REVIEW ARTICLE

I FOUGHT THE LAW AND THE LAW WON

David Fraser

CROSS-EXAMINATIONS OF LAW AND LITERATURE by Brook Thomas Cambridge: Cambridge University Press, 1987 Price $102.00

You can’t go back and You can’t stand still If the thunder don’t get you Then the lightning will

The Grateful Dead

Introduction

ritical Legal Studies has made two inter-connected contributions to the genre of legal scholarship, contributions which can now be said to characterise C.L.S.C work. The first of these is “the message of contingency”, the second the use of and reliance on interdisciplinary sources. C.L.S. scholars draw heavily on work

153 154 AUSTRALIAN JOURNAL OF LAW AND SOCIETY VOL 5 from history, sociology, philosophy, political theory and literary criticism. Each of these methodological devices, contingency critique and borrowing from other disciplines, serves to open up traditional legal theory and practice in order to bring to light the ideological underpinnings of “law”. Rather than accept the normal understanding of law as independent and free-standing, C.L.S. understands law in a “new” way, as historically contingent and related to a broad social and political context of which it is but a part. While debate still rages on as to the “exact” (and politically correct) place of law in this context (base/superstructure debates in all sorts of new disguises), the old days of “law” are, for Crits, a bad historical memory. Into this scholarly context of contingency and the deconstruction of disciplinary rigidity comes Brook Thomas and his work Cross-examinations of Law and Litera­ ture. In addition to its inherent interest and merit, Thomas’ work is worthy of “our” attention because it comes at the two-pronged C.L.S. attack from the “other end”. Thomas is not a lawyer but a literary critic, and while it is not unheard of that someone from this discipline should interest himself1 in law, it is uncommon that a literary critic should come at the topic of the inter-relationship of law, literature and history from a point of view which is distinctly sympathetic to, and which draws extensively upon, the work of prominent C.L.S. scholars.2 Thomas’ project is a complex and intriguing one. Using the works of the early American canon, Cooper, Hawthorne, Stowe and Melville, he indeed embarks upon “a cross-examination of law and literature.” Thomas’ aim is to situate the complex interactions of law and the life-world of these authors in order to offer a “new” reading3 of the dominant texts of early American literature. In his own words, Thomas sets upon a project where: Specifically, a cross-examination of law and literature can help us reconstruct the narratives that different segments of American society imagined in response to the social and economic transformations that they experienced, as well as the narratives that helped to legitimize and structure those transformations.4 Thomas’ study of these primary texts and his effort to disclose the interactions of law and literature in these works is complex and detailed. It is not my purpose here to offer a summary of his analysis or a detailed critique. Rather I want to explore two of the main themes which dominate both Thomas’ work and much of C.L.S. scholarship in order to open up Thomas to the same critique he offers of the American canon. These themes, by now familiar to legal scholars wonting in the field, are the issue of textuality and power and the all-important public/private

1 See, e.g.. Fish, Working on the Chain Gang: Interpretation in Law and Literature, 60 TEXAS L. Rev. 551 (1982) and Wrong Again, 62 Texas L. Rev. 299 (1983). 2 In particular, Thomas draws upon the work of M. Tushnet, The American Law of Slavery (Princeton U. Press 1981) and M. Horwitz, The Transformation of American Law, 1780-1860 (Harvard U. Press 1977). 3 Some of this work has, of course, been done before. For a study of the interconnection of Herman Melville’s oeuvre and the legal debates surrounding slavery, see R. Cover, Justice Accused (Yale U. Press 1975). 4 At 16. 1988-89 REVIEW ARTICLE 155 dichotomy. I shall address each of these, and in a final section I shall turn to a work of the new American canon, Tom Wolfe’s Bonfire of the Vanities 5, and by employing Thomas’ thematics, explore the seemingly enduring nature of these issues in American law, literature and life.

Textuality and Power

ince Nietzsche6 at least, the Western tradition in literature and philosophy has had to deal with the issue of the text as power. Thus, rather than embodying Stranscendent truth on the one hand, or being merely a frozen replication of the past on the other, a text is a living document, one which embodies present power relations within current political practices. Not only does the text concretise “the sheer presence of the past,”7 but it must always be confronted, in practice, with its politi­ cal nature. As Fredric Jameson argues: [T]he insistence on the pre-eminence of the historical situation underlines the inseparability of strengths and weaknesses within the work of art itself or in the philosophical system, and stands as a concrete object lesson in the way in which the very strengths themselves, in all their specificity, require the existence of determinate and correlative weaknesses in order to come into being at all.8 It is within this philosophical and political vision of “the text” that Thomas situates his critique of American law and letters. The almost universal theme in this book is the question of the presence or absence of a text - a deed, a trial transcript etc. and the subsidiary question of presence or absence within the text (where is the story of women? where is the testimony of the slave?). While the book contains many references to this theme and sub-theme, I shall limit myself to discussion of only several examples. The first, and perhaps the best, example of the powerful nature of the text in American law and literature is to be found in Thomas’ discussion of James Fenimore Cooper’s The Pioneers9. Speak­ ing of “the widespread disputes overland titles in the early years of the republic”10, Thomas establishes by an interesting analysis that Cooper’s work can be read to contain a subversive critique of the artificiality of legal and textual doctrine. The machinations which surround the property which is the key narrative device of Cooper’s text, with detailed discussion of equitable interests created by trust

5 Random House 1987. 6 F. Nietzsche, On the Genealogy of Morals (Gordon Press 1974). See also M. Foucault, Power/Knowledge: Selected Interviews and Other Writings (1972-1977) (Pantheon 1980). 7 H. Gadamer, Truth and Method 145 (Continuum 1975). 8 Marxism and Form 398 (Princeton U. Press 1971). 9 Chap. 1, at 24 et seq. See generally Mensch, The Colonial Origins of Liberal Property Rights, 31 Buffalo L. Rev. 635 (1982). 10 At 36. 156 A USTRALIAN JOURNAL OF LAW AND SOCIETY VOL 5 arrangements and property transfer through the convenience of marriage, are all for naught when it appears that the real “authority” which vests and legitimates ownership is not to be found in the doctrines of common law and equity but in the “authentic” transfer of title from the original owners (the Native Americans). Thus:

Cooper gives the land to a representative of the agrarian past, not the commer­ cial present. Furthermore, the land is given by word of mouth and personal trust. The claim to it need not be incarnated in a paper document11. Thomas’ work is full of such analyses of the power of the text12 . 13Throughout, 14 15 we find that a key theme of American literature, from Hawthorne’s The House of the Seven Gables 13 to Melville’s Benito Cereno'4, to his Billy Budct5 has been the creation of truth through the reduction to writing. Indeed, as Thomas so clearly establishes in Chapter 8, Contracts and Confidence Men16, the quesiion of the writing/truth relationship was of special concern to both law and the world of letters. As he says of Melville’s The Confidence Man [I]n a world in which social relations are defined by written contracts, to explore the nature of writing is to understand better the society in which that writing takes place17. For Thomas, then, any attempt to ground truth in its textual embodiment i.e. writing, is indicative of and reflects existing power relations within society. As any good dialectician knows, however, any such move must contain its own contradic­ tion. Thus, the land claim in The Pioneers is verified by reference to an alternative discourse, the practice of Native Americans and in The Confidence Mar, The distance between the words of a written document and their source nos only makes their meaning impossible to pin down; it also renders them far easier to counterfeit than spoken words. The counterfeit... imitates not an object but an invisible authorizing ac. that grants a document legitimacy18. For Thomas, then, at its very least, the text, meant to embody truth, in reality embodies its own contradiction, the reality the counterfeit represents is a lie, a creation, a figment of constructed reality. At the same time, of course, the lie is the truth of the text. Appearance is reality, for reality based in authority (power) is what the text (power) says it is. ______

11 At 72. 12 See, e.g., at 53, 69, 86, 88,104, 111, 165,183,248. 13 In Chaps. 2,3­ 14 In Chap. 4. 15 hi Chap. 9. 16 At\S3etseq. 17 At 183-184. 18 At 186. 1988-89 REVIEW ARTICLE 157

The text as power, the text as lie, in a Nietzschean turn, the power/lie of the text, of writing are not incommensurable opposites but the two sides of the same coin. Thus, the power of the text to create a dream of ownership19 is the power of the text to exert “complete control over his dreams”20. The process of textualization, from the Constitution to the conveyance21, is the process of illusion and verification, the dream become nightmare and truth as deceit. This artificiality of the text/truth correlation on which much of law and literature still depends is further evidenced in Thomas’ discussion of the problem of absence. Most of traditional historical and literary scholarship would have us believe in a notion of totality, i.e. the idea/ideology of the complete nature of historical and literary documents22, or that a text - literary, historical or legal, tells the whole truth and nothing but the truth. This canonization of totality is the dominant mode of Western thought. As Derrida points out: The idea of the book is the idea of a totality, finite or infinite, of the signifier; this totality of the signifier cannot be a totality, unless a totality constituted by the signified pre-exists it, supervises its inscriptions and its signs, and is independent of it in its ideality... It is the encyclopaedic protection of theology, of logocentrism against the disruption of writing, against its aphoristic every.23 In other words, what is left out simply is not, that which is absent is not present, is not de-valued, it is without value: it is neither part of the whole, nor true. The clearest example of the non-value of absence is found in the critique offered by feminism. As Luce Irigaray states: [T]he articulation of the reality of my sex is impossible in discourse, and for a structural, eidetic reason. My sex is removed, at least as the property of the subject, from the predicative mechanism that assures discursive coherence.24 Thomas returns to the theme of absence again and again in his work. A striking example is found in his study of Melville’s short story “The Paradise of Bachelors and the Tartarus of Maids”25 concerning the plight of women in the manufacturing process of the 19th century. In this story, Melville counterposes the lives of these factory women with those of bachelor lawyers in London. Again, the questions of absence, text and power are at the fore of the narrative structure itself. Significantly, it is the paper manufactured by the women that helps the lawyers maintain their comfortable lives, for it is on those blank sheets of paper that

19 At 86-87. 20 At 86. 21 At 146. . „ . . 22 This ideology of totality exists even when the historical “record” is “incomplete.” This simply means that we have yet to find all the documents, but the very notion of the “incomplete” presupposes a totality towards which scholarship and research are aimed. 23 J. Derrida, Of Grammatology 18 (John Hopkins U. Press 1974). 24 L. Irigaray, This Sex Which is Not One 149 (Cornell U. Press 1985). See also Fraser, What's Love Got To Do With It? Critical Legal Studies, Feminist Discourse and the Ethic of Solidarity, 11 HaRV. WOMEN’S L. 1. 53 (1988). 25 Thomas, at 177 et seq. 158 AUSTRALIAN JOURNAL OF LAW AND SOCIETY VOL 5

lawyers can draw up contracts that hold in bondage woman they do not even know.26 Women are present, but only as commodities, meant to produce other com­ modities which define and limit their lives through the imposition of texts (chattel slavery) which absent them from their own existence. Just as womer. are present in the process of reproduction simply as un-valued labour, so they are present through absence in the process of production. Perhaps the clearest example of the inverse relationship between truth and absence in the process of textualization can be found in Thomas’ discussion of Melville’s Benito Cereno, a story, based in fact, of the suppression of a slave rebellion at sea. Here again the themes of truth, textuality and absence are in the foreground. A primary narrative device in Melville’s story is the inclusion of apartial deposition given by the Captain who crushes the rebellion. As Thomas points out,27 such a text carries with it two presumptions of authority and truth. The first is the status of a ship’s captain, the second the nature of “legal” deposition, impersonal and binding. Yet, as Thomas opens up Melville’s text, truth becomes a doubtful construct. We see quite clearly that what the Captain “saw” may not have been what “really” happened, (i.e. the indeterminacy and fallacy of eye-witness testimony) and that the deposition may by its very nature represent less than the historical “totality” simply because Blacks (slaves) were not permitted to testify in such proceedings. The textual totality (the story), the legal totality (the deposition/evidence/trial) and the experiential totality are quite clearly distinct realities. Indeed, the first two of these “totalities” are by their very nature prevented from approaching or replicating the third. Literature and law, in slave America, can do nothing but absent slave experience from the text.

The Public/Private Distinction

he second theme which dominates Thomas’ work is the pre-eminent role of the public/private distinction in American law and literature. Thomas’ dis­ Tcussion of this issue takes place in the context of a complex study of he life-world of those prominent in law and literature and the direct and indirect connections between die two spheres. While some of this ground has been covered elsewhere,28 Thomas offers convincing evidence that the authors he studies were dearly operat­ ing within a hermeneutic circle where law, legality and legal texts plajed a key role.

26 Id at 179. 27 At 98 et seq. 28 See, e.g., R. Cover’s discussion of Lemuel Shaw and Herman Melville in JrSTICE Accused, supra note 3. 1988-89 REVIEW ARTICLE 159

It should be noted, however, that Thomas does not seek to offer a direct, instrumental connection between the worlds of law and literature in America. He argues, rather, that the social classes within which lawyers and authors lived and worked often shared a vision of life, including ideas about law and in particular economic development and the evolution of legal rules. These concerns operate sometimes clearly and instrumentally, and sometimes socially and sub-consciously as part of the common discourse of everyday life. Thus, the relationships which exist between judicial decisions and literary texts discussed by Thomas exist within a broader “web of social relationships that cemented together the industrial elite and the lawyers who made the rules.”29 As Schlegel puts it: Lemuel Shaw did not wake up one day and say, “Martha, I’ve figured it out. It’s instrumentalism that will make this country grow!”30 Part of this life-world, hermeneutic circle, interpretive community, complex web, in which these authors, lawyers and judges operated, was the public/private distinction. For them, especially those involved with the law, there was a clear and essential difference between their public personae and their private lives. In the former, professionalism, distance and objectivity would reign; in the latter, tradi­ tional Christian family values of charity, love and caring could pre- dominate. Thomas paints a persuasive picture of the omnipresence of this psycho-cultural phenomenon. From Hawthorne31, to Melville32 to Stowe33, he offers many examples from biography and fiction of the key cultural role played by the belief that personal opinion (the private sphere) must not interfere with the public function of judge or lawyer. This is clearly set out in his discussion of Lemuel Shaw’s personal battles with the Fugitive Slave Laws,34 Perhaps the most telling example of the psycho­ drama we call the public/private dichotomy is to be found, however, in Thomas’ analysis of Melville’s “Bartleby, the Scrivener”.35 Melville’s short story takes place in the office of a Wall Street lawyer, a master of Chancery. It deals with the interaction between the lawyer and his employee Bartleby, his scrivener. Here, all the themes of Thomas’ work come to the fore. We find law (the lawyer), economic power (Wall Street), literature (the short story) and writing (the scrivener). Most important, however, is the lawyer’s public/private dilemma.

29 See Schlegel, The Ten Thousand Dollar Question 41 STAN. L. Rev. 435, at 454 (1989). 30 Id. (Footnote omitted). As Foucault says: “What... should always be kept in mind is that power. ... is not that which makes the difference between those who exclusively possess and retain it, and those who do not have it and submit to it. Power must be analysed as something which circulates, or rather as something which only functions in the form of a chain” supra note 5, at 98. 31 At 77. 32 At 95. 33 At 133. 34 This story is well-documented by Cover in Justice Accused, supra note 3. 35 In Chap. 7, 164 el seq. 160 AUSTRALIAN JOURNAL OF LAW AND SOCIETY VOL 5 1

In the story, Bartleby is a disruptive presence who refuses to play by the normal rules of the master-servant relationship, relying on some ill-defined malady for his obstructive behaviour. The lawyer is tom between his public persona, who must present a respectable office to his clients and fellow professionals, and his private ; morality, which, driven by an ethos of charity, seeks to aid and understand the impoverished, sick Bartleby. Thomas succinctly puts the case: On the one hand, the lawyer is a kind patriarchal figure. On the other, he serves Wall Street.36 Yet, while Bartleby, the scrivener, is the psychoanalytic catalyst for the public/private dilemma his lawyer/employer must face, he must remain, in essence, absent from the main drama. He is, in fact, off-stage, a presence only in the all- important life-world of the lawyer. If Bartleby’s passive resistance has the power to expose the limitations of the lawyer’s prudent assumptions, its power is purely negative. Bartleby’s only freedom is to refuse to comply with the assumptions of the world into which he is thrust, a refusal that in no way turns him into a free agent.37 Here again, Thomas successfully employs his literary analysis to expose the fundamental contradictions of American culture and its economic, literary and legal artefacts. In a Heideggerean moment38 Bartleby is a “thrown project”, while, in an immediate Marxist turn, his “thrown-ness” is unfree, for he is defined in terms not of an existential liberty, but in terms of the dominant mode of discourse, i.e., the capitalist mode of production.39 Again literature subversively exposes the ruling discursive practices for what they are. In Thomas’ view, they are complex webs of replication, reinforcing and cementing inter-personal relationships in conformity with the class and social structures of capitalism.

The Critique

t is quite clear by now that I find Thomas’ project an interesting and intriguing one. Indeed, much of his work could quite obviously be labelled “politically Icorrect”. But, as in Thomas’ own analysis of the American literary canon, there is a subversive subtext lurking in his work, one which I find problematic and troubling. In the end, I think, Thomas’ oeuvre goes the way of all texts. In his effort to “wage war on totality”,40 Thomas, unwittingly perhaps, seeks to create a new, albeit postmodern, totality. In exposing the social construction of law and literature, he follows the correct political path. As Edward Said puts it:

36 At 172. 37 At 176. 38 See M. Heidegger, Being and Time (Harper and Row 1962). 39 See H. Marcuse, Eros and Civilization (Vintage 1966). 40 See J. Lyotard, The Postmodern Condition 82 (U. Minnesota Press 1984). 1988-89 REVIEW ARTICLE 161

Criticism cannot assume that its province is merely the text, not even the great literary text. It must see itself, with other discourses, inhabiting a much contested cultural space, in which what has counted in the continuity and transmission of knowledge has been the signifier, as an event that has left lasting traces upon the human subject.41 At one level, Thomas has succeeded in living up to this definition of the political/critical role. In analysing the life world of authors and lawyers, he exposes the key part played by the development of rules of property law (Cooper, Haw­ thorne), wage labour and equity rules (Melville), the Fugitive Slave Acts (Stowe, Melville) and their reflection and recreation in the literary canon. After reading Thomas’ book, no one could deny the inter-relationship between the two great cultural artefacts of modem America, law and literature. At the same time, however, Thomas is forced by the very nature of his critique, to find somewhere to go. As much as he is willing to see the inter-relationships he so cogently surveys, he is driven to find some hope, some utopian kernel, some non-instrumentalist analysis through which the dominant discursive power of law and capitalist relations of production and exchange can be subverted; some way in which the dialectic can remain unstuck in these days of Negative Dialectics42 and the Dialectic of Enlightenment.43 And it is here that Thomas’ project itself becomes unstuck, sliding inevitably into a foundationalist view of textuality and from there to utopian mumbling about the hope of literature. The careful reader will find indications of this flaw in Thomas’ project early in the text. In his introductory chapter “An Opening Statement”44, he is careful to distance himself from crude instrumentalism. At the same time, however, it is quite clear that he also aims to steer clear of “a world view in which social contradictions can be explained by a metaphysics of ambiguity”.45 It is, of course, this “metaphysics of ambiguity” which characterises post-modern thought and strikes fear into the hearts of many on the Left. Rather than viewing ambiguity and contingency as means which open up political struggles, opponents such as Thomas see them as leading to the morass of pure relativism and disempowerment. Instead of seeking a positive attitude towards contingency, instead of defining their political/critical project as finding “the right way to be pessimistic”,46 instead of accepting the “truth” of postmodern contingency, theorists like Thomas revert to what appears to be, on analysis, a cynical foundationialist new totality.

41 E. Said, The Word, The Text and the Critic 225 (Harvard U. Press 1983). 42 See T. Adorno, Negative Dialectics (Continuum 1973). 43 See T. Adorno & M. Horkheimer, Dialectic of Enlightenment (Herder and Herder 1972). 44 At 1 et seq. 45 At 7. 46 See P. Sloterdijk, Critique of Cynical Reason 99 (U. Minnesota Press 1987). 162 AUSTRALIAN JOURNAL. OF LAW AND SOCIETY VOL 5

This tactical move is found early in Thomas’ work. As I have alread) mentioned, he relies heavily on the legal history of C.L.S. scholars Horwitz aid Tushnet. In doing so, he clearly ignores the multiplicity of C.L.S. work, much of which relies upon “the metaphysics of ambiguity”. Instead of recognizing the divers ty of C.L.S. scholarship, Thomas makes a distinct political, ideological decision about the acceptability of certain kinds of critical theory and practice.47 The nost glaring example of the ideological choice made by Thomas is his decision to ignore the brilliant work of Betty Mensch on “The Colonial Origins of Lineral Property Rights”.48 Like Thomas, Mensch points out that in colonial New York, property law was an area of political and legal ambiguity. She clearly establishes that the legal and political regimes were the battle grounds of two competing and contra­ dictory paradigms of social life, hierarchy and voluntarism. She states: The first assumed the inherent legitimacy of a securely structured aid pater­ nalistic political, economic, and ecclesiastical hierarchy, with a corresponding structure of semi-feudal property relations premised on a divinely oriained inequality. The second directly challenged that hierarchy by proclaiming equality and freedom as the only possible foundation for a true republican community and also by regarding actual settlement and use of land as the only legitimate source of title.49 What Mensch’s work points to is at once the inherent ambiguity ard contingency of legal definitions and practices concerning property rights and at he same time, the fallacy of many of Thomas’ underlying literary and legal premises. For example, while Thomas in his analysis of Cooper’s The Pioneers sees the struggle in law and literature as one between an agrarian, bucolic past and an industrial, competitive future, Mensch’s subtle attention to the detail of real life

47 Robert Gordon points out the diverse nature of C.L.S. historical scholarship aid the ideological biases of Crit-bashing in An Exchange on Critical Legal Studies between Robtrt W. Gordon and William Nelson, 6 Law and Hist. Rf.v. 139 (1988). 48 Supra, note 9. 49 Id. at 636. 1988-89 REVIEW ARTICLE 163 demonstrates that each model of property, the hierarchical and voluntarist, was invoked in behalf of each economic paradigm.50 Another example, this time referring to Thomas’ obsession with textuality, from Mensch’s work, clearly demonstrates that Cooper’s proffered solution in The Pioneers, the Indian deed, did not, in practice offer the practical, a-textual solution, attributed to it by Thomas.51 As Mensch points out,52 the finding of a conveyance from the “original” owners, the Indians, was not conclusive in the adjudication of land claims. First, the issue of the relationship between the Crown’s fee in all land and the Indians’ rights as “occupiers” was never solved. Second, the problem of fraud53 was as prevalent in Indian deed claims as in any other claim based in writing. Finally, the question of which Indians, individually or collectively, had what “rights” to “convey” what land shows the incommensurability of Native American visions of their relationship to the land and English common law ideas of property. Even this cursory examination should demonstrate that much of Thomas’ effort to extract a utopian kernel from literary texts and their proffered legal/literary solutions to issues of property rights must fail because they depend on a “solution” which w'as not based in the lived complex reality of daily existence. His literary fictions cannot trump the fictions of legal reality. In a similar fashion, his discussions of the public/private dilemma, in which he argues that “truth” is to be found only in the “real” realm of the private world and never in the public sphere artificially created by lawyers and judges, seems to lose track of the importance of contingency and contextuality.54 As the best C.L.S. scholarship indicates,55 the socio-cultural constructs of the public and the private are complex and myriad and at the same time, “real” parts of our lives. Thus while recourse to the public/private paradigm can indeed serve to divorce “morality” from f>0 Id. at 676-7, “The rough correspondence between local communitarian standards and the crown’s pro-cultivation policy in the province produced paradoxical results. The Crown’s own policies, favoring the cultivation standard for the sake of promoting settlement, for the most part corresponded to and reinforced the voluntarist conception of property associated with local republican townships. Yet while a single town inhabitant might sternly be ordered to forfeit three of his four small lots, a few families, like the Livingstons, Van Rensselaers, and Van Cortlandts, still claimed uncultivated tracts extending for hundreds of thousands of acres, and did so expressly by virtue of Crown grant. What emerged was a peculiar juxtaposition of two conflicting policies and legal standards. The tension between them eventually erupted into armed conflict.” 51 Ft should be noted here that, Thomas and textuality notwithstanding, many property disputes were settled by reference to other texts and discourses. According to Mensch: “While property rights tended to be protected only to the extent of cultivation and fencing (a recurring symbol of use), it is important to note that property use, including fencing, could also be restricted according to a more general community benefit standard. “Use” was generally protected over the title, but the privilege of use was not unlimited”, supra note 9, at 675. 52 Id. at 686 et. seq. 53 For example, “Indians were routinely deceived, made drunk or bribed for the sake of procuring deeds, so the right afforded them scant protection”, id at 687. 54 See Freeman and Mensch, The Public-Private Distinction in American Law and Life, 36 Buffalo L. Rev. 237 (1987). 55 Id. 164 AUSTRALIAN JOURNAL OF LAW AND SOCIETY VOL 5 the public sphere, it is not inconceivable that the so-called “morality” of the private sphere is as much a social (public?) construct as the “a-morality” of public life. The lived experiences of the constraints and freedoms of the public and the private are at once examples of bad faith and psycho-existential reality.56 The “truth” embodied in the private realm of Stowe’s female-centered family agitation against slavery is no more foundationally true or authentic than the “truth” of the lived contradiction of Bartleby’s employer. At some fundamental level, Thomas cannot come to grips with the dilemma of contingency in a positive political fashion. His critique of each of the authors of the American canon is at once conscious of the problem and at the same time wilfully blind to the liberating potential inherent in the openness of political and social life. We discover Thomas aware of the struggle in which he finds himself: To make matters even more complicated, Hawthorne’s narrative succumbs ... to its own undermining. A product of Hawthorne’s imagination, it is, as Hawthorne self-consciously reminds us, founded on human subjectivity, not natural truth.57 Ironically, then, Hawthorne embraces the private, imaginative world of romance and tries to establish a strict separation between it and the world of the novel, precisely because American life makes the merger of romance and novel inevitable.58 In his penetrating criticism of the historical world, Hawthorne ultimately undermines his own authority to criticize, because any criticism he makes turns back on itself and becomes self-criticism.59 Here, in black and white, is Thomas’ personal, postmodern dilemma. If every­ thing is contingent, if totality has been deconstructed, if the text must by its very nature be suicidal,60 if subversion is the only real version, everything is up for grabs. Worse yet, if everything is up for grabs, all hope is lost. Why is everything lost? This is the question Thomas fails or refuses to address. Why is contingency reduced to pure relativism? Why, if everything is up for grabs, must the good guys lose? Because we cannot ground ourselves in grand theory. What about grounding ourselves in belief and experience?61 What about permanent revolution? Why must we ground ourselves in new structures? Why can we not recognise the freedom of freedom?

56 See my What’s Love Got To Do With HI, supra note 24. 57 At 45. 58 At 83. 59 At 88. 60 See Derrida, La Loi du Genre/The Law of Genre, 7 GLYPH 176 (1980). 61 See my Truth and Hierarchy: Will the Circle Be Unbroken?, 33 Buffalo L. Rev. 729 (1984). 1988-89 REVIEW ARTICLE 165

For Thomas, these questions remain unanswered. Instead in his “Closing State­ ment”62, we are met with an appeal to the intellectual superiority of literature as a means to better or “politically correct” historical understanding. Thus: Having argued for a notion of the relative autonomy of the two disciplines, I think it is also important to emphasize that, of the two, literature is relatively more autonomous. Law is a vital part of the manner in which a society is governed; literature is not. Literature’s distance from the direct mode of governance accounts for its capacity to contest a period’s dominant legal ideology.63 We see the “truth” and disingenuousness of Thomas’ position summarized in this statement. It is true (as I have myself argued64), that law is a much more powerful discourse than literature or literary criticism. Law’s unique position in both the Repressive and Ideological State Apparatuses65 makes it a uniquely powerful means to mediate various, more or less subtle, forms of domination. Yet this strength is not foundational or naturally inherent, but contingent and contextual. Moreover, the very nature of the “Institution” of legal discourse opens it up to critique and subversion. As Lyotard states: We know to-day that the limits the institution imposes on potential language “moves” are never established once and for all (even if they have been formally defined). Rather, the limits are themselves the stakes and provisional results of language strategies, within the institution and without.66 Here, postmodernism offers us a way out of the dilemma which blocks Thomas’ effort. At one level, Thomas’ book must fall victim to the very critique he offers of the American canon. It is a construct, a contingent effort, “determined” by historical circumstances. Yet this is not meant to foreclose debate or neutralise its political import and role. Instead, the play of institutionalization, the rules of genre, are, within the postmodern political condition, the very bases on which the texts of law and literature can be opened up, subverted, understood, overcome. To privilege litera­ ture in the quasi-foundationalist fashion of Thomas is to falsely privilege literary discourse and fail to subvert legal discourse. The institutions of literature and law are both to be found in a complex of inter-relations within another cultural construct we call the American tradition. Literature is deeply implicated in the maintenance and replication of modem capitalist relations. Law can be seen to contain a utopian kernel of contradiction and openness.67 At the same time literature can indeed be

62 At 259 et sea. 63 At 252. 64 And Now For Something Completely Different: Judging Interpretation and the Canadian Charter of Rights and Freedoms, 7 Windsor Yharbook of Access to Justice 66 (1987). 65 See L. ALTHUSSER, Ideology and Ideological State Apparatuses, in Lenin AND PHILOSOPHY 127 (Monthly Review Press 1971). 66 Supra note 27, at 17 (Footnote omitted). 67 This is clearly the position of Duncan Kennedy’s work. See especially, Distributive and Paternalist Motives in Contract and Tort Law, with Special Reference to Compulsory Terms and Unequal Bargaining Power, 41 MARYLAND L. Rev. 563 (1982). 166 AUSTRALIAN JOURNAL OF LAW AND SOCIETY VOL 5 seen to be “relatively more autonomous” while law can be more deeply implicated ! in oppression. What our project must be is to explore more clearly these contradic­ tions in the very nature of the institutions of law and literature, to find in each 1 whatever potential for subversion we can extract. In the final section I want to engage in a prolemegon to such a project by briefly examining a work of the new American canon, Tom Wolfe’s Bonfire of the Vanities. •

Lawyers (and Brokers) in Love

om Wolfe’s Bonfire of the Vanities tells the story of Sherman McCoy, successful New York commodities broker, as he falls afoul of the law, the Tinternational commodities market and love. In short, each theme touched upon by Thomas in his study of 18th and 19th century American literature is found in Wolfe’s opus, but with a difference. Wolfe is writing in the 1980’s, an era of hyper-reality, of postmodernism, of a pre-dominant ethic of cynicism68 and other assorted weird­ ness. Yet the setting offers us a clear example of how we can take advantage of Thomas’ text by relying on its own internal subversive power. Wolfe offers a wonderful study of the fundamental issue underlying not only Thomas’ work but what must be an integral part of Left (legal) practice, the relationship between truth and practice. Each of the sub-themes of Bonfire of the Vanities ultimately refers to this struggle to create and maintain truth in our contingent, contextualized existence. I shall not belabour the point with a detailed, exegctical analysis of Wolfe’s work. Rather I shall offer some brief readings of the results of my own existential encounter with the text. The theme of textuality/powcr/trulh flows throughout Bonfire. The battle over the “true” version of the death of Lamb, a young black “killed” by Sherman in a moment of existential terror, rages from beginning to end. A life is created, virtually out of whole cloth, for Lamb by the opportunistic, callow and lucky British journalist, Peter Fallows. Demonstrations against Lamb’s death and a perceived judicial whitewash are timed to coincide with the 6 o’clock News. Media leaks are more important than courtroom tactics or rules of evidence. The “truth” is deter­ mined by the powerful texts of the mass media, and in the end we are no closer to a resolution. In a similar fashion, the “contract” plays a crucial role in the creation of truth. The nature and timing of Sherman’s court appearance are fixed through “The Favor Bank”, by means of a “contract” between his lawyer and the police and the prosecution. The contract is an honoured practice on which the very functioning of the criminal justice system appears to depend. Yet, as in Thomas’ analysis of The ConfidenceMan, the contract system is revealed as a sham, a system whose fragility

68 See P. SLOTERDUK, supra note 46. 1988-89 REVIEW ARTICLE 167 is evidenced by a more powerful text, the desire of an elected official to achieve the best and most open publicity. The contingency of the contract/text is revealed in the practical operation of the power/text. Indeed, throughout Bonfire, Wolfe cogently demonstrates the flexibility and frangibility of truth. Manipulation of the media, the break-down at “The Favor Bank” and finally the fact that Sherman must “wear a wire” in order to trick Maria, his lover and witness to the Lamb accident, into a confession of her guilt and/or his innocence. The truth of love is subverted by truth through technology. Truth in Sherman’s public and private worlds outside the Lamb case is equally shattered. His status as a broker, “a Master of the Universe”, comes crashing to earth when his attempted manipulation of international money markets fails. His public stature is destroyed when he is victimised by the very artificiality which legitimated his life only days before. Gone are the status, the over-priced apartment “in the Eighties.” Here the themes of the agrarian and the industrial we find in Thomas’ critique are replaced with the artificial obscenity of modem capitalism. Here, Wolfe’s status of postmodernist par excellence is confirmed. Gone are the historical paradigms of agriculture and industry. Gone, too, are the new-bourgeois paradigms described by Sloterdijk: The one version of the bourgeois comprises the artisan, the trader, the official, the financier, and the entrepreneur, all of whom, in their own way, can claim to know what labor is. Juxtaposed to them from the beginning, stands a type of bourgeois who does research, writes poetry, composes and makes music and philosophizes and who believes that these activities develop a world that is self-sufficient.69 Instead we find the complete and alienated, parasitical epitome of postmodernism, the broker. The public world of commodity exchange comes crashing down on Sherman in all its artificiality. As does, at the same time, his private world. His lover abandons him in a search for her own (legal) survival; his wife abandons him because she discovers the affair and is then confronted with the Lamb case and fiscal failure. The public and the private collapse on poor Sherman because, in the end, they are the same. Nor are the dilemmas of postmodernism suffered by Sherman alone. Judy, his wife, sees the collapse of the safety of her private sphere through public/private indiscretions by her husband. Kramer, the District Attorney uses his public position, the powerful discourse of law, to seduce, for private purposes no doubt, a juror. Reverend Bacon, the black preacher, plays upon the private impulse to charity among wealthy white “Christians” for both public political empowerment and private financial gain. The ebb and flow of the public and private pervade Bonfire.

69 Id. at 63. 168 AUSTRALIAN JOURNAL OF LAW AND SOCIETY VOL 5

Finally, we come to the power of absence. The one character who is clearly missing from the scene throughout Bonfire is young Lamb, the victim. His story is constructed by the other, active characters, by Sherman, by Fallows, by Bacon, by 1 Kramer and all the rest. Yet, without him, there is no book, there is no story, there j is no presence. At the end of Bonfire, we are left without an answer, who was this - innocent Lamb? Who is the real McCoy? How can Fallows allow truth to grow? j How complex is this sheer-man? The answers are absent. But this is the key to developing a postmodern aesthetic and a postmodern politics. To discover the power of the absent and the loudness of silence.

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