Law and Literature Part 9

Criticized for "almost willfully ignoring" what Meursault has actually done,32 Weisberg replies that among a group of fictional characters who include both Meursault and one character falsely accused of murder (Dmitri Karamazov), "none, taken alone, is meant to be a sterling moral paradigm."33 In calling Billy Budd "an innocent man" and a "joyful innocent" (pp. 155, 162), Weisberg makes light of the fact that Billy Budd struck a lethal blow to a superior officer in wartime. And in discussing how Porfiry, the examining magistrate in Crime and Punishment, uses lawyers' wiles in an effort to entrap Raskolnikov into confessing, Weisberg compares Raskolnikov's plight to that of Joseph K. in The Trial, overlooking the fact that Raskolnikov murdered two people while Joseph K. committed no crime at all. Weisberg describes Porfiry ras "coercing Raskolnikov into confession and moral conformity" (p. xii; see also p. 54). But the tactics Porfiry uses to catch Raskolnikov off guard are standard, albeit dramatized, interrogative tactics. There is no coercion. Raskolnikov's confession is not even the result of Porfiry's interrogation. After Porfiry has given up on trying to pin the crime on him, Raskolnikov confesses to another official-because of a sense of guilt rather than from the strain of the interrogation.

Billy Budd, The Brothers Karamazov, and Law's Limits Melville's unfinished novella Billy Budd has been the subject of interminable debate between those who think Melville wanted readers to believe that Billy Budd was unjustly condemned34 and those who think that Me*Susan Sage Heinzelman and Sanford Levinson, "Words and Wordiness: Reflections on Richard Weisberg's The Failure of the Word," 7 Cardozo Law Review 453, 465 (1986).

Richard H. Weisberg, "More Words on The Failure of the Word: A Response to Heinzelman and Levinson," 7 Cardozo Law Review 473, 483 (1986) (emphasis added). Meursault was "convicted of being different." Weisberg, Vichy Law and the Holocaust in France 7 (1996).

Weisberg is in the forefront of those scholars. Besides the discussion in The Failure of the Word, see Weisberg, "20 Years (or 2,000?) of Story-Telling on the Law: Is Justice Debatable?" 26 Cardozo Law Review 2223, 2226 (2005); Weisberg, Poethics and Other Strategies of *ville either wanted the reader to accept the justice of Billy's condemnation or wanted to leave the question open.35 The measures the U.S. government has taken in the wake of the terrorist attacks of September 11, 2001, have given a new resonance to the debate.36 The eponymous hero of the novella is a young seaman impressed onto a British man-of-war during the war between Britain and the French Directory (the interregnum between the Revolutionary regime and Napoleon). The British navy has recently experienced a serious mutiny, and everyone is on the lookout for a recurrence, especially among impressed seamen. John Claggart, the petty officer in charge of security on the ship, decides, for reasons never made clear, to frame Billy. He tells the ship's captain that Billy is a mutineer. Captain Vere does not believe Claggart and summons Billy to confront his accuser in the captain's cabin. Billy has a speech impediment that prevents him from responding to Claggart's accusations-verbally. Vere puts his arm on Billy's shoulder in a fatherly way and tells him there's no hurry about speaking. Speechless and enraged, Billy responds by striking Claggart dead with a single punch.

Vere convenes a drumhead (that is, summary) court-martial. The members are inclined to leniency until Vere reminds them that striking Law and Literature 104116 (1992). See also James Boyd White, "'Law and Literature': No Manifesto," in White, From Expectation to Experience: Essays on Law and Legal Education 52, 6569 (1999); Laurie Robertson-Lorant, Melville: A Biography 594 (1996); Brook Thomas, Cross-Examinations of Law and Literature: Cooper, Hawthorne, Stowe, and Melville, pt. 3 (1987); Robert Cover, Justice Accused: Antislavery and the Judicial Process 16 (1975).

See, for example, Andrew Delbanco, Melville: His World and Work 309314 (2005); John Wenke, "Melville's Indirection: Billy Budd, the Genetic Text, and 'the Deadly s.p.a.ce Between,'" in New Essays on Billy Budd 114 (Donald Yannella ed. 2002); Lester H. Hunt, "Billy Budd: Melville's Dilemma," 26 Philosophy and Literature 273 (2002); Edward M. Yoder Jr., "Melville's Billy Budd and the Trials of Captain Vere," 45 St. Louis University Law Journal 1109 (2001); Robert P. Lawry, "Justice in Billy Budd," in Law and Literature Perspectives 181, 188 (Bruce L. Rockwood ed. 1996); Roger Shattuck, Forbidden Knowledge: From Prometheus to p.o.r.nography 156 n. * (1996); Stephen Vizinczey, "Engineers of a Sham: How Literature Lies about Power," Harper's, June 1986, pp. 69, 7173. For still other contributions to the debate over the legal aspects of Billy Budd, see "Symposium on Billy Budd," 1 Cardozo Studies in Law and Literature 1 (1989); Critical Essays on Melville's Billy Budd, Sailor (Robert Milder ed. 1989); Susan Weiner, Law in Art: Melville's Major Fiction and Nineteenth-Century American Law, ch. 8 (1992).

See Daniel J. Solove, "Melville's Billy Budd and Security in Times of Crisis," 26 Cardozo Law Review 2443 (2005).

one's superior in wartime is a capital offense and that any leniency might encourage mutiny. They reluctantly sentence Billy to death, and he is hanged the next morning-his last words being, "G.o.d save Captain Vere." Vere, fatally wounded in a battle shortly afterward, dies whispering, "Billy Budd."

In Weisberg's interpretation, Billy is Rousseau's n.o.ble savage, Nietzsche's "master" or "blond beast," Wordsworth's Seer blest, while Vere as well as Claggart are consumed by ressentiment and the execution of Billy is a terrible injustice. Weisberg argues that the court-martial is irregular because Claggart is not "in the execution of his office" when Billy strikes him (pp. 154155). But he is: ferreting out mutiny is his primary duty as the ship's security officer. He is abusing his office, not abandoning it, in accusing Billy. The members of the court-martial believe merely that Claggart is mistaken in accusing Billy. Weisberg argues that in any event the death penalty is excessive for Billy Budd's offense, but he misreads the historical record. Seaman John Gumming was tried in 1784 for striking the boatswain of his ship and was found guilty and sentenced to be hanged, with no recommendation for mercy, even though there is no indication that the boatswain died.37 Weisberg argues that under English law Vere should have waited until the ship rejoined the fleet before proceeding against Billy and should then have asked the admiral commanding the fleet to convene a regular court-martial; the summary conducted on Vere's ship was proper only if Billy's striking Claggart could be construed as mutinous. But striking a superior officer in wartime was mutinous per se.38 Even if Weisberg were correct about the law, his interpretation of the novella would be refuted by the absence of any textual suggestion-nor could the reader be a.s.sumed to know from other sources-that the court-martial and execution of Billy Budd are illegal. Harsh, perhaps precipitate (the ship's surgeon, a member of the court-martial, thinks that so unusual a case should be referred to the admiral), but not illegal. Not Vere but the narrator tells the reader that the drumhead court-martial is proper in the 37. John MacArthur, Principles and Practices of Naval and Military Courts Martial, vol. 2, p. 437 (4th ed. 1813). See id. at pp. 419451 for a survey of cases.

38. Thomas Simmons, The Const.i.tution and Practice of Courts Martial 79 (7th ed. 1875).

*circ.u.mstances. "In wartime on the field or in the fleet, a mortal punishment decreed by a drumhead court-on the field sometimes decreed by but a nod from the general-follows without delay on the heel of convicting, without appeal."39 Nor does Melville scatter clues that the narrator might be unreliable or that the reader must research eighteenth-century British naval law in order to understand the novella.

And if Melville did get the law wrong, that would not affect the novella's meaning. The legality of Billy's court-martial is a given, just as the invalidity of Claudio and Julietta's purported marriage is a given in Measure for Measure. Melville in his fiction often took liberties with the facts.40 We expect that in fiction. That Billy Budd should be tried on the ship is a literary imperative. A delay to rejoin the fleet, followed by a shift of the action to a court-martial in which Vere would play no role, would unhinge the story by eliminating Vere's responsibility for Billy's death. For Billy to receive a punishment unquestionably lawful for a drumhead court-martial to impose-a lashing, say-would trivialize the story. And Vere has to be in effect the prosecutor, jury, and judge all rolled into one in order to maintain the brisk pace of the narrative. Art trumps due process. An understanding of literature on legal themes as a coherent literary genre shaped by literary values and needs, rather than as statements of legal doctrine, can help to prevent misunderstandings about the significance of literary departures from legal regularity.

The misgivings that the members of the court-martial exhibit-one of them even questions Vere's sanity-are based not on concerns with legality but on the fact that Billy Budd is such an attractive person and the provocation (in a layman's, not a lawyer's, sense) for striking Claggart was so great. The opposition portrayed is between the sympathies of subordinate officers of narrow outlook and limited understanding and the responsibilities that rest on the captain's shoulders alone. Isolated by his intelligence, role, and perspective, Vere has no one with whom he might Herman Melville, Billy Budd, Sailor (An Inside Narrative) 114 (Harrison Hayford and Merton M. Sealts Jr. eds. 1962). My page references to Billy Budd are to this edition.

See, for example, the editors' "Explanatory Notes" in Herman Melville, Omoo: A Narrative of Adventures in the South Seas 341348 (Harrison Hayford and Walter Blair eds. 1969).

take counsel or share responsibility for dealing with the consequences of Billy's crime.

Weisberg argues that Billy Budd is Nietzsche's "blond beast" and Claggart is Jesus Christ: "Claggart-Christ," Weisberg calls him (p. 174). Billy does have the qualities of natural man according to Nietzsche-robust health and high animal spirits, primal rage but no rancor or vengefulness, heedlessness of the future (he is indifferent to being impressed onto a warship in wartime), guilelessness, and inarticulateness (symbolized by the speech impediment that conveniently silences him at the critical moment), a trait he shares with Meursault. Nietzsche considered empathy, sensitivity, forward planning, and other characteristic features of human mentality devices by which the members of the herd seek to overcome their weakness and express their will to power. "He who possesses strength divests himself of mind."41 That is Billy Budd.

But Billy is also a Christ figure.42 The novella a.s.sociates him explicitly with Adam before the fall-and Christ is frequently referred to in Christian literature as "the second Adam"-and with the Lamb of G.o.d. Heavenly portents attend his execution. And he forgives Vere, whose fatherly att.i.tude toward Billy resonates with G.o.d's sacrifice of His Son to save mankind-and "bud" is the vegetable counterpart of "child." There is no inconsistency between a Nietzschean master and Jesus Christ. Nietzsche distinguished between Christ, whom he thought admirable and even "pagan," and inst.i.tutional Christianity.43 It was Nietzsche who said, "There has been only one Christian, and he died on the Cross."44 There is neither textual nor biographical evidence that Melville outdid Nietzsche in hostility to Christianity.45 Claggart is not Christ; he is Satan.46 He is re Twilight of the Idols: or How to Philosophize with a Hammer, in Twilight of the Idols and The Anti-Christ, note 27 above, at 76 ("Expeditions of an Untimely Man," 14). See also Daybreak, note 22 above, at 90 ( 142).

James McBride, "Revisiting a Seminal Text of the Law and Literature Movement: A Girardian Reading of Herman Melville's Billy Budd, Sailor,"3 Margins 285 (2003).

See Twilight of the Idols and The Anti-Christ, note 27 above, at 139153, 179183 ( 2740, 5859).

44. Id. at 161 ( 39).

45. See generally Rowland A. Sherrill, "Melville and Religion," in A Companion to Melville Studies 481 (John Bryant ed. 1986).

46. Delbanco, note 35 above, at 302303.

*peatedly likened to a serpent, and his name has a clanging sound that recalls the traditional a.s.sociation of devils with noise. He has the same initials as Jesus Christ, but is that a surprise? Isn't it the sort of thing you'd expect of the devil?

Many "liberals," in the sense current today, dislike the military, and most of them abhor capital punishment. (How contemptible Nietzsche would consider them!) They do not find Vere a sympathetic figure, and they project their lack of sympathy onto Melville. Brook Thomas, for example, is unimpressed by Weisberg's procedural criticisms of the court-martial, which he thinks reflect a Vere-like "legalistic point of view that focuses on technicalities,"47 but he thinks Melville's point is that law-to Thomas a means by which the upper cla.s.ses oppress the lower-is such a beguiling ideology that it persuades even its victims that it is just. "Vere projects such an image of fairness that not even Billy himself protests the call for his execution."48 But if Vere's ideology is so beguiling, it is difficult to resist the conclusion that Melville is among the beguiled.

Weisberg goes Vere's other critics one better by charging Vere with having procured the death of Billy Budd out of rancorous envy of Admiral Nelson. His thesis is that Vere, though a competent officer, is not in Nelson's league (which is true but, as we shall see, misleading); that Vere resents the comparison (for which there is no evidence); and that because Nelson and Billy Budd share the quality of perfectly uniting thought and action, Vere identifies one with the other49 and condemns Billy out of envy of Nelson. In so arguing Weisberg makes aesthetic hash out of Billy Budd by breaking the novella into two unrelated stories: a struggle between paganism and Christianity that ends with the death of Claggart Thomas, note 34 above, at 211212.

Id. at 219.

49. The identification is far-fetched. Weak and sickly to begin with, only five feet two inches tall, Nelson had by 1797 lost both an eye and an arm in combat. And far from being a free spirit, he apotheosized duty, as in the famous signal to the fleet before Trafalgar: "England expects every man to do his duty." At once physically unprepossessing, indeed crippled, and an eloquent man of authority, Nelson is the opposite of Billy Budd, the strapping stammerer. And he talks just like Vere. "Our country has the first demand for our services; and private convenience or happiness must ever give way to the public good. Duty is the great business of a sea officer: all private considerations must give way to it, however painful." Quoted in Robert Southey, The Life of Nelson 44 (1886 [1813]).

(which dooms Billy-that is, paganism-as Christianity has often been argued to have doomed the Roman Empire); and the acting out of Vere's envy of Nelson, which begins with Claggart's death and ends with Vere's death.

The novella presents Vere to the reader with high accolades: "a sailor of distinction even in a time prolific of renowned seamen," Vere "had seen much service, been in various engagements, always acquitting himself as an officer mindful of his men, but never tolerating an infraction of discipline; thoroughly versed in the science of his profession, and intrepid to the verge of temerity, though never injudiciously so" (p. 60). To take Vere down a peg Weisberg quotes a description from the same page: "Ash.o.r.e, in the garb of a civilian, scarce any one would have taken him for a sailor." But Weisberg omits the words that immediately follow: "more especially that he never garnished unprofessional talk with nautical terms, and grave in his bearing, evinced little appreciation of mere humor . . . His un.o.btrusiveness of demeanor may have proceeded from a certain unaffected modesty of manhood sometimes accompanying a resolute nature" (p. 60). It is true that Vere is no Nelson, but neither was Nelson in 1797, for that was before the battles of the Nile, Copenhagen, and Trafalgar-the victories for which he is mainly remembered. Within the world of the novella, the world of 1797, there was no reason for Vere to be envious of Nelson.

Mention in Billy Budd of Nelson's having prevented a possible mutiny on the Theseus by his mere presence cannot be taken as a criticism of Vere. No acts of violence on the Theseus are mentioned, and we can be sure that had there been any Nelson would have responded with the utmost severity: he once congratulated another admiral for hanging four seamen on a Sunday and said he would have approved hanging them on Christmas.50 The purpose of the references to Nelson may be to lend verisimilitude, as with the insertion of Martin Luther into Michael Kohlha.s.s. It may even be to suggest what Vere might have become had he not (like Nelson, incidentally) fallen in action, for someone remarks of him that despite "the gazettes, Sir Horatio [Nelson] . . . is at bottom scarce a better seaman or fighter" than Vere, albeit Vere is "pedantic" (p. 63).

50. Dispatches and Letters of Vice Admiral Lord Viscount Nelson, vol. 2, pp. 408410 (1845).

*The contrast between Billy and Vere is indeed the contrast between natural and civilized man. It is underscored by Billy's stammer and lack of education and by Vere's bookishness; the captain is no rough-andtumble old salt. But Weisberg misses the narrative functions of Billy's stammer and Vere's bookishness. If Billy could have defended himself verbally against Claggart's accusations, his striking Claggart-an act necessary to the story-would have been out of character. Vere's bookishness lends plausibility to the elaborate argumentation by which he seeks to persuade the court-martial that it must convict Billy and sentence him to death. It also elevates him intellectually above the members of the court-martial. By presenting him as an introspective man rather than as merely a tough military commander, Melville imparts tragic overtones to his decision to condemn Billy Budd and explains his whispering Billy's name on his own deathbed. To Nelson the trial and hanging of Billy would have been all in a day's work and quickly forgotten.

The command of a warship in time of war is an awesome responsibility; upon its proper discharge may depend many lives. When the most popular sailor on the ship kills the ship's security officer-an act suggestive of mutiny, an ever-present threat in an eighteenth-century navy-in response to a provocation that does not extenuate the capital nature of the offense under the Articles of War, the commander, a sensitive man and not a martinet, finds himself torn between private feeling and public duty. Vere chooses the latter. We are not meant to think he had no choice, but neither are we meant to think that he was acting illegally or out of envy. As the narrative voice in Billy Budd puts it, "Little ween the snug card players in the cabin of the responsibilities of the sleepless man on the bridge"

(p. 114). Vere's bookishness, his "pedantry," make us realize that he knew he faced a tough choice.

Robert Ferguson argues that Vere's choice was between obedience to positive law and obedience to natural law, and notes the affinity between Vere's style of legal reasoning and the approach of American legal positivists, which was making headway when Melville was writing Billy Budd.51 Holmes's cla.s.sic of legal positivism, The Common Law, had appeared in 1881; what better antidote to lofty natural law conceptions of justice than 51. Ferguson, Law and Letters in American Culture 288290 (1984).

to stress, as Holmes had done, that law originates in vengeance? Vere refuses to allow the positive law governing naval discipline to be trumped by appeal to the higher law under which Billy Budd's killing of Claggart might be thought just, or at least excusable: "Before a court less arbitrary and more merciful than a martial one, that plea [that Billy Budd intended neither mutiny nor homicide] would largely extenuate. At the Last a.s.sizes it shall acquit. But how here? We proceed under the law of the Mutiny Act . . . The heart . . . sometimes the feminine in man . . . must here be ruled out" (p. 111). This reasoning places Vere in the left-hand column of Table 1 in chapter 3. There is even a touch of Angelo when he says, "Would it be so much we ourselves that would condemn as it would be martial law operating through us? For that law and the rigor of it, we are not responsible" (pp. 110111). And there is a touch of Brutus when he adds, "Did [Billy] know our hearts, I take him to be of that generous nature that he would feel even for us on whom in this military necessity so heavy a compulsion is laid" (p. 113).

But Vere does not just invoke the letter or the pieties of the law. He also argues policy, as a lawyer would say-the danger of mutiny. This is the most unsettling part of Vere's argument, even though it is unrelated to legalism or ressentiment-indeed, it is the rejection of legalism in favor of expedience. When Vere asks, "How can we adjudge to summary and shameful death a fellow creature innocent before G.o.d, and whom we feel to be so?" (p. 110), he puts the reader in mind of the most disturbing feature of utilitarianism-that it countenances the deliberate sacrifice of an innocent person for the sake of the general good. Utilitarianism treats the whole society as a single organism whose welfare is to be maximized, which makes it as natural to kill one person for the greater good of society as it would be to remove a cancerous organ.

Claggart had had a cabal of informers on the ship; what would they have thought had Billy Budd received lenient treatment for killing their boss? Vere explains to the court-martial that to the unsophisticated crew Billy's deed, however it be worded in the announcement, will be plain homicide committed in a flagrant act of mutiny. What penalty for that should follow, they know. But it does not follow. Why? They will ruminate.

*You know what sailors are. Will they not revert to the recent outbreak at the Nore? Ay. They know the well-founded alarm-the panic it struck throughout England. Your clement sentence they would account pusillanimous. They would think that we flinch, that we are afraid of them-afraid of practicing a lawful rigor singularly demanded at this juncture, lest it should provoke new troubles. (pp. 112113) Vere's fears are confirmed. A newspaper circulated throughout the fleet is quoted as giving a sensational account of how Billy, the "ringleader" of a sinister plot (p. 130), had stabbed Claggart to death while being arraigned by him before the captain.

To disregard Vere's reasons for condemning Billy is like disregarding Creon's reasons for condemning Antigone. In neither case is it a matter just of upholding "the law" come what may. Both Creon and Vere think they have justice (granted, human rather than divine justice) on their side, and both have some basis for thinking this. Robert Cover compares Vere to the judges-including Melville's father-in-law, Chief Justice Lemuel Shaw of the Ma.s.sachusetts Supreme Judicial Court-who before the Civil War enforced the fugitive-slave laws because they were "the law."52 There is no comparison. The law enforced by Vere was harsh but, in the desperate circ.u.mstances in which it was invoked, not vicious.

I said that Billy Budd is a Christ figure, and if so then Vere must be Pontius Pilate. The comparison does not condemn Vere. We know from chapter 3 that the nineteenth-century mind did not blanch at the implications of legal positivism, of which Pilate, with his question "What is truth?" was a notable early spokesman.

The affinity between Vere's mode of thinking and that of Oliver Wendell Holmes is underscored by Holmes's opinion in Buck v. Bell and its famous aphorism: "three generations of imbeciles are enough."53 A Virginia statute authorized the compulsory sterilization of inmates of certain state inst.i.tutions if they had a hereditary form of insanity or imbecility. Holmes's opinion describes Carrie Buck, an inmate of a state inst.i.tution 52. Cover, note 34 above, at 16. But he is rightly critical of the use of formalistic techniques of legal reasoning to mask the character of those laws. Id. at 229238.

53. 274 U.S. 200, 207 (1927). See chapter 9 for further discussion of this opinion.

for the "feebleminded," as the feebleminded daughter of another feebleminded inmate of the inst.i.tution and the mother of an illegitimate feebleminded child. In holding that the Const.i.tution did not forbid the state to sterilize Buck, Holmes wrote: "We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence"

(p. 207). This pa.s.sage mixes nationalism (in the allusion to conscription, used by this country not only in World War I but also in the Civil War, in which Holmes had been wounded three times), Darwinism, and utilitarianism-"isms" that have in common putting aggregates (nation, species, society) ahead of individuals-in a brew congenial to Captain Vere, as to much nineteenth-century thought, but distasteful to most modern students of law as well as of literature. It may well have been distasteful to Melville as well, whose sympathies with underdogs was marked.54 But would he not have thought that the Virginia authorities, like Captain Vere, had made a permissible choice? "For Melville, as for Vere, our fate as human beings is to live by norms that have no basis in divine truth, but that have functional truth for the conduct of life. These norms are the grammar of culture, and the culture that Vere has sworn to defend is that of the Royal Navy in time of war. Billy killed an officer. Billy must hang."55 Just as Babo and Bartleby must die.

The example of Holmes (and Vere) underlines the difficulty of holding the two columns of the table of legal antinomies apart. In his emphasis on objective standards of liability and in his positivism, Holmes was a man of the left-hand column (rule, formalism, and so forth). But in his insistence 54. "In Benito Cereno, Bartleby, and Billy Budd, subordinates die for the sin of challenging the hierarchy that commands them. However, the strategies of subversion of each of the characters is different: For Babo [in Benito Cereno], it is rebellion; for Bartleby, pa.s.sivity and withdrawal; for Billy, loyalty, fidelity, and submission. Yet each in the process of dying a.s.serts a mysterious power over his master, transforming or haunting him in his own way: Benito's tortured death, the lawyer's despair, Vere's dying words." Alfred S. Konefsky, "The Accidental Legal Historian: Herman Melville and the History of American Law," 52 Buffalo Law Review 1179, 1274 (2004).

55. Delbanco, note 35 above, at 311312.

*that the life of the law had been experience rather than logic he was a man of the right-hand column. Indeed, he is the father of legal realism.56 The least plausible feature in Weisberg's account of Billy Budd-the equating of Claggart to Christ57-prepares us for his finding in The Brothers Karamazov (1880) a rejection rather than, as all other readers have thought, a celebration of Christianity. This great "legal" novel (about one-fifth of it is given over to the interrogation and trial of Dmitri Karamazov)58 is really two novels, skillfully interwoven. The first is the melodramatic detective story of the rivalry between Dmitri and his father, Fyodor, for the beautiful Grushenka; Fyodor's murder by his valet, Smerdyakov, who probably is his illegitimate son; and the arrest, interrogation, erroneous conviction, and sentencing of Dmitri for the crime. The second is a philosophical novel in which the princ.i.p.als are Ivan and Alyosha, Fyodor's other legitimate sons; Alyosha's mentor, Father Zossima; the boy Ilusha; and Ivan's fictional creation, the Grand Inquisitor. The philosophical novel is not only more interesting and resonant but, paradoxically, more vivid, though it could not exist without the narrative scaffolding provided by the melodrama. The dependence is mutual. Ivan's atheism and its corollary (as it seems to Dostoevsky) that "everything is lawful," operating on Smerdyakov's warped mind, makes the murder possible, while Dmitri's a.s.sault on Ilusha's father-one of the causes of See in particular his article "The Path of the Law," 10 Harvard Law Review 457 (1897). Thomas, note 35 above, at 232236, in arguing that Holmes's jurisprudence undercuts Vere's position, overlooks the "hard" side of that jurisprudence-Social Darwinism, the separation of law and morals, the emphasis on sacrifice, and disdain for natural law. Although it would be a gross oversimplification to regard Holmes as the reincarnation of Thrasymachus (see Book I of Plato's Republic), there is that element in him.

A close second is Weisberg's calling Vere a "possibly insane tyrant." Richard H. Weisberg, "20 Years (or 2,000?) of Story-Telling," note 34 above, at 2226.

On the characteristics of Russian legal procedure in Dostoevsky's time-including the use of juries (a Western import) at a time when they were fast disappearing from the rest of the Continent-see Gary Rosenshield, Western Law, Russian Justice: Dostoevsky, the Jury Trial, and the Law (2005), esp. pp. 1926; Samuel Kucherov, Courts, Lawyers, and Trials under the Last Three Tsars (1953), esp. pp. 7486, 168179. Rosenshield's book is mainly about The Brothers Karamazov. See also J. Neville Turner, "Dostoevsky-The Trial in Brothers Karamazov,"8 University of Tasmania Law Review 62 (1984).

Ilusha's tragic death-suggests that the conviction of Dmitri, though a judicial error, is consistent with a higher justice, is part of the divine plan, and indeed is the condition of Dmitri's redemption.

The philosophical novel, like Paradise Lost (see chapter 7), is a theodicy-an effort to reconcile the presumed goodness of G.o.d with the prevalence of suffering in the world, and in particular the suffering of innocent children. Ivan's inability to resolve the issue of G.o.d's justice to his satisfaction drives him to atheism and then madness. The suffering of children is rendered with great vividness, culminating in the story of Ilusha. Other challenges to religious belief are offered as well, ranging from the premature decay of Father Zossima's corpse to the powerful arguments of the Grand Inquisitor. All are overcome by the end of the book. We come to understand that the suffering, the baseness, the horrors, and the scandals of the human condition are both redeemable and redemptive. They are a necessary condition of a religious faith that is chosen rather than imposed. For example, the premature decay of Zossima's corpse, by shaking Alyosha's faith, enables him to rebuild it on a foundation of free choice rather than supernatural coercion. (The distinction is central to Paradise Lost as well.) The legal scenes belong to the melodrama-yet not entirely. Dmitri is innocent of his father's murder in a legal sense. But both he and Ivan are guilty in a moral sense: Dmitri for wanting to kill his father, for being in fact quite capable of doing so in the right circ.u.mstances, and, more profoundly, for being, as he frequently confesses, a scoundrel; Ivan for having inspired, if unwittingly, Smerdyakov to commit the actual crime. Dmitri's conviction and sentencing are presented as stations on the way to his salvation.

Another connection between the legal scenes and the philosophical novel is the idea expressed by several of the characters that if G.o.d does not exist, any act, however wicked, is permissible. To the possible response that law by itself suffices to deter most crime, making supernatural sanctions unnecessary (and history suggests that they are ineffectual), the trial and conviction of Dmitri provide reb.u.t.tal. The wrong man is convicted, while the murderer escapes through suicide. Since Smerdyakov does not believe in an afterlife and his life is a miserable one, suicide provides what seems to him a costless escape. It also seals Dmitri's fate by *making it impossible for the actual murderer ever to confess (as did happen in the real murder case on which Dostoevsky modeled Dmitri's case, ten years after the conviction of the innocent defendant). We are made to feel the inadequacies of secular justice.

Amid the cruelty, the pa.s.sion, and the tears that saturate the novel, the legal scenes stand out as islands of humane rationality. It is true that the authorities, and even Dmitri's own lawyer, do not understand him59 and that the members of the jury are hostile to Dmitri because of his outrageous behavior during his sojourn in the town where his father lived and the events of the novel take place. Yet in point of solicitude for the rights of the accused and for seeking the truth, both the preliminary interrogation in the hotel in which Dmitri is arrested and the trial can stand comparison with modern American procedure. The basic reason for Dmitri's conviction is not that the jury is prejudiced against him because of his wild behavior (though it is), but that the evidence of his guilt is overwhelming; Smerdyakov framed him brilliantly and then killed himself. Not only is the trial basically fair, though the verdict is mistaken, but Dmitri's sentence-20 years of penal servitude in Siberia-is lenient for a crime that the judges and jury believe to be parricide in the course of theft.

The parallels that The Brothers Karamazov enables us to see between nineteenth-century Russian and twenty-first-century American criminal procedure are underscored by the contrast between that novel and Crime and Punishment. The first depicts adversary procedure, the second inquisitorial procedure. Oddly, considering all the suffering in it, The Brothers Karamazov is a sunnier, more exhilarating novel. This impression may be connected with the freer give-and-take, and the greater drama, of adversary procedure. The inquisitorial method of Continental and chancery proceedings lends itself to novels of protraction, constraint, and obsession. Crime and Punishment (like The Trial and Bleak House) is one of them; The Brothers Karamazov, like Pickwick Papers (another novel in which a jury renders an erroneous verdict), is not.

59. The problem recurs in a modern legal story, Katherine Anne Porter's "Noon Wine," perceptively discussed in James Boyd White, Heracles' Bow: Essays on the Rhetoric and Poetics of the Law 181191 (1985). Pursuing this theme, one might suggest that Vere's commitment to rational methods of inquiry (suggested by, among other things, his name, with its echo of "veritas" and "verity") prevents him from understanding Billy Budd. Melville's short story "Benito Cereno" (see note 53 above) has a similar theme.

The Brothers Karamazov implies criticism of law, but criticism that has less to do with the particulars of nineteenth-century Russian criminal justice than with the very idea of secular justice. Not only does the legal system get the facts wrong; the elaborate reconstructions of Dmitri's character that dominate the closing arguments by the prosecutor and by the defense lawyer get his character wrong. To Dostoevsky, reconciliation of the goodness of G.o.d with the fact of human suffering lies neither in authority (the miracles, expected but not forthcoming, at Father Zossima's death) nor in reason (where Ivan searches futilely). It lies in faith, deepened by that very suffering and affording insight into the divine plan. The idea that law, despite or maybe because of its commitment to reason, misunderstands life is one that The Brothers Karamazov shares with The Stranger. In the earlier novel, however, the law's shortsightedness, reflecting the inherent limitations of human reason, argues for religious faith, while in the later novel the law is equated with the bourgeoisie's persecution of free spirits.

Skepticism about law's grasp of reality is also a theme of E. M. Forster's novel A Pa.s.sage to India. Dr. Aziz, an Indian, is tried for a s.e.xual a.s.sault against a young Englishwoman during a visit to the mysterious Marabar Caves. The a.s.sault did not in fact occur, and Aziz is acquitted. The most interesting thing about the trial-a colonial trial, like that of Meursault, but with the conventional alignment of native with defendant and European with victim-is the sense of an unbridgeable chasm between Western rationality and Eastern mysticism. The chasm, and the foreshadowing of Indian independence a quarter-century after A Pa.s.sage to India was published, are symbolized by the Indianization of Mrs. Moore's name and by the low-caste Indian who pulls the fan that cools the courtroom and who hasn't the slightest comprehension of the proceedings. The Indianization of the Englishwoman's name symbolizes the absorption and transformation of the British presence in India and Indian resistance to Westernization, while the punkah wallah (the fan puller) personifies the ma.s.sive indifference of traditional India to the alien intrusion. The British with all their bustle and power haven't made a deep impression on the subcontinent after all. The fan puller doesn't even know he's operating a fan; he just knows he's pulling a rope. His ignorance of his causal efficacy is a commentary on Western rationalism, as is the court's inability to discover what happened in the Marabar Caves the day of the alleged a.s.sault *(what happened may not have fitted any Western conceptual scheme). The fan puller's ignorance may also be a commentary on Indian subservience-the Indians do not know their power.

The Brothers Karamazov is a work of Christian literature, perhaps the greatest since the Divine Comedy and Paradise Lost. That is a hard pill for Richard Weisberg to swallow. He thinks that Dmitri and even Alyosha are n.o.ble pagans brought down by resentful, wordy, legalistic Christians (pp. 5481). This picture is unconvincing even for Dmitri, who though the victim of a miscarriage of justice admits to being a man of unbridled, frequently vicious pa.s.sions, a spendthrift and sponge, who treats women dishonorably, a.s.saults his father, nearly kills his father's loyal servant (Grigory), and causes great suffering by dragging Ilusha's father by his beard through the streets of the town right in front of Ilusha. Far from being inarticulate, Dmitri quotes great swatches of Schiller. Far from being natural man, he appears at his trial dressed as a dandy.

The suffering of children, the rationalism of Ivan and of the lawyers, the stench from Father Zossima's corpse, the utilitarian arguments of the Grand Inquisitor, the erroneous conviction of Dmitri-this formidable array of challenges and alternatives to the Christian faith is vanquished by Christ's silent kiss bestowed on the Grand Inquisitor, by the fates of Smerdyakov and Ivan, by the luminous teachings and personality of Father Zossima, by the parable of the onion60 and Dmitri's dream of the babe, by the goodness and purity of Alyosha, and above all by the sense 60. "Once upon a time there was a peasant woman and a very wicked woman she was. And she died and did not leave a single good deed behind. The devils caught her and plunged her into the lake of fire. So her guardian angel stood and wondered what good deed of hers he could remember to tell to G.o.d: 'she once pulled up an onion in her garden,' said he, 'and gave it to a beggar woman.' And G.o.d answered: 'You take that onion then, hold it out to her in the lake, and let her take hold and be pulled out. And if you can pull her out of the lake, let her come to Paradise, but if the onion breaks, then the woman must stay where she is.' The angel ran to the woman and held out the onion to her: 'Come,' said he, 'catch hold and I'll pull you out.' And he began cautiously pulling her out. He had just pulled her right out, when the other sinners in the lake, seeing she was being drawn out, began catching hold of her so as to be pulled out with her. But she was a very wicked woman and she began kicking them. 'I'm to be pulled out, not you. It's my onion, not yours.' As soon as she said that, the onion broke. And the woman fell into the lake and she is burning there to this day. So the angel wept and went away." The Brothers Karamazov 330 (Constance Garnett and Ralph E. Matlaw trans., Matlaw ed. 1976).

that everything will come right in the end-that real punishment is reserved for those who choose wickedness with their eyes open, like the woman in the parable of the onion. Weisberg's suggestion that Ivan is a priestly figure and that at the end of the book Alyosha has become "garrulous," signifying the triumph of Christian ressentiment and "organic mendacity" (p. 81), is another example of Weisberg's faux-Nietzschean inversion of values, in which murderers are good people (Claudius, Meursault, Billy Budd, and Shylock had he not been thwarted at the last minute) and good people (Hamlet, Jesus Christ, Portia, and Vere, though the last two with qualification) are evil. The Brothers Karamazov would fail as Christian apologetics had Dostoevsky failed to give sin, temptation, and apostasy their due. By not failing he gives purchase to readers who would like to make him, as Blake tried with better reason to make Milton, of the devil's party.

Another great nineteenth-century novel that plays law off against religion, though one that has been spared Weisberg's attentions, is Alessandro Manzoni's novel I Promessi Sposi (The Betrothed). The novel is set in northern Italy (mainly the Duchy of Milan, owned by Spain) in the early seventeenth century, a time and place of great political turmoil. Powerful n.o.bles, deploying armed bands of bravi, flout the laws and terrorize the countryside. The governor issues edict after edict outlawing the bravi and making them subject to impressively harsh punishments, but the edicts are ignored and the bravi and their patrons flourish. Renzo, a young peasant, is engaged to Lucia, whom one of the riotous n.o.bles, Don Rodrigo, covets. The don sends his bravi to intimidate the village curate so that he will refuse to marry the couple. The attempt at intimidation succeeds. Naively believing that laws are enforced and innocently carrying the latest edict against the bravi with him, Renzo goes for help to the local lawyer, who is nicknamed Dr. Quibbler (Azzeccagargugli-literally, "fastener of tangled threads"). Quibbler a.s.sumes that Renzo is a bravo who wants him to find a loophole in the edict and sets about this task with a lawyer's enthusiasm for technicalities. (Laypersons think this is lawyers' only enthusiasm.) When Quibbler discovers that Renzo wants help in enforcing the edict against Don Rodrigo and his gang, he is horrified and throws Renzo out of his office; the lawless n.o.bles, including Don Rodrigo, had hired the lawyer to defeat the governor's pathetic edicts.

*The picture is of a legal system that is ineffectual despite good intentions, in part because the legal profession is craven. But vengeance is not an option for Renzo. So how, if at all, is the human demand for justice- Hecuba's demand-to be met? An answer is implied by a change in emphasis, as in The Brothers Karamazov, from the defeat of law at the beginning of the novel to the triumph of religion in the middle and end. Driven from his village when his attempt to trick the curate into performing a marriage ceremony fails, Renzo eventually finds himself in Milan during a gruesome outbreak of plague. He survives-as does Lucia, who had escaped to Milan after being kidnapped by Don Rodrigo-and returns home to find Don Rodrigo dying of the plague. The curate's fear lifts. Renzo and Lucia are finally married.

The key figures who ward off disaster to the young couple and engineer the happy ending are two heroic clerics, Father Cristoforo and Cardinal Borromeo. The cardinal (an actual historical figure) is also instrumental in mitigating the horrors of the plague. The sense conveyed is that religious faith enables dreadful conditions-plague and anarchy-to be, if not overcome, at least borne. Positive law may be hopeless. But a divinely sponsored natural law remains in the picture, at least as a criterion for evaluating positive law. And sometimes, against all odds, natural law is vindicated.

chapter 6.

Two Legal Perspectives on Kafka

hemostinfluentialmovement in legal scholarship since legal realism petered out in the 1940s has been the law and economics movement. Proceeding on the a.s.sumption that human beings are rational in every department of social life and not just when trading in markets, economic a.n.a.lysts of law have sought to explain the law as a system for shaping behavior in both market and nonmarket settings.1 Every field of law, every legal inst.i.tution, every practice or custom of lawyers, judges, and legislators, present or past-even ancient-is grist for the economic a.n.a.lyst's mill. The criminal, the prosecutor, the accident victim, the adulterer, the soapbox orator, the religious zealot, the con man, the monopolist, the arbitrator, the union organizer-all are modeled as "economic man." Economic a.n.a.lysis of law is critical as well as descriptive. It brims over with proposals for reforming the doctrines, procedures, and inst.i.tutions of the law to make them more efficient, with "efficiency" defined in cost-benefit terms.

The movement is controversial. It challenges many a.s.sumptions that lawyers have held about their field. It challenges the very autonomy of law-the idea of law as a self-contained discipline that can be understood 1. See Richard A. Posner, Economic a.n.a.lysis of Law (7th ed. 2007).

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and practiced without systematic study of any other field. It asks lawyers to learn an alien and difficult set of concepts. It rests or seems to rest on a.s.sumptions about human nature that many people, especially people trained in the humanities, find incredible, disturbing, even repulsive. It aspires to be scientific, not humanistic. It even uses math. And it is the flagship of the application of social science to law, while law and literature is the most humanistic field of legal studies. A collision was inevitable.

On Reading Kafka Politically Robin West uses Kafka's fiction to criticize the model of human behavior employed by economic a.n.a.lysts of law.2 But her target is broader: it is the principle basic to cla.s.sical liberalism, the liberalism of John Stuart Mill, that government should not interfere with voluntary transactions that impose no uncompensated costs on third parties-"Pareto-superior" transactions, as economists say. Not that such a transaction is necessarily above ethical reproach; the purpose of the Pareto concept is to define the proper role of the state rather than to guide personal choice. Nevertheless its premise is that unanimity-which the concept requires because for a transaction to be Pareto-superior no one may be made worse off by it- justifies an inference that the transaction promotes social welfare. West disagrees. She believes that more often than not our voluntary choices immiserate us, and she argues that Kafka's fiction supports that belief.

She reads Kafka literally, so that metaphoric invocations of business and law in his fiction become its meaning, as if he had been an investigative reporter a.s.signed to write about people who starve themselves for a living, sons who commit suicide at their father's direction, salesmen fired because they have turned into giant insects, torturers who torture themselves, singing mice, talking apes, introspective dogs, and horses who practice law. So of his story "A Hunger Artist" West writes: "Kafka's hun 2. West, "Authority, Autonomy, and Choice: The Role of Consent in the Moral and Political Visions of Franz Kafka and Richard Posner," 99 Harvard Law Review 384 (1985) (reprinted as chapter 1 of her book Narrative, Authority, and Law [1993]). My page references to West in the text of this chapter are to this article. See also West, "Submission, Choice and Ethics: A Rejoinder to Judge Posner," 99 Harvard Law Review 1449 (1986) (reprinted as chapter 2 of Narrative, Authority, and Law).

ger artist is the ultimate Posnerian entrepreneur, and the artist's audience consists of Posnerian consumers" (p. 393). But the hunger artist is distressed not by his commercial failure but by his inability to convince an indifferent world of his artistic integrity; people think he sneaks food on the side. Inability to explain oneself, to justify one's way of life,3 is, as we know, a recurrent theme in Kafka's fiction. Eventually the hunger artist's spirit is so crushed that he either pretends or comes to believe that he fasted not because of the challenge but because he was too fastidious to eat. He dies, is buried unceremoniously together with the straw in his cage, and is replaced by a panther, who has no interior life. The hunger artist's fate links Kafka to Nietzsche. "A Hunger Artist" can also be grouped with Thomas Mann's story "Tonio Kroger" in the literature of intellectuals' envy of the life of ordinary, unreflective people (symbolized in Kafka's story by the panther).

West quotes a pa.s.sage from The Trial about Joseph K.'s rivalry with the bank's vice president to show that "although K. suffers no physical abuse on the job, he is humiliated and dehumanized, not enriched, by his white-collar employment as Chief Clerk in a bank" (p. 396). Actually the pa.s.sage merely reflects the standing rivalry between K. and the vice president, in which K. gives as good as he gets. K. is not ground down by his job. He is a big shot at work. He is not a clerk-the translation that West quotes from is inaccurate-but, as I said in chapter 4, the bank's third-highest officer. He is not a Bartleby, alienated from work; he is distracted from it by his trial, with which he has become obsessed.

A part of the pa.s.sage that West did not quote will nail down the point: "He [K.] glanced up only weakly even when the door to the head office opened and, somewhat blurred, as if behind a gauzy veil, the figure of the vice president appeared. K. gave this no further thought, but simply observed the result, which pleased him greatly. For the manufacturer immediately jumped up from his chair and rushed toward the vice president; K. would have had him move ten times faster however, for he feared 3. In both "A Hunger Artist" and "In the Penal Colony," "a fanatical believer in meaningful suffering reenacts a spectacle that in an earlier age drew huge festive crowds but now results only in sordid death and burial." Mark M. Anderson, Kafka's Clothes: Ornament and Aestheticism in the Habsburg Fin de Siecle 175 (1992) (quoting Margot Norris).

*the vice president might disappear."4 Far from being "humiliated and dehumanized," K. welcomes the vice president's interruption because he wants to be rid of the manufacturer so that he can resume his undisturbed thinking about the trial.

The protagonist in "The Metamorphosis," Gregor Samsa, a salesman who lives with his parents and sister, wakes up one morning to find that he has been transformed into "a monstrous vermin"5-something like a beetle, with a hard back and many legs. Within this grotesque frame Gregor is initially unchanged. He thinks and speaks as always, only no one can understand what he says; he sounds like an insect. The family, particularly Gregor's father, reacts to his transformation with disgust. Yet at first the family puts up with Gregor, though at one point his mother has to intervene to prevent his father from killing him. But when Gregor's untimely appearance in the living room to hear his sister play the violin alerts the Samsas' lodgers to his existence and they give notice, the family locks him in his room. In the usual pa.s.sive style of Kafka's protagonists, Gregor-considerate, docile, devoted to his parents and sister, all of whom indeed he had been supporting before he lost his job because of his transformation-accepts their unfeeling treatment of him and dies unshaken in his love for them. Relieved by his death (the result of a festering wound from an apple thrown at him by his father, though apparently without homicidal intent, which lodged in his carapace), the family makes all sorts of new plans and celebrates with a trolley ride to the countryside. The Samsas notice that despite all the sorrows that had left [their daughter's] cheeks pale, she had blossomed into a lovely and shapely girl . . . They reflected that it Franz Kafka, The Trial 129 (Breon Mitch.e.l.l trans. 1998). Kafka did not consider his own job humiliating or dehumanizing, although he did consider it a distraction from his primary interest, which was writing. Like Stevens and Eliot, Kafka was a highly regarded executive. Louis Begley, The Tremendous World I Have Inside My Head: Frank Kafka: A Biographical Essay 3536 (2008). See also Frederick R. Karl, Franz Kafka: Representative Man 221224 (1991); Ernst Pawel, The Nightmare of Reason: A Life of Franz Kafka 188 (1984); George Dargo, "Reclaiming Franz Kafka, Doctor of Jurisprudence," 45 Brandeis Law Journal 495, 505522 (20062007).

Franz Kafka, The Metamorphosis, In the Penal Colony, and Other Stories 117 (Joachim Neugrochel trans. 2003).

was high time they found a decent husband for her. And it was like a confirmation of their new dreams and good intentions that at the end of their ride the daughter was the first to get up, stretching her young body. (p. 188) West does not discuss "The Metamorphosis." This is surprising because the story furnishes stronger evidence than any work she does discuss of the alienation of labor under capitalism.6 Gregor is literally dehumanized-could it not be by his work? And think of the grotesque scene in which, in a futile effort to save his job, he crawls toward his supervisor (who has come to find out why he's not at work) while delivering an intricate but completely unintelligible apology for being late. Gregor's transformation, which renders him unemployable, has elements of a deliverance for him as well as for his family. They had lived parasitically on his earnings; he had been in the thrall of clock time; only after his transformation is he awakened to the beauty of music.

But white-collar wage slavery is not at the heart of the story. It is an oversimplification to say that "Gregor Samsa turns into an enormous vermin in order to avoid having to face the unpleasantness of going to his job."7 Like "A Hunger Artist," "The Stoker," and "In the Penal Colony," "The Metamorphosis" dramatizes the difficulty of communicating meaningfully with other people, and relatedly the gap between how we perceive ourselves and how others perceive us. Gregor accepts notionally that he is an embarra.s.sment to his family. He does not resist being locked up, and indeed his death is hastened by his awareness that he has become See Robert Currie, Genius: An Ideology in Literature 143150 (1974); also Blume Goldstein, "Bachelors and Work: Social and Economic Conditions in 'The Judgment,' 'The Metamorphosis,' and 'The Trial,'" in The Kafka Debates: New Perspectives for Our Time 147, 156 (Angel Flores ed. 1977). Another work not discussed by West, Amerika-Kafka's unfinished novel (all three of his novels were unfinished) about Karl, a young European immigrant to the United States who searches for, and finds, work-is Kafka's most sustained exploration of business and labor. Still, it is not easy to find in it the theme of capitalist alienation, although Robert Alter argues that "the America of the novel . . . is at once the Promised Land and the house of bondage." Alter, The Pleasures of Reading in an Ideological Age 122 (1996).

Ruth V. Gross, "Kafka's Short Fiction," in The Cambridge Companion to Kafka 80, 89 (Julian Preece ed. 2002).

*a burden to the family. But he cannot see himself through their eyes and in his heart of hearts cannot accept his altered appearance.

We all have Gregor's problem, though in less acute forms. We cannot make our aspirations fully understood or bring our self-conception into phase with the conception that others have of us. And looking at Gregor from the other side, his family's side, we can never fully enter the interior life of another person. Life goes on-the awakening love life of Gregor's sister, the life of the carnival managers and customers in "A Hunger Artist" and (as we are about to see) of the pa.s.sersby in "The Judgment"- with shocking indifference to the inner life of a fellow human being.

The characters in "The Metamorphosis" other than Gregor-the members of his family, the charwoman, the supervisor, the lodgers-are all depicted not just as ordinary people but more particularly as non-neurotic people, defined (and faintly derided), but envied withal, as people without an interior. Like the panther in "A Hunger Artist," they are set over against the neurotic with his rich but tormented and despairing inner life. Remember that Nietzschean "masters" do not think. Thinking is the mode by which natural slaves-those who believe themselves good because they have no claws-try (unsuccessfully, in Kafka's fiction) to a.s.sert themselves.8 In "The Judgment," Georg, a young merchant who works for his father, feels guilt (only slightly tinged with Schadenfreude) about an unnamed friend who years earlier had gone abroad in pursuit of business opportunities that have not turned out well. Finally deciding to invite the friend to his wedding despite concern that the friend might be made envious by the invitation, Georg is suddenly, gratuitously accused by his vicious, loony father of having played the friend false all these years. Here is the father talking: "And now you thought you had wrestled him down, wrestled him down so thoroughly that you could sit on him with your behind, and he wouldn't budge, and so my fine son decided to up and marry!" . . . "Because she pulled her skirts up," his father began to simper, "be 8. Friedrich Nietzsche, Thus Spoke Zarathustra: A Book for All and None 199 (pt. II) (Walter Kaufmann trans. 1966).

cause she pulled her skirts up like this, the nasty goose . . . because she pulled her skirts up like this and this and this, you accosted her, and, in order to satisfy your l.u.s.t with her unhampered, you have disgraced our mother's memory, betrayed your friend, and put your father to bed so that he can't move. But can he move or can't he?" And he stood entirely on his own and kicked out his legs. He was radiant with insight.9 Eventually the father-who is still standing upright on the bed, with one hand on the ceiling to steady himself-says to his son, "I hereby condemn you to death by drowning!" Georg "felt hounded from the room, his ears still rang with the crash of his father behind him, falling on the bed." He rushes out and drowns himself. As he leaps from the bridge, "he softly cried, 'Dear parents, I have always loved you,' and let himself drop. At that moment, a simply endless stream of traffic was pa.s.sing across the bridge" (pp. 7172).

Because Georg's friend, that brooding omnipresence in the story, is an unsuccessful businessman, West thinks the story is about capitalism. Taking the crazy father's side, she argues that Georg kills himself because of guilt over "his own self-imposed alienation from [his friend's] suffering"

(p. 410; see also p. 411). There is no basis for this interpretation. If the story is not about the Oedipus complex, Kafka's relationship with his own father (a motif of "The Metamorphosis" as well), how adults appear to sensitive children, or why Kafka did not marry (on this reading, Kafka's worldly self, symbolized by Georg, who is engaged-as Kafka was several times to be, though after he wrote "The Judgment"-dies so that Georg's friend, who stands for Kafka's writing self, can be redeemed from failure and exile),10 then it is about the sense of guilt, about disproportion between cause and effect, about the surreal, about life's unfairness, about how people tend to accept the valuation placed on them by other people, about the dislocated feeling of modern life to highly sensitive souls, and about the indifference of others to our inner turmoil-not only the pa.s.s 9. Kafka, note 5 above, at 6869.

10. Ronald Gray, Franz Kafka 6165 (1973). Cf. Kurt Fickert, "Kafka's Addenda to 'In der Strafkolonie,'" 22 University of Dayton Review 115 (1993).