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What a subject is ... this abstraction called the Law, wherein, as in a magic mirror, we see reflected, not only our own lives, but the lives of all men that have been. Oliver Wendell Holmes, Jr., "The Law"
In an essay entitled "Police Report" that appeared in the January 1882 edition of the Atlantic, William Dean Howells describes paying two visits to what he calls a "police court" - a Boston court that summarily disposed of minor criminal offenses. Howells does not specify the dates of his attendance, stating only that the first occurred during summer and the second took place "nearly a year later" ("Police" 12). It seems likely, however, that he visited the courtroom either shortly before or during his work on A Modern Instance - most of which he wrote in 1881 - and the novel's legal concerns seem to link it closely to the short piece in the Atlantic. The essay manifests Howells's qualms about the emerging relationship between law and literature - a relationship that he would explore in much of his subsequent fiction. The opening paragraph of "Police Report" is particularly revealing:
One day in summer, when people whom I had been urging to behave in some degree like human beings persisted in acting more like the poor creatures who pass for men and women in most stage-plays, I shut my manuscript in a drawer, and the next morning took an early train into the city. I do not remember just what whim it was that led me to visit the police court: perhaps I went because it was in the dead vast and middle of summer, and the town afforded little other amusement; perhaps it was because, in my revolt against unreality, I was in the humor to see life whose reality asserts itself every day in the newspapers with indisputable force. If the latter, I was fated to a measure of disappointment, for when the court opened this reality often appeared no more substantial than the fiction with which I had lost my patience at home. But I am bound to say that it was much more entertaining, and that it was, so to speak, much more artistically treated. It resolved itself into melodrama, or romantic tragedy, having a prevailing comic interest, with moments of intensity, and with effects so thrilling that I came away with a sense of the highest theatrical illusion. (1)
Howells's lighthearted treatment of his visit grows darker during the course of the essay as he ruminates further on the "genre" of the police trial. Even in this relatively cheerful opening, however, he characterizes the experience as one of "disappointment." Having gone to the court for a dose of "reality," he finds only another version of the "fiction" - albeit more "artistically treated" - from which he had sought refuge. Although he expresses outrage over the public degradation suffered by the witnesses and defendants involved in the trials, he also makes it clear that the law fails him as an author almost as much as it does the hapless souls more directly subjected to its inadequacies.
Beneath the wryly cynical tone of "Police Report" lies a troubled concern about the erasure of distinctions between law and narrative - an erasure that threatens the integrity of the rule of law. Howells's visit was motivated by a belief in a privileged legal space within American society and culture - a space in which "the real" remains uncorrupted by "the fictional." What he finds within the Boston courtroom, however, is an incestuous conglomeration of legal standards and cultural stories. By seeing through the lenses of popular fiction and the theater, the law weakens its claim to authority and participates in the proliferation of social fictions. The rule of law in the United States had always meant that law and culture were distinguishable - although the law (in theory) reflected the popular will, it did so in a way that remained true to its history, precedents, and foundational principles ("nature," "reason," and the substantive rights and duties articulated in the Constitution). Under this conception, legal forums that simply indulge the political, economic, or cultural whims of the moment would lose their claim to legitimacy and become nothing more than public stages - hence, Howells's disillusionment at the police court. But while he finds that the law is no longer worthy of its privileged status in American life, the author nonetheless uses its failings to create the essay itself. Exposing the false assumptions that lie beneath the legal system's claim to authority, he offers his own authorship as a kind of legal proxy by revealing the "reality" of the law's capitulation to "illusion."
Yet if Howells's essay suggests the possibility of a literary redemption of the legal, it also worries that the same forces that have breached the self-contained integrity of the law have transformed the nature of literary authority as well. "Police Report" notes that the "reality" of the justice system is asserted "with indisputable force" in the newspapers, thereby implicitly accusing journalism, along with popular culture, of usurping literature's epistemological claim upon the "real." Locating the legal and the literary in the same relative position within American public life, Howells identifies a common threat to their claims of authority. Wai Chee Dimock's observation that the law "was spacialized in the nineteenth century; it had a specific locale and a specific set of boundaries," might be said of literature as well, and Howells expresses considerable anxiety about the integrity of the borders of both institutions (Dimock, Residues 23). We might view those borders as the remnants of a version of professionalism that was rapidly passing away - a version dependent upon the assumption that the true professional could uphold the rule of law by distinguishing such absolutes as reason, nature, and morality from the merely expedient and contingent norms of society. Although Howells seems to lament this passing, he also posits the existence of a new professionalism: one that acknowledges the blurred boundaries between a legal realm of ordered reason and a more contingent and volatile social sphere; a mode of representation that grounds its authority not in the self-contained operation of timeless ideals, but in a cultural meeting place of law, literature, and such popular modes of storytelling as the theater and journalism.
This meeting place becomes the central concern of A Modern Instance. The tension between Squire Gaylord and Bartley Hubbard is, in part, a struggle between differing conceptions of legal authority - one grounded in a republican conception of the law as a bastion of order amid the chaos of politics and self-interest, and the other based upon the institutional form of legal positivism embodied in the views of Oliver Wendell Holmes Jr. Howells was hard at work on his novel when Holmes published his now famous collection of lectures, The Common Law (1881), in which he presented a view of law not as moral guidepost but as social product, authored by forces beyond its control. Much of what Bartley has to say about journalism mirrors Holmes's legal philosophy. Yet Howells's juxtaposition of law and journalism also expands the terms of Holmes's discussion, identifying a newly constituted realm of public discourse in which the legal, the journalistic, and the literary merge. Howells's realism attempts to come to grips with Bartley's legalism, and thereby acknowledges that the terms of literary authority have been transfigured. Rejecting the philosophical idealism that underwrites the domestic novel of marriage, the realistic novel of divorce that Howells seeks to create looks to the shifting public norms of American culture for its material rather than to the private convictions (reached subjectively through reason or intuition) of the author. In so doing, he calls upon a form of "experience" connected to the chaotic and often contradictory standards conveyed on the pages of the daily newspaper. But Howells also suggests that normative universes need interpreters - individuals who can plumb the depths of socially constructed values and reveal the "truths" on which those values tacitly rely. This is the job of the new literary professional.
The title of Howells's novel comes from the speech by Jacques on the seven ages of man in Shakespeare's As You Like It. Cynically delineating the various "parts" played by men at different stages of life, Jacques defines the fifth age as that of "the justice," who is "Full of wise saws and modern instances" (II, vii, 153-56). Shakespeare uses "modern" to mean "commonplace," an archaic usage that Howells undoubtedly intends to invoke in addition to the denotation it now possesses. The relationship between Bartley and Marcia calls upon both meanings, constituting a small example of the larger transformations working at the end of the century to undermine older and more conventional conceptions of legal and literary authority. While Howells attempts, in part, to make a case against Bartley and his ilk - to act as both lawyer and judge in his exposure of Bartley's fictions - Jacques's irony is not lost on him, and he finds himself as author resisting the role of "justice" more than playing it. He would return to similar legal (and Shakespearean) ground in his 1892 novel, The Quality of Mercy, once again exploring the possibility of an authorial function removed from the demands of a Bartleyan public sphere. But the literary redemption of the legal that Howells implicitly calls for in "Police Report" seems nostalgic and quixotic within the logic of the novels, leading him toward a conception of the author as someone who can lay down the law only by learning to interpret the voice of the people.
The Holmesian Rule of Law
The rule of law has always been one of the most deeply cherished and ill-defined ideals in American culture. From the very inception of the republic, its imprecise meaning has been the source - either explicit or implicit - of countless controversies involving the role of the judiciary in regulating national affairs. The problem has stemmed in part from the notion that the United States government ultimately derives its authority from popular sovereignty - the law speaks for "the people," in their corporate capacity. Nonetheless, the rule of law also means that the legal order cannot be manipulated for political ends - it is responsive to the will of "the people," but not to that of individual persons. Supreme Court Justice Joseph Story noted in 1829 that "our government is emphatically a government of the people, in all its departments. It purports to be a government of law, and not of men; and yet, beyond all others, it is subject to the control and influence of public opinion" (quoted in Kammen 116). Story, however, would later chastise his brethren on the bench for succumbing to the pressure of public opinion and thus disregarding the law. In other words, belief in popular sovereignty has never meant that the law is obliged to bend utterly to the vicissitudes of a fickle popular will. Jeffersonian Republicans in the early national era sought to make law amenable to rapid change when the public sentiment seemed to demand it, but Jefferson lost that issue to the Federalists, who insisted that the judiciary serve as a buffer between "the people" and the foundational principles of the nation that "the people" might otherwise be too willing to ignore.
This, more than any other, is the message behind Chief Justice John Marshall's vindication of judicial review in Marbury v. Madison (1803). Marshall opened his famous decision with the assertion that the Constitution is "designed to be permanent," by which he seems to have meant not only the language of the document, but the interpretations of that language as well. As Paul W. Kahn notes, the Constitution can hardly be said to be permanent if new meanings are ascribed to it every time public opinion changes:
A critical element of our belief in the rule of law is that the future of the political order should be the same as its past. Law's rule is an exercise in the maintenance of political meanings already achieved. It links the future to the past. So the problem of law's rule in Marbury appears to the Court as a problem of maintaining the Constitution in the face of political innovations created by the other two branches of government. To abandon the problem of interpretation of meanings already present in the legal order, and to ask only how we can best order the future, is to abandon the rule of law. (19)
The rule of law thus embodies a delicate balance between acknowledging the legitimating force of popular sovereignty and adhering to an interpretive tradition that operates as a check on that sovereignty. Moreover, requiring submission to an interpretive tradition suggests the existence of a "truth" by which to judge that tradition - the "truth" cannot be determined by the public will alone.
This conception of the rule of law helps to explain the metaphor of the "story" used by Oliver Wendell Holmes Jr. Holmes sought to free legal thought from a rigid formalism grounded in a pre-Civil War past - a past that, by the 1880s, seemed to offer little guidance to the present. Yet Holmes also insisted that legal transformation must make a kind of narrative sense - that the vision of the present and future it posits must incorporate the meanings generated by the law's past. Thus, even for Holmes, the law is anchored in some form of stable meaning; objective criteria exist by which we can judge whether changes demanded by the public would either continue the "story" or disrupt it.
Although a later generation of "legal realists" in America would look back upon The Common Law as a revolutionary text, Holmes's approach to the law can be viewed as part of a long legal struggle to reconcile the conflicts intrinsic to the very notion of the rule of law. Moreover, much of the book's approach accorded with legal theories that were rapidly gaining acceptance in both England and the United States. Since the publication of Sir Henry Maine's Ancient Law in 1861, many historians and legal scholars had adopted a reflective theory of law in which legal principles figured as expressions of societal values and customs, as mirrors of the community's norms that did not significantly influence their social environment. Holmes agreed with Maine that the law was an instrument in the hands of society rather than an autonomous and independent sphere of public life that could guide social change. Maine's assertion that "social necessities and social opinion are always more or less in advance of Law" was reformulated in The Common Law to express the same idea even more bluntly: "The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed" (20, 1). For both Maine and Holmes, the Enlightenment model of law as the enactment of universal truths gleaned from reason and nature - and made accessible through the subjective operation of conscience - was no longer viable, and both emphasized the need for legal rules to change with the times. As one reviewer of Holmes's book noted, "The entire work is written from the standpoint of the new philosophy, and those hackneyed terms natural justice and equity are excluded from it" (quoted in G. Edward White 184).
The "new philosophy" expressed in the book also incorporated an argument about the disjunction between the law's form and content-between its moral language and its policy objectives. Specifically, Holmes sought to prove that, "while the law does still and always, in a certain sense, measure legal liability by moral standards, it nevertheless ... is continually transmuting those moral standards into objective or external ones, from which the actual guilt of the party concerned is wholly eliminated" (38). "Actual guilt" is precisely the kind of transcendent standard, based largely upon an individual's state of mind, which Holmes considered legally irrelevant. He argued that the law's "terminology of morals" serves to hide the fact that legal precepts originate in the "generally accepted" standards of the community - standards that, in effect, ignore individual subjectivity in order to implement the community's sense of "expediency" and "public policy" (38, 44, 35). For Holmes, the community acts as sovereign, and its perception is filtered through the lens of public opinion. One of the radical implications of this position is that it seems to envision law as nothing more than a convenient fiction by which the public enacts its will while declaring it to be sanctioned by some higher authority. His perspective deprives the law of its majesty, deconstructing its claim to occupy a privileged position outside the battlefield of social, cultural, and political strife. And even more important, it suggests a redefinition of the very meaning of "law." If law is nothing more than a reflection of "generally accepted" community standards, then its bounds seem to disappear entirely, for other forms of public expression could also articulate those standards and thus operate in a way that is just as "legal" as the law. The function of serving as social "mirror" could be performed by any form of public discourse that gives voice to public opinion. The law, in this model, possesses no more authority than the opinion page of the newspaper, or the journalistic stories that both articulate and shape community norms in less visible ways.
Excerpted from Reconstituting AUTHORITY by William E. Moddelmog Copyright © 2000 by University of Iowa Press. Excerpted by permission.
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