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Experience on Trial: Criminal Law and the Modernist Novel Ferguson, Rex (2009) Experience on trial: criminal law and the modernist novel. PhD thesis. http://theses.gla.ac.uk/1319/ Copyright and moral rights for this thesis are retained by the author A copy can be downloaded for personal non-commercial research or study, without prior permission or charge This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the Author The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the Author When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given Glasgow Theses Service http://theses.gla.ac.uk/ [email protected] EXPERIENCE ON TRIAL: CRIMINAL LAW AND THE MODERNIST NOVEL Rex Ferguson Submitted in fulfilment of the requirements for the Degree of Doctor of Philosophy Department of English Literature Faculty of Arts University of Glasgow September 2009 © Rex Ferguson September 2009 Abstract The cultural forms of modernity become truly modern only when specific experience, as opposed to tradition or faith, is made the basis of epistemological authority. By taking the primary examples of law and literature, this thesis argues that the criminal trial and realist novel of the eighteenth and nineteenth-centuries perfectly conform to this statement. But by the early twentieth-century, experience had, as Walter Benjamin put it, ‘fallen in value’. As such, the modernist novel and trial come to have foundations in a non-experience which nullifies identity, subverts repetition and supplants presence with absence. The philosophical basis of experience, its fundamental basis within the novel and trial, and the theoretical manifestations of its dissolving, are outlined in the substantial Introduction to this thesis. Chapter One then specifically examines E.M. Forster’s A Passage to India (1924) within the context of the administration of justice in British India. Adela Quested’s supposed assault within the Marabar cave is argued to be a non-event which in no way conforms to the modern sense of experience outlined in the Introduction. This resonates with the state of the trial in British India, in which many magistrates became convinced of the rampant perjury of the natives, turning their decisions into a matter of deciding between the less untrue of two false accounts. Like the non- event in the Marabar cave, the crime that was supposedly at the heart of the trial, the experience at its core, was thus slipping from view. In the second part of Chapter One, it is argued that in his theoretical work, Aspects of the Novel (1927), Forster, responding to anxieties about the novel’s experiential loss, attempted to codify the laws of the realism. This project had much in common with the Acts of legal codification that took place in British India in the 1860s and ‘70s, particularly that of Sir James Fitzjames Stephen’s Indian Evidence Act 1872, which sought to retain a form of representation that was congruent with a traditional conception of experience, thus safeguarding judgment. In Chapter Two, Ford Madox Ford’s The Good Soldier (1915) is analysed in the light of legal developments in expert witnessing and criminal identification. One of the specific issues of Ford’s novel is the kind of identity it portrays. Without commensurable experiences that can be reasonably assimilated and communicated, the identities of The Good Soldier resist the common recognition of a realist character. Legal developments in the attribution of responsibility and the identification of criminals are argued to parallel the methods by which Ford’s ‘Literary Impressionism’, by contrast, provides the image of his actors. In many ways, these issues were matters for expert witnesses, a growing number of whom were taking the stand in British courts. By taking judgment out of the hand of the layman, expertise was supplanting experience. But this was not limited to the legal forum – in the final part of Chapter Two it is suggested that Ford’s novel, itself, responds to a sense of expert reading. Chapter Three discusses Marcel Proust’s In Search of Lost Time (1913-1927) in connection to two points of legal interest. Firstly, the Dreyfus case, which, in its reliance upon absent evidence parallels the denigration of presence that exists in Proust’s novel. Secondly, Dreyfus’ supporters, in calling for a re-trial, asked for a certain form of repetition to take place. The repetitious legal forms of review, appeal, and precedent are then examined in relation to the various forms of repetition that exist within Proust’s work. By utilising Platonic, Nietzschean, and Freudian theories of repetition, it is argued that experience has truly fallen in value when the origins of repetition can be only obliquely discerned. In the Conclusion, the continuity of a realist tradition, and a modernist impulse of non-experience, will be traced in contemporary works – Ian McEwan’s Atonement (2001) and The Staircase (2005), a documentary film by Jean-Xavier De Lestrade about a real murder trial in North Carolina. Finally, a view is offered of the future of experience in the novel and courtroom: one which, based upon John D. Caputo’s reading of Jacques Derrida’s work, stresses the ethical nature of doing truth and making reality in the very act of allowing experience to slip away. CONTENTS INTRODUCTION: THE TRIALS OF EXPERIENCE 1 1 MYSTERIES AND MUDDLES IN A PASSAGE TO INDIA 53 2 THE GOOD SOLDIER AND THE GOOD READER 97 3 THE REPEATED APPEAL OF PROUST AND DREYFUS 145 CONCLUSION: EXPERIENCING THE HYPER-REAL 192 BIBLIOGRAPHY 208 INTRODUCTION: THE TRIALS OF EXPERIENCE The life of the law has not been logic: it has been experience. Oliver Wendell Holmes, The Common Law 1 There's something the matter with people. It seems they're unable to take in their experiences or else to wholly enter into them, so they have to pass along what's left. Robert Musil, The Man Without Qualities 2 Between these quotations from Oliver Wendell Holmes and Robert Musil there lies a gulf. For Holmes, experience is everything; for Musil it is nothing. Holmes sees the history of law as being identical to the history of experience. Musil declares experience to be resistant to intellectual assimilation. Most emphatically, for Holmes, law is alive – the history of the law is a history of its life precisely because it is based in experience. But, for Musil, experience is exactly what life no longer contains, refers to, or enters into. This chasm cannot be bridged by any simple notion that it indicates the irreducible difference between the disciplines of law and literature. Nor does it exist because Holmes is writing in an American context, while Musil’s novel is firmly set within the borders of Austrian culture. Rather, these towering figures are separated only by the time in which they wrote. Holmes’ treatise, published in 1881, is in many ways a modern classic of legal thought – but it is also the product of a century which believed in experience. Musil’s novel, the first volume of which was published in 1930, and which is set on the eve of the First World War, forms a perfect expression of its dissolution and fragmentation. What happened in the period between these figures? What were the various formations in which the loss of experience manifested itself? What did the life of the law, and the life of individual consciousness, look like, when their basis in experience was being relentlessly undermined? To ask these questions is to read legal and literary history in a way that goes against much recent criticism. In his 1992 study, Strong Representations , Alexander Welsh claims that from the late eighteenth-century to the end of the nineteenth-century a certain form of narrative dominated the discourses of law, literature, science, philosophy and religion. These narratives, described as ‘very much of the Enlightenment’ are ‘strong representations’: collections of 1 Oliver Wendell Holmes, The Common Law (Boston, MA: Little, Brown, and Company, 1881) 1. 2 Robert Musil, The Man without Qualities , trans. Sophie Wilkins (London: Picador, 1997) 158-59. 1 circumstances connected in such a way as to prove the existence of unseen events.3 Welsh’s theory allows him to group, amongst others, Fielding’s Tom Jones and Tennyson’s In Memoriam with the Shakespearean criticism of A. C. Bradley, and the legal theory of Sir James Fitzjames Stephen. In his final chapter Welsh suggests that in its literary form ‘strong representations’ were weakened by texts such as Browning’s ‘The Ring and the Book’, Collins’ The Moonstone , and James’ The Golden Bowl – texts which he terms ‘stories of experience’. Indeed, the pivotal scene from James’ novel in which the supposed ‘proof’ that the golden bowl forms is smashed by Fanny Assingham is interpreted as the symbolic destruction of ‘strong representations’ hold on narrative construction. The advent of modernism marks the end of circumstantial evidence’s hallowed position in the novel. Welsh’s final words make this plain: 'James's novel is not so different, in this way, from Woolf's Orlando or Joyce's Ulysses ; and in its entertainment and rejection of proof from circumstantial evidence, it is quite like Forster's A Passage to India . But no one even begins to study those works as strong representations'.4 Welsh’s analysis is both wide ranging and incisive, and Strong Representations has proven to be a hugely influential contribution to studies of law and literature. The connecting of narrative formations within novels, poetry, and literary criticism to legal theory, legislation, and the specific unfolding of court cases has, in particular, shown itself to be a fruitful combination for cultural study.
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