Academic journal article Mosaic (Winnipeg)

Discursive Limits: Narrative and Judgment in Billy Budd

Academic journal article Mosaic (Winnipeg)

Discursive Limits: Narrative and Judgment in Billy Budd

Article excerpt

In The Failure of the Word, Richard Weisberg asks, "how can we [legal scholars] justify the substitution of imaginative for legal prose?" (178). The response of law and literature scholars such as Weisberg himself, James Boyd White and Martha Nussbaum has tended toward basic agreement: literature is essential to the law, since it presents a discourse more supple and nuanced than arid legal language. The most persuasive and normatively coherent images of the art of judgment, these scholars argue, are to be found not in legal materials per se but in works of the literary imagination--a position which, in turn, has been sternly challenged by other scholars such as Robert Cover.

In this essay my interest is less in tracking the colloquy between law and literature scholars and their critics, than in showing how the debate itself is anticipated in a work of imaginative literature that stands as one of the few canonical texts for the fledgling interdisciplinary enterprise: Melville's Billy Budd. By offering a reading attentive to both the esthetic and juridical problems raised by the text, it is my hope that we can better understand the promises and limits of dialogue between law and literature.

The law and literature studies of Weisberg, White and Nussbaum must be understood as critiques of two influential paradigms of contemporary juridical thought: philosophical liberalism, and law and economics. As articulated in the works of thinkers such as John Rawls, liberalism can be seen as an attempt to derive principles of justice by reasoning from the situated to the abstract; from contingency to philosophic necessity; from a richly particularized and textured social reality to a thin conception of selves and their attendant rights. Law and economics, by contrast, is associated with an effort to treat issues of law and justice as questions of allocative efficiency. Despite the important differences between philosophical liberalism and law and economics, both contribute, according to law and literature scholars, to law's discursive impoverishment by attempting to comprehend complex juridical questions through disinterested reflection on the one hand, and the application of technical knowledge on the other.

Against these prevailing jurisprudential models, law and literature scholars argue that the act of judging should be seen as a species of nuanced reading. To judge with an eye toward the subtle shadings of context and character is to frame more just decisions than those arrived at through an arid application of formal principle. Legal judgment, then, can be better viewed as less a process of deductive reasoning than as a "struggle over meaning"; in White's language, this struggle is "a form of life--a manifestation of character and an establishment of community" ("Lawyer" 2046).

Because this struggle over meaning must be informed by what Nussbaum describes as a keen sensitivity to situation and a "rich emotional response," the reading of literature provides a critical "school for moral sentiments" (Love's 100); the qualities of sympathetic imagination that a reader brings to a novel exemplify the traits essential for excellence in judging (236-41). Moreover, literature is critical for the law not simply because it is a vehicle for rendering moral ambiguity and situational complexity but, as White argues, both law and literature are cultural practices preoccupied with discourse and the shaping of shared meaning through language ("Law" 692-96). As such, the world of literature can help explore the law's exclusions; it instructs the law of its limits at the same time that it challenges the law to extend its discursive possibilities.

The arguments in support of literature's relevance to the law have not escaped critique from scholars who remain otherwise sympathetic to exploring the connections between the two disciplines. Robert Weisberg, for example, has pointed out that law and literature studies risk "sentimentalizing" the literary: they tend to repeat the facile distinction of associating law with the world of reason and the literary with some ill-defined world of emotion (4-6). …

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