Stalin nor Mao, the greatest pract.i.tioners of the system of thought control depicted in Orwell's novel, was able to inst.i.tutionalize the system; it disintegrated rapidly after their deaths; and even in Stalin's heyday the control of public opinion had been spotty.20 The combination of techniques described in Nineteen Eighty-Four is frighteningly plausible because Orwell was a skillful writer, not because the system he described is realistic. It is not, as one can see by asking who is to man the telescreens. There are several in every apartment and office occupied by members of the Party-of whom there are 45 million, for we are told that 15 percent of the population belongs to the Party and that Oceania's total population is 300 million-and it is implied that all the telescreens are monitored continuously. Suppose there are 100 million telescreens; that would require 10 million watchers (probably 10 percent of Ocean's entire workforce), and monitoring and coordinating their work and reading and acting on their reports would require millions more.21 The political significance of Nineteen Eighty-Four, as of Orwell's earlier political satire, Animal Farm, is to depict with incomparable vividness the logic of totalitarianism-not its practice or its prospects but where it could lead if given free rein. Yet pessimistic as the novel seems, it evinces awareness of some of the limitations of thought control, such as "subjectivism,"22 the view much emphasized in Nineteen Eighty-Four that truth is what the Party or Leader says is true. Subjectivism led to such disastrous totalitarian misadventures as the n.a.z.i rejection of "Jewish See Timur Kuran, Private Truths, Public Lies: The Social Consequences of Preference Falsification, ch. 13 (1998).

See, for example, Abbott Gleason, "'Totalitarianism' in 1984," 43 Russian Review 145 (1984).

Sheila Fitzpatrick, Everyday Stalinism: Ordinary Life in Extraordinary Times: Soviet Russia in the 1930s 222 (1999).

I am a.s.suming two shifts, so that each watcher would be responsible for monitoring 20 telescreens.

For an excellent discussion, see George Watson, "Orwell's n.a.z.i Renegade," 94 Sewanee Review 486 (1986).

*physics," the Soviet embrace of Lysenko's crackpot genetic theories, and Maoist China's "Great Leap Forward." Moreover, although the proles resemble the members of Huxley's lower castes, their stupidity is not genetic and in fact is potentially redemptive. Having no "brains," they are immune to being brainwashed, as is Julia, who is not "clever."23 And Winston and Julia, we discover late in the novel, are not the only imperfectly socialized Party members.24 Hence the large number of "vaporizings" (liquidations), though just as was true in Stalin's Soviet Union many of those liquidated are in fact loyal Party members, notably the lexicographer Syme.

The members of the Inner Party-the directing mechanism, 2 percent of the population-see through the lies they are trying to foist on the rest of the society. But their vision is blurred by the mental technique of "doublethink," which enables them to both know and not know that their ideology is spurious. This was a characteristic of thought under communism,25 though the novel exaggerates its efficacy.

It is natural for intellectuals, even one like Orwell who was contemptuous of intellectuals ("the more intelligent, the less sane" [p. 177]),26 to exaggerate the feasibility of brainwashing, since, loosely speaking, intellectuals are in the business of brainwashing.27 It is therefore not surpris 23. Though Julia, like Winston, is broken by torture, the ultimate method of control.

Consider the egregious Parsons, a Party zealot turned in by his seven-year-old daughter who overhears him saying in his sleep, "Down with Big Brother!" (p. 193). Maybe, though, his real sin is being proud of his daughter for turning him in; it shows that he continues, contrary to Party doctrine, to attach great importance to family.

25. Kuran, note 18 above, at 218.

"One has to belong to the intelligentsia to believe things like that: no ordinary man could be such a fool." George Orwell, "Notes on Nationalism," in Collected Essays, Journalism and Letters of George Orwell, vol. 3, pp. 361, 379 (Sonia Orwell and Ian Angus eds. 1968). (The "that" was that American troops had come to England during World War II not to fight the Germans but to crush an English revolution.) Yet despite Orwell's disdain for intellectuals, his novel ignores virtually everything about totalitarianism-for example the Soviet Union's ma.s.sive use of slave labor and its deliberate creation of famine to crush resistance to the collectivization of agriculture-except its efforts at mind control.

The same exaggeration is visible in another notable novel about Stalinism, Arthur Koestler's Darkness at Noon (see chapter 4). Notice that Winston, Julia, and the other targets of thought control and intimidation in Nineteen Eighty-Four are themselves all engaged in "political work"; it is such people who pose the greatest political threat to a totalitarian regime and who must therefore be watched most closely.

ing that Orwell got the political significance of television backwards. He thought it a medium of surveillance (the telescreen) and indoctrination (the "Two Minutes Hate"). It has proved to be a medium of subversion, vastly increasing people's access to information about society and politics. It played a role not only in the fall of communism but long before that in thwarting Lyndon Johnson's attempt to wage war in Vietnam without the informed consent of the American people. The Internet is making it even more difficult for dictatorial regimes to conceal the truth about other societies from their subjects.

A feature of the novel that seems at first glance unrelated to the theme of thought control is the Party's hostility to s.e.x. The Party teaches that the sole legitimate function of s.e.x is procreation and seeks to discourage s.e.xual pleasure, though only among Party members; the regime has no interest in the morals of the proles. We can sense here Orwell's hostility to Catholicism.28 For if one asks what other "party" of thought controllers disfavors s.e.x among party members, the answer is the Roman Catholic Church, with its celibate clergy. The novel compares the adoptive as distinct from a hereditary oligarchy of the Church with that of the Party. The Church preaches love but in its heyday tortured and burned people. The "Ministry of Love," the Party's torture and liquidation bureau, is the Inquisition brought up to date. Love the sinner, hate the sin-so kill the sinner.29 We do not destroy the heretic because he resists us; so long as he resists us we never destroy him. We convert him, we capture his inner mind, we reshape him. We burn all evil and all illusion out of him; we bring him over to our side, not in appearance, but genuinely, heart and soul. We make him one of ourselves before we kill him . . . By the time we had finished with them [three notorious traitors] they were only the sh.e.l.ls of men. There was nothing left in them except sorrow On that hostility, see John Rodden, "George Orwell and British Catholicism," 41 Renascence 143, 144 (1989); John P. Rossi, "Orwell and Catholicism," 103 Commonweal 404 (1976).

On the parallels between Christianity and Orwell's depiction of totalitarianism, see also William Steinhoff, George Orwell and the Origins of 1984 184185 (1975), and Jaroslav Krejci, "Religion and Anti-Religion: Experience of a Transition," 36 Sociological a.n.a.lysis 108, 120122 (1975).