Toward a Critique of Guilt: Perspectives from Law and the Humanities

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TOWARD A CRITIQUE OF GUILT: PERSPECTIVES FROM LAW AND THE HUMANITIES

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STUDIES IN LAW, POLITICS, AND SOCIETY Series Editor: Austin Sarat Volumes 1–2: Volume 3: Volumes 4–9:

Edited by Rita J. Simon Edited by Steven Spitzer Edited by Steven Spitzer and Andrew S. Scull

Volumes 10–16: Edited by Susan S. Sibey and Austin Sarat Volumes 17–33: Edited by Austin Sarat and Patricia Ewick Volumes 34–35: Edited by Austin Sarat

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STUDIES IN LAW, POLITICS, AND SOCIETY VOLUME 36

TOWARD A CRITIQUE OF GUILT: PERSPECTIVES FROM LAW AND THE HUMANITIES SPECIAL VOLUME EDITOR

MATTHEW ANDERSON Department of English, University of New England, ME, USA

2005

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CONTENTS LIST OF CONTRIBUTORS

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EDITORIAL BOARD

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INTRODUCTION: GUILT AND UTOPIA Matthew Anderson

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PART I: (RE)THINKING LAW THROUGH LITERATURE LAW’S GUILT ABOUT LITERATURE Jane B. Baron

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GUILTY PROFESSIONS: SPECTERS OF SAMENESS IN CAMUS’S THE FALL Ravit Reichman

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PART II: BODIES OF GUILT THE INJUSTICE OF INTERSEX: FEMINIST SCIENCE STUDIES AND THE WRITING OF A WRONG Iain Morland

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THE COW AND THE PLOW: ANIMAL SUFFERING, HUMAN GUILT, AND THE CRIME OF CRUELTY Susan J. Pearson

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CONTENTS

‘‘NOT A STORY TO PASS ON:’’ SEXUAL VIOLENCE AND ETHICAL ACT IN TONI MORRISON’S BELOVED Sara Murphy

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PART III: LONGER VIEWS WAS CAIN INNOCENT? THE EARLY RABBIS INTERPRET GUILT Chaya Halberstam

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ETERNAL REMORSE Linda Ross Meyer

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LIST OF CONTRIBUTORS Matthew Anderson

Department of English, University of New England, USA

Jane B. Baron

Beasley School of Law, Temple University, USA

Chaya Halberstam

Department of Theology and Religious Studies, King’s College, University of London, UK

Linda Ross Meyer

School of Law, Quinnipiac University, USA

Iain Morland

Department of English, Royal Holloway, University of London, UK

Sara Murphy

Gallatin School of Individualized Study, New York University, USA

Susan J. Pearson

Department of History, Northwestern University, USA

Ravit Reichman

Department of English, Brown University, USA

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EDITORIAL BOARD Laura Gomez U.C.L.A.

Gad Barzilai University of Washington and Tel Aviv University

Carol Greenhouse Princeton University

Paul Berman University of Connecticut

Piyel Haldar University of London

Roger Cotterrell University of London

Thomas Hilbink University of Massachusetts

Jennifer Culbert Johns Hopkins University

Desmond Manderson McGill University

Eve Darian-Smith University of California, Santa Barbara

Jennifer Mnookin University of Virginia

David Delaney Amherst College

Laura Beth Nielsen American Bar Foundation

Florence Dore Kent State University

Paul Passavant Hobart and William Smith College

David Engel State University of New York at Buffalo

Susan Schmeiser American University

Anthony Farley Boston College

Jonathan Simon University of California, Berkeley

David Garland New York University

Marianna Valverde University of Toronto

Jonathan Goldberg-Hiller University of Hawaii

Alison Young University of Melbourne ix


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INTRODUCTION: GUILT AND UTOPIA Matthew Anderson [y] it corresponds faithfully to my intention to represent the sense of guilt as the most important problem in the development of civilization and to show that the price we pay for our advance in civilization is a loss of happiness through the heightening of the sense of guilt. – Sigmund Freud, Civilization and Its Discontents

In her celebrated short story, Those Who Walk Away From Omelas (1973/ 2004), Ursula Le Guin depicts a utopia that depends upon the suffering of a single person – a child locked in a windowless cellar room no larger than a broom closet. ‘‘It could be a boy or a girl. It looks six, but actually is nearly ten. [y] It is so thin there are no calves to its legs; its belly protruded; it lives on a half-bowl of corn meal and grease a day. It is naked. Its buttocks and thighs are a mass of festered sores, as it sits in its own excrement continually’’ (Le Guin, 2004, p. 428). The child is never let out and has little contact with the people of Omelas, save those who from time-to-time come by and to look at it with fear and disgust – or to kick it. There are no feelings of want or deprivation in Omelas. Its inhabitants do not know hunger, stress, tension, or pain. It is a place of joy and happiness; there is a pervasive, collective feeling of triumph – a triumphant feeling of life. Sexual longings are freely expressed and unselfconsciously fulfilled; indeed, as the narrator explains, there is no guilt in Omelas. ‘‘One thing I know there is none of in Omelas is guilt’’ (Le Guin, 2004, p. 426). Toward a Critique of Guilt: Perspectives from Law and the Humanities Studies in Law, Politics, and Society, Volume 36, 1–13 Copyright r 2005 by Elsevier Ltd. All rights of reproduction in any form reserved ISSN: 1059-4337/doi:10.1016/S1059-4337(05)36001-7

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Inhabitants typically learn of the child’s existence when they are between 8 and 12 years old, and though many of them initially feel a sense of moral revulsion and sympathy they come to recognize and accept that the glorious achievements of their utopia are predicated upon the child’s suffering. They might want to help the child, but they understand that it would be morally wrong to sacrifice the happiness of Omelas for the sake of one inhabitant. ‘‘To exchange all the goodness and grace of every life in Omelas for that single, small improvement: that would be to let guilt within the walls indeed’’ (Le Guin, 2004, p. 428). This idea that the sacrificial suffering of a single person can safeguard an entire people is a familiar topos in a JudeoChristian context, of course, as is the idea that the suffering can redeem a collective burden of guilt. With her story, Le Guin goes further and suggests that the principles of this moral economy reveal an intimacy between guilt and utopia – that utopia represents the radical containment of guilt. Not all of Omelas’s inhabitants are able to reconcile themselves with the terms of the pact that underwrites this moral economy, however; some walk away. But the narrator struggles to describe where it is they go when they leave. ‘‘The place they go towards is a place even less imaginable to most of us than the city of happiness. I cannot describe it at all. It is possible that that it does not exist’’ (Le Guin, 2004, p. 429). As acts of individual resistance and self-assertion these departures are symbolically significant, but not necessarily in the way intended; indeed, it could be argued that those who walk away do not escape the logic of utopia, for the place they walk away to is, etymologically, the terrain of utopia – a ‘‘no place,’’ a place that does not exist. Thus, in Le Guin’s account utopia anticipates and recuperates any attempt to escape the textual logic of its radical containment of the problem of guilt. Le Guin’s text belongs to a tradition of utopian literature that Thomas More inaugurates with the publication of his Utopia in 1516. One way to describe the significance of his text is to celebrate it for introducing the word ‘‘utopia’’ (a derivative of a Greek compound, ou-topos – ‘‘no-place’’ or ‘‘nowhere’’ – which is a pun on eutopia, the word for ‘‘a place where all is well’’) and for its radical, proto-communist vision of a world without private ownership of property. In a seminal essay on Utopia, however, the literary scholar Stephen Greenblatt (1984) argues persuasively for reading it instead as ‘‘a strategy of imagined self-cancellation’’ (p. 45), an attempt by More to attenuate his sense of self-estrangement, the tension he feels between his inner sense of self and the version of himself he fashions and impersonates in the world. ‘‘More’s work propounds communism less as a coherent economic program than as a weapon against certain tendencies in human

Introduction: Guilt and Utopia

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nature: selfishness and pride, to be sure, but also that complex, selfconscious, theatrical accommodation to the world which we recognize as a characteristic mode of modern individuality’’ (Greenblatt, p. 37). He reminds us that More writes Utopia at a time when he is weighing whether to accept a proffered appointment to the court of Henry VIII, a prospect certain to increase More’s sense of self-estrangement. ‘‘At stake, as I have suggested, was not simply his career but his whole sense of himself, the dialectic between his engagement in the world as a character he had fashioned for himself and his perception of such role-playing as unreal and insane’’ (Greenblatt, p. 45). More knows that participating in the world means accepting its theatricality – that the world is indeed a stage, that the outer self is a social performance, and that this performance is incompatible with the authenticity of an inner sense of self. (It is the problem Hamlet frames with one of his earliest utterances, ‘‘I know not seems.’’) In Greenblatt’s view, if More hesitates to accept Henry VIII’s offer it is because he is weary of any further accommodation with the world; he has a keen sense of how his prior engagement with it has undermined the distinction between his inner and outer sense of self. ‘‘For one consequence of life lived as histrionic improvisation is that the category of the real merges with that of the fictive; the historical More is a narrative fiction’’ (Greenblatt, p. 31). On one level, his concern is that the demands of the world will further undermine his sense of authenticity, that the version of himself he performs in the world will completely overtake his inner sense of self. On another level, however, the problem is more acute and far-reaching; it is that the world has devolved into such a spectacle that it has eroded, indeed collapsed, the difference between spectacle and reality. In Greenblatt’s view, the composition of Utopia thus reflects a personal crisis of identity that in its turn reflects an epistemological and ontological crisis, a radical sense of skepticism about the status of the ‘‘real.’’ In contrast with his good friend Erasmus, who looks at the world and sees the human comedy, a parade of humankind’s vices and foibles, More feels that the category distinctions implicit in such a worldview (e.g. truth vs. falsehood, integrity vs. hypocrisy, the righteous vs. the lubricious) are no longer salient. Rather, he sees the world as one in which the spectacle of vanity and consumption has so completely overtaken consciousness and experience that the category of the real is under erasure; it isn’t just that the spectacle has overtaken reality (Erasmus’s view) but that the category of the ‘‘real’’ is no longer meaningful, epistemologically or ontologically. Where Erasmus sees folly, More sees madness. As a result of this radical skepticism More feels isolated, alone in his sense of individuality. What exacerbates his sense of self-estrangement is not so

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much the dialectic between self and the world, between his inner and outer self, but rather that his sense of duplicity – the bedrock of his identity, of his sense of himself as an individual – has no structural equivalent in a world unmoored from any reality principle. In Greenblatt’s view, what More enacts with Utopia is ‘‘the dream of a cancellation of identity itself’’ (p. 32). That is, More responds to the madness of the world by writing a book in which he imagines the possibility of doing away with individuality altogether. [The] destruction of the individual as a private and self-regarding entity is a positive goal in Utopia; at the least, the ways in which a person could constitute himself as being distinct from those around him are radically reduced. As we have seen, More’s sense of his own distinct identity is compounded of a highly social role, fashioned from his participation in a complex set of interlocking corporate bodies – law, parliament, court, city, church, family – and a secret reserve, a sense of life elsewhere, unrealized in public performance. Utopia cancels such an identity by eliminating, among other things, most of the highly particularized corporate categories in which a man could locate himself and by means of which he could say, ‘‘I am this and not that.’’ (pp. 41–42)

One of More’s central insights is that there is an essential relationship between private property and private selves: ‘‘[a]bolishing private ownership of property is causally linked in Utopia to what C.B. Macpherson calls ‘‘possessive individualism’’; to abolish private property is to render such self-conscious individuality obsolete’’ (Greenblatt, pp. 39–47). This selfcancellation the text enacts is doubly performative, however, for even as he imagines a world that elides the sense of individuality at the root of his identity crisis, the worldly success of his text will allow him to fashion for himself a position of status and influence in precisely that world he finds so alienating. Writing the text satisfies two contradictory imperatives at once: on the one hand, the need to mitigate his sense of individuality, and on the other, the need to establish himself in the world as an individual. The gesture of self-cancellation is also an act of self-fashioning. The other governing irony of his text is that the interiority, the private recess of individuality that More takes aim at in Utopia is itself the wellspring of the imagination that makes it possible to envision the end of that interiority. As Greenblatt observes, ‘‘[the] work is, after all, an expression of More’s inner life, the life that it dreams of engineering out of existence. The more intense and plausible the dream, the more profound its confirmation of precisely the inner life that engendered it’’ (p. 54). In sum, the contours of Utopia are intimately tied to the contours of More’s identity. Tellingly, the world he imagines is one in which there is little room for the feeling of guilt. In Utopia, social order is based principally upon shame and honor rather than guilt, a concern for the opinion of others rather than an


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inner estimation of one’s conduct (Greenblatt, pp. 48–51). In one sense, this is simply the corollary of his cancellation of personal identity: to diminish the scope of the inner life is to diminish the possibility of guilt. But Greenblatt argues that the relative absence of guilt in Utopia is evidence precisely of its central importance in More’s life. ‘‘In keeping with our general conception of his character and situation, we may ask ourselves what a culture shaped by the force of shame and honor might have canceled or effaced in More’s existence. The answer, I think, is guilt, by which I mean pangs of conscience, the inner conviction of sinfulness, the anxious awareness of having violated a law or distanced oneself from God’’ (Greenblatt, p. 51). In other words, if guilt is absent from his ideal republic it is because it is such a pervasive presence in More’s psychic life. Greenblatt suggests that there are many signs that More did in fact feel a powerful sense of guilt in his life, and that although some of these signs (e.g. the hair shirt he secretly wore and the self-flagellations he secretly practiced) have a cultural significance that precludes us from reading them exclusively as attempts to expiate feelings of guilt, we should not doubt or underestimate the pervasiveness of such feelings in More’s life. ‘‘[There] can be little question that More did experience intense and sustained guilt feelings: quite apart from any deeper psychological roots, his whole mode of life, with its mingled accommodation and resistance to the world, would have called such feelings into being, and they would have been confirmed by the religious ideal of purity that he never eschewed’’ (Greenblatt, p. 51). He even goes so far as to suggest that in 1516, the year he publishes Utopia, More’s personal feelings of guilt might be connected to intimations of a broader historical phenomenon – the rise of Protestantism. ‘‘The strong emphasis in Utopia on shame and communal solidarity may have represented as well More’s response to certain elements he perceived as dangerous in the religious climate of his time. Protestantism obviously did not spring up from nowhere in 1517; Luther’s crisis of guilt was symptomatic of a far broader cultural crisis, as the events of the 1520s and ‘30s make abundantly clear’’ (Greenblatt, p. 52). Thus, the relative absence of guilt in Utopia might attest not just to More’s personal feelings of guilt and self-estrangement, but also to the structural contradictions of the Roman Catholic church in the early 16th century.

NIETZSCHE AND FREUD Nietzsche’s and Freud’s views of guilt provide a useful theoretical context for understanding the relationship between guilt and Utopia we have

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outlined in Utopia and Those Who Walk Away From Omelas. Both of them speak of guilt as the internalization of cruelty or the instinct of aggression, and see it as an inward turn that reflects a historical context. Nietzsche views guilt and ‘‘bad conscience’’ as a kind of illness. In The Genealogy of Morals (1887/trans. 1989) he writes, ‘‘[I] regard the bad conscience as the serious illness that man was bound to contract under the stress of the most fundamental change he ever experienced – that change which occurred when he found himself finally enclosed within the wall of society and of peace’’ (Nietzsche, 1989, p. 84). In Nietzsche’s view, when faced with peace (the absence of an enemy upon whom one might inflict cruelty) and social mores (proscriptions against being cruel to one’s fellow citizen) a civilized human is left with only one subject upon whom he may express his aggression and satisfy his appetite for cruelty: himself. ‘‘[He] turns himself into an adventure, a torture chamber, an uncertain and dangerous wilderness’’ (Nietzsche, 1989, p. 85). Deprived of the possibility of expressing his aggressiveness externally, man turns inward and expresses it internally, upon himself. Thus begins the age – and for Nietzsche it is our age – of ‘‘man’s suffering of man, of himself’’ (Nietzsche, 1989, p. 85). In Civilization and its Discontents (1931/trans. 1961), Freud similarly defines guilt as ‘‘an aggressiveness which [has] been displaced inwards’’ (Freud, 1961, p. 102). And he claims that finding a way to contain or otherwise manage the instinct of aggression is the central challenge for civilization: ‘‘[y] the problem before us is how to get rid of the greatest hindrance to civilization – the constitutional inclination of human beings to be aggressive towards one another’’ (Freud, 1961, p. 108). In his view, guilt – the internalization of the instinct of aggression, enforced by the surveillance of the super-ego – is the solution that civilization devises in response to the threat this instinct presents. What means does civilization employ in order to inhibit the aggressiveness which opposes it, to make it harmless, to get rid of it, perhaps? [y] What happens to him to render his desire for aggression innocuous? Something very remarkable, which we should never have guessed and which is nevertheless quite obvious. His aggressiveness is introjected, internalized; that is, it is directed towards his own ego. There is it taken over by a portion of the ego, which sets itself over against the rest of the ego as super-ego, and which now, in the form of ‘‘conscience,’’ is ready to put into action against the ego the same harsh aggressiveness that the ego would have liked to satisfy upon other, extraneous individuals. The tension between the harsh super-ego and the ego that is subjected to it, is called by us the sense of guilt [y] Civlization, therefore, obtains mastery over the individual’s dangerous desire for aggression by weakening and disarming it and by setting up an agency within him to watch over it, like a garrison in a conquered city. (1961, pp. 83–84)


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Freud makes it plain that the remedy attests to the severity of the threat, that is, that the containment of the instinct of aggression comes at the price of a significant measure of happiness. ‘‘What a potent obstacle to civilization aggressiveness must be, if the defense against it can cause as much unhappiness as aggressiveness itself’’ (Freud, 1961, p. 109). In the end, the feeling of guilt proves to be almost as deleterious and detrimental to psychic wellbeing as the problem it is meant to solve. Nietzsche and Freud both identify the same fundamental elements – civilization, religion, and the characteristically conflicted inner life of modern (Western) humans – but whereas Freud speaks in biological and anthropological terms, Nietzsche argues that guilt emerges in tandem with the Judeo-Christian tradition, or rather, as a historical consequence of what Nietzsche might describe as ‘‘the defeat of the nobles by the slaves.’’ (Although it is plain that by ‘‘slaves’’ he means the Hebrew people, it is not at all clear who the ‘‘nobles’’ are historically: on occasion he intimates that the age of these noble ‘‘blonds beasts’’ corresponds to a mythic golden age in classical Greece (Nietzsche, 1961, p. 40), but these hints are suggestive only and cannot be pieced together to form a coherent history.) Thus, while Freud conditions us to think of guilt as a transcultural formation, Nietzsche inclines us toward a view of guilt as the product not of civilization in general but of a specific cultural tradition, a tradition shaped by the will to power. Yet the commonality between Nietzsche’s and Freud’s views of guilt provides an illuminating conceptual framework for describing why guilt is absent from the worlds imagined by More and Le Guin, or rather why it is present as a central theme through its absence. They help us explain how a critique of utopia leads to a critique of guilt, to a sense of the intimacy between guilt and the utopian imaginary. Nietzsche and Freud both describe guilt as aggressiveness that would naturally find outward expression or satisfaction but is redirected inward out of historical necessity. I would propose here that with respect to Utopia and Those Who Walk Away From Omelas, we think of this self-contained aggressiveness as a condition necessary for the possibility of the utopian imaginary. Greenblatt’s reading of the context of Utopia suggests that the literary genre of utopian writing is from its inception a ‘‘strategem of imagined self-cancellation,’’ a way of asserting and projecting oneself in the context of a world that does not make sense. (Self-assertion can be thought of as a form of aggressiveness; that is, aggression is not simply the expression of an appetite for cruelty or physical violence.) More projects himself into his world by imagining one in which the problem of individuality and self-assertion is negatively resolved, canceled. And by canceling

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individuality he does away with the possibility of guilt as an emotion, since guilt is meaningless without a sense of individual, psychic interiority. As we have seen, Greenblatt argues that this is no mere coincidence: if guilt is largely absent from Utopia it is precisely because a personal feeling of guilt is so pervasive in More’s life. In his view, the feeling of guilt is indissolubly bound up with the sense of individuality that More takes aim at when he imagines abolishing the private ownership of property. ‘‘Utopian shame opposes the undesirable development of inwardness through guilt, as its communism opposes the development of a sense of self-ownership; both are viewed as traps or nightmares’’ (Greenblatt, p. 54). And there is another way in which Utopia can be thought of as issuing from a sense of guilt, for the psychic interiority that in Nietzsche’s view follows the advent of guilt – the inner recess of subjectivity that is carved out as a result of the redirection inward of the instinct of aggression – is the wellspring of the imagination that produces Utopia. In other words, guilt creates the interiority without which there would be neither the need nor the capacity to imagine its absence. In contrast, Le Guin turns guilt inside out. She makes it the explicit theme of her plot and the structuring principle of the social order in Omelas. The internalization of aggression is radically externalized and contained in her story: all of the society’s aggressiveness is structurally directed toward, and thus limited to, the suffering of one person; it is literally self-contained. Or almost – there are those who walk away. But it can be argued that even those few acts of individual resistance and self-assertion are ultimately recuperated and contained by the logic of Omelas, for the place they walk away to, the place that lies beyond the boundaries of their society’s imaginary, is the same place that More identifies etymologically as the terrain of utopia, ‘‘no place.’’ By walking away from Omelas they walk into the logic of the imaginary they would escape. This irony recapitulates one of the most incisive critiques of utopian writing, namely that although literary utopias typically do engage with ideology and present alternatives to dominant modes of (false) consciousness, the very act of imagining a world reinforces one of the central tenets of ideology in the age of (late) capitalism – the idea that the field of social, economic and political experience can ultimately be represented as a unified whole. (The literary critic Terry Eagleton (1990) has offered one of the more eloquent and conceptually rich versions of this critique in his book The Ideology of the Aesthetic.) Utopian writing represents a totalizing gesture, which through its very form restores faith in the possibility of reconstituting the world as a whole despite systemic structural inequalities and

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contradictions and the social fragmentation they entail. In this view, the energies of utopian writing may be characterized as liberal or conservative but never as radical, for they retain the form of ideology.

CONCLUSION Against the backdrop of this cursory sketch of a few elements of the literary and philosophical tradition that informs Western notions of guilt and Utopia, I would suggest that the seven articles in this volume are all expressions of a liberal utopian imaginary. They are liberal in the sense that even when they argue for the need for a critical reevaluation of traditional (Western) narratives of guilt, their vision is ultimately one of continuity and revision, not rupture. This implicit faith that existing critical traditions still contain the resources and flexibility necessary for guiding the project of civilization is made explicit in the case of the last two pieces in the volume, the articles by Chaya Halberstam and Linda Meyer, which return us to the accumulated wisdom of the Judeo-Christian tradition as a touchstone for a critique of guilt. The articles are utopian in a double sense. On one level it is because they all issue, I would argue, from a commitment to a social imaginary that orients itself, if only heuristically, in accordance with an implied progressive vision of a justly ordered society and the hope of its future realization. On another level, however, it is because their operative concept of justice reflects a concern not just for the redress of particular wrongs, but more broadly, for what we might call the integrity of the ‘‘real.’’ This is particularly palpable in the articles that address the guilt inscribed by traumatic histories of cruelty and violence. The challenge that Ravit Reichman, Susan Pearson, Sara Murphy and Iain Morland recognize, each in their own way, is one not only of overcoming a societal unwillingness to reckon with a painful or violent past but also of literally coming to terms with, of finding adequate language for, experiences that defy linguistic expression. These scholars call our attention to experiences of suffering that overwhelm any capacity to make sense of experience and thus have not been told – and must be told for precisely that reason. The literary scholar Shoshana Felman (2002) has argued recently that traumatic experience exceeds the frame of law because its language registers a syntactic disruption that is irreducibly incompatible with law’s vocation to order. She describes this gap between traumatic experience and linguistic representation as an ‘‘abyss.’’ Moreover, she suggests that whereas in trials law attempts ‘‘to close abysses’’ (Felman,

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2002, p. 83), literary texts resist the effort to foreclose the resonances of trauma. Under the practical constraints of having to insure accountability and to bring justice, the law tries to make sense of the abyss or to reduce its threat (its senselessness, its unintelligible chaos) by giving it a name, by codifying it or by subsuming its reality (which is inherently nameless and unclassifiable) into the classifying logic and into the technical, procedural coherence of the trial. But in so doing, the law (trial or the litigation) inadvertently denies the abyssal nature of the abyss in pretending, or in misguidedly assuming the abyss is something else, something that can be assimilated to known rules or precedents, something that can be enclosed, contained within the recognizability of known (stereotypical) legal agendas. But the purpose of the literary text is, on the contrary, to show or to expose again the severance and the schism, to reveal once more the opening, the hollowness of the abyss, to wrench apart what was precisely covered over, closed, or covered up by the legal trial. The literary text casts open the abyss so as to let us look, once more, into its depth, and see its bottomlessness. (Felman, p. 95)

Felman defines art as a language of infinity, law as a language of closure and limitation. ‘‘Law is a language of abbreviation, of limitation and totalization. Art is a language of infinity and of the irreducibility of fragments, a language of embodiment, of incarnation, and of embodied incantation or endless rhythmic repetition’’ (Felman, p. 153). Understandably, some legal scholars, such as Jane Baron, whose article opens the volume, take issue with what they perceive as the reductiveness of such binary definitions of the fields of law and art, and argue for a more textured and mediated conceptual understanding of law in the dialogue between law and the humanities. This volume is a contribution toward a cultural critique of guilt. Several of the articles are expanded versions of papers that were presented at a Law & the Humanities conference on the theme of ‘‘Guilt’’ held at the University of New England in June of 2003. I would like to thank Austin Sarat and Patricia Ewick, the editors of Studies in Law, Politics, and Society, for providing a forum for this work. Like the conference, this volume brings together scholars of law and from across the disciplines of the humanities to examine the cultural conditions under which guilt is produced or occluded, or to put it more prosaically, how the work of guilt gets done. Their articles exemplify the vitality of current research examining the intersections of law and culture, while the range of their specific interests reflects the breadth and richness of their disciplinary perspectives. For example, they ask what is ‘‘law’’? How do narratives contribute to the vital project of naming the guilt of traumatic histories of cruelty, rape, racism, and genocide? How does medical science reckon with the residues of guilt it leaves behind, inscribed upon the bodies of past patients, in the wake of its ‘‘progress’’? And if in the


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West attitudes toward guilt still reflect the legacies of the Judeo-Christian tradition, how might some of that sacred tradition’s texts and accumulated wisdom inform contemporary expectations we may have of ourselves, or of the others we judge, in matters of guilt and remorse? At a time when the institutional signs of the establishment of a new paradigm are increasingly visible – e.g. the existence of a professional association (The Association for the Study of Law, Culture, and the Humanities, which will hold its eighth annual conference in March of 2005); the launching (also in the spring of 2005) of a peer-reviewed journal, Law, Culture & the Humanities – this volume affords a glimpse of this emergent field of humanistic interdisciplinary legal studies.

SUMMARY OF ARTICLES In her article, Law’s Guilt About Literature, which opens the first section, ‘‘(Re)thinking Law through Literature,’’ Jane Baron, a professor of law, focuses on what she sees as the guilt that contemporary legal scholars have felt in the face of an unflattering image, reflected in literature, of the law. Baron is concerned that this sense of guilt has led legal scholars to leave unchallenged the view of law as doctrine, a view which she argues prevails in much literary scholarship, and more importantly, that it has inhibited the development of an urgently needed reconsideration of what ‘‘law’’ is – a project that could lead to a better, far more nuanced understanding of what legal culpability means, both conceptually and practically. The next article, by the literary scholar Ravit Reichman, is not a counterpoint to Baron’s though it examines an instance in which the language of literature lays bare the moral collapse of legal language at a particularly consequential juncture in 20th-century European history. She argues that Albert Camus, in his post-World War II novel The Fall (1956), tells the story of a bridge of complicity between medicine and law, implicating both in the creation of the Nazi formulation of race. In the next section, ‘‘Bodies of Guilt,’’ three scholars consider guilt’s relation to the concrete, material performance of law and to history. They remind us that the incommensurability between the practice of law and a sense of justice is embodied, not abstract – indeed that the body (animal or human) is often the site upon which competing notions of culpability converge and are most plainly felt and contested. Iain Morland, a literary scholar who has extensively studied the plight of intersexed patients (i.e. people who are born with genitalia that do not clearly indicate a single sex),

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highlights what he sees as the persistent failure of physicians to engage in frank, self-reflexive dialogue with an earlier generation of intersexed patients, many of whom had surgery performed on their genitalia without informed consent. He is concerned not just with the issue of informed consent and culpability, but with how the story that physicians tell of the ‘‘progress’’ of their field reckons with the painfully scarred bodies it leaves behind. Susan Pearson, an historian, echoes several of the themes of Morland’s article. She recounts an instance in the history of United States law in which progress was occasioned by an active reframing of the legal significance of bodily pain. Specifically, she describes how animal activists working in the United States during the second half of the 19th century successfully lobbied for the passage of anti-cruelty legislation by focusing attention on the effects of cruelty on animal bodies. As a result, she suggests, these activists introduced new narratives of guilt and human innocence, for in most states the newly defined crime of cruelty to animals consisted not in mens rea but rather in the effects of actions; in other words, the locus of guilt shifted from the human mind to the animal body. In the last article of the section, Sara Murphy, a literary scholar, focuses on the violence and cruelty visited upon African bodies marked by pernicious (Western) cultural constructions of race, and on how the story of that inhuman history gets told. She focuses on how Toni Morrison, in her novel Beloved (1987), situates North American slavery in terms of the traumatic and thus raises farreaching questions about the structure of guilt and authority. The two articles of final section, ‘‘Longer Views,’’ reach back explicitly or implicitly to some of the earliest meditations in the Judeo-Christian tradition on questions of guilt and judgment. Chaya Halberstam, a scholar of religion, examines the sophisticated readings by rabbinic interpreters from Late Antiquity of two exemplary narratives of guilt in Genesis: the story of Cain’s murder of Abel, and of Judah’s mistreatment of his daughter-in-law Tamar. She reveals that early rabbinic thought recognizes both the pressing social need for determinations of criminal guilt, but also, after the example of the two stories from Genesis, that guilt is never absolute. Moreover, she argues that the two understandings of guilt need not be harmonized: a legal understanding of guilt need not require a philosophical, or theological, counterpart. In the closing essay, Linda Meyer, a legal scholar, explores what could be called the after-life of guilt – remorse. She suggests that while we commonly expect offenders to be perpetually remorseful for their crimes, this stance is not only unrealistic but also existentially impossible, for the only options available then, for offenders and victims alike, are death or forgiveness.

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REFERENCES Eagleton, T. (1990). The ideology of the aesthetic. London: Blackwell. Felman, S. (2002). The juridical unconscious. Cambridge: Harvard University Press. Freud, S. (1961). In: J. Riviere (Trans.), Civilization and its discontents. New York: W. W. Norton. (Original work published 1931) Greenblatt, S. (1984). Renaissance self-fashioning from More to Shakespeare. Chicago: University of Chicago Press. Le Guin, U. (2004). The ones who walk away from Omelas. In: N. Wood (Ed.), Perspectives on argument, (4th ed.) (pp. 425–429). New Jersey: Pearson Education (Original work published 1973). Nietzsche, F. (1989). In: W. Kaufmann (Trans.), On the genealogy of morals. New York: Vintage. (Original work published 1887)


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PART I: (RE)THINKING LAW THROUGH LITERATURE

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LAW’S GUILT ABOUT LITERATURE Jane B. Baron ABSTRACT This essay addresses the theme of guilt in law and literature from the law side. It argues that the legal academy’s flirtation with literature reflects two forms of guilty uneasiness. The first relates to the question whether lawyers should be reading literature at all. This is a methodological anxiety. It presumes a distinctly legal method of analyzing legal issues, in which literature does not have a truly legitimate role. The second anxiety is substantive. It presumes that law has an identifiable content, one that excludes much that appears in literature. Both presumptions are, I argue, questionable and make sense only if law is viewed as primarily doctrinal. Fundamentally, these varieties of uneasiness have their roots in the still unresolved conceptual challenge of figuring precisely what is ‘‘interdisciplinary’’ about the law and literature enterprise. Developing an honest form of ‘‘interdisciplinarity’’ will be difficult if not impossible because it requires an examination of usually unstated assumptions about the uniqueness of law.

INTRODUCTION Building on earlier work (Baron, 1999a, b), this essay addresses the theme of guilt in law and literature from the law side. It argues that the legal Toward a Critique of Guilt: Perspectives from Law and the Humanities Studies in Law, Politics, and Society, Volume 36, 17–30 Copyright r 2005 by Elsevier Ltd. All rights of reproduction in any form reserved ISSN: 1059-4337/doi:10.1016/S1059-4337(05)36002-9

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academy’s flirtation with literature reflects two forms of guilty uneasiness. The first relates to the question whether lawyers should be reading literature at all. There was a heady period in the late 1980s and early 1990s during which literature was seen as a promising source of moral guidance and supplementation for law, and thus law and lit pieces peppered the major law reviews. In contrast, one rarely sees much discussion of literature in legal periodicals at all these days. If lawyers are reading literature now, they seem to be doing it very quietly. One hypothesis might be that, especially following Posner’s critique of the law and literature movement in his perhaps overly influential book on the subject (Posner, 1998),1 legal scholars have lost their certainty about the real applicability of literature to law. The second form of uneasiness relates to what literature is said to show when it is read. Here the claim, again much more muted today than 10 years ago, is that literature reveals law’s moral emptiness and inability to deal with human complexity. The anxiety here is not about the methodological legitimacy of reading literature; rather, it is a substantive anxiety about the adequacy of law, i.e. law’s content. Both forms of uneasiness stem from unarticulated and unexplored notions of what ‘‘law’’ really is. The methodological anxiety presumes a distinctly legal method of analyzing legal issues, in which literature does not have a truly legitimate role. The substantive anxiety presumes that law has an identifiable content, one that excludes much that appears in literature. Both presumptions are, I argue, questionable and make sense only if law is viewed as primarily doctrinal. Fundamentally, these varieties of uneasiness have their roots in the still unresolved conceptual challenge of figuring precisely what is ‘‘interdisciplinary’’ about the law and literature enterprise. In one version of ‘‘interdisciplinarity,’’ law and literature are depicted as basically separate and distinct realms, and ‘‘interdisciplinary’’ work is work that crosses the border between the two realms. If what is inside one of the realms were already inside the other, there would be nothing ‘‘interdisciplinarity’’ could do. In a different version of ‘‘interdisciplinarity,’’ literature is used as a mirror that shows law to itself somehow more clearly. This is a selfish ‘‘interdisciplinarity,’’ interested in literature only insofar as it has lessons and insights for law. A third, more conventional ‘‘interdisciplinarity,’’ which examines law in literature, inverts the second form, scavenging both literary and legal materials for new themes to be run through the mill of conventional literary criticism.2 Developing an honest form of ‘‘interdisciplinarity’’ will be difficult if not impossible because it

Law’s Guilt about Literature

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requires an examination of usually unstated assumptions about the uniqueness of law.

LAW’S FLIRTATION WITH LITERATURE: ONE DISCIPLINE OR TWO? If one were simply to track the titles of articles in leading law reviews over the past 25 years, one would barely suspect that anyone had ever been seriously interested in the connection between law and literature. With just a few exceptions,3 the articles seem preoccupied with law – tort liability, class actions, patents, constitutional law, family law, and so forth. What this title survey shows (if anything) is that legal academics mostly like to think about legal doctrine. No surprise there. The question is really how they think about legal doctrine, and whether works in the law and lit genre influenced that sort of thinking. Article titles and topics will not be an accurate measure of influence if, as many people believe, the goal of the law and literature movement, within law anyway, is not so much to change what is written about as it is to change the quality of the discussion. A credible argument could be made that, for a while at least, law-and-lit did have a noticeable influence within the legal academy. Legal scholars increasingly began to attend not just to the outcomes of cases, but also to the way in which judges reasoned to those outcomes. Generalizations about scholarly trends are always dangerous, but representative concerns included the presence or absence of ‘‘empathy’’ in judicial decision making (e.g. Henderson, 1987), the level of abstraction as opposed to particularity on which judges approached cases (e.g. Minow & Spelman, 1990; Menkel– Meadow, 1985), and the extent to which judges explicitly addressed their differences from and connections to the parties whose cases came before them (e.g. Karst, 1988; Resnik, 1988). Now in one sense this concern for the quality of legal reasoning was nothing new, for legal scholars have always cared about the rationales as well as the results of cases. But ‘‘quality’’ in legal reasoning used to be, in what I will call the ‘‘before’’ period (before, say, Heracles’ Bow or Poethics or Poetic Justice), measured by fidelity to the internal conventions of law – consistency with prior precedent, careful distinction between like and unlike factual scenarios, adroit analogies, and so forth.4 After, during what I think of as the height of the influence of law-and-lit, quality in legal reasoning came to be assessed differently. Scholars began to

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examine the degree to which judges recognized that their acts of interpretation took place within a community of meaning, and both reflected and participated in the constitution of that community.5 Language mattered, because it could include and exclude (who, James Boyd White (1984) famously asked, is the ‘‘we’’ who are the constitution’s people?). Sensitivity to context mattered because, in attending (or failing to attend) to particulars, courts were recognizing (or failing to recognize) the real constraints that bear on individuals’ acts and decisions, and these constraints are relevant to the accurate and fair assessment of blameworthiness (e.g. Scheppele, 1989). Law, in short, was understood to be cultural. Thus, legal decisions could and should be judged by the way in which they both commented on and enhanced the quality of our cultural life. Note that, in this formulation, law and literature are importantly alike, for each is equally a cultural activity, an instance of collective meaningmaking.6 Law and literature are not, in this view, actually separate disciplines at all, but rather just two different ways of doing the same thing. And if they are just two ways of doing the same thing, then law and literature can, and possibly should, be subject to the same evaluative criteria and will reflect the same methodological debates. Looking backward, one can easily find traces of disciplinary blending between literature and law. For a while, for example, there was talk of legal opinions – not to mention contracts and wills – as texts, texts subject to all the interpretive problems and possibilities to which literary texts are subject (e.g. Kingwell, 1994, p. 351). Some of the interpretive debates within literary theory – about the relevance of authorial intent, the importance of reader response, the possibility of ‘‘objectivity,’’ and the dangers of ‘‘subjectivity’’ – were imported directly into legal scholarship, especially regarding constitutional interpretation.7 But a complete blending of law and literature as disciplines is and has always been problematic. For one thing, there is the pesky issue of power – the fact that in the real world legal language does things, sometimes scary things like sending people to jail or even to death (e.g. Cover, 1987, p. 1601; West, 1993, pp. 89–176). For another thing, a lot of work in the law/literature vein has sought to enlist literature in the aid of law – to make law more literary, more moral and more attentive to the diversity of human character and motivation (e.g. Nussbaum, 1995; Hirshman, 1988). If literature and law are in some meaningful sense ‘‘the same,’’ then how can one be used to enlighten the other? To speak plainly, the law/literature enterprise – or at least that part of it that focused on what literature could add to law – works best where it is


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least self-conscious of the way in which it implicitly defines the boundaries of each discipline.8 In this way, law can be like literature for the purpose, say, of its role in constituting modern social and political culture, but unlike literature in respect, say, to its technical conventions and its moral content.

THE RULE OF LAW AS THE LAW OF RULES9 The failure to come to terms with this question of disciplinary boundaries reflects a deep ambivalence about law. This ambivalence has both a methodological and a substantive dimension. Methodologically, the question is whether ‘‘doing’’ law is a specialized, distinct activity. What if those ‘‘internal’’ conventions I mentioned earlier – following precedent, distinguishing and harmonizing factual scenarios, drawing analogies – what if these conventions in some sense define the practice of law?10 If they do, lawyers might still wish to read Charlotte Bronte, Richard Wright, or (for that matter) Franz Kafka, but when they do so, they should not understand themselves in any meaningful sense to be doing ‘‘law.’’11 Substantively, the question raised by the law/lit enterprise concerns the ‘‘content,’’ if you will, of law. Why might law need the moral uplift that literature is said to provide? Why does it need lessons in the complexity of human nature, the diversity of human experience? Presumably it needs these things because it suffers from a lack, a deficit – it is not, alone, sufficiently moral; it is not, itself, capable of dealing with human beings in their concrete particulars. This is not an especially attractive picture, and one could pardon lawyers – and especially legal academics – if they did not want to have their noses rubbed in it. Now neither the methodological or substantive anxiety is self-evidently correct. Methodologically, let us assume (and it is a big assumption) that there are truly distinct techniques associated with legal reasoning. Appellate briefs, after all, do not read like newspaper articles, and judicial opinions do not read like New Yorker short stories. It does not follow, however, that these specialized techniques exhaust the field of legal thought. More importantly, it does not follow that lawyers and judges who resort to other techniques or sources, including literature, are somehow not doing law. It is in fact rare to find a contemporary judicial opinion, particularly in a politically or socially contested area of the law, that does not reach beyond technical principles such as stare decisis or ‘‘law of the case’’ to, for example, social science data or explicit instrumentalist visions of the social good (Posner, 1997). If we can look to psychological studies or economic analysis

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and still be doing law, why cannot we be doing law when we read Shakespeare? The same skepticism applies on the substantive side. It simply defies imagination that a legal system could survive, let alone be constitutive of our culture, if it had no moral basis or were completely insensitive to human complexity. It is true that sometimes courts recognize a gap between what the law permits and what seems moral or right under the circumstances. But it is also true that sometimes courts reject legal rules precisely for the reason that they are of questionable morality. Just as not every work of literature is morally uplifting, not every legal opinion is morally bankrupt. How could we have gotten to this point, where the ‘‘law’’ of law and lit is a mere caricature of itself? The answer, I submit, lies partly in the notalways-articulated vision of law as composed of and constituted by rules. Austin Sarat and Nasser Hussein’s (2004) recent study of the ‘‘lawful lawlessness’’ of Illinois Governor George Ryan’s decision in 2003 to grant clemency to all those then on death row throws this vision of law into sharp relief. Clemency, Sarat and Hussein argue, ‘‘is best understood as a form of ‘legally sanctioned alegality,’’’ (p. 1313) a power that is ‘‘lawless’’ because it is inherently discretionary and ‘‘by its very nature unbound by rules’’ (p. 1314). In this formulation ‘‘lawlessness’’ and ‘‘alegality’’ are functional opposites of ‘‘rule-governed,’’ and presumably ‘‘lawful’’ and ‘‘legal’’ would be defined as ‘‘rule-bound.’’ As Sarat and Hussain note, this vision of lawas-rules connects powerfully to the aspirations of the rule of law to establish ‘‘a government of laws not of men’’ (p. 1330). In actuality, of course, ‘‘law’’ is not reducible to rules, as Sarat and Hussein know well. Clemency may be a form of ‘‘alegality’’ or of ‘‘lawlessness,’’ but it is not wholly ‘‘lawless’’ or ‘‘alegal’’; it is ‘‘lawful’’ lawlessness, ‘‘legally sanctioned’’ alegality. That is, clemency is itself a part of the law that it stands above, ‘‘a rule breaker which serves to improve the law’’ (Sarat & Hussein, p. 1321). Sarat and Hussain thus conclude by noting that ‘‘if Ryan’s pardon was an ‘injury to law itself,’ it is an injury that the law authorizes and requires, a form of lawful lawlessness without which the law would indeed be rendered meaningless’’ (p. 1343). Despite the sophistication and subtlety of Sarat and Hussein’s understanding of clemency’s challenge to law, the very project of analyzing Ryan’s decision and its announced rationale would be incomprehensible without a vision of law as fundamentally composed of rules. Only this vision enables Sarat and Hussein to describe clemency as ‘‘essentially lawless’’ (p. 1319). The idea of the rule of law as a law of rules resonates powerfully with the Langdellian idea of law as distinct science, independent and specialized.12 It


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also resonates powerfully with visions of law as a professional craft, rather than an academic discipline (Balkin, 1996). Finally, a vision of law as fundamentally doctrinal resonates powerfully with many practitioners’ perceptions of what they actually do, i.e., manipulate rules for the benefit of clients, and with the idea that that is what they should do (Edwards, 1992).

ILLUSORY INTERDISCIPLINARITY The idea that law is a realm of rules has affected the way in which the enterprise of ‘‘interdisciplinarity’’ has been carried out with respect to law and literature. Oversimplifying just a bit, one important analytical mode of law and literature, at least on the law side, has been the compare-andcontrast. Work in this vein argues as follows: ‘‘Here is the rich, textured, nuanced picture of human nature in Great Expectations (or the novel, play or poem of your own personal choosing), and here is the desiccated, stereotyped, abstract picture offered in Smith v. Jones.’’13 The smaller the gap between the proffered works, in terms of emotional richness, moral complexity, or general sophistication, the less literature has to offer law and the less law needs whatever edification literature offers. Thus, this version of ‘‘interdisciplinary’’ work constructs law as a relatively empty domain of dry technical rules, and literature as a relatively rich domain full of emotion and insight, even as it purports to describe these two fields. ‘‘Interdisciplinarity,’’ in this formulation, is a matter of making comparisons and drawing into one realm what is found in the other. ‘‘Here is what law is like, there is what literature is like, let us examine the differences.’’ One field is composed of, say, Xs, and the other of Os. ‘‘Interdisciplinary’’ work imports some of the Os into the land of the Xs, enabling a game that could not be played were the fields kept apart. All this only works, obviously, if the fields really are different, if law is truly a land of Xs with no Os (and, it would seem to follow, literature is a land of Os with no Xs). But the ‘‘really’’/‘‘truly’’ in the preceding sentence is seriously problematic. To see why, let us return to the ‘‘lawful lawlessness’’ of clemency. The ‘‘lawlessness’’ part, we saw, stemmed from the essentially discretionary, ad hoc, unruliness of the clemency power. If clemency were ‘‘total lawlessness,’’ we could say that law, to be law, requires rules and nothing but rules, and thus that metaphorically speaking law is a land of Xs. But as Sarat and Hussein note, clemency is not total lawlessness, but rather is itself required by law. Thus law, to be law, requires rules and also at least some power not governed by rules. Law, then, is a land of both Xs and Os. But if law already

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is a land of Xs and Os or, to skip the metaphor, if law is not really different from literature, then ‘‘interdisciplinarity,’’ defined as drawing contrasts and bringing into one realm what is found only in the other, becomes impossible. Fortunately, the compare-and-contrast does not exhaust the ‘‘interdisciplinary’’ efforts of law and literature. An almost opposite approach focuses not on the differences but on the parallels between literature and law. Consider the following paragraph, which opens a recent article by Rosanna Cavallaro (2004) on the lessons of Pride and Prejudice for the ‘‘policies, perceptions, and principles that underlie [the] rules of proof’’ under the Federal Rules of Evidence. Among the many intersections between law and literature is this: just as the legal process is concerned with the accurate and orderly evaluation of disputed facts and past events, and the parts played by people in those events, so, too, many works of fiction concern themselves with identical inquiries. What makes a good or great novel is, to some degree, measured by the novelist’s skill in rendering characters and events for the reader’s evaluation, through dialogue and other descriptive narrative. In addition, just as the legal process asks judge or jury to evaluate a variety of proofs in order to allocate criminal blame or civil liability, novels invite the reader to exercise her judgment about individuals and events, to determine, by the novel’s end, the truth of those events. Finally, where the legal system has constructed rules of evidence to shape the body of proof that may be used to determine facts, writers of fiction offer the reader a variety of ‘‘proofs’’ by which she may judge the truth of their works (pp. 697–700).

Law and literature, in this view, are importantly alike rather than different; there is a ‘‘correspondence’’ between the two fields (Cavallaro, 2004, p. 699). Thus, ‘‘although when she wrote Pride and Prejudice, [Jane] Austen was not at all concerned with the legal system or its procedures for determining disputed facts, the novel’s examination of the kinds of proof that form the basis of quotidian personal judgments offers fertile ground for evaluating modes of judicial proof’’ (Cavallaro, 2004, p. 700). In this version, ‘‘interdisciplinarity’’ functions by reflection, as a mirror. We look into another field and in it we see beamed back toward us aspects of our own field. Something about the change in context, from jury box to novel, enables us to see our shared conventions (of judgment, fact-finding, etc.) more clearly. How exactly this contextual change works to bring insight is, alas, a bit unclear. But beyond or apart from this methodological difficulty lies another set of questions about the ‘‘interdisciplinarity’’ of using literature as a mirror of law. We are not interested in literature, in this view, because it is literature. Cavallaro makes this point herself in acknowledging what she calls ‘‘a vulnerability of this genre of scholarship,’’ namely that one must simply accept (on faith?) that the ‘‘insights’’ of Pride and Prejudice ‘‘have


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some worth beyond mere entertainment.’’ ‘‘I contend,’’ she continues, ‘‘that like all great literature, Austen’s novel captures a kind of truth that amplifies and enriches the truth of our own [legal] experience and therefore can offer meaning beyond the aesthetic’’ (Cavallaro, 2004, p. 701). Now I do not want to be understood to be arguing here that to be interested in literature qua literature one must limit one’s attention solely to ‘‘the aesthetic.’’ Such an argument would essentialize literature in exactly the way that the law-is-rules argument essentializes law. What I do want to suggest, however, is that insofar as its interest is pretty much solely law, ‘‘interdisciplinarity-as-mirror’’ does not seem very, er, ‘‘interdisciplinary.’’ Or, perhaps more accurately, ‘‘interdisciplinarity’’ in this view operates as a kind of scavenger hunt, seeking in literature (and presumably other disciplines, such as the pictorial arts or in science14) nuggets useful to the improvement of law. This is a fairly ‘‘law-centric’’ form of ‘‘interdisciplinarity,’’ and to the extent that its ultimate object is the reform of legal doctrine, one wonders in what way it is ‘‘interdisciplinary’’ at all. Beyond the compare-and-contrast and mirror forms of allegedly ‘‘interdisciplinary’’ work are others, which in the past went by the names of ‘‘law in literature’’ and ‘‘law as literature.’’ The former studies explicitly legal themes and plotlines in literary works such as Antigone (Gewirtz, 1988) or Billy Budd (Weisberg, 1984, pp. 131–176). The latter studies the extent and ways in which literary style is manifest in judicial opinions (Weisberg, 1982, p. 1; 1992, pp. 10–34). These endeavors have been on-going for some time, and no little ink has been spilled on the issue of whether they are (or should be) at the core of the law/literature enterprise. For my purposes, the question is less about the centrality of these projects to law and literature than it is about the sense in which the projects are ‘‘interdisciplinary.’’ Again generalizations are dangerous. But let us try a thought experiment. Imagine that a graduate student or professor in an English or Comparative Literature department were to examine themes of love, or of loyalty, or of friendship, or of kinship (etc.) in Antigone or Billy Budd (or, to repeat a phrase, the novel, play, or poem of your own personal choosing). While I am not positive, I think that such an examination would fit, conceptually, exactly in the middle of what a person in literary studies is expected to do in the ordinary course of his or her professional life. That is, a study of love or kinship themes in a famous play, novel, or poem would be thought of as central to the discipline of English or Comparative Literature. What, then, changes if the scholar examines themes of law rather than love in the works in question? Does the work become ‘‘interdisciplinary’’

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simply because the themes being examined are legal? ‘‘Interdisciplinary’’ in what sense? There is no reason to suppose that the work would become ‘‘more interdisciplinary’’ if the scholar were to examine the way that the law is treated, not in a play or novel, but in a complex or contested judicial opinion such as Lawrence v. Texas (539 US 558 (2003)), the recent case holding it unconstitutional to criminalize intimate sexual relations between homosexuals, or Grutter v. Bollinger (539 US 306 (2003)), upholding the constitutionality of certain affirmative action programs. There is a lot to say about the way the law in general is treated in these cases, both of which overruled existing precedents. That is, putting the outcomes to one side, much can be said about the concept of law implicit in these opinions, as there is much to be said about the concept of law articulated by the various characters in the literary works with which this thought experiment began. But examinations of legal themes, whether in literary works or legal works, by people who study literature are not per se ‘‘interdisciplinary’’ unless we give that term the very thinnest meaning of the study of anything legal by one who is not a lawyer.15

AN HONEST INTERDISCIPLINARITY? The careful and perhaps even the not so careful reader will have noticed my use of quotation marks around the words ‘‘interdisciplinary’’ and ‘‘interdisciplinarity’’ in the preceding section. Is there some true or honest form of interdisciplinary endeavor that could evade those cynical inverted commas? Answering this question is much harder than demonstrating the ways in which much of the current law and literature work seems to rely on sleight of hand. As a start, let me suggest one possible source of the problem. On the one hand, lawyers and legal academics are as invested as any other professionals (including, by the way, English and Comparative Literature professors) in the idea that their field is indeed a distinct discipline, one with specialized rules and conventions. This leads to an emphasis on the technical aspects of law, and particularly on legal doctrine.16 For those taking this view, there is something special, and quite different, about ‘‘professional’’ fields. Thus Jack Balkin writes: ‘‘Legal knowledge is professional knowledge. The study of law is part of a professional practice, a set of professional skills that are taught to new professionals in professional schools.’’ (Balkin, 1996, p. 966) At the same time, however, even those who emphasize law’s distinct disciplinary identity do not want to think of this discipline as totally

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rule-oriented and technical, as completely excluding emotion, morality, concern for context and so forth. Yet the more these qualities are permitted ‘‘inside’’ law’s domain, the less distinct law looks. This is bad for those seeking to found their identity on law, but also for those who are now making their careers by trying to define, from outside law – from comparative literature and English departments, for example – what the domain of law is. In the end, thinking about where the boundary lines lie, who is drawing them and for what reason, is hard. So it simply is not being done. Very intuitively, interdisciplinarity might be thought of as simply the blending of two (or more) disciplines. Before we could effectuate such a blending or evaluate its effects, we would have to define what each discipline is. But we exist in an intellectual environment in which the entire concept of a ‘‘discipline’’ is highly contested; all of us contributing papers to this collection are well enough versed in social construction theory to understand how problematic it is to posit a ‘‘real’’ legal (or literary) realm. We construct law’s (and literature’s) domain for our own purposes, and the forms of interdisciplinarity in which we engage will reflect our agendas as well. Consider, in this regard, Julie Stone Peters’ suggestion (unpublished manuscript) that ‘‘law-and-literature at its emergence was symptomatic of a set of mutual disciplinary desires: literature’s desire for the political ‘real’; law’s desire for the critical-humanist ‘real’’’ (p. 19). Stone Peters may not have the desires just right (though I suspect she does), but the force of her observation lies in the perception that any attempt at interdisciplinarity must arise out of a ‘‘desire’’ of some sort. And, as Stone Peters further notes, these desires must speak to ‘‘pre-existing disciplinary identities’’ (p. 19). Lawyers are deeply invested in a notion of law as unique; why else would we write incessantly of our ritual initiation through legal education into the arcane world of ‘‘legal analysis’’ (Turow, 1977) or of the surreal pressures to which practicing lawyers are subject? (Joseph, 1997). An honest interdisciplinarity will, at a minimum, need to confront this particular investment in disciplinary identity.17 Self-examination is painful, and professional self-redefinition even more painful, and therefore I suspect this confrontation is unlikely to happen soon.

NOTES 1. The first edition, entitled Law and literature: A misunderstood relation, was published in 1988. Surveys reveal that Posner’s book is assigned more often than any other in law and literature courses. Resnik (1999, p. 721).

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2. Some of the same questions arise with respect to other ‘‘law-ands’’ such as law and history or law and philosophy. See Baron (1999a). Only law and economics have gained wide, mainstream acceptance within the legal academy. Why this is so is a question well beyond the scope of this essay. 3. See the intriguingly titled [email protected]: Toward a critical theory of cyberspace, by Michael Froomkin. Froomkin (2003, p. 749). 4. For examples of such approaches, see Hart and Sacks (Tentative Edition 1958); Cappalli (1997). 5. Among the most influential works in this vein are Cover (1983, p. 4) and White (1985). 6. This is most explicitly James Boyd White’s view. 7. For examples, see the essays collected in Levinson and Mailloux (1988). 8. For further elaboration of this point, see Baron (1999a, b). 9. This heading owes something to Scalia (1989). 10. In a recent article, Douglas Vick suggests that ‘‘doctrinalism’’ is the ‘‘shared core that defines the legal discipline.’’ (Vick, 2004, p. 188). Relatedly, some have suggested that the distinctive methodology of legal scholarship is the framing of prescriptive recommendations to legal decision makers (Rubin, 1997). 11. This is to some extent the position of Judge Posner. See Posner (1998). 12. On the development of the Langdellian ideal, see Tomlins (2000), Ferguson (1984) and Stevens (1983). 13. This depiction is meant to be a caricature. For example that, at least when read uncharitably, come close, see Nussbaum (1995, pp. 79–121) and Heald (1998, p. 55). 14. On law-and-science, see Caudill (2002–2003). 15. In this thin view of ‘‘interdisciplinarity,’’ lawyers who study works of literature would be doing ‘‘interdisciplinary’’ work simply by virtue of the fact that they focus on something other than cases, statutes, contracts, or other texts conventionally considered ‘‘legal.’’ 16. As Vick (2004) puts it: ‘‘The grip that doctrinal thinking has on the discipline of law is tighter than is often imagined’’ (p. 191). 17. Consider in this regard Christopher Tomlins’ observation (2000) that: Law has shown less interest in encounters that intrude methodologically or ideologically upon its deployment of determinative power and authority, for here its disciplinary selfsufficiency is clearer, its methodological capacities more secure, its conversation more conveniently closed. Law’s future disciplinary encounters might simply reproduce this pattern, in which case the agenda would continue to be law’s, as it has in the pasty(p. 967).

REFERENCES Balkin, J. M. (1996). Interdisciplinarity as colonization. Washington & Lee Law Review, 53, 949–990. Baron, J. B. (1999a). Interdisciplinary legal scholarship as guilty pleasure: The case of law and literature. In: M. D. A. Freeman & A. D. E. Lewis (Eds), Law and literature (pp. 21–45). NY: Oxford University Press.


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Baron, J. B. (1999b). Law, literature, and the problems of interdisciplinarity. Yale Law Journal, 108, 1059–1085. Cappalli, R. B. (1997). The American common law method. Irvington, NY: Transnational Publisher. Caudill, D. (2002–2003). Law-and-literature, literature-and-science, and enhancing the discourse of law/science relations. Journal of the Legal Profession, 27, 1–22. Cavallaro, R. (2004). Pride and Prejudice and proof: Quotidian factfinding and rules of evidence. Hastings Law Journal, 55, 697–735. Cover, R. (1983). The Supreme Court, 1982 term–foreword: Nomos and narrative. Harvard Law Review, 97, 4–68. Cover, R. (1987). Violence and the word. Yale Law Journal, 95, 1601–1629. Edwards, H. T. (1992). The growing disjunction between legal education and the legal profession. Michigan Law Review, 91, 34–78. Ferguson, R. F. (1984). Law and letters in American culture. Cambridge, MA: Harvard University Press. Froomkin, M. (2003). [email protected]: Toward a critical theory of cyberspace. Harvard Law Review, 116, 749–873. Gewirtz, P. (1988). Aeschylus’ law. Harvard Law Review, 101, 1043–1055. Grutter v. Bollinger, 539 U.S. 306 (2003). Hart, H., & Sacks, A. (1958). The legal process: Basic problems in the making and application of law (Tentative Edition). Westbury, NY: Foundation Press. Heald, P. J. (1998). Medea and the Un-Man. In: P. J. Heald (Ed.), Literature and legal problem solving: Law and literature as ethical discourse (pp. 55–72). Durham, NC: Carolina Academic Press. Henderson, L. N. (1987). Legality and empathy. Michigan Law Review, 85, 1574–1653. Hirshman, L. R. (1988). Bronte, Bloom and Bork: An essay on the moral education of judges. University of Pennsylvania Law Review, 137, 177–231. Joseph, L. (1997). Lawyerland: What lawyers talk about when they talk about law. New York: Ferrar, Straus and Giroux. Karst, K. (1988). Judging and belonging. Southern California Law Review, 61, 1957–1967. Kingwell, M. (1994). Let’s ask again: Is law like literature? Yale Journal of Law and the Humanities, 6, 317–352. Lawrence v. Texas, 539 U.S. 558 (2003). Levinson, S., & Mailloux, S. (Eds) (1988). Interpreting law and literature: A hermeneutic reader. Evanston, IL: Northwestern University Press. Menkel-Meadow, C. (1985). Portia in a different voice: Speculations on a woman’s lawyering process. Berkeley Women’s Law Journal, 1, 39–63. Minow, M., & Spelman, E. V. (1990). In context. Southern California Law Review, 63, 1597– 1652. Nussbaum, M. (1995). Poetic justice: The literary imagination and public life. Boston, MA: Beacon Press. Posner, R. A. (1997). The decline of law as an autonomous discipline: 1962–1987. Harvard Law Review, 100, 761–780. Posner, R. A. (1998). Law and literature. Cambridge, MA: Harvard University Press (revised and enlarged edition). Resnik, J. (1988). On the bias: Feminist reconsiderations of the aspirations for our judges. Southern California Law Review, 61, 1877–1944.

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Resnik, J. (1999). Singular and aggregate voices: Audiences and authority in law & literature and in law & feminism. In: M. D. A. Freeman & A. D. E. Lewis (Eds), Law and literature (pp. 687–727). New York: Oxford University Press. Rubin, E. L. (1997). Law and and the methodology of law. Wisconsin Law Review, 1997, 521–565. Sarat, A., & Hussein, N. (2004). On lawful lawlessness: George Ryan, executive clemency, and the rhetoric of sparing life. Stanford Law Review, 56, 1307–1344. Scalia, A. (1989). The rule of law as a law of rules. University of Chicago Law Review, 56, 1175– 1188. Scheppele, K. L. (1989). Foreword: Telling stories. Michigan Law Review, 87, 2073–2098. Stevens, R. (1983). Law school: Legal education in America from the 1850s to the 1980s. Chapel Hill, NC: University of North Carolina Press. Stone Peters, J. (unpublished manuscript). Law, literature, and the vanishing real: Notes on the future of an interdisciplinary illusion. Tomlins, C. (2000). Framing the field of law’s disciplinary encounters: A historical narrative. Law and Society Review, 34, 911–972. Turow, S. (1977). One L. New York: Putnam. Vick, D. W. (2004). Interdisciplinarity and the discipline of law. Journal of Law and Society, 31, 163–193. Weisberg, R. (1982). How judges speak: Some lessons on adjudication in Billy Budd, sailor, with an application to Justice Rehnquist. New York University Law Review, 57, 1–69. Weisberg, R. H. (1984). The failure of the word: The protagonist as lawyer in modern fiction (pp. 131–176). New Haven, CT: Yale University Press. Weisberg, R. (1992). Poethics and other strategies of law and literature (pp. 10–34). New York: Columbia University Press. West, R. (1993). Narrative, authority, and law (pp. 89–176). Ann Arbor, MI:University of Michigan Press. White, J. B. (1984). When words lose their meaning: Constitutions and reconstitutions of language, character, and community (pp. 240–241). Chicago: University of Chicago Press. White, J. B. (1985). Heracles’ bow: Essays on the rhetoric and poetics of the law. Madison, WI: University of Wisconsin Press.

GUILTY PROFESSIONS: SPECTERS OF SAMENESS IN CAMUS’S THE FALL Ravit Reichman1 ABSTRACT This chapter argues that Albert Camus’s post-World War II novella The Fall narrates a bridge of complicity between medicine and law, implicating both professions in the Nazi formulation of race. Rather than reading the work as a broadly construed allegory of the Holocaust, it situates Camus’s text within the framework of the Nuremberg trials and their judgment of perpetrators in professional rather than in wide-ranging moral terms. The essay concludes by examining Camus’s use of the subjunctive, which posits juridical force as the act of imagining alternatives to the past, and using these alternative scenarios as a basis for judgment.

INTRODUCTION In his essay ‘‘Nomos and Narrative,’’ the late legal scholar Robert Cover offers an image of law as ‘‘a system of tension or a bridge linking a concept of reality to an imagined alternative – that is, a connective between two states of affairs, both of which can be represented in their significance only Toward a Critique of Guilt: Perspectives from Law and the Humanities Studies in Law, Politics, and Society, Volume 36, 31–50 Copyright r 2005 by Elsevier Ltd. All rights of reproduction in any form reserved ISSN: 1059-4337/doi:10.1016/S1059-4337(05)36003-0

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through the device of narrative’’ (Cover, 1993, p. 101). Cover’s understanding of law conceives of it as a forward-looking enterprise, in which the ‘‘imagined alternative’’ exists in the future – a future that, with thoughtful legal steps, can be transformed from a dream into a reality. But law is characterized not only by a prospective vision: its function, in the most practical and immediate sense, is to respond to, and judge, the past. Regarding law as a practice to shape the future often – and tragically – amounts to a kind of wistful hindsight, a backward glance at what might have been avoided had law accounted for the future. This is particularly the case, I would suggest, in the aftermath of war, when the lingering question, ‘‘Could it have been prevented?’’ haunts the survivors of a shattered world. It is a question echoed by Robert Jackson in his opening statement during the first Nuremberg trial on November 21, 1945: I am too well aware of the weaknesses of juridical action alone to contend that in itself your decision under this Charter can prevent future wars. Judicial action always comes after the event. Wars are started only on the theory and in the confidence that they can be won. Personal punishment, to be suffered only in the event the war is lost, will probably not be a sufficient deterrent to prevent a war where the warmakers feel the chances of defeat to be negligible (International Military, 1947, vol. 2, p. 154).

It is in the context and aftermath of the Nuremberg trials that I would like to situate Cover’s comments – to consider a specific narrative bridge that crosses over into history and shapes the postwar, juridical imagination. I focus specifically on this imagination as it unfolds in Albert Camus’s novella The Fall (La Chute, 1956), a story consumed with the meaning of law and justice after the Holocaust. For if Cover’s vision of law sees it as clearing a path to the future, this realization cannot begin to materialize when this future cannot even be imagined. For Camus this was precisely the situation confronting the world in the aftermath of the Second World War. ‘‘What is indeed most striking about our world is that most men (with the exception of true believers) are cut off from the future,’’ he wrote in the Resistance newspaper Combat in 1946. But since he also believed that ‘‘Life has no validity unless it projects itself toward the future, unless it promises growth and progress’’ (Camus, 1991b, p. 117), Camus recognized that it was necessary first to take stock of the brutal legacy of the past in order to imagine the future. It is this reflective move of confronting history that Camus allegorizes in The Fall. I propose to consider the stakes of this allegory in order to conceive of Cover’s bridge to an ‘‘imagined alternative’’ as it exists not in the future but in the past, as the alternative to what might have been. Indeed this is precisely the option that

Guilty Professions: Specters of Sameness in Camus’s The Fall

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haunts the narrator of The Fall, in the form of a bridge that might have been crossed but was not, and that now separates the dead from the living. Camus’s narrator introduces himself as Jean-Baptiste Clamence, a former French lawyer who now lives in Amsterdam. Approaching an unnamed and silent listener in a bar called Mexico City, Clamence – who refers to his newly chosen profession as that of a ‘‘judge-penitent’’ – traverses the metaphorical bridge between past and present, recounting his past offenses to his mute companion in a proud and glib manner: his thoughtless treatment of women, the water he drank from a dying man, the stolen painting stashed in his apartment. Actual bridges, however, he cannot, or will not, cross: ‘‘I never cross a bridge at night,’’ Clamence resolutely declares. ‘‘It’s the result of a vow. Suppose, after all, that someone should jump in the water’’ (Camus, 1991a, p. 15). His pledge never to cross a bridge at night relates to a past event, which he recalls at the very epicenter of the narrative. Clamence took this vow, it turns out, because he is haunted by the memory of a woman in Paris, who jumped to her death as he turned his back and did nothing: I had already gone some fifty yards when I heard the sound – which, despite the distance, seemed dreadfully loud in the midnight silence – of a body striking the water. I stopped short, but without turning around. Almost at once I heard a cry, repeated several times, which was going downstream; then it suddenly ceased. The silence that followed, as the night suddenly stood still, seemed interminable. I wanted to run and yet didn’t stir. I was trembling, I believe, from cold and shock. I told myself that I had to be quick and I felt an irresistible weakness steal over me. I have forgotten what I thought then. ‘‘Too late, too fary’’ or something of the sort. I was still listening as I stood motionless. Then, slowly under the rain, I went away. I informed no one. (Camus, 1991a, p. 70)

The rest of the narrative reveals Clamence’s attempt both to return to and to avoid this moment, to cross this bridge to the imagined alternative of saving the woman’s life. It is fitting, in this spirit of perpetual self-reckoning, that Clamence chooses Amsterdam as his new home: as a city of bridges running over canals, Amsterdam’s architecture ensures that the suicide will not be forgotten – that it will remain, structurally, before him.

ALLEGORIZING WITH SPECIFICITY As an allegory of the Second World War, The Fall distills into one man – who does nothing to prevent a nameless, faceless woman from taking her own life – the broad category of the bystander. The narrative, to be sure, encourages this sort of generalized reading from its outset, announcing its broad sweep in an epigraph from Lermontov: ‘‘A Hero of Our Time,

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generally, is in fact a portrait, but not of an individual; it is the aggregate of the vices of our whole generation in their fullest expression’’ (Camus, 1991a). As a collective vision of the ills of his time, Camus’s narrative bears witness, or rather utters its postwar ‘‘J’accuse,’’ not simply to Clamence’s own past, but to the history common to everyone who has survived the war. ‘‘Every man testifies to the crime of all the others – that is my faith and my hope’’ (Camus, 1991a, p. 110), the narrator declares. For if he bears a bystander’s guilt, he will not bear it alone, insisting that ‘‘I have no more friends; I have nothing but accomplices. To make up for this, their number has increased; they are the whole human race’’ (Camus, 1991a, p. 73). The generalized categories of bystander and accomplice that Camus appears to invoke is linked with another seemingly generalized category – that of the victim, symbolized by the stark figure of the woman, a persona stripped of historical referentiality or specificity. As a representation of Jewish victims of the Holocaust, the woman invites a meditation on culpability and on the possibilities of penance in postwar France (and more generally, Europe) for those who, like Clamence, did nothing in the face of Nazi atrocities. Yet Camus’s choice of the woman as the tragic figure through which to allegorize the Jews is an odd one: it seems to deflect blame and drain the narrative of historical precision. The woman, after all, is not identifiably Jewish, and is not murdered but takes her own life. The deflection and abstraction produced by this non-referential figure facilitate a reading of Camus in which the focus on the generic bystander threatens to undercut the historical force of The Fall’s accusations. But I intend to argue in this essay that Camus’s focus on the bystander as a former lawyer is, in fact, quite specific, connecting issues of complicity to particular professions – above all, to doctors and lawyers. The fact that the novella was published in the decade following the Nuremberg trials adds a crucial context to Camus’s postwar imagination, providing historical specificity to The Fall’s allegory. I would like to read this work in light of its legal context, and thus to articulate in precise terms how the juridical imagination Camus explores in his novel confronts a traumatic past. In spite of the fact that the woman on the bridge bears no outright resemblance to a Holocaust victim, references to the Holocaust abound in Camus’s narrative. Most notably, the area in which Clamence lives is the site of the former Jewish quarter. While he inhabits the space of what he calls ‘‘one of the greatest crimes in history,’’ Camus’s narrator advises his companion to return to his hotel by going around the quarter: Thence, by going around the Jewish quarter you’ll find those fine avenues with their parade of streetcars full of flowers and thundering soundsyI live in the Jewish quarter or what was called so until our Hitlerian brethren made room. What a cleanup!


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Seventy-five thousand Jews deported or assassinated; that’s real vacuum cleaning. I admire that diligence, that methodical patience. When one has no character one has to apply a method, and I am living on the site of one of the greatest crimes in history. (Camus, 1991a, pp. 10–11)

Clamence’s comments call up the darker side of the area’s history – for soon after the Nazi occupation of the Netherlands in 1940, anti-Jewish laws were passed forbidding Jews from living anywhere in Holland but Amsterdam, and the Jewish quarter of the city soon became a ghetto. The journalist Janet Flanner, known for her essays in The New Yorker (for which she also covered the first Nuremberg trial), reflected on the facility with which the Nazis created Amsterdam’s ghetto following the German occupation of Holland: Before the Nazi war, there were a hundred thousand Jews living in Amsterdam. Today, there are five thousand. Catching Jews here was easy. The Gestapo merely cut the bridges of the canals leading to the Jewish neighborhoods they called ghettos, flushed the inmates out of their little eighteenth-century houses, shot those who tried to swim the canals to escape from what had suddenly become fatal racial islands, tagged the marooned remainder with yellow Stars of David, and carted them off in cattle cars to the Fatherland’s concentration camps. (Flanner, 1980, p. 122)

Amsterdam’s architecture – like that of the ghettos in Warsaw or Lodz – illustrates how Nazi urban planning reinforced the Third Reich’s political ideology. Bernard Goldstein, a member of the Jewish Fighting Organization, described the racially driven landscape of the Warsaw ghetto in his memoir: ‘‘At the corner of Chlodna and Zelazna the ghetto was divided by a ‘Polish corridor’ through Chlodna Street. The bridge on Zelazna connected the two parts. Under the bridge, on the holy Aryan soil, were the Christians; and here at the ghetto gate the German guards would direct little scenes of hell’’ (Friedman, 1954, p. 38). The Jews in Lvov were forced to enter that city’s ghetto by what they named the ‘‘bridge of the dead’’ (Corni, 2002, p. 55), a crossing which made them easy targets for German and Ukrainian violence and looting which left 5,000 dead. The pedestrian bridges that characterized these ghettos – calling to mind the bridges over Amsterdam’s canals – were constructed not with a view to crossing over, but precisely in order to avoid certain crossings, to prevent movement between the spheres of Aryan and Jew (Fig. 1).2 An analogous desire for separation characterizes Clamence’s own move from Paris to Amsterdam, a departure that severs two distinct eras in his life, one before the woman’s suicide, and the other after it. In this sense of before and after, we might think about the trajectory of Camus’s novels, to consider The Fall’s relation to its predecessor, The Plague (1947). The latter

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Fig. 1.

The Warsaw Ghetto Bridge.

novel tells the same kind of story as the earlier one, a story of evil, or of the war; The Fall, however, separates itself resolutely from its precursor by offering a different explanatory model for history. Shoshana Felman has argued that the movement between the novels is one that complicates the act of witnessing, wresting from it the redemptive possibilities of salvation or cure. For Felman, the doctor who narrates The Plague and the lawyer in The Fall are figures for two distinct discursive responses to the Holocaust – one medical, the other juridical. ‘‘Unlike the narrative of the physician, whose testimony is ‘the record of what had to be done’ (The Plague, 287),’’ she argues, ‘‘the lawyer’s story is the history of what failed to be doneythe lawyer does not speak by virtue of his presence to events but by virtue, on the contrary, of his skill to mediate events through language, and thus to manipulate their plausibility’’ (Felman, 1992, p. 197). I propose to connect this failure more precisely to specific professions, whose complicity and possible penance were dramatically interrogated in the Nuremberg trials of


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the Nazi doctors and lawyers.3 In doing so, I aim to embed the discursive strategies that Felman illuminates within the institutional and professional context of judgment (rendered in specific legal terms) rather than of witnessing (cast in broad moral terms). This move toward specificity offers a counterpoint to accounts of the Holocaust that insist upon ordinariness, drawing out the ‘‘banality of evil’’ that Hannah Arendt observed in her report on the Eichmann Trial. The emphasis on this banality has meant that, as Andrew Stuart Bergerson observed, ‘‘it has become commonplace to refer to the perpetrators of the Holocaust as ‘ordinary Germans’’’ (Bergerson, 2002, p. 107). Postwar justice, however, emphasized not this ordinariness, but rather the particularity of atrocity, and the way in which specific institutions participated in the machinery of genocide. Rather than compartmentalizing the professions along the lines of the Nuremberg trials, or emphasizing a shift from medical to legal discourse, I intend to explore the complex relationship – the complicity – between the two. What, in the context of Nuremberg, does the shift from medicine to law say about the relationship between them? What does it mean, in other words, to judge the past in professional terms? As Felman points out, Camus’s first literary response to World War II was cast in medical terms, which provided the foundation for imagining atrocity (or more specifically, the Nazi occupation of France) as a contagion, an infectious disease that demands a cure. In the metaphor of the plague itself, Camus mirrors and reverses the medical analogies deployed by Nazi ideologues. In Nazi Germany, it was a medically inflected politics that shaped the conception of undesirables – of the Jews who threatened to contaminate the German body politic. In a speech before senior SS officers in Poznan on October 4, 1943, Reich SS leader Himmler insisted, ‘‘If the Jews were still lodged in the body of the German nation, we would probably by now have reached the stage of 1916–17yWe do not want, in the end, because we destroyed a bacillus, to be infected by this bacillus and to die’’ (Arad, Gutman, & Margaliot, 1981, p. 345).4 Several months later, Roosevelt would harness a similar metaphor to reinforce the United States’ commitment to the war effort. In one of his most famous press conferences in December 1943, Roosevelt spoke of America after the Great Depression as an ‘‘awfully sick patient suffering from a grave internal disorder,’’ an illness which was finally cured by the good Dr. New Deal. Turning from domestic issues to the ongoing World War, he continues: But since then, two year ago, the patient had a very bad accident – not an internal trouble. Two years ago, on the seventh of December [the date of the attack on Pearl Harbor], he was in a pretty bad smashup – broke his hip, broke his leg in two or three

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RAVIT REICHMAN places, broke a wrist and an arm, and some ribs; and they didn’t think he would live, for a while (y) Old Dr. New Deal didn’t know ‘‘nothing’’ about legs and arms (y) so he got his partner, who was an orthopedic surgeon, Dr. Win-the-War, to take care of this fellow who had been in this bad accident. And the result is that the patient is back on his feet. He isn’t wholly well yet, and he won’t be until he wins the war. (Roosevelt, 1950, vol. 12, pp. 570–571)

Roosevelt’s words carry the weight of medicine’s optimism, the reassurance that symptoms can be diagnosed, illnesses cured and injuries healed. But even as ‘‘the patient’’ ultimately won the war, he found himself confronting a less than reassuring reality: in a horrific, ironic undoing of Dr. Win-theWar’s bravado, the victorious armies found themselves liberating camps full of diseased and dead bodies that no amount of literal medicine could treat.5 We might imagine that the language of medicine – which was, to a significant degree, a central discourse invoked to represent the war – was superceded by the language of law. The law itself, exemplified by the Nuremberg trials, might have seemed to promise a discursive refuge from the atrocities of the war. Robert Jackson’s opening statement at Nuremberg underscores this belief in law, a conviction that legal means can balance the scales of justice at a time when the call for retribution might have yielded far more violent ends. ‘‘That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason,’’ Jackson affirmed (International Military Tribunal, 1947, vol. 2, p. 98). While medical analogies may have proved powerful for talking about war – and in the case of The Plague, for allegorizing it – it was thus law which came to occupy a central position in the story of the recovery after World War II. Given this discursive shift, one might imagine that the aim of the Nuremberg trials was less to achieve a sense of healing than to provide a sense of justice. Camus himself seemed to acknowledge the inadequacy of medical metaphors in November 1946, one month after the conclusion of the first Nuremberg trial of the major war criminals: One cannot end a plague with the same remedies used for a headache. A crisis that tears the whole world apart must be met on a world scale. Order for all, so that the weight of misery and fear will be lessened for each, is our logical objective today. But that calls for action and sacrifices, that is, for human beings. And if there are many today who within their hearts detest violence and killing, there are not many who are willing to reconsider their actions and thoughts. For those who do make this effort, however, in so doing they will find a reasonable hope and the habit of action. (Camus, 1991d, p. 135)

In emphasizing the pain of collective accountability over more immediate and domestic palliatives, Camus reinforces the transition from healing to


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judging. This transition, however, does not constitute a clean break; Camus, after all, does not relinquish his commitment to depicting evil as a plague. Rather than jettisoning this metaphor, he combines it with the force of judgment – and specifically, self-judgment. The insistence on self-judgment, on people’s willingness ‘‘to reconsider their actions and thoughts,’’ becomes particularly important in a time when the official duty to judge has been conferred on a select few, as it was at Nuremberg.6 It is also clear from the language used by the Nuremberg prosecutors themselves that the narrative possibilities afforded by legal and medical discourse were not entirely separate, that it was not necessary to choose between the story of a cure and the story of justice. Indeed, in taking responsibility for the past, one mixes narratives as one might mix metaphors – an integration that draws upon the force of each. The prosecution at Nuremberg thus extended the rhetoric of disease and medicine in articulating the Tribunal’s historic task. Telford Taylor, Chief of Counsel for the prosecution in the medical trial, declared in his opening statement: The perverse thoughts and distorted concepts which brought about these savageries are not dead. They cannot be killed by force of arms. They must not become a spreading cancer in the breast of humanity. They must be cut out and exposed for the reason so well stated by Mr. Justice Jackson in this courtroom a year ago – ‘‘The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored because it cannot survive their being repeated.’’ (Trials of War Criminals before the Nuremberg Military Tribunals, 1949–1953, vol. 1, p. 28)

Taylor’s depiction of the Tribunal’s task harnesses the power – and fear – of contagion. The atrocities committed by Nazi doctors cannot be treated solely by military victory. Rather, they must be exposed, explained, and eradicated by juridical remedies – by a kind of legal ‘‘talking cure,’’ which brings the traumatic past to light so as to understand and consequently, overcome it. Taylor extended the metaphor of contagion from humanity to Germany’s political fate, insisting, ‘‘A nation which deliberately infects itself with poison will inevitably sicken and die’’ (Trials of War Criminals before the Nuremberg Military Tribunals, 1949–1953, vol. 1, p. 29).

A NETWORK OF GUILT That Camus was very much aware of the complex interrelationship of these discourses is apparent in The Fall. As he looks back to the war in this novel,

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the focus that he gives to the issue of judgment does center on a figure who clearly represents the legal profession. Yet the novel’s aim, I will be arguing, is to remind its readers in subtle but unmistakable ways of the complicity of both law and medicine in the Holocaust.7 The ‘‘bystanders’’ that The Fall indicts are both legal and medical practitioners, those whose institutional affiliations paved the way toward making extermination a political reality during the war. But Camus’s indictment of these specific ‘‘bystanders’’ – physicians and jurists – works not by rendering them into two discrete and distinct types, but by depicting them through a figure who condenses features of both. Indeed, Camus begins his novel by having Clamence recount how the Dutch host of the bar in which he and his interlocutor are sitting mistook him for a doctor: ‘‘Yes,’’ he says irritably, ‘‘the ape opened his mouth to call me doctor. In these countries everyone is a doctoryI am not a doctor. If you want to know, I was a lawyer’’ (Camus, 1991a, p. 8). The importance of the bartender’s error is not that he substitutes lawyer with doctor – an error that the narrator, in turn, corrects by replacing doctor with lawyer. The significance of this mistake, rather, hinges precisely on the man’s confusion, that is, on the commingling of these two figures. This confusion is refigured at the end of the narrative, which repeats this moment of mistaken identity with a crucial difference. For it turns out that Clamence’s companion is not, as he believed, a policeman, whom he hoped would arrest him for concealing a stolen painting significantly called ‘‘The Just Judges’’ – a kind of displaced penance for the guilt he presumably feels at having turned his back on the woman in Paris.8 Instead of a policeman, he finds himself confronted with his mirror image: ‘‘But of course you are not a policeman; that would be too easy. What? Ah, I suspected as much, you see. That strange affection I felt for you had sense to it then. In Paris you practice the noble profession of lawyer! I sensed that we were of the same species’’ (Camus, 1991a, p. 147). The English translation, however, misses a critical element of the statement’s political potency. In the original French, Clamence exclaims, ‘‘Je savais bien que nous e´tions de la meˆme race’’ (Camus, 1956, p. 152) – I knew that we were of the same race. In this moment, Clamence both recognizes himself in his interlocutor, and subsequently raises the specter of race – a concept that laid the foundation for Nazi genocide, and one that was shaped through both medicine and law.9 The jarring invocation of race in what had appeared to be a story of moral or legal culpability sets The Fall on a course toward another, more specific target, inviting a series of associations that move the novel not just toward its final moment of confession, but also to


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Camus’s sweeping accusation of those who abandoned their professional responsibility. ‘‘When one has no character one has to apply a method’’ (Camus, 1991a, p. 11), Clamence states with regard to the ‘‘vacuum-cleaning’’ of Amsterdam’s Jews. In the wake of the Nuremberg trials, this method emerges as a resolutely professional one: as the combined, destructive power of medical and legal ‘‘methods’’ that defined citizenship (and with it, the right to life) in racial terms. The Nuremberg trial of the Nazi doctors demonstrated the multiple ways in which medicine advanced and reinforced the Third Reich’s politics, formalizing racial concepts and laying the groundwork for government policies. Telford Taylor’s opening statement, for example, notes a 1935 volume by Dr. Arthur Guett, Nazi Director of Public Health in the Ministry of the Interior. Guett asserts: ‘‘[T]he ill-conceived ‘love of thy neighbor’ has to disappear, especially in relation to inferior or asocial creatures. It is the supreme duty of a national state to grant life and livelihood only to the healthy and hereditarily sound and racially pure folk for all eternity. The life of an individual has meaning only in the light of that ultimate aim, that is, in the light of his meaning to his family and to his national state’’ (Trials of War Criminals before the Nuremberg Military Tribunals, 1949–1953, vol. 1, p. 58). Taylor goes on to note the way in which medical training upheld the rule of law. ‘‘A student whose knowledge of the racial theories and Nuernberg laws was not sufficient would fail his medical examinations,’’ he argues, and adds that ‘‘Psychiatric university teaching declined to the level of a mere rehashing of the Nuernberg and sterilization laws’’ (Trials of War Criminals before the Nuremberg Military Tribunals, 1949–1953, vol. 1, p. 60).10 The alliance of law and medicine was particularly manifest in the 1933 creation of ‘‘Hereditary Health Courts,’’ which made decisions in cases of sterilization. The prosecution in the Justice Case documented the legal establishment of these composite institutions in the Law of July 14, 1933 for the Prevention of Progeny with Hereditary Diseases, which dictated that such courts be ‘‘composed of a local court judge as president, a public health officer and another physician approved in the German Reich, with expert knowledge of matters pertaining to eugenics’’ (Trials of War Criminals before the Nuremberg Military Tribunals, 1949–1953, vol. 3, p. 244). The combined force of the medical and legal professions thus achieved not only rhetorical amplitude, but above all institutional potency.11 What the Nazis pushed to its most horrific limits is nonetheless imbricated in the national rhetoric of France’s own politics. One might think here of the particularities of French history with regard to race, of the national claim to

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purity at the very foundations of political life. ‘‘La Marseillaise,’’ the French national anthem, declares that ‘‘an impure blood should not water our soil’’ (‘‘qu’un sang impur n’abreuve nos sillons’’). The verse resounds as a chilling echo of Nazi Germany’s doctrines of racial purity. As the Journal of the American Medical Association documented in 1935, the Nuremberg lawmakers saw themselves as ‘‘permeated with the knowledge that the purity of the German blood is a precondition for the continued existence of the German people, and filled with the inflexible determination to make the German nation secure for all future time’’ (Lifton, 1986, p. 25). The irony of The Fall’s moment of recognition, moreover, is that Clamence’s vision of himself – ‘‘we were of the same race’’ – is produced by using race to identify the similar, the semblable. In the wake of Nazism, however, race had become a tool of distinction – a way to differentiate between desirable and undesirable, pure and impure.12 And in this regard, one cannot forget that what was formalized in law was carried out in medicine, at the hands of those physicians who authorized decisions of whom to sterilize or kill. Race, like the bridge that Cover posits as a fitting metaphor for law, not only connects individuals to each other, but also creates communities and nations through differentiation. The Larousse Dictionary of the French Language (1988) defines race as a ‘‘category of people who have the same behavior, the same tasks, and the same inclinations.’’ But the examples given to illustrate this definition take on a dramatically different tone, relying not on sameness but, in an unsettling way, on distinction and separation – and on turns of phrase that recall history through its most painful idioms. And so we find the following: ‘‘La race des exploiteurs est une race maudite’’ – the race of exploiters is a cursed race; ‘‘Quelle sale race que la des usuriers’’ – what a dirty race is the race of usurers. The pejorative context that these illustrations evoke – one might think, for instance, of the epithet ‘‘sale juif,’’ dirty Jew – remind one all too well of how racial theories in Nazi Germany and Nazi-occupied Europe sought to unify one race together by brutally separating others from it. As a synonym for race, the Larousse dictionary directs us to the word engeance, derived from the latinate meaning of de´noncer: to indicate, reveal, denounce or expose – and perhaps most important for our consideration of The Fall, to inform against. Engeance, defined as ‘‘a group of people who are judged to be suspect,’’ ‘‘une sale engeance,’’ reminds us that race in Camus’s novel is burdened with a weight that far exceeds its final moment of recognition. For its darker history is also that of medicine’s and law’s joint roles in separating and distinguishing one race from another, as well as of communities in which Aryan neighbors became


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informants – and thus, accomplices – in turning over their Jewish neighbors to Nazi authorities. The act of informing against a suspect group is here embedded in the mistaken identities of Clamence as a doctor, of his interlocutor as a policeman, and of the recognition of sameness in the discovery that he, too, is a lawyer. What we witness in The Fall is not, in other words, simply the conversion of a medical narrative into a legal one. ‘‘We were of the same race’’: Camus’s turn to race, and the medicine and law that defined this race in the Third Reich, hinges on something much subtler and more sinister, and speaks not explicitly through one discourse or the other but points to their concomitant complicity, to the way law and medicine mutually reinforced each other. As Robert Jay Lifton documents in The Nazi Doctors, while eugenic theory also took hold in the United States and Britain, the possibilities for political and legal redress left ample room for resistance to eugenic policies. Contrasting the American and British situations with that of the Third Reich, Lifton concludes, In Nazi Germany, on the other hand, the genetic romanticism of an extreme biomedical vision combined with a totalistic political structure to enable the nation to carry out relentlessly, and without legal interference, a more extensive program of compulsory sterilization than had ever previously been attempted. Indeed, the entire Nazi regime was built on a biomedical vision that required the kind of racial purification that would progress from sterilization to extensive killing. (Lifton, 1986, p. 24)13

In recognizing himself through the mirror of race – through, in other words, the reflection of his own vocation in another’s – Clamence at last informs against himself. ‘‘I informed no one,’’ he says of the woman’s suicide, least of all himself: ‘‘The next day, and the days following, I didn’t read the papers’’ (Camus, 1991a, p. 71). The flight from information, and the ensuing descent into willed ignorance, comes undone in this final moment, setting complicity on par with culpability. The collaborative work of law and medicine that The Fall illuminates thus resists the historical insistence on ordinariness, refusing to corroborate the broad categories of ordinary perpetrators or bystanders; for Camus, as Bergerson claims in his reading of The Plague, insists that ‘‘we must learn to see through this distracting and dehumanizing culture of normalcy and struggle against it as a rebel’’ (Bergerson, 2002, p. 130).

JUDGMENT IN THE SUBJUNCTIVE The Fall’s confession, in which Clamence expresses his anguish over the woman’s suicide – the closest he will come to confessing his guilt

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outright – thus issues from a moment of identity, which is also Camus’s suggestion of complicity. Harnessing race’s synonym, engeance, Clamence recasts it, informing against himself – and against the doctors and lawyers with whom he has been associated in the narrative. In this moment, Clamence recognizes himself in his interlocutor through the specter of race, a recognition which occasions the transfer of his moral dilemma onto his companion, and the examination of his culpability in the light of day: ‘‘Then please tell me what happened to you one night on the quays of the Seine and how you managed never to risk your life,’’ he implores. Speaking both as and to his companion, Clamence then articulates an impossible wish: ‘‘O young woman, throw yourself into the water again so that I may a second time have the chance of saving both of us!’’ (Camus, 1991a, p. 147) But if race gives him the certainty (‘‘I knew we were of the same race’’) that precipitates this expression of grief, Clamence’s knowledge dissolves before the desire to go back in time and do things differently. For he addresses the woman’s ghost in the subjunctive: ‘‘jette-toi encore dans l’eau pour que j’aie une seconde fois la chance de nous sauver tous les deux!’’ (Camus, 1956, p. 153). The hypothetical nature of his exclamation, expressed through the subjunctive ‘‘j’aie’’ – ‘‘so that I may a second time have the chance of saving both of us!’’ – should not surprise us, since Clamence has already noted his predilection for the subjunctive mode of speech. ‘‘Ah, I see you smile at that use of the subjunctive. I confess my weakness for that mood and for fine speech in general,’’ (Camus, 1991a, p. 5) he tells his listener as the novel opens. The ‘‘fine speech’’ that keeps the past at a safe distance offers Clamence the very relief he seeks, enabling him to conclude his outburst with the reassurance that comes of an irreversible past. ‘‘But let’s not worry!’’ he concludes. ‘‘It’s too late now. It will always be too late. Fortunately!’’ Thus far, I have been arguing for a reading of Camus that engages the joint culpability of medicine and law in the trauma of World War II. I would like to conclude, however, by broadening The Fall’s focused accusation of perpetrators, in order to think about the work’s wider juridical claim. In order to consider the reassurance that Clamence longs for – the relief of a past that cannot be reversed – I turn to the question of law’s confrontation with trauma, and more broadly, with how to judge the irreversible past. How does one judge a perpetrator when, to recall Robert Jackson’s opening statement at Nuremberg, ‘‘Juridical action always comes after the event?’’ The answer to this question, I believe, lies in The Fall’s use of the subjunctive, which enters the narrative as a reminder of what law cannot do – or rather, what it cannot undo. In giving voice to the past, law may well explain


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it, judge it, and punish those who authorized it. The law’s compensation for historical trauma, however, can only function as a substitute; as Telford Taylor noted in his opening statement in the medical trial, ‘‘it can never redress the terrible injuries which the Nazis visited on these unfortunate peoples’’ (Trials of War Criminals before the Nuremberg Military Tribunals, 1949–1953, vol. 1, p. 27). In this sense, law functions like the stolen painting ‘‘The Just Judges,’’ which Clamence remarks ‘‘was replaced by an excellent copy’’ – a replica so exact that ‘‘no one could distinguish the copy from the original’’ (Camus, 1991a, p. 129). But this does not suggest, contrary to Clamence’s belief, that ‘‘no one is wronged’’ by the substitution (Camus, 1991a, p. 129): even an acceptable stand-in cannot eliminate the fact that a wrong has been committed, that something precious has been lost. Law, like ‘‘The Just Judges,’’ may occupy a space that otherwise would have remained blank, but such compensation can never replace the original or restore the loss. In its recourse to the subjunctive, to the past as a hypothetical, The Fall suggests that the force of judgment lies in issues other than compensation. Its force, rather, emerges from the historical imagination that the subjunctive demands: the act of imagining what one might have done, how one should have acted. The subjunctive and juridical force thus posits the imagined alternative not to the future, but to the past, and sets this alternative against the past as the basis of judgment and culpability. On the bridge between ‘‘what happened’’ and ‘‘what should have happened,’’ Clamence – and those he represents – crosses from denial to guilt. Seen in this light, the certainty of The Fall’s last sentence – ‘‘It will always be too late’’ – enters as a kind of plug or gauze, staunching the uncertainty of Clamence’s wishful address to the woman to ‘‘throw yourself into the water again.’’ For if he could go back, would anything really be different? The sarcasm embedded in his ‘‘Fortunately!’’ resonates with an earlier episode, in which Clamence clearly grasps how he should have acted, and confronts the futility of looking back in frustration. Following an altercation with a motorcyclist during which Clamence feels himself humiliated in public, he replays the incident in his mind, imagining how it might have been different: As an afterthought I clearly saw what I should have done. I saw myself felling d’Artagnan with a good hook to the jaw, getting back into my car, pursuing the monkey who had struck me, overtaking him, jamming his machine against the curb, taking him aside, and giving him the licking he had fully deserved. With a few variants, I ran off this little film a hundred times in my imagination. But it was too late, and for several days I chewed bitter resentment. (Camus, 1991a, p. 54)

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Clamence’s resignation with regard to this moment – ‘‘But it was too late’’ – anticipates the narrative’s final pronouncement, the emphatic realization that ‘‘It will always be too late.’’ As frustration dissolves into relief, the narrative signals its condemnation of its own narrator, who recognizes an alternative to the woman’s suicide but is all too eager to dismiss it as an irretrievable moment of history. This dismissal, however, is the very moment when judgment can begin: the juridical imagination insists on judging subjunctively – on holding an individual responsible for what might have been, rather than turning away from this possibility as a moment that ‘‘will always be too late.’’ As Telford Taylor remarks in the Justice Trial, the jurists accused of membership in criminal organizations ‘‘all had special training and successful careers in the service of the law. They, of all Germans, should have understood and valued justice’’ (Trials of War Criminals before the Nuremberg Military Tribunals, 1949–1953, vol. 3, p. 106). To realize that rewriting the past does not amount to re-righting it is not, ultimately, to absolve individuals of the responsibility to judge retrospectively. Revisiting history in narrative, in other words, does not revise it in any moral sense: the alternative to this history will continue to haunt, to remind a passive or impassive bystander of ‘‘what I should have done.’’ And yet if The Fall’s more explicit bridges buckle under the weight of time and history, Camus offers us another kind of connective tissue – a conceptual bridge that connects rather than separates: the term race, and the knowledge and recognition that this word produces, bringing the guilt of professions to bear on each other and subtly but forcefully reminding us of the interlocking professional network that made atrocity possible, of the ‘‘race’’ of doctors and lawyers who made race a cornerstone of an unspeakable chapter in history. It is here, in the novel’s moment of deepest certainty, that confession can begin – and with it, the recognition of what is possible in the face of history. For if one cannot go back to right a wrong, one can nonetheless identify the positions from which that wrong was committed. And so it is as a professional – a mistaken doctor, a former lawyer – rather than simply as a broadly construed bystander, that Clamence stands accused. The Fall, in revisiting the past to ask, ‘‘Could it have been otherwise?’’ does not suggest that there is nothing worthwhile in imagining alternatives that are no longer available. But it does insist that these subjunctive, hypothetical meditations cannot arise without that moment of identification and self-recognition – without crossing the bridge of race into complicity, a crossing over which sets us on the course away from the prospect of reliving or undoing history, and toward the possibility of identifying and judging its perpetrators.


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NOTES 1. I am grateful to Daniel Y. Kim for his invaluable comments and suggestions in writing this article. 2. See, for example, The Holocaust Chronicle, ed. David Aretha: ‘‘Some 170,000 Lodz Jews were forced into the ghetto, which was served by only two major avenues, and by wooden pedestrian bridges that were constructed over those streets’’ (Aretha, 2002, p. 191). 3. United States v. Karl Brandt et al., which became known as the ‘‘Doctors Trial’’ or ‘‘Medical Case,’’ indicted 23 defendants and was conducted from December 1946 to August 1947. United States v. Josef Alstoetter et al., referred to as the ‘‘Justice Case,’’ indicted 16 Nazi jurists, including officials in the Reich Ministry of Justice, prosecutors and judges. The trial began in March 1947 and concluded in December of that year. 4. Sander Gilman points out the close alliance between disease imagery and difference during the Nazi era: ‘‘In the realm of German science, as in American medicine during the very same period, syphilis was associated with a racial (as well as a pathognomonic) image of difference’’ (Gilman, 1991, pp. 218–219). In her polemic against the metaphoric use of illness, Susan Sontag notes the way in which disease imagery enters in the service of politics, in particular those of the Third Reich. ‘‘Modern totalitarian movements, whether of the right or of the left, have been peculiarly – and revealingly – inclined to use disease imagery. The Nazis declared that someone of mixed ‘racial’ origin was like a syphilitic. European Jewry was repeatedly analogized to syphilis, and to a cancer that must be excised (y) As was said in speeches about ‘the Jewish problem’ throughout the 1930s, to treat a cancer one must cut out much of the healthy tissue around it. The imagery of cancer for the Nazis prescribes ‘radical’ treatment, in contrast to the ‘soft’ treatment thought appropriate for tuberculosis – the difference between sanatoria (that is, exile) and surgery (that is, crematoria)’’ (Sontag, 1990, pp. 81–83). 5. Camus was well aware of this bitter irony, and published a caustic appeal on May 17, 1945 in Combat calling for the immediate release of prisoners in Dachau: ‘‘Can it be understood what this means when it is a matter of men who, instead of waiting for victory to come from the other side of the sea, sacrificed everything to hasten the day of their most cherished hope? And now that day is here! It finds them in the midst of corpses and stench, trapped by barbed wire, excluded from a world which in their darkest moments they never imagined to be so stupid and oblivious’’ (Camus, 1991c, p. 109). 6. More recently, Alan Dershowitz has echoed some of Camus’s concerns in his recent account of noteworthy trials: ‘‘The Nuremberg tribunal and those that followed it administered justice to a tiny fraction of those guilty of the worst barbarism ever inflicted on humankind (y) By convicting and executing a tiny number of the most flagrant criminals, the Nuremberg court permitted the world to get on with business as usual. The German economy was quickly rebuilt, the unification between East and West Germany became a reality – and anti-Semitism is once again rife throughout Europe (y) The reality that, following Nuremberg, the world was to experience genocide again and again – in Cambodia, the former Yugoslavia, and Rwanda – demonstrates that trials alone cannot put an end to human barbarity’’

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(Dershowitz, 2004, pp. 294–296). Dershowitz’s criticism does not, to my mind, diminish the need for and importance of war crime tribunals. Rather, it cautions against relying too heavily on law to achieve aims that demand treatment in additional cultural, social and political frameworks. 7. For a lucid account of the historical relationship between medicine and law in Nazi Germany, see Henry Friedlander, The Origins of Nazi Genocide: From Euthanasia to the Final Solution, and particularly Chapter 6, detailing the judiciary’s support of the T4 (euthanasia) killing program (Friedlander, 1995). 8. ‘‘I always hope, in fact, that my interlocutor will be a policeman and that he will arrest me for the theft of ‘‘The Just Judges.’’ For the rest – am I right? – no one can arrest me. But as for that theft, it falls within the provisions of the law and I have arranged everything so as to make myself an accomplice: I am harboring that painting and showing it to whoever wants to see it’’ (Camus, 1991a, p. 146). 9. For a reading of race and disease in German literature both during the Third Reich and in the late 20th century, see Sander Gilman, The Jew’s Body, and particularly Chapter 9, ‘‘The Jewish Disease: Plague in Germany 1939/1989.’’ (Gilman, 1991, pp. 210–233) My focus here on medical discourse does not posit racial ideology – or the participation of professional discourses more generally – as a sufficient condition for the Holocaust. I take such ideology to be a necessary rather than a sufficient condition, a position articulated forcefully by Claude Lanzmann in relation to his film Shoah: ‘‘Between all these conditions – which were necessary conditions maybe, but they were not sufficientythere is an unbreachable discrepancy. It is simply not possible to engender one out of the other. There is no solution of continuity between the two; there is rather this gap, an abyss, and this abyss will never be bridged.’’ (Lanzmann, 1995, p. 206) 10. As one of the particularly horrific examples of Nazi doctors’ ‘‘scientification’’ of race, Taylor cites the collection of Jewish skeletons undertaken by Third Reich physicians, and particularly by the defendants Rudolf Brandt and Wolfram Sievers, who ‘‘were completely obsessed by all the vicious and malignant Nazi racial theories.’’ In a 1942 report to Himmler, Sievers wrote: ‘‘We have a nearly complete collection of skulls of all races and peoples at our disposal. Only very few specimens of skulls of the Jewish race, however, are available with the result that it is impossible to arrive at precise conclusions from examining them. The war in the East now presents us with the opportunity to overcome this deficiency. By procuring the skulls of Jewish–Bolshevik Commissars, who represent the prototype of the repulsive, but characteristic subhuman, we have the chance now to obtain a palpable, scientific document.’’ (Trials of War Criminals before the Nuremberg Military Tribunals, 1949– 1953, vol. 1, p. 54) These skulls were eventually collected not from the front but from Auschwitz, and the corpses of Jewish victims were delivered to Strasbourg and discovered at the end of the war. 11. Robert J. Lifton thus concludes that these courts illustrated ‘‘the desired combination of medicalization and Nazi Party influence,’’ and states that ‘‘The entire process was backed up by law and police power.’’ (Lifton, 1986, p. 25) For a sustained account of Nazi Germany’s legal system, see Mu¨ller (1991). 12. As Sander Gilman maintains, ‘‘The very choice of the label ‘anti-Semitism’ was to create the illusion of a new scientific discourse for the hatred of the Jews.’’ (Gilman, 1991, p. 5)


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13. Richard Lawrence Miller echoes this sense of professional cooperation in delineating race as a social and legal category, pointing out that when a group’s social status is formalized in law, ‘‘Victims who were formerly enemies of the people now become enemies of the state. This change in status is important. Now bureaucrats take over from the rabble. What was once disorganized becomes scientific, legal, and precise.’’ (Miller, 1995, p. 9) For a rigorous assessment of eugenics in British intellectual circles, see Stone (2002).

REFERENCES Arad, Y., Gutman, Y., & Margaliot, A. (Eds) (1981). Documents on the holocaust: Selected sources on the destruction of the Jews of Germany and Austria, Poland, and the Soviet Union. Jerusalem: Yad Vashem. Aretha, D. (Ed.) (2002). The holocaust chronicle. Lincolnwood, IL: Publications International. Bergerson, A. (2002). Hildesheim in an age of pestilence: On the birth, death, and resurrection of normalcy. In: A. Confino & P. Fritzsche (Eds), The work of memory: New directions in the study of Germany society and culture. Urbana and Chicago: University of Illinois P. Camus, A. (1956). La chute. Paris: Gallimard. Camus, A. (1991a). In: J. O’Brien (Ed.), The fall. New York: Vintage Books. Camus, A. (1991b). The century of fear (19 November 1946). In: A. de Gramont (Ed.), Between hell and reason: Essays from the Resistance Newspaper Combat, 1944–1947 (pp. 117–120). Hanover and London: Wesleyan University Press. Camus, A. (1991c). Demands the release of prisoners still in Dachau (17 May 1945). Id. 107– 109. Camus, A. (1991d). A new social contract (29 November 1946). Id. 134–137. Corni, G. (2002). In: N. R. Iannelli (Trans.), Hitler’s ghettos: Voices from a beleaguered society, 1939–1944. London: Arnold Publishers. Cover, R. (1993). Nomos and narrative. In: M. Minow, M. Ryan & A. Sarat (Eds), Narrative, violence, and the law: The essays of Robert Cover (pp. 95–172). Ann Arbor: University of Michigan Press. Dershowitz, A. (2004). America on trial: Inside the legal battles that transformed our nation. New York and Boston: Warner Books. Felman, S. (1992). Camus’ The Fall, or the betrayal of the witness. In: S. Felman & D. Laub (Eds), Testimony: Crises of witnessing in literature, psychoanalysis, and history (pp. 165– 203). New York and London: Routledge. Flanner, J. (1980). Letter from Amsterdam (February 6, 1947). In: I. Drutman (Ed.), Janet Flanner’s world: Uncollected writings, 1932–1975 (pp. 122–127). London: Secker & Warburg. Friedlander, H. (1995). The origins of Nazi genocide: From euthanasia to the final solution. Chapel Hill and London: University of North Carolina Press. Friedman, P. (Ed.) (1954). Martyrs and fighters: The epic of the Warsaw ghetto. New York: Frederick A Praeger. Gilman, S. (1991). The Jew’s body. New York and London: Routledge. International Military Tribunal. (1947). Trial of the major war criminals before the International Military Tribunal, Nuremberg, 14 November 1945–1 October 1946 (42 vols.). Nuremberg: International Military Tribunal.

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Lanzmann, C. (1995). The obscenity of understanding: An evening with Claude Lanzmann. In: C. Caruth (Ed.), Trauma: Explorations in memory (pp. 200–220). Baltimore: Johns Hopkins University Press. Lifton, R. J. (1986). The Nazi doctors: Medical killing and the psychology of genocide. New York: Basic Books. Miller, R. L. (1995). Nazi justiz: Law of the holocaust. Westport, CT: Praeger. Mu¨ller, I. (1991). In: D. L. Schneider (Ed.), Hitler’s justice: The courts of the Third Reich. Cambridge, MA: Harvard University Press. Roosevelt, F. D. (1950). The nine-hundred and twenty-ninth press conference, Washington, 28 December 1943. In: Rosenman S (Ed.), The public papers and addresses of Franklin D. Roosevelt (13 vols). New York: Macmillan. Sontag, S. (1990). Illness as metaphor and aids and its metaphors (1978 and 1989). New York: Doubleday/Anchor. Stone, D. (2002). Breeding superman: Nietzsche, race and eugenics in Edwardian and Interwar Britain. Liverpool: Liverpool University Press. Trials of war criminals before the Nuremberg Military Tribunals under control council law No. 10. Nuremberg, October 1946–November 1949 (1949–1953) (15 vols.). Washington, DC: U.S. Gov’t Print Off.

PART II: BODIES OF GUILT

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THE INJUSTICE OF INTERSEX: FEMINIST SCIENCE STUDIES AND THE WRITING OF A WRONG Iain Morland ABSTRACT My discussion of intersexuality’s changing exemplificatory position within feminist studies of science explains how its medical management has emerged as an exemplary injustice of recognition. Specifically, the surgical protocol that aims to make unusual genitalia invisible, and the medical obfuscation of intersexuality’s ramifications for the cultural construction of gender, have been written as a wrong by Anne Fausto-Sterling and Suzanne Kessler. By mapping intersex treatment as a discursively produced injustice, I argue that it is accordingly within discourse that the wrongs of intersex treatment may be redressed – not by undoing past surgeries, or by punishing clinicians as personally ‘‘guilty.’’ Introduction Twenty years after irrevocable genital surgery in childhood to reduce a body part named by medicine as an enlarged clitoris, intersexed woman Morgan Holmes is adamant that ‘‘there was no reason to change my body’’ (1998, p. 224). An injustice has clearly been done. In statements such as ‘‘I should have been left alone to mature in a body that quite feasibly could have Toward a Critique of Guilt: Perspectives from Law and the Humanities Studies in Law, Politics, and Society, Volume 36, 53–75 Copyright r 2005 by Elsevier Ltd. All rights of reproduction in any form reserved ISSN: 1059-4337/doi:10.1016/S1059-4337(05)36004-2

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penetrated another with its phalloclit’’ and ‘‘I should have been allowed to grow up to blur the physical markers of sexuality, but I wasn’t given that freedom,’’ Holmes (1998, p. 225) invites a normative commitment by the reader to her standpoint. But it is not clear that agreement with her is enough; to what extent would a just response to her discourse of injury require the apparently impossible reinstatement of Holmes’ pre-surgical intersexed ‘‘freedom?’’ In seeking to answer this question, my paper is about how the medical treatment of intersexuality, of which Holmes’ experience is regrettably typical, has become intelligible as an injustice. The feminist political philosopher Nancy Fraser has interrogated the character of contemporary justice in her essay ‘‘Social Justice in the Age of Identity Politics: Redistribution, Recognition and Participation.’’ Fraser (2003) identifies two principal kinds of justice that are currently claimed by, and on behalf of, aggrieved individuals and groups. ‘‘First, and most familiar, are redistributive claims, which seek a more just distribution of resources and wealth’’ (2003, p. 7). Cases of redistributive justice, such as that between owner and worker, have served as standard examples for scholarship about social justice during the last 150 years (2003, p. 7). Nevertheless, Holmes is not asking for redistributive justice; her discourse is not about the impact that genital surgery may have had on her earnings, or on her access to other economic resources. Rather, it falls under the second type of call for justice identified by Fraser. In contemporary Western culture, Fraser’s essay continues, ‘‘we increasingly encounter a second type of social-justice claim in the ‘politics of recognition.’ Here the goal, in its most plausible form, is a difference-friendly world, where assimilation to majority or dominant cultural norms is no longer the price of equal respect’’ (2003, p. 7). By publishing her uncompromising testimony, Holmes is practicing the ‘‘politics of recognition’’ in a twofold sense. On the level of content, insofar as Holmes’ paper eschews the surgical ‘‘assimilation’’ of its author’s body to cultural norms of genital appearance, it valorizes the idea of what Fraser calls a ‘‘differencefriendly world.’’ In a world friendly to difference, atypical genitalia would not be modified: they would be regarded with the respect accorded to nonintersexed genitals. Such respectful regard is of literal importance to recognition-based models of social justice; it is emphasized on the level of frame or form in Holmes’ title, ‘‘In(to) Visibility: Intersexuality in the Field of Queer.’’ The distinction figured by the title’s typography between intersexuality’s invisibility and its coming into visibility is critical. Seen from the perspective of the politics of recognition, this difference between the visibility and invisibility of intersexuality is coterminous with the distinction between justice and injustice. To recognize intersexuality is to do it justice.

The Injustice of Intersex: Feminist Science Studies and the Writing of a Wrong

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Within the academy during the last 25 years, scholars working in feminist science studies have led the way in critiquing the traditional medical model of intersex management.1 In this paper, I will explain how the development of their work during the 1980s and early 1990s has played a critical role in the emergence of the medical management of intersexuality as problematic and contestable in the manner described by Holmes. Previously, intersexed bodies had been considered a problem that required medical management. Through a discussion of intersexuality’s changing exemplificatory position within feminist studies of science, my paper will explain how the medical management of intersex has come to be figured by its critics as an exemplary injustice of recognition. The failure by clinicians to recognize intersexuality – through the surgical protocol which makes intersexuality invisible rather than bringing it in to visibility – has been written as a wrong by feminist science studies. This is neither to allege that clinicians are pernicious, nor that the injustice of intersex is fictitious. Rather than assign guilt to clinicians, I shall identify the discursive context that has made the medical management of intersex intelligible as unjust, and specifically as an injustice that demands redress through recognition. In the final part of the paper I return to Holmes and Fraser in order to outline the productive implications of my analysis for the ostensible impossibility of doing justice to intersexed individuals whose genital surgeries are irrevocable.

A Genealogy of Feminist Science Studies Contemporary feminist studies of science are heterogeneous, but their roots can be located, as one would expect, in the overlap between the projects of feminism and cultural studies of science. The two projects, although each diverse, have a mutual interest in unmasking the values inherent to material practices, and so in debunking the inevitably vested interests that motivate and shape such practices. In this respect, they share a commitment not merely to reveal the truth about a given practice, but to the contribution of that revelation to new ways of living and interacting (see Yardley, 1997, p. 30). I use the word ‘‘truth’’ with caution, and am not supposing that feminist critiques of science can reveal the essential truth about everything they examine; rather, they explicate and contribute to the multifaceted truths of specific practices, for instance by showing how an experiment’s salient gender-neutral claim relies upon a submerged gender-biased claim. The words of Fausto-Sterling (1997) provide an excellent demonstration and

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description of the overlap of feminism and the cultural study of science, here in relation to the construction of masculinity in medicine: Biologists [y] write texts about human development. These documents, which take the form of research papers, texts, review articles, and popular books, grow from interpretations of scientific data. Often written in neutral, abstract language, the texts have the ring of authority. Because they represent scientific findings, one might imagine that they contain no preconceptions, no culturally instigated belief systems. But this turns out not to be the case. Although based on evidence, scientific writing can be seen as a particular kind of cultural interpretation – the enculturated scientist interprets nature. In the process, he or she also uses that interpretation to reinforce old or build new sets of social beliefs. Thus scientific work contributes to the construction of masculinity, and masculine constructs are among the building blocks for particular kinds of scientific knowledge. One of the jobs of the science critic is to illuminate this interaction. Once such illumination has occurred, it becomes possible to discuss change (1997, pp. 223–224).

The conclusion here of Fausto-Sterling’s essay ‘‘How to Build a Man’’ superbly shows how feminism and the cultural study of science dovetail. To reveal the ‘‘neutral, abstract language’’ of scientific texts as ‘‘a particular kind of cultural interpretation’’ is to expose science’s implicit ‘‘set of social beliefs’’ about masculinity. The aim of the revelation is social justice. In this way, Fausto-Sterling’s role as a feminist is of a piece with her role as a critical scientist (Fausto-Sterling, 2003). Moreover, the social ‘‘construction of masculinity’’ is not merely a background factor that bears upon how medicine is practiced: on the contrary, ‘‘masculine constructs are among the building blocks for particular kinds of knowledge,’’ asserts Fausto-Sterling. One such masculine building block is the conceptual separation of subject and object that installs a fictitious distance between scientists and their objects of study. The feminist science critic Evelyn Fox Keller (1985) has argued that this distance is at once a characteristically masculine notion, and also that it sets up a gendered hierarchy between inquisitive scientists, framed as male, and compliant nature, framed as female. Keller’s argument, which like Fausto-Sterling’s analysis is situated at the productive overlap of the cultural study of science in particular and the feminist study of culture in general, exemplifies the agenda of feminist science studies that emerged during the 1980s. Broadly, early scholarship in feminist science studies combined the key insight developed by cultural studies of science – that scientific practices are open to cultural analysis exactly because they cannot occur outside or beyond culture (Kuhn, 1962; Latour & Woolgar, 1979; Shapin & Schaffer, 1985; Traweek, 1988), contrary to what scientists have tended to believe (Haraway, 1997, pp. 136–137) – with a central observation of feminism that women in Western culture have been erroneously constructed as irrational, passive beings, in opposition to


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their enterprising and reliable male counterparts (Beauvoir, 1972; Cixous & Clement, 1996; Gilbert & Gubar, 1979). Specifically, ‘‘Feminists [in science studies] have pointed out that culturally entrenched stories about science rely on a series of dichotomies that exclude ‘woman’ from the class of knowers,’’ as the philosopher Alessandra Tanesini (1999, p. 32) puts it in her account of feminist approaches to science. Consequently, feminist studies of science in the 1980s explored ways of uncovering, assessing, and revalorizing the position of women in science. This was a politics of recognition. The work ranged from biographies of individual female scientists such as Nobel Prize-winning geneticist Barbara McClintock (Keller, 1983), to interrogations of epistemology in general (e.g. Harding, 1986; Rose, 1983). Texts of both kinds were corrective in the manner described above by Fausto-Sterling: they documented and dismantled gender biases in scientific practices and theories. Generally in the early 1980s work by feminist critics of science gravitated around the scientific construction of women’s ‘‘nature’’ (e.g. Bleier, 1984; Jaggar, 1983), and in the mid- to late 1980s, such scholarship moved into a tighter orbit around issues of reproductive technology (e.g. Corea, 1985; Stanworth, 1987). At the end of the 1980s and during the 1990s, while debates over epistemology continued (e.g. Alcoff & Potter, 1993; Harding, 1991), the figures of the cyborg, ape, and gene became feminist science studies’ principal points of enquiry (e.g. Haraway, 1989, 1991; Spanier, 1995). The 1990s also marked a turn in feminist studies of science towards the interlocking roles of ethnicity and globalization, in addition to the role of gender, in the configuration of science and power (e.g. Clarke & Olesen, 1999; Harding, 1998; Shiva, 1993). In the sections that follow, I will describe and analyze the first two important texts on intersex by Anne Fausto-Sterling (1985), a developmental biologist, and Suzanne Kessler (1990), a social psychologist. I shall show how their texts chart and enact a shift in the way intersex management is framed by its critics. My argument is that intersex management in the work by Kessler and Fausto-Sterling over a 5 year period changes from an example of androcentrism to an exemplar of sexual/political injustice and contestation. Their critiques have shifted from a principally anti-androcentric standpoint, towards a standpoint that views intersexed bodies and identities as worthy in themselves of preservation and protection. That is to say, whereas the early work in feminist science studies about intersexuality sought to problematize medical protocols because they were incompatible with feminism, the later work starts to ground its criticisms of medicine in a belief that intersexuality qua intersexuality is worthy of recognition. Moreover, as we will see, the

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recognition of an individual’s intersexuality is an act of social justice, for it is a discursive correction of a discursive wrong.

Anne Fausto-Sterling Fausto-Sterling’s monograph Myths of Gender: Biological Theories about Women and Men was published in 1985, and is indicative of the evolving intellectual climate within feminist science studies. On the one hand, the book sets out to debunk deterministic views of women’s biology that posit natural, essential links between one’s body – especially the brain, hormones and genes – and one’s gender (Fausto-Sterling, 1992 in particular pp. 13– 155).2 Put the other way around, in the accounts that Fausto-Sterling criticizes, it is because body parts such as the brain are gendered that gender is believed inescapably to exist. In this aspect, Myths takes its place among feminist critiques of how the ‘‘natural’’ female body is constructed by scientific practices that naturalize perceived gender differences. Fausto-Sterling (1992, p. 190) argues that such deterministic viewpoints are often secured through straightforwardly bad science – for instance, by defining in human terms (such as rape) animal behaviors observed within artificial settings (such as the sex lives of scorpionflies in a laboratory), and then re-framing human behaviors as biologically determined. According to Fausto-Sterling (1992, p. 222; see also pp. 160–161) it is ‘‘logically flawed’’ to posit rape among humans as natural on this basis. She therefore calls for badly structured and irrelevant research of this kind to be halted (1992, pp. 221–222). On the other hand, Myths also engages with the questions of epistemology raised by early 1980s feminist science studies, albeit less explicitly than the book’s subversion of the notion of women’s ‘‘nature.’’ Fausto-Sterling (1992, p. 222) argues that mistaken reasoning about gender – such as those theories of human sexual aggression based on contrived observations of scorpionflies – is ‘‘politically dangerous.’’ Its danger lies in the casting of acts like rape as biologically inevitable, while failing to acknowledge the coexistent and irreducible moral, legal, and cultural dimensions of such behaviors (e.g. 1992, pp. 126 and 204). Moreover, in keeping with the fundamental precept of cultural studies of science that science is cultural practice, Fausto-Sterling (1992, pp. 203–204) refutes the protestations by sociobiologists that their research is essentially free from values and has simply been unfortunately imported into other non-scientific value-laden domains. ‘‘In the study of gender (like sexuality and race) it is inherently impossible to do unbiased research,’’ she advises (1992, p. 10). It is at this


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point that a tension in Fausto-Sterling’s project becomes apparent. She wants to say that procedurally and logically unsound sex science exists; she also wants to say that no sex science is purely procedural and logical, because it is always already biased. The tension is symptomatic of her work’s situation in mid-1980s feminist science studies, where the emerging discipline sought to identify as secretly ‘‘cultural’’ erroneous accounts of women’s ‘‘nature,’’ while simultaneously acceding that no account of nature could escape its own cultural constitution. It is from inside the constitutive intellectual context of this tension that Myths will offer the first critique within feminist science studies of the medical management of intersex. The book does not deal directly with the treatment received by intersexed patients in hospital; rather, its discussion is embedded within an analysis of the supposed relations between hormones and gender differences. In her chapter ‘‘Hormones and Aggression: An Explanation of Power?’’ Fausto-Sterling (1992, pp. 123–154) turns a critical eye on scientific studies that have claimed to demonstrate a causal link in humans, rodents and monkeys between the so-called male hormone testosterone and aggressive, ambitious and domineering behaviors. In brief, Fausto-Sterling (1992, p. 130) exposes many such studies as badly designed, while pointing out that other, procedurally sound, studies nevertheless mistake a correlation between testosterone and aggression for a causal connection from the former to the latter. It is possible, for example, that aggressive behavior could stimulate the production of testosterone instead of, or as well as, occurring in response to testosterone production (1992, p. 130). So the chapter’s twin observations that sex hormone experiments have tended to be badly constructed, and that the conclusions reached by even well-constructed experiments have tended to be misconstrued as indications of the hormonal ‘‘nature’’ of gendered aggression, are a microcosm of the tension that I have identified in Myths, and mid-1980s feminist science studies, in general.

Fausto-Sterling’s Intersex Critique The example of intersexuality enters Fausto-Sterling’s chapter about hormones in a subsection that opens with the question, ‘‘What happens in the Womb?’’ and closes with the comment that ‘‘The claim that clear-cut evidence exists to show that fetal hormones make boys more active, aggressive, or athletic than girls is little more than fancy, although harmless it is not’’ (1992, pp. 133 and 141). It is intersexuality, deployed as an example of feminist science criticism, which enables Fausto-Sterling to maneuver from

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her question to her answer. Intersexed people, specifically those with adrenogenital syndrome (hereafter AGS), have been studied by influential gender psychologists John Money, Anke Ehrhardt and Susan Baker as a means of discovering the impact of fetal hormone exposure upon childhood aggression (Money & Ehrhardt, 1972; Ehrhardt & Baker, 1978).3 Individuals with AGS have XX chromosomes and female gonads (ovaries), and are customarily raised as girls, but unlike most XX individuals, their bodies produce high levels of androgens. The effect of these androgens is to cause non-standard external genital development that clinicians describe as ‘‘masculinized’’ (Fausto-Sterling, 1992, p. 296). For example, the clitorises of AGS individuals typically are larger than most; their clitorises are surgically reduced. In sum, AGS individuals are exposed in the womb to ‘‘masculine’’ hormones that are apparently contradictory to their ‘‘feminine’’ rearing and surgical assignment. The thesis put forward by Money, Ehrhardt and Baker is that although girls with AGS do not question their female gender identity, they do engage in ‘‘tomboy behavior,’’ prefer ‘‘toy cars and guns to dolls,’’ and are more interested in career plans than in marriage – all phenomena coded by Money, Ehrhardt and Baker as masculine (Fausto-Sterling, 1992, p. 134). Money, Ehrhardt and Baker read such phenomena as evidence that prenatal hormone exposure effects – not just affects – gendered behavior. If intersex operates as a good and clear example of the effects of hormones on fetuses for Money, Ehrhardt and Baker, then the exemplificatory status of intersex in the three researchers’ scientific discourse and practice is itself for Fausto-Sterling an example of bad and obtuse science. ‘‘Not to put too fine a point on it, the controls are insufficient and inappropriate, the method of data collection is inadequate, and the authors do not properly explore alternative explanations of their results,’’ she contends (1992, p. 136). Fausto-Sterling (1992, pp. 136–41) details her objections on all three fronts. Of special importance to my project of charting the influence of feminist science studies on the contemporary dispute over intersex treatment is the fact that Fausto-Sterling’s criticisms of Money, Ehrhardt and Baker’s studies centre repeatedly upon the way the three researchers represent (or fail to represent) clitoral surgery. For example, when she introduces their research, Fausto-Sterling complains that: ‘‘Money and Ehrhardt never made clear, except through one photograph, that such [surgical] ‘correction’ to what they term a ‘normal female appearance’ involved clitoridectomy’’ (1992, p. 134). Further, even though it is ‘‘unlikely that most of the patients underwent total clitoridectomy,’’ Fausto-Sterling observes, Ehrhardt and Baker ‘‘never mention the extent of the surgery other than to say that the correction made the girls ‘normal-looking’’’ (1992, p. 135). Ostensibly, Fausto-Sterling is arguing


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simply that Money, Ehrhardt and Baker’s studies are poorly written: they do not adequately describe the surgeries which were performed on their subjects. But by insisting that ‘‘normal’’ and ‘‘normal-looking’’ remain in quotation marks, Fausto-Sterling is also putting in question the very possibility of describing the outcomes of intersex surgery. Uncertainty over what a ‘‘normal’’ or a ‘‘normal-looking’’ clinical outcome might be is not limited to the post-surgical appearance of the genitalia, Fausto-Sterling shows. The assessment of AGS individuals’ behavior is also problematic. When discussing the inadequate controls used by the researchers, she notes comparatively that: At least one group of psychologists offers strong circumstantial evidence that supposed sex differences in newborns (male/female differences in activity, wakefulness, and irritability) may result from the simple culturally inflicted procedure of circumcision. The children in the Money, Ehrhardt, and Baker studies underwent surgery more drastic than circumcision, an event that could contribute to reported behavior differences (1992, p. 136).

In this excerpt, Fausto-Sterling is clearly implementing the strategy of mid1980s feminist science studies: she uncovers how the irreducibly cultural dimension of science embeds into research biased beliefs about sex differentiated behavior. To record ‘‘tomboy behavior’’ in the subjects of one’s study is to make a judgment, steeped in arguably anti-feminist cultural values, about what counts as gendered. It is not a neutral observation (see Fausto-Sterling, 1992, p. 138 fn). Consequently, in my opinion Money, Ehrhardt and Baker conflate their methodology with their object of study. This means that they mistake the means by which they measure their object (the observation of tomboy behavior) for the object itself (the influence of testosterone). Certain behaviors are intelligible as tomboyish only within a cultural milieu that marks such behaviors as notable because of their deviation from traditionally ‘‘feminine’’ behavior. Put a different way, tomboy behavior is constituted as observable because it disrupts gender stereotypes. Therefore although testosterone might indeed stimulate behaviors which are describable as tomboyish, it is a conflation, not a deduction, that equates the observation of tomboy behavior to testosterone influence. For Fausto-Sterling, the question raised by this conflation is the extent to which Money, Ehrhardt and Baker are straightforwardly mistaking as gendered something that is not actually gendered, but rather is a side-effect of intersex genital surgery. It may be that intersex surgery makes AGS girls agitated, and that their irritability is misconstrued by observers as an active, ‘‘masculine’’ way of engaging with the world. When discussing the researchers’ apparent

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unwillingness to countenance alternative explanations such as this, FaustoSterling remarks that ‘‘Baker and Ehrhardt consider only briefly the possible effects of clitoridectomy on the behavior and feelings of both AGS children and their parents’’ (1992, p. 137), and further that: The subtle effects of genital surgery on behavior, and even the likelihood of mutilation fears, cannot be lightly dismissed. Yet nowhere are these possible effects adequately discussed as contributors to the observed differences in the behavior of AGS girls (1992, p. 138).

In this extract, even if it is sensible not to ‘‘lightly dismiss’’ the behavioral impact of genital surgery, as Fausto-Sterling warns, it is unclear how one would ever take surgery’s influence fully into account. Certainly FaustoSterling’s reiterated point about intersex surgery is that Money, Ehrhardt and Baker have failed to account in their analysis for the likely impact of genital surgery on behavior. Significantly, this shortcoming lays their work open to criticism from a feminist science studies perspective: Fausto-Sterling shows that when the adverse effects of surgery are considered, even if only speculatively, the assertions by Money, Ehrhardt and Baker about the ‘‘nature’’ of gender, as well as their method of knowing what counts as gendered, are exposed as unstable. To phrase this another way, the discussion of intersexuality in Myths makes salient the two issues which defined feminist science studies in the mid-1980s. It is specifically when surgery for intersex is considered a potentially aversive intervention that concerns over the ‘‘nature’’ of gender and the possibility of unbiased epistemology are activated. In one sense then, the effects of genital surgery are factors that need to be considered by Money, Ehrhardt and Baker in order to produce a sound, balanced account of the influence of prenatal hormone exposure on childhood behavior. But in another sense, childhood genital modification marks a radical limit to any claim, ‘‘correct’’ or ‘‘incorrect,’’ about gender. It is not at all certain whether even the most rigorously designed study could state that the behavior of a post-surgical intersexed child is meaningfully ‘‘gendered,’’ whether it just resembles the genuinely gendered behavior of non-intersexed children, or whether it is nothing to do with gender, and, furthermore, how one would firmly distinguish these three possibilities. Fausto-Sterling quietly acknowledges this difficulty of recognition by referring to ‘‘normal’’ femaleness only within quotation marks, but the implications are great. It is in this way that intersex surgery is first construed by feminist science studies as a site where the ‘‘nature’’ and epistemology of gender are contentious and insecure. In employing intersexuality to prompt an interrogation of gender’s nature and epistemology, Fausto-Sterling does two things of crucial importance. First, she figures intersex surgery as potentially detrimental. Second, she


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uses it to exhibit the usefulness of a feminist approach to scientific practice. To recapitulate: it is because the studies by Money, Ehrhardt and Baker try to ground in biology gendered behaviors that the use of postsurgical intersexed individuals in studies of sex hormones can be criticized by Myths as an example of bad science. However, there is a difficulty. The fact that intersex surgery renders uncertain these researchers’ claims about the biological basis of gender also unhinges the implicit, opposite possibility that good science would be characterized by a correct definition of what constitutes and causes gender. This means that intersex, specifically in its role as an example, neither wholly supports the agenda of feminist science studies nor entirely destabilizes it – just like the tension in feminist science studies that I have shown to constitute Myths’ intellectual context. Myths countenances the harmful side-effects of intersex surgery in order to reveal the holes in Money, Ehrhardt and Baker’s claims; concomitantly, the book’s speculation that surgery for intersex might precipitate irritability and agitation in AGS girls suggests that an accurate study of the gender of intersexed individuals would be unattainable. Overall, using intersex as an example does not make Fausto-Sterling’s work redundant or incorrect, but it does thematize difficulties inherent in feminist science studies during the 1980s. Therefore, intersex emerges in Myths as a figure for both the possibility and the impossibility of a feminist critique of scientific practice.

Suzanne Kessler In the spring of the year that Myths was published, Suzanne Kessler (1998, p. 13) was interviewing clinicians working at four New York medical centers for her own research into the medical management of intersex. In preparation for what would be the second feminist critique of clinical attitudes towards intersex, Kessler spoke with a psychoendocrinologist, a urologist, a clinical geneticist and three endocrinologists. Two of the latter were specialists in pediatrics (1998, p. 13). The multidisciplinary spread of interviewees has made Kessler’s insights of enduring relevance for the critical study of intersex management; further interviews conducted by her in the mid- to late 1990s, which found little change in clinicians’ attitudes, confirmed that her initial 1985 sample represented the weight and obduracy of medical authority (1998, p. 135 n5). Kessler published a pilot analysis of her interviewees’ practices and opinions, as well as a critique of relevant literature such as work by Money and Ehrhardt, in the leading feminist journal Signs in 1990.4 Unlike Fausto-Sterling her emphasis was on the protocols

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for treating intersexed infants in hospitals and health centers, rather than their role in research into sex-differentiated behaviors. Eight years later the Signs paper was reprinted as a chapter in Kessler’s monograph Lessons from the Intersexed. It was the first book to systematically critique the contemporary medical management of intersex. Like Fausto-Sterling, Kessler was known for a feminist science studies approach to so-called sex differences. In 1978, she had published with Wendy McKenna Gender: An Ethnomethodological Approach, which sought to destabilize the presumed biological ground of sex-differentiated behaviors by carefully referring to only ‘‘gender chromosomes,’’ ‘‘gender hormones,’’ and suchlike (Kessler & McKenna, 1978, p. 7; see also Kessler, 1998, p. 134 n2). Even though this seemed ‘‘awkward,’’ the authors’ brave refusal to conflate sex and the body – to ‘‘sex the body,’’ as Fausto-Sterling (2000) has put it – laid substantial conceptual ground for the rise during the next 15 years of gender as an analytic category in social constructivist work (see Haig, 2004, in particular p. 91). Further, Kessler and McKenna’s emphasis upon ‘‘gender as a practical accomplishment’’ pre-empted 1990s gender studies texts such as Judith Butler’s (1993) Bodies That Matter, Gilbert Herdt’s (1996) anthology Third Sex, Third Gender, and Thomas Laqueur’s (1990) Making Sex. Indicative of 1978’s nascent feminist science studies movement, Kessler and McKenna’s (1978, p. 3) purpose was to reveal that the science of ‘‘sex’’ is in fact a cultural construct, and should be identified as such by the term ‘‘gender.’’ Whereas sex might be thought of as natural, gender connotes the cultural (Adams, 1989, p. 247). The switch of terms, and the ensuing difficulty of referring to ‘‘sex’’ without quotation marks to indicate its cultural status as something to which individuals collectively make reference without knowing its foundation (rather like an unattributed maxim or turn of phrase), prefigures Butler’s subtitle for Bodies That Matter: On the Discursive Limits of ‘‘Sex’’ (Kessler & McKenna, 1978, pp. 5–6). It anticipates the performative model of sex/gender for which Butler (1997, 1999) is wellknown.5 In their refutation of biological determinism, Kessler and McKenna promoted an implicitly but strongly feminist agenda. ‘‘Biological, psychological, and social differences do not lead to our seeing two genders,’’ they alleged; ‘‘Our seeing of two genders leads to the ‘discovery’ of biological, psychological, and social differences’’ (1978, p. 163). Hence by changing the way genders are seen ‘‘we can begin to discover new scientific knowledge and to construct new realities in everyday life’’ (1978, p. 167). The authors’ feminist agenda emphasized the mutability of cultural constructions, and thus also the negotiability of inequalities perceived erroneously as inevitable because of their purported basis in the sexed body.


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Kessler’s Intersex Critique It is with this background in mind that I turn to the first evaluative statement – the second sentence – in Kessler’s Signs paper: ‘‘In the late twentieth century, medical technology has become sufficiently advanced to allow scientists to determine chromosomal and hormonal gender, which is typically taken to be the real, natural, biological gender, usually referred to as ‘sex’’’ (1998, p. 12). Immediately the insights of feminist science studies are deployed and foregrounded by Kessler to denaturalize ‘‘sex’’ by describing its constitutive context, as well as by placing it in quotation marks. The sentence is also notably general – ‘‘in the late twentieth century, medical technology has become sufficiently advanced’’ – but this is not a flaw; rather it is an important facet of Kessler’s argument about intersex management. In her paper, she reads the management of intersex as a symptom of general cultural practices and beliefs (including, but not limited to, those of clinicians) about gender differences. Put differently, for Kessler medical attitudes are an index of how individuals in Western culture commonly construct gender. With McKenna (1978, p. 4) she has written that ‘‘Even scientists must ultimately rely on their own common sense knowledge’’ about what counts as female or male. In that respect, the ‘‘Case Management of Intersexed Infants’’ named in the paper’s title is itself a case of how gender is constructed by culture at large. ‘‘The process and guidelines by which decisions about gender (re)construction are made reveal the model for the social construction of gender generally,’’ she contends (1998, p. 12). Kessler differs from Fausto-Sterling insofar as she employs intersex principally as an instance of how gender works; its function as an example of how feminist science studies works is important but secondary. The change of priorities is subtle but fundamental. Kessler therefore argues that the ‘‘members of medical teams have standard practices for managing intersexuality, which rely ultimately on cultural understandings of gender’’ (1998, p. 12). This point builds on FaustoSterling’s critique of the assumptions about gendered behavior smuggled into the ostensibly scientific studies by Money, Ehrhardt and Baker. Just as Fausto-Sterling demonstrated that the conceptual building blocks of Money, Ehrhardt and Baker’s experiments (for instance, the idea of tomboy behavior) were in fact culturally constructed, so too does Kessler argue that the case management of intersexed infants is actually an instance of gender’s cultural construction. Her strategy is written into the provocative equation that constitutes her paper’s full title, ‘‘The Medical Construction of Gender: Case Management of Intersexed Infants.’’ For Kessler, the two halves of

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her title are equivalent. ‘‘[B]iological factors are often pre-empted in physicians’ deliberations by such cultural factors as the ‘correct’ length of the penis and capacity of the vagina,’’ she advises (1998, p. 12). Moreover, when these ‘‘cultural factors’’ inform surgical decisions, for example by making a vagina to suit the dimensions of an ‘‘average’’ penis, the seemingly immutable ‘‘sex’’ of the body becomes the effect, rather than the cause, of gender (1998, p. 16; see also pp. 108–109). Therefore what is misleading about clinical practice, according to Kessler (1998, p. 17), is its perpetuation of ‘‘the notion that good medical decisions are based on interpretations of the infant’s real ‘sex’ rather than on cultural understandings of gender,’’ even while medical decisions really work the other way around. She and McKenna (1978, p. 8) had previously noted the incongruity that sex ‘‘Reassignment could imply that the child had been one gender and is now the other, when actually the child is seen by everyone as having been the ‘new’ gender all along,’’ with the notion of cultural construction going unmentioned among clinicians and parents. Because Kessler uses feminist science studies differently from FaustoSterling – to illuminate how intersexuality itself disrupts the cultural construction of gender for which the medical management of intersexed infants serves as synecdoche – her project diverges from the agenda of 1980s feminist critics to formulate a correct account of women’s biology by means of accurate sex science. Fausto-Sterling (1992, p. 11) sets out with ‘‘the eyes of a scientist who is also a feminist’’ to demystify the pejorative ‘‘myths’’ invoked by her title, and delineated in chapter headings (1992, pp. 13 and 156) such as ‘‘A Question of Genius: Are Men Really Smarter Than Women?’’ (the feminist scientist’s answer will be ‘‘no’’) and ‘‘Putting Woman in her (Evolutionary) Place’’ (Fausto-Sterling’s feminist science will lever ‘‘Woman’’ out of that subordinate place). Contrastingly, in Kessler’s work the existence of intersexuality renders opaque the biological ground and scientific goal of a ‘‘feminist’’ critical program. She observes that ‘‘in the face of apparently incontrovertible evidence – infants born with some combination of ‘female’ and ‘male’ reproductive and sexual features – physicians hold an incorrigible belief that female and male are the only ‘natural’ options’’ (1998, pp. 12–13). Where Fausto-Sterling at the time of Myths deploys intersexuality to exemplify how feminist science studies can reveal instances of bad or biased research, Kessler is very careful to note that doctors who treat intersexeds infants are not ‘‘hypocritical,’’ ‘‘medically incompetent or deficient’’ (1998, p. 30). They are not guilty. Instead, the seemingly intractable belief of these doctors in the naturalness of a male/ female dichotomy, in the face of evidence to the contrary, ‘‘highlights and


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calls into question the idea that female and male are biological givens compelling a culture of two genders’’ (1998, p. 13). The effect of this admission by Kessler is to problematize the feminist science studies agenda, because femaleness and maleness in her view cannot be deduced even by good science conducted to the meticulous standards that Fausto-Sterling demands (1992, p. 11).

Exemplification and Exemplarity I am contending that in Kessler’s discourse, her object of study (intersexuality) interferes significantly with her politico-scientific methodology (feminist science studies). She had argued together with McKenna that ‘‘the question of what it means to be a male or a female is merely another way of asking how one decides whether another is male or female’’ (1978, p. 3). So when a decision about whether an infant is male or female cannot be made, but must instead be replaced by the ‘‘medical construction of gender’’ named in Kessler’s paper title, the question of ‘‘what it means to be a male or a female’’ becomes redundant, and by implication, the project of feminist science studies becomes problematic. Now this is not to say that intersexuality destroys the possibility of feminism (see Morland, 2001). Rather, I want to make clear that the relationship between intersexuality and feminist science studies, which in Fausto-Sterling’s discourse is relatively straightforward and exemplificatory, is queried by Kessler’s discourse precisely at the discursive level. In other words, the key to understanding the troubled relation for Kessler between intersex and feminist science, object and method, is in how her discourse deploys intersexuality to advance its argument; the key is not in any extra-discursive shift of relations between feminists and intersexuals that might have taken place in the years between FaustoSterling’s Myths in 1985 and Kessler’s ‘‘The Medical Construction of Gender’’ in 1990. In fact, I will propose that the discursive change between the two texts is of substantial importance to the emergence of the medical management of intersex as a controversial ‘‘problem’’ demanding debate in the 1990s and the 21st century (Creighton & Liao, 2004). Stated simply, this controversy is characterized by its positing of intersexuality as an exemplar that explodes the very idea of gender, as distinct from employing intersexuality to exemplify a particular theory. Intersexuality for FaustoSterling is exemplificatory, but for Kessler in 1990 it is starting to become exemplary.

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This tricky but analytically useful difference between exemplification and exemplarity requires clarification. I have identified a shift from the construal of intersex as exemplificatory to its construal as exemplary. This shift is akin to the difference between saying, for instance, that Shakespeare’s work is valuable because it exemplifies or demonstrates the characteristics of Early Modern English drama, and saying in contradistinction that the value of his work abides in its incomparability to other literature. In the latter view Shakespeare exemplifies nobody – rather, his work is exemplary. According to literary theorist Steven Connor (1993, p. 39), exemplification and exemplarity are distinctive ways of composing and employing an example, and importantly for my argument, they are indivisible from their discursive context. Connor observes that ‘‘Exemplification usually operates in an indexical or synecdochic mode, by substituting the part for the whole’’ (1993, p. 35). It is in this indexical capacity, I have argued, that intersexuality works in Myths to illustrate both the usefulness of feminist science studies and the paucity of Money, Ehrhardt and Baker’s research. Like a nest of Russian dolls, intersexuality’s indexical work positions Myths as representative of mid-1980s feminist science studies. Therefore, as Connor notes, ‘‘Exemplification is an endlessly renewed promise of the reciprocal conformity of theory and its object: a guarantee of the possibility and effectiveness of the procedures of argument and evidencing’’ (1993, p. 37). It is a way of instating a discipline. To an extent, intersexuality performs exemplificatory work in Kessler’s article too, for instance in her proposal (1998, p. 12) that decision-making about genital (re)construction reveals gender’s social construction at large. Exemplification occurs when an example is proffered in this way to discursively maneuver ‘‘from the singular to the general, [y] the case to the law,’’ according to Connor (1993, p. 39). But for Kessler, intersexuality is at the same time not at all exemplificatory. Recall her complaint that ‘‘Case management [of intersex] involves perpetuating the notion that good medical decisions are based on interpretations of the infant’s real ‘sex’ rather than on cultural understandings of gender’’ (1998, p. 17). So the law is not revealed by the case; when an intersexed infant is born, the truth of gender’s cultural constitution remains concealed. Absolutely central to Kessler’s article is this observation (1998, p. 32) that for clinicians, parents, and in fact for Western culture generally, the medical management of intersexuality does not exemplify gender’s construction. This is concurrent to, but apparently incompatible with, Kessler’s assertion that intersex management is indeed an example of how gender is constructed. Yet Kessler is not wrong. Actually, her argument that clinicians do not see their medical work for what it really is – namely, an instance of


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gender’s construction – forms the incisive conclusion of her Signs paper. She writes: the medical management of intersexuality, instead of illustrating nature’s failure to ordain gender in these isolated, ‘‘unfortunate’’ instances, illustrates physicians’ and Western society’s failure of imagination – the failure to imagine that each of their management decisions is a moment when a specific instance of biological ‘‘sex’’ is transformed into a culturally constructed gender (1998, p. 32).

In making this path-breaking claim that intersex is not an ‘‘unfortunate’’ occurrence in need of medical management, but that medical management itself is indicative of a regrettable ‘‘failure of imagination’’ by physicians and Western society, Kessler posits intersexuality not as exemplificatory but as exemplary. Now an exemplar, in the words of Steven Connor (1993, p. 39), ‘‘retard[s] or even resist[s]’’ the maneuver from the singular to the general that exemplification enables. In its reticence to demonstrate a general rule, an exemplar signals ‘‘its own unprecedented and inimitable exemplarity’’ (1993, p. 39). In Connor’s terms, Kessler is claiming that because intersexuality does not work as exemplificatory, it is exemplary. This formulation seems paradoxical, but therein lies its force: it describes the strange state of affairs whereby the most obvious, literal example of gender’s construction is not treated as an example of gender’s construction. The singular (intersex) is not extrapolated to the general (gender), and this striking failure is therefore exemplary. To explain this point, consider that one of Kessler’s central observations in her Signs article is the existence of a discrepancy between how gender is construed at non-intersexed and at intersexed births. During the medical management of non-intersexed births, gender is treated by clinicians as a matter of biology; conversely, when an intersexed child is born, clinicians regard gender as a process of socialization: In the case of intersexed infants, the physicians merely provide the right genitals to go along with the socialization. Of course at so-called normal births, when the infant’s genitals are unambiguous, the parents are not told that the child’s gender is ultimately up to socialization. In those cases, doctors do treat gender as a biological given (1998, p. 24).

The analysis turns on the construal of intersexuality within Kessler’s discourse as simultaneously exemplificatory, and as exemplary because of its failure to exemplify. This is what makes it so remarkable to Kessler that the theory of gender malleability, upon which the surgical management of intersexuality was founded, logically entails that ‘‘gender identity (of all children, not just those born with ambiguous genitals) is determined primarily by social factors, that the parents and community always construct

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the child’s gender,’’ at the same time that surgeries performed on the basis of the theory conspicuously fail to exemplify, and thereby to ‘‘reveal,’’ as Kessler would have it, ‘‘the model for the social construction of gender generally’’ (1998, p. 24). Surgery for intersex marks a failure of recognition, both of intersexed bodies and of intersexuality’s social significance. In short, Kessler writes intersex management as a wrong by writing it, in its exemplarity, as a problem of recognition.

Conclusion: Towards Rewriting? My analysis of intersexuality’s changing position within feminist science studies shows that clinicians are not necessarily maleficent or negligent (Creighton & Liao, 2004, p. 662); rather, the surgeries they have performed on intersexed patients have become intelligible as injustices of recognition within the constitutive discursive context of feminist science studies. Kessler’s critique in particular has set the tone not only for her own 1998 monograph, Lessons from the Intersexed, but also for Fausto-Sterling’s (2000) next book, Sexing the Body: Gender Politics and the Construction of Sexuality and Alice Dreger’s (1998) Hermaphrodites and the Medical Invention of Sex: common to the three works is the idea that intersex management, not intersexuality itself, is contentious and problematic. In chorus with these texts, none of my analysis is meant to imply that intersex surgery is purely ‘‘rhetorical’’ or that its injurious consequences are ‘‘allegorical:’’ the medical management of intersex has been tangibly unjust because it has not recognized the intersexuality of its patients. But more than this, the corollary of medical failure has been the elision of the omnipresent cultural politics of gender, which must be acknowledged in order for a feminist formulation of social justice. Although that parallel issue of cultural politics initially moved Fausto-Sterling and Kessler, as feminists, to critique intersex treatment, their work has made possible an understanding of the treatment as an injustice of recognition that cannot be remedied simply by correctively pointing out ‘‘with the eyes of a scientist who is also a feminist’’ the ‘‘truth’’ about gender. This is because the entire substance of the injustice is the surreptitious scientific creation of the ‘‘truth’’ of gender. Indeed, later commentators such as historian and chair of the Intersex Society of North America Alice Dreger (2004, p. 150) will explicitly frame the intersex controversy as a matter of civil rights – ‘‘Like the movements on behalf of women, people of color, gay men, and lesbians’’ – that has no intrinsic relation or relevance to gender. That is one way of engaging with the


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exemplary suppression of gender’s cultural construction from the very medical discourse wherein it is so paradoxically exemplified. Another way is by returning to Nancy Fraser and Morgan Holmes. Fraser explains that ‘‘The term ‘recognition,’ [y] comes from Hegelian philosophy, specifically the phenomenology of consciousness. In this tradition, recognition designates an ideal reciprocal relation between subjects in which each sees the other as its equal and also as separate from it’’ (2003, p. 10). Moreover, as Fraser continues, ‘‘This relation is deemed constitutive for subjectivity; one becomes an individual subject only in virtue of recognizing, and being recognized by, another subject’’ (2003, p. 10). For Holmes – and I agree with her – it is in the disruption of such intersubjective recognition that the injustice of intersex surgery is most immediately experienced. ‘‘[T]he reassurance I used to seek and the one that is still often given (‘I can’t tell the difference’) fails to acknowledge two things: first, I can literally feel the difference on both physical and experiential levels and, second, just because an external viewer can’t recognize the difference, that doesn’t mean there isn’t one’’ (1998, p. 225). The issue here is not merely an inattention to how Holmes’ body looks, but more importantly a radical breakage of the subjectconstituting scene of recognition valorized by the Hegelian tradition. How is one to be recognized as a gendered subject when one’s post-surgical genitalia are a reminder of the somatic persistence of loss, when one’s ‘‘sex’’ is a surgical effect, when one is merely ‘‘normal-looking’’ (see Morland, 2005)? Despite the assurances of non-intersexed others, reciprocity – the simultaneous intersubjective recognition of separation and equality – is often experienced by intersexed people as impossible. And yet because intersexuality is irreducibly discursive as well as irreducibly material, justice is not unattainable; ‘‘I refuse to allow my mutilation to rob me any longer of my difference,’’ writes Holmes (1998, p. 225) She is referring not to the material undoing of surgery, but to the discursive disclosure of the intersexuality that surgery sought to conceal or remove. In her opinion (1998, p. 225), surgery may make people less recognizable as intersexed, but it does not stop them being intersexed. This is because the post-surgical intersexed body is only ever questionably ‘‘normal-looking,’’ as Fausto-Sterling acknowledged, and because the elision of its surgical and cultural construction does not make it any less constructed, as Kessler proposed. So, in the face of medical protocols that disguise their investment in the social construction of gender, the recognition of an individual’s intersexuality is a gesture toward social justice, for it is a recognition that the sexual is political. Holmes therefore insists ‘‘that people think about my marriage as that between a man and an intersexual’’ (1998, p. 225). Just as intersex

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management emerged in feminist science studies as a wrong through its inscription as unjust, it is by means of an insistence within discourse upon her obdurate embodied difference that Holmes takes back ‘‘by force’’ the freedom ‘‘to blur the physical markers of sexuality’’ (1998, p. 225). Put another way, it is certainly by recourse to recognition that Holmes seeks redress for the unjust medical treatment of her intersexuality. But it is by recourse to a recognition that is also necessarily discursive, concerned with naming as much as it is with looking: ‘‘It is my hope that in a future perfect world, queers will not question the validity of calling oneself ‘queer’ even if no one can see their difference,’’ she explains (1998, p. 225). In such a future, the reinstatement of freedom will be coextensive with the restatement of freedom. At stake is not the detection and punishment of individual clinicians who may be guilty of injustices of recognition, much less the magical reversal of genital surgeries, but the eminently possible rewriting and righting of a social and discursive wrong.

NOTES 1. Other significant critiques have come from scientists such as Milton Diamond, and increasingly in the 1990s and 21st century from intersexed patients themselves, but these are beyond the scope of my paper. For a fine representative selection, see Dreger (1999). 2. Further references are also to this revised edition, which differs from the original only in its new preface and addendum, neither of which are pertinent to my paper’s project. 3. Adrenogenital syndrome is more commonly known as congenital adrenal hyperplasia or CAH. 4. Kessler (1990); further references are to the reprint of the article in Kessler (1998). 5. Butler (1999, p. 194 n8) does cite Kessler and McKenna in Gender Trouble, but not in direct connection to the theory of gender performance and/or performativity.

ACKNOWLEDGEMENTS I wish to thank Robert Eaglestone, Suzanne Kessler, and Mandy Merck for helpful comments on this paper, and Matthew Anderson for editorial advice. My research is supported by the Arts and Humanities Research Board.

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THE COW AND THE PLOW: ANIMAL SUFFERING, HUMAN GUILT, AND THE CRIME OF CRUELTY Susan J. Pearson ABSTRACT Nineteenth-century animal protectionists endeavored to frame laws that gave animals direct legal protections, and they conducted large-scale public education campaigns to define the harm of cruelty to animals in terms of animals’ own suffering. However, animal suffering was only one of the many possible definitions of cruelty’s harms, and when judges and other legal interpreters interpreted animal protection laws, they focused less on animal suffering and more on human morality and the dangers of cruelty to human society. Battling over the definition of human guilt for cruelty, protectionists and judges drew and redrew the boundaries of the law’s reach and the moral community.

INTRODUCTION: THE COW AND THE PLOW Writing in a 1905 edition of the American Society for the Prevention of Cruelty’s (ASPCA) monthly journal Our Animal Friends, the organization’s Toward a Critique of Guilt: Perspectives from Law and the Humanities Studies in Law, Politics, and Society, Volume 36, 77–101 Copyright r 2005 by Elsevier Ltd. All rights of reproduction in any form reserved ISSN: 1059-4337/doi:10.1016/S1059-4337(05)36005-4

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president, John Haines (1905), praised the state of enlightenment that currently characterized the relationship between humans and animals. Looking back into the dark past, Haines expressed outrage that less than half a century prior the law would, as he put it, ‘‘regard a malicious injury to a cow in no other light than that in which it would regard a malicious injury to a plow or any other article of property’’ (p. 488). Comparing animals with plows or other items of personal property offended Haines’s moral sense because of what he believed to be the critical difference between the two: sentience. Unlike the plow, the cow was a sentient being having the capacity for suffering and the cow could feel the ‘‘malicious injury’’ in ways that the plow could not. Moreover, Haines believed that the cow demanded legal and moral recognition not as a species of chattel, but as being separate from its owner by virtue of its ability to feel. When a plow was harmed, its injury redounded on its owner, who might have to repair the plow or otherwise suffer the loss of its employ. By contrast, Haines implied, when a cow was harmed, the injury redounded less on its owner and more on the cow itself, who was made to endure agony. To Haines’s understanding, to be guilty of cruelty was to be guilty of causing undue suffering in an animal, not to have harmed another’s property. Thanks to the work of his organization, the flagship ASPCA, and to the hundreds of other regional and local SPCAs that were formed during the second half of the 19th century, Haines believed that the morally offensive confusion between cow and plow had been eliminated by both legal and propagandistic means. A clear sense of the nature of cruelty’s harms, and of human culpability, had been fixed. The animal protection laws that originated in the 19th century form the basic skeleton of state protection for animals even today, and they have been widely criticized as ineffectual by modern legal scholars and animal rights activists. State anticruelty laws, critics tell us, are not really concerned with animal suffering, but rather with regulating human morality; they have, in this sense, the wrong intent. Due to this androcentric intent, these laws are critiqued as being more concerned with ensuring that humans do not corrupt their own nature than they are with animals and animal suffering per se (Turner, 1980; Moretti, 1984; Francione, 1995, 1996; Kelch, 1998; Curnutt, 2001). As critics see it, guilt for cruelty legally consists not in harming animals, but in harming oneself and other human beings by engaging sordid passions and subjecting others to degrading displays of violence. Wrongly intended and ill conceived, animal protection statutes are, in such cases, accomplices in the continuing exploitation of nonhumans. Haines’ concern to separate cow from plow on the basis of the cow’s nature suggests, however, that the story is more complicated than

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modern-day recourse to ill intent can account for. As we shall see, 19th century animal protectionist took great pains to write laws that gave animal direct legal protection, and they conducted large-scale public education campaigns to define the harm of cruelty in terms of animal suffering. However, while many protectionists believed that animal suffering alone constituted human guilt, this equivalence did not always hold legal water. For one thing, cruelty itself was an ambiguous term, such that the nature of the violation it designated was often unclear. Did the guilt of cruelty (or its harm) lie in the evil intentions of its perpetrator, or in the suffering of its victims, or in excessiveness, in the lack of balance between means and ends, or did cruelty’s harm lie in its affront to common decency and public morality? Protectionists might be inclined to give greatest weight to the second of these possible harms, but justices and legal commentators, and sometimes protectionists themselves, often gave greater weight to other dimensions of cruelty’s harms, tipping the balance away from animals and back towards humans. Haines and his compatriots congratulated themselves for definitively separating cow from plow, and for framing new legal codes that placed the sentient animal body at the center of the definition of cruelty; much in the general legal and philosophical heritage in which they intervened served to stack the deck against such a straightforward understanding of what sorts of human actions rendered one guilty of cruelty to animals. And at the center of this ambiguity is not merely the ill intent of such laws, but the very concept of cruelty itself. The matter of how cruelty is defined and operationalized is not merely technical – for it matters a great deal how guilt is constituted and harm defined. In designating these, the law defines a horizon of visibility, a community of interests, and a theory of social organization and obligation.

BACKGROUND: ORGANIZATIONS, LAWS To some extent, Haines’ original narrative was correct: in the 40 years preceding his comments, animal protectionists in the United States had secured positive laws in every state to criminalize cruelty to animals. The organized movement for the protection of animals from cruelty in the United States began in 1866 when a wealthy citizen of New York City, Henry Bergh, secured a charter from the state of New York to form the ASPCA. Shortly thereafter, Bergh went before his state’s legislature and successfully convinced the body to pass a bill that both criminalized cruelty to animals and deputized Bergh’s society to enforce the provisions of the

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law. Bergh’s organization and his law became a model and SPCAs rapidly spread across the country. By 1900, every state in the nation had enacted laws similar to those in New York, and over 300 SPCAs had been formed in towns and cities across the nation.1 As Haines’s retrospective comments suggest, these early anticruelty activists were not merely moral suasionists – they endeavored to pass and enforce laws that would protect animals by mitigating their suffering. Their first task was to legally encode animals as ‘‘more than mere property’’ (Addresses on Vivisection by Members of the Medical Profession (1886), p. 2). In the spring of 1866, when Henry Bergh went before the New York state legislature and asked them to pass a law to protect animals from cruelty, he was introducing not just new legislation, but also a new framework for understanding violence against animals, one that put the suffering of animals more squarely before the eyes of the law. Under the common law that the United States had inherited from Britain the crime of cruelty to animals did not exist. As nineteenth-century legal commentator Joel Prentiss Bishop explained, ‘‘Man has always held in subjection the lower animals, to be used or destroyed at will, for his advantage or pleasure.’’ Man’s right of property in animals superceded all animal interest in being free from harm, Bishop continued, and so ‘‘the common law recognizes as indictable no wrong, and punishes no act of cruelty, which they may suffer, however wanton or unnecessary’’ (1877, p. 335). Because property was understood as an instrument of its owner’s will, to be a victim of cruelty required a status above that of personal property. The identification of animals with property was, as Bishop recognized, a longstanding one. Indeed, virtually every liberal theorist, from Adam Smith and John Locke to William Blackstone, identified animals as the first form of property and suggested that their subordination to man’s will – that is, their domestication – was an essential component of the human civilizing process, enabling man’s progress from primitive to more advanced states of social organization.2 In spite of their designated role as mankind’s subordinates, animals, like other forms of real and personal property, were subject to a variety of protections and regulations.3 Common law did offer animals what Bishop called ‘‘indirect’’ protections. It was, for instance, a crime to injure or kill a domestic animal belonging to another. The crime, however, was a form of malicious mischief, a vengeful destruction of property, and the harm was understood as directed against the animal’s owner, not the animal itself. Interpreting violence toward animals as a form of malicious mischief was, to return to John Haines’s terms, an example of equating a cow with a plow. Moreover, since malicious mischief was a violation of property rights, this


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indirect protection of animals left a man free to harm or kill his own animals as much as he liked – for they were his possessions. In another form of indirect protection, the common law also held that it was a crime to beat an animal in public, but as with malicious mischief, the crime was not against the animal, but instead against the public peace and the public morals. It was a crime of nuisance, an offence against one’s neighbors and the social order. In both the instances, neither the welfare of animals nor the concept of cruelty guided the law’s sense of criminal harm and criminal culpability. Under such nuisance and mischief penalties, explained Bishop, ‘‘protection to the creature as a sensitive being is not the thing sought’’ (1892, p. 366). Prior to Henry Bergh’s 1866 legislation, several states including New York had some positive law provisions regulating the treatment of animals. As early as 1641 the Massachusetts Bay Colony’s legal code, the Body of Liberties, had prohibited beating certain kinds of animals. In the 1820s, Maine outlawed beating cattle or horses, New York banned maliciously killing another’s livestock or maliciously beating one’s own, and in the 1850s Minnesota, Connecticut, and Vermont made it a crime to kill livestock belonging to another person (Curnutt, 2001). None of these extant laws, however, were truly anticruelty laws. Rather, they were akin to the common law crimes of malicious mischief and public nuisance, and chiefly concerned with property in animals and the public peace. Describing this history, a Scribner’s feature on Henry Bergh and the ASPCA recounted that ‘‘up to 1865 no law for the protection of animals from cruelty could be found on the statute book of any state in the Union. The common law regarded animals simply as property, and their masters, in wanton cruelty, or angerymight torture his sentient chattels without legal hindrance or accountability’’ (Henry Bergh and His Work, 1879, p. 879). The innovation of the New York state and subsequent anticruelty laws stated that by isolating cruelty as the chief harm to be prevented and punished, they made the crime consist more clearly of violence against animals themselves rather than the violation of property rights or disruption of the public order. Crucially, anticruelty laws were written such that cruelty was an offense no matter what the relationship of ownership between man and animal – it could be perpetrated against ‘‘any living creature,’’ and it was an offense whether it took place in the public square or in a private home. Another distinctive feature of the new anticruelty laws was that they sanctioned not just positive acts of violence against animals, but also various kinds of neglect. Consistent with its concern for the public peace, common law had regulated the keeping of animals, expecting their owners to keep control of them and making owners liable for animals’ mischievous

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behavior such as stealing food or injuring humans (Negligent Keeping of Animals, 1883; Beven, 1909). As with the prohibition on positive acts of cruelty to animals, the neglect provisions of post-1866 anticruelty laws were quite different from such common law assumptions and requirements. Instead of protecting the public from bothersome animals not well kept, the anticruelty concept of neglect entitled animals to sustenance, protecting them from their owners or caretakers. On the whole, the new anticruelty laws implied that animals had a specific identifiable interest in being free from pain, whether it resulted from the sharp sting of a blow or the protracted agony of starvation. Moreover, by removing property relations from the equation, anticruelty laws constituted guilt as harm to animals, not their owners. Not long confined to New York, the spread of this new form of legislation, and this new conception of the relationship governing man and animal, was rapid. By 1900, all 47 states had similar positive legislation on their books. Nineteenth century jurists and legal scholars immediately detected the near-revolutionary character of these new laws. Writing in the Central Law Journal, Oscar Quinlan (1894), for instance, noted, ‘‘cruelty, as such, is punishable only by virtue of recent legislation,’’ and was not indictable at common law. ‘‘This prohibition of cruelty,’’ he went on, ‘‘is superior to the rights of ownership, and regardless of value, of the animal injured and of the privacy or publicity of the act’’ (p. 161).4 Similarly, Bishop insisted that there was no common law basis for the crime of cruelty and that it was a pure product of the 19th century state (Bishop, 1877, 1873, 1892), an attempt, as one Arkansas judge put it, ‘‘to transcend what had been thought, at common law, the practical limits of municipal government’’ (Grise v. State, 37 ARK. 456).5 Interfering in the relations between owner and owned, and between man and animal, by interposing the mediating term of cruelty, was indeed an innovation foisted on states by animal welfare reformers. Contended to see themselves as revolutionaries on the side of right, animal protection activists themselves generally heralded the groundbreaking nature of state anticruelty legislation. Charles Barnard (1888), an attorney for the Massachusetts SPCA, declared that the new laws ‘‘differ from earlier enactments, and from the common law regarding this class of offences, in proceeding more clearly upon the principle that animals have rights’’ (p. 10), by which he meant that the law was concerned principally with animal suffering rather than with the protection of property or the public order. The point of anticruelty laws differed from the indirect protections of the common law. While the latter sought to protect property and


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preserve human morality and order, the former aimed to protect animals from undue suffering. The common law definition of guilt or harm was, in other words, amended by 19th century SPCAs that sought to replace the old sense of harm – the destruction of property – with a new harm – the suffering of animals themselves. Although such laws served as the foundation for emphasizing animal sentience, and suffering, as the basis of determining a new kind of human guilt, in this new paradigm neither animal suffering nor human guilt were easy to determine.

THE (UNIVERSAL) CORPOREAL LANGUAGE OF PAIN Alongside their new laws protectionists introduced narratives of human guilt and innocence, complete with a new vocabulary of animal suffering that sought to reinscribe familiar practices with new meanings. By and large, anticruelty legislation did not prohibit specific actions, but instead defined cruelty as the infliction of unnecessary pain and suffering, a highly ambiguous definition at best. Parsing the necessity of suffering was not an easy thing, and the extent and acceptableness of animal suffering was a contested issue both inside and outside the 19th century courtroom. In the new crime of cruelty, human guilt was established through two criteria: by proving criminal intent, or mens rea, and by proving that the defendant’s actions had produced excess, or unnecessary, pain. It is this latter aspect of the crime, proving the existence of animal pain, which absorbed the energies and attention of many animal protectionists. For in addition to bringing animal suffering before the eyes of the law, the crime of cruelty necessitated bringing animal bodies within the juridical gaze. Human guilt was, in other words, established through the evidence offered by animal bodies – what evidences of distress did an animal offer? How should these be interpreted and weighed against human rights and prerogatives? As often and as forcefully as they could, animal protectionists taught their fellow citizens to recognize and sympathize with animal suffering and they situated the animal body as a crucial source of evidence in their newly scripted narratives of human guilt. To insert the crime of cruelty to animals in public discourse, animal protectionists employed a number of strategies. First, they conducted public education campaigns that aimed to teach men, women, and children to recognize the signs of animal suffering and to understand this agony as avoidable, and to see its presence as clear evidence

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of wrongdoing. Second, SPCA officials pioneered new criminal procedures, seizing animals and bringing them directly before magistrates while the signs of cruelty were fresh, and introducing veterinarians as expert witnesses in the courtroom. Underlying these efforts was the goal of transforming animals’ pain from a human prerogative to evidence of human guilt, and at the center of this strategy lay a new form of evidence – the wounded animal body. In their efforts, 19th century animal protection activists had to combat not just a legal system that had historically viewed animals as not more sentient than agricultural instruments (the cow the same as the plow), but also a philosophical heritage that similarly saw them as little more than selfanimating machines. According to the reigning Cartesian dualism, mind and body were separate substances that led separate lives, and while animals certainly had bodies, they did not have minds, or souls, and thus could not really suffer. Suffering, Cartesians believed, was a function of consciousness, and consciousness, along with reason, was God’s gift to man alone. According to Descartes, animals’ lack of consciousness, and hence of suffering, was demonstrated by their lack of language. In this circular logic, the inability of animals to express pain seemed a sure sign that they did not experience any pain. Animals, Descartes notably declared, are like machines that are operated by sensory stimuli. ‘‘It is nature that acts in them,’’ Descartes argued, ‘‘according to the disposition of their organs.’’ Against the notion that animals’ often flawless functioning might indicate a conscious inner mechanic, Descartes (1993) explained that mere mechanical acumen was no guarantor of consciousness, for animals are not unlike ‘‘a clock made only of wheels and springs [that] can count the hours and measure time more accurately than we can with all our powers of reflective deliberation’’ (pp. 32–33).6 In this logic, which continued to frustrate 19th century animal protectionists, animals, like clocks were convenient if insentient tools, designed for and at the disposal of humankind. Despite earlier challenges by late-18th and early-19th century Romantics (Perkins 2003), Descartes’ theories still dogged animal protectionists even in the latter half of the nineteenth century. As one frustrated protectionist complained, ‘‘The notion of Des Cartes [sic], that animals are mere machines, has done much, doubtless, to reconcile philosophers and theologians to the heartless tyranny of man over dumb animals’’ (What Epes Sergeant Says, 1868, p. 14). Against this set of assumptions, 19th century animal protectionists launched a considerable public relations campaign in which they argued that animal and human suffering were essentially identical. Pain, they asserted, crosses the species line. For protectionists, the project of proving human


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guilt for cruelty to animals was inextricably linked to the display of suffering. While many freely admitted that animals could not articulate in human language, SPCA activists argued that animal bodies bespoke a corporeal language of suffering, one that could be learned like any other foreign tongue. Among the many tactics they used to establish the identity of human and animal pain, 19th century protectionists repeatedly returned to two noteworthy genres: the role-reversal scenario and the first-person animal narration. Depicting a topsy-turvy world in which humans suffered at the hands of animals, and designed to equate human and animal suffering, role-reversal scenes appeared in both pictorial and textual form throughout 19th century anticruelty publications. Fig. 1, from an 1871 issue of the Massachusetts SPCA’s magazine, Our Dumb Animals, is one example. Entitled ‘‘Is Turn About Fair Play?’’ the picture shows two men, chained in harness, straining against the bits in their mouth as they struggle to pull a loaded cart while being whipped by their driver, an ox in human clothing. Well-dressed oxen and mules stand and watch while the cart’s human cargo, presumably on their way to the stockyards, lie helplessly tied and piled one on top of the other, showing signs of discomfort on their faces. Beneath the illustration, a caption asks ‘‘How do you like this?’’ If it doesn’t look comfortable or fair to you, the accompanying text instructed, then your animal friends would probably tell you that ‘‘if you don’t like it for yourselves, don’t do it to us!’’ (How do you like this? 1871, p. 110). By placing humans in animals’ shoes, SPCAs suggested that the capacity for pain and agony crossed the species line without modification, and that to determine if an animal was suffering, one need only ask ‘‘how would I feel in the same situation?’’ In addition, by pairing the words ‘‘comfortable and fair’’ as a set of standards, protectionists suggested that what was comfortable was also what was fair and that justice could be measured by reference to suffering. Taking the subjectivity-swapping logic of the role-reversals one step further, animal protectionists also employed the empathetic structures of fiction to establish a bond of sentience between humans and animals, littering their humane propaganda with animal characters and narrators. Although Englishwoman Anna Sewell’s Black Beauty (1877) is the most famous example of a first-person animal narration, it was not the first. Nearly 10 years earlier, a ‘‘good and faithful’’ horse had told his life story to the readers of Our Dumb Animals. Like its famous successor, this story too followed the declension plotline of the wildly successful Uncle Tom’s Cabin, detailing the horse’s life as he moved from his peaceful colt-hood home though a series of progressively more demanding and degraded stations. By

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Fig. 1.

The Topsy-turvy World of the Role-reversal.

speaking in his own voice and telling his own story, the ‘‘good and faithful’’ horse served to inform his audience not just that animals and humans generally shared a common set of feelings, but specifically that they shared the capacity for suffering. Describing his first initiation into life as a full-grown working horse, the equine narrator recalls two particularly traumatic events, one emotional and the other physical. First, the young horse was separated from his mother and, he reported, ‘‘it seemed as if my heart would break.’’ To add insult to injury, this separation was followed by the docking of his tail. The men breaking him in ‘‘tied me up and brought a great knife, something like a pair of huge scissors and cut through flesh and bone and all, and as if this pain was not enough, they brought a red hot iron and seared the bleeding stump and put me in such agony as I cannot describe. Oh, how I suffered for weeks and how indignant I felt that I had been so tormented’’ (Story of a good and faithful horse, 1868, p. 35). Speaking from within the experience of tail-docking, the ‘‘good and faithful’’ horse not only asserted his ability to feel, but also transformed a commonplace practice into an example of torture. Further, suggesting that experiencing this pain


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made him ‘‘indignant,’’ the horse implied that bodily violation, for horses as much as for humans, infringed on the integrity of the self as well as that of the flesh.7 In the years following the publication of this equine autobiography, protectionist publications featured the voices of horses, birds, dogs, cats, and other animals telling their tales of woe to readers. As another equine narrator put the matter, these direct appeals were meant to show humans that animals ‘‘have rights, as well as people, and feelings as well as people’’ (Turner, 1871, p. 119). In role-reversals and animal narrations, protectionists gave voice to animal subjectivity, sentience, and suffering in order to position them as deserving legal protections, but these were not their only tools. Anticruelty reformers also marshaled material evidence of human guilt, metonymically representing animal suffering by collecting and displaying what SPCA publications frequently called ‘‘instruments of torture.’’ If you entered the headquarters of the Massachusetts, New York, Illinois, New Jersey, Cleveland, or Pennsylvania SPCA, to name a few, you would encounter an exhibit of whips, prods, clubs, knives, guns, axes, chains, and other devices used to harm animals. SPCAs also traveled these exhibits, bringing them to major nineteenth-century expositions and World’s Fairs in Philadelphia, Chicago, New Orleans, and Atlanta. Culled these from the actual cases they prosecuted, anticruelty societies hung such weapons on the walls to show what they termed ‘‘evidences of man’s inhumanity’’ (The Society’s Museum, 1892).8 The display of instruments of torture had, of course, a long iconographic and political history, one most recently deployed by British and American abolitionists who had used artifacts of the slave trade and the plantation punishment system to symbolize both slave pain and human barbarity (Wood, 2000). Although the animal body remained absent in the SPCA versions of such displays, the instruments themselves were densely packed with information symbolizing both the infliction of pain and its cessation. The whips and chains hung on the wall called forth a sequence of relationships beginning with that between animal and cruelist, and ending with that between cruelist and protectionist. Each instrument symbolized the pained animal body, the guilty human hand, and the vigorous humanity of the SPCA officer that had stilled the guilty hand, taken its tool, and brandished it as proof of human cruelty.9 While the arrayed instruments of torture were meant to stand in for and represent the agony they could produce in actual animals, some of these exhibits went so far as to display taxidermied animals. In the headquarters of the New York SPCA, for instance, Henry Bergh stuffed animals that had been used in cock and dogfights, a pigeon wounded in a hunt, an overdriven horse, and even a

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vivisected animal. ‘‘Even in dumb show,’’ remarked one observer of such an exhibit, the wounds of these animals were ‘‘painful to contemplate’’ (North, 1882, p. 238). It was not enough, however, to claim that animals could feel pain, for as the Cartesian formula held, the capacity for suffering was inextricably tied to the capacity for language – the latter a means of verifying the former. SPCAs, moreover, faced the specific problem of legal prosecution: how, in a court of law, was one to prove that a specific human action caused a particular animal to suffer, when the chief witness – the victim – lacked the ability to give testimony? Since animals were, in 19th century parlance, ‘‘dumb,’’ and were as one SPCA activist put it, ‘‘doomed to suffer in silence, unless some such pitying heartylooked for the signs of suffering that could not make themselves heard in forms of speech’’ (PSPCA, 1871, p. 10), it was the task of SPCAs to detect and translate such corporeal signs. And, just as they equated the human and animal experience of pain, they also equated the non-verbal expression of pain, insisting that bodily signs were as unambiguous as speech. As Henry Bergh put it, animals ‘‘give forth the very indications of agony that we do’’ and, he went on, ‘‘theirs is the unequivocal physiognomy of pain’’ (Extracts from Address of President Bergh, 1868, p. 6). In addition to claiming that animals suffered pain, anticruelty activists tried to create a visual vocabulary of pain that stood in for animal’s own articulation of their suffering. In doing so, they also taught people to resignify seemingly ordinary practices, transforming the acceptable into what the law would regard as a source of ‘‘unnecessary’’ pain. Armed with the proper visual vocabulary of pain, anticruelty activists and citizens alike could practice their arts of detection to uncover cruelty wherever it might lurk. A good example of the effort to create this nonlinguistic vocabulary can be found in the widespread campaign against the check-rein, a device used to force a horse’s head to remain upright by preventing it from lowering its head. SPCA publications pointed out that most people preferred to use the check-rein for aesthetic reasons: they liked to see a horse with its head held high. To such people, the high head signified a lively, gamey horse, the very picture of a noble steed. Protectionists insisted that those trained in the detection of animal suffering would begin to interpret the same scene entirely differently. Humane men and women could see the expressions of pain emitted by the horse in check, what one SPCA publication called ‘‘the most unequivocal evidences of distress and agony.’’ Anticruelty publications showed adjacent pictures of horses in and out of check-rein (Fig. 2), and instructed viewers to note that while in check ‘‘the corners of [the horse’s] mouth become raw, inflame, fester, and eventually the mouth becomes


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enlarged on each side, in some cases to the extent of two inches.’’ And, as if to answer the Cartesian charge that animals had no consciousness and no language, the anti-check-rein publication went on to assert that ‘‘Could these speechless sufferers answer the inquiries – Why do you continually toss your heads while standing in harness? Why do you stretch open your mouths, shake your heads, and gnash your teeth? Why do you turn your heads back towards your sides, as if you were looking at the carriage? they would answer: All this is done to get relief from the agony we are enduring by having our heads kept erect and our necks bent by tight check-reins’’ (The Check-Rein, 1868, p. 10). Here the SPCAs posed evidence of suffering, straight from not just the horse’s mouth, but also from the horse’s body. In the face of animal silence, anticruelty activists’ efforts to train the public in the arts of detection insured that animal bodies, if not their voices, still spoke. Moreover, in focusing on equine suffering, protectionists not only attempted to redefine the ‘‘necessity’’ of the check-rein, but in doing so they also reinforced the lessons of anticruelty legislation: that as more than mere property, animals were also more than mere instruments of human will and desire. By creating role reversals, animal narrators, and a visual lexicon of pain protectionists strategically established and translated animal pain before a broad public. These tactics, however, did not stand alone, for they both paralleled and were supplemented by SPCA legal efforts. To win convictions for cruelty in court, SPCAs had to establish the existence of pain in specific cases and circumstances. As I mentioned earlier, anticruelty laws were less likely to prohibit certain actions than to sanction their effects. The question in a cruelty trial was whether there was animal suffering, and whether that suffering was unnecessary. By trying to establish a public consensus that

Fig. 2.

Learning to See Suffering.

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certain actions inevitably produced pain, protectionists hoped to make the causal relationship between action and effect easier to establish, and to establish certain kinds of actions as prima facie unnecessary. Since animals could not take the stand to testify against their tormentors, inside the courtroom animal protectionists had to interpret the suffering of the animal body for judges and juries, and they did this in a few different ways, all of which overlapped with the extralegal public education strategies discussed above. First, they relied on witnesses who had been trained to see suffering. The ASPCA, for instance, instructed its agents, supporters, and members on how to collect evidence of agony and distress, noting that ‘‘if the offense was that of driving a horse or other animal with galled neck or shoulders, or other wounds, note the size and location of such wounds – especially if raw, discharging, or in contact with the harness. If the offense was flogging or beating, note the instrument, the number of blows, on what part of the body inflicted, and the effect, if any, on the skin of the animal; if overloaded, carefully observe the symptoms of distress, such as the trembling, falling unusual perspiration, or exhaustion. In every instance observe minutely and note down in writing the facts and details and also the language of the offender at the time’’ (ASPCA, 1895, pp. 89–90). The public, trained in the arts of corporeal detection, could then usefully enter the courtroom on behalf of the SPCAs. Since the 19th century, humanitarian narratives had relied on accumulating and relating the details of the suffering body in order to both establish the universality of pain (and hence a common humanity) and to demonstrate the causes and remedies of suffering (Lacquer, 1989). Gathering the corporeal details of suffering in the manner suggested by SPCAs had been long linked to modes of humanitarian inquiry from the novel and the expose` to investigation and prosecution. When 19th century animal protectionists investigated cruelty cases and brought them to court, their emphasis on collecting corporeal detail as crucial evidence of guilt linked humanitarian to legal modes of inquiry on the surface of the animal body. Protectionists regarded the extralegal ‘‘evidence’’ offered by the role-reversal, the animal narration, and the corporeal language of animal pain, as congruent with the structure and elements of the legal definition and proof of cruelty. Beyond using lay witnesses to translate moral into legal guilt for cruelty, SPCAs also relied on animal experts, employing veterinarians on staff in some locations, and using veterinarians as witnesses in trials. In New York City, when the driver of a horse was arrested, his horse was immediately taken from him and kept in a stable maintained by the SPCA. If the accused driver chose to plead not guilty, the society would send a veterinarian over to inspect the animal and collect evidence for the pending trial (Hubbard,


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1915). In one case, for instance, a man was prosecuted for using a horse with large open sores on its shoulders to pull a load of stone up a hill. In lieu of viewing the horse’s sore body, the society’s veterinarian described the sores to the presiding judge and insisted that ‘‘The sores, which measure five by four inches, cause the animal great pain’’ (Arrests and Prosecutions, 1899, p. 229). Veterinarians, as experts in animal physiology, could be unmatched decoders of animal pain and, hence, critical to the establishment of human guilt in the crime of cruelty. Besides using veterinary testimony as a stand-in for the animal body, SPCAs also sometimes brought the wounded animals themselves into the courtroom, placing what they considered unimpeachable evidence directly before the eyes of the judge and jury. After photography became more widely available, SPCAs also used photographs of wounded animals as courtroom evidence, allowing the presentation of ‘‘fresh wounds’’ even if a considerable amount of time had elapsed between arrest and trial (Hubbard, 1915). Believing that animal suffering was both real and avoidable, protectionists assumed, as did many other reformers, that evidence of pain was evidence of culpability and that the mere sight of suffering would elicit both sympathy and justice (Lacquer, 1989; Sontag, 2003).10 Similarly, using photographs to establish guilt intersected not just with the reformist documentary tradition, but also with a new emphasis on photography as a criminological tool. Similar to the detailed report of suffering that might serve both humanitarian and legal goals, the photograph of pain was lodged at the point where reform intersected with law enforcement. Underlying all these efforts, from public education to the presentation of animal pain in the courtroom, was a common goal not only to make animal suffering visible and legible as a reality, but also to situate it as evidence of cruelty, and so also of human guilt. Overturning the notion that animals were instruments of human will, just like any other form of moveable property, animal protectionists attempted to rescript the human-animal relationship, introducing cruelty as a mediating concept that would insure some minimal barrier between human violence and animal lives. As Henry Bergh used to say, their goal was that ‘‘the blood-red hand of cruelty shall no longer torture with impunity’’ (ASPCA, 1866, p. 12).

WHAT IS CRUELTY? THE LAW’S AMBIGUITY While protectionists clearly linked cruelty and human culpability to animal pain and suffering, jurists and other 19th century legal experts were less

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inclined to see the matter in such an exclusive and straightforward manner. Part of the problem rested with the weight of tradition: it was no small matter to overcome the centuries-old status of animals as property, and anticruelty laws, however much they avoided defining animals in this manner, did not overturn the network of other laws that defined animals as chattel. But judicial resistance to defining the harm of cruelty solely in terms of animal suffering was also built into the very nature of cruelty as a concept. While protectionists often defined cruelty’s harm in terms of pain caused, this was but one of the many possible definitions. In fact, even as Bergh and the animal protection movement stretched the boundaries of legal cruelty by including animals among its victims, they also absorbed the fundamental paradoxes and ambiguity at the heart of cruelty as a concept: chiefly, its shifting and multiple loci. Cruelty was not easy to define or locate, for it seemed at once to consist in its perpetrator’s intentions, in the suffering the act of cruelty might cause in its victims, in the relationship of excess between means employed and ends sought, and in the violation of public norms. Historically, cruelty had been a largely marginal term in both legal and philosophical circles, virtually ignored until the late medieval and early modern period when it came into common currency as a trope to portray both personal violence and political or religious tyranny (Shklar, 1984; Baraz, 2003). Despite the changing status of cruelty as a subject of discussion, the terms of its discussion have remained fundamentally similar. Cruelty has always been understood in terms of excess – of irrational emotion in its perpetrator, of pain in its victims, as an excess of force in punishment, or as an action in excess of social standards. As a term of excess, cruelty was often associated with other moral flaws, such as lust, greed, and intemperance, that similarly stem from passions run amok. Its relation to immoderation made cruelty a relative rather than an absolute moral term, one that depended on circumstances and social frameworks for its identification.11 Moreover, cruelty is what the philosopher Bernard Williams (1985) calls a ‘‘thick moral concept,’’ one that is derived from evaluations of actions in the real world rather than from timeless, unchanging principles of moral law. This ambiguity and lack of fixedness makes cruelty a powerful and useful cri de couer, and one ideal for coalition-building, but it also contributes to its weakness as both a moral and a legal term. Cruelty’s conceptual link to other vices has, for example, often resulted in a lack of specificity with regard to its harm. Protectionists, for example, sometimes portrayed cruel acts as evidence of a general human depravity rather than of a specific affront to a specific sentient being.12 Animal


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protectionists likewise often invoked the centuries-old argument that cruelty to animals was linked to other vices including intemperance, greed, child abuse, and murder. In arguing for better human treatment of animals, then, some reformers made the case not that it was inherently wrong to make an animal suffer, but that animal abuse was a gateway vice, positioned at the top of a slippery slope that quickly descended from horse-whipping to wanton depravity and murder. Following the logic of William Hogarth’s famous 18th century woodcut, Four Stages of Cruelty, one humane publication explained that children’s cruelty to animals, ‘‘begun in levity and thoughtlessness,’’ was actually quite pernicious, for it ‘‘hardens the heart, and the parents who, unmoved, behold a child torture a kitten or a bird, are really educating that child for cruelty and murder’’ (Untitled, 1869, p. 72). When cruelty was transformed from a specific act against an individual animal into a general symbol of human vice and antisocial behavior, the nature of its harm was similarly redefined. In this rendering, cruelty was wrong because of the nature of human, rather than animal, being. Its harm redounded on the human cruelist, who would corrupt himself through immoral acts, and on the human community, which would be degraded by the violence in its midst. Many 19th century legal interpreters were also inclined to fall back on this older view of cruelty, defining its harms in terms of humans rather than animals. When jurists considered whether a man was guilty of cruelty to animals, they could consider four definitions of cruelty: as mens rea, or the intent to be cruel; as the production of severe pain; as an excessive amount of force; and, as an action in violation of social standards of decency. Save the second of these four, all available definition made cruelty a problem within human beings and human communities rather than a problem between humans and animals. In any court of law, cruelty legally hinged on the balance between intention and outcome. As one lawyer in an anticruelty trial put it, ‘‘the intent and the act must concur to make the offence’’ (Commonwealth v. Lewis, 1891 Pa. LEXIS 839). Anticruelty laws were not novel in this respect, for all criminal laws require the combination of a harmful act and an evil intention – short one of these elements, there is no crime (Bishop, 1877). Cruelty investigations and trials thus typically asked of a perpetrator’s actions, did they cause suffering (the outcome), and was that suffering unnecessary? In considering the necessity of suffering, the intention of the perpetrator entered the calculation. If cruelty hinged not on the severity of the pain, but on its justifiability, then the legal focus shifted from animal suffering to the human mind, the seat of purpose and intent. As criminal

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codes, anticruelty statutes automatically built in the requirement for mens rea, or a criminal mind, and typically specified that the pain inflicted must be done wantonly, maliciously, or with reckless disregard for the animal’s welfare. Moreover, very few actions were considered prima facie cruel, but instead cruelty was determined on a case-by-case basis that considered, among other things, whether the actions in question were undertaken for a legitimate purpose and with the proper intent (Thornton, 1890; Barnard, 1888). Castrating one’s animal, for instance, might cause great pain but would not be, for that reason, considered cruel since the purpose, and thus the intention, was legitimate and the pain produced ‘‘necessary’’ to achieve a legitimate end. Similarly, a man might whip or otherwise strike his animal in the process of training it without approaching cruelty – the distinction that courts drew was between chastisement undertaken for the purposes of training and that which ‘‘results from any bad or evil motive; as from cruelty of disposition, from violent passion, [or] a design to give pain to others’’ (State v. Avery 44 N.H. 392). Establishing the intention behind actions that caused pain was not, however, a simple matter – nor was determining the relative importance of intention versus effect in a given case. On the one hand, intent was a critical element of the crime but, on the other, anticruelty statutes operated, as did all other criminal laws, on the assumption that ‘‘every man intends the natural, necessary, and even probable consequences of an act which he intentionally performs’’ (Barnard, 1888, pp. 11–12). Courts, furthermore, disagreed about the importance of intent and how to define the necessity of certain human actions, such as fox hunting and pigeon shooting (State v. Bogardus 4 Mo. App. 215).13 Anticruelty activists, for their part, undertook public campaigns to redefine ‘‘necessity’’ and to argue that cruelty could result from thoughtlessness (the law’s ‘‘reckless disregard’’) as well as from the overt desire to inflict pain on a helpless being. Generally speaking, SPCAs reserved prosecution for cases that they believed fell into the latter category, or those for which ignorance, whether of the law or of the suffering incurred, seemed an untenable excuse. Partly, this reflected the anticruelty movement’s faith in moral suasion as the ultimate remedy for human cruelty and, partly, it reflected the difficulties encountered by SPCAs in prosecuting cases in which the intent to harm was less than clear (MSPCA, 1877). Even when state courts were willing, as they sometimes were, to grant that ill motive or intention might be ‘‘immaterial’’ to the question of whether the crime of cruelty had been committed, their understanding of cruelty’s harm nonetheless focused not on animals, but on human morals. An Arkansas


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judge, for instance, noted anticruelty legislation’s novel departure from the property and public nuisance protections of common law. However, he went on, to construe such statutes literally would result in their being a ‘‘dead letter’’ since, as written, the state ‘‘might drag to the criminal bar, every lady who might impale a butterfly, or every man who might drown a litter of kittens.’’ To avoid such ‘‘absurdities’’ the judge admonished that the ‘‘laws must be rationally construed.’’ ‘‘So construed,’’ he assured, this class of laws may be found useful in elevating humanity, by enlargement with all God’s creatures, and thus society may be improved’’ (Grise v. State 1881 Ark. LEXIS 124). Unable to contemplate a legislative intent to establish animal rights, the judge assumed that their intent must have been to forbid the human degradation accompanying indulgence in violence. Thus the locus of harm, and the constitutive element of guilt shifted from animal suffering to the morals of the perpetrator and the public at large. Six years later, the 1887 decision in Commonwealth v. Turner, a Massachusetts prosecution for fox hunting, affirmed the view of the Arkansas judge. The court declared that the offense of cruelty was against neither property nor animals’ rights, but instead ‘‘is against the public morals, which the commission of cruel and barbarous acts tends to corrupt’’ (1887 Mass. LEXIS 76, 8). Indeed, cruelty laws were most often incorporated under the sections of state criminal code regulating the public welfare and morals (Curnutt, 2001). Similarly, after an extensive review of state court decisions to date, an 1894 article concluded that anticruelty legislation did not establish animal rights but, rather, that the object of the laws was to stem ‘‘brutality in man,’’ which is ‘‘destructive of that morality and humanity upon which all government is founded’’ (Quinlan, 1894, p. 161). In such statements, 19th century legal interpreters betrayed their essential unwillingness to depart from a common law framework for understanding harm to animals, hammering the square peg of the new statutes into the round hole of public morals protection. The identification of specific actions as cruel depended also on establishing the ‘‘necessity’’ of allegedly cruel acts, and determining necessity was, for courts, largely a question of parsing illegitimate from legitimate means and ends. For 19th century jurists, the legitimacy of acts depended on yet another factor: social norms – what the United States Supreme Court has termed the ‘‘evolving standards of decency that mark the progress of a maturing society’’ (Trop v. Dulles 356 U.S. 86). Thus, for example, while state slave codes rarely afforded slaves protection from cruel masters, judges were sometimes willing to convict masters for cruelty when their punishments went beyond ‘‘the boundaries of custom and law’’ (Friedman, 1973).

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In such cases, masters were convicted either because their actions were excessive in the relationship of their means and ends, or because they were in excess of customary standards for behavior. Set within a legal framework that still overwhelmingly defined animals as property, anticruelty laws largely regulated the manner and not the type of uses to which animal property could be put (exceptions include outright bans on activities like pigeon shooting and staged animal fights). Protectionists, meanwhile, labored to redefine ‘‘necessity’’ and reshape social norms by challenging the inevitability of commonplace practices. Nonetheless, in considering social norms – and whether they permitted activities from fox hunting to tail-docking – courts once again framed cruelty in terms of human morals rather than in terms of animal interests and animal suffering. Although animal protectionists were genuinely concerned with lessening animal suffering, and though they authored and promoted legislation that placed animals’ interests more squarely before the law than ever before, the concept of cruelty, the laws that criminalized it, and the judges who interpreted and applied those laws, all paid substantial attention to human morality. Since cruelty was constituted by an excess of pain and an evil intent, both interpreters and opponents of cruelty vacillated between locating its existence, on the one hand, in the sentient experience of animals and, on the other, in the mind of the criminal. This reflected and contributed to the confusion over the harm of cruelty – and whether it lay in criminal mind, the animal body, or the public morals. Writing in Law Notes, one author honed in on ‘‘the fundamental question, why men should be restrained by law from acts of cruelty towards the lower animals.’’ Is it, he wondered, because there is ‘‘a positive right sanctioned by the sovereign power, so that there is a bond of law between them and men? Or is it a right ‘which derives its sanction from the human revolt against the mystery of pain’? Or, is it founded simply upon moral utilitarianism,’’ prohibited because restraining men from such actions improves their character (J. H. L., 1902, p. 141). In the pages of humanitarian publications, appellate court cases, and legal commentaries, J. H. L. could easily have found support for each of his propositions, ‘‘moral utilitarianism’’ not least among these.

CONCLUSION More than just confusing, the multiple constructions of cruelty’s harms and hence of the nature of culpability for cruelty contain different understandings of fundamental issues concerning rights, community, and social


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obligation. While many protectionist labored both inside and outside the courtroom to constitute cruelty in terms of animal suffering, many other 19th century legal interpreters constituted cruelty solely in terms of harm to humans. When protectionists introduced a new crime, cruelty, they attached its harm to the suffering endured by animals, but when judges insisted that mens rea, or the violation of public order and morals comprised guilt for cruelty, they denied that animal’s interests, or bodies, could be harmed or violated by the cruel acts in question. In denying animal interests, the latter both denied animals inclusion in a common community with humans, and they denied that animals had rights, even the limited rights that animal protectionists endeavored to protect through anticruelty legislation. So while John Haines confidently asserted that anticruelty activists had wholly changed the law’s orientation to animals – forcing it to separate the cow from the plow – the concept of cruelty itself contained competing definitions of harm, and 19th century jurists interpreted anticruelty laws in ways consistent with animals’ common law status as property – without will, interests, or legal personality. Modern scholars of animal law typically assert that the animal protection laws passed during the nineteenth century were not rights-based and did little to effectively protect animals, let alone establish any animal rights. This failing is usually attributed to the law’s intent to regulate human behavior rather than to make animal lives better. There is much to support these claims, particularly in the judicial interpretation of anticruelty laws, but what modern notions overlook is the failure, not of intent, but of the concept of cruelty itself. In addition to factors such as intent and historical context, it is the problematic nature of cruelty as a term that helps explain the gap between, on the one hand, protectionist’s focus on animal suffering and their often avowedly rights-based goals, and, on the other hand, the functioning of animal protection laws. While cruelty can be a powerful term with which to protest tyranny and demand rights, it also contains, as we have seen, other, more instrumental, definitions of harm, ones focused more on perpetrators and bystanders than on victims. When we define the nature of human guilt for cruelty, and we ask how it might be proved, our answers define not just a set of legal procedures, but also the boundaries of our moral community and the nature of our moral obligations. While protectionists may have wanted to extend the boundaries of that community to include animals, their choice to frame violence against animals in terms of cruelty contained other, contradictory, understandings of how such violence reverberated within human communities and across the species line. Finally, cruelty, the very same concept that animated the suffering animal body, could also silence it.

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NOTES 1. For comprehensive accounts of early animal protection organizations and their activities (see Unti, 2002; McCrea, 1910; Hubbard, 1915, 1916; Schultz, 1924). 2. Meek (1976) incidentally mentions the subordination of animals in liberal theory, but makes no note of it – his concern is how the idea of the ‘‘savage’’ contributed to the development early social scientific theories about the development and progress of societies. In such theories, societies advance from hunting/gathering to pasturage through agriculture and, finally, commerce. Animals are not only the first glimmer man has of property – in the hunting stage – but also their domestication is what marks the transition from hunting to pasturage, and their successful domestication and propagation prompts the transition from pasturage from agriculture. 3. Jerald Tannenbaum (1995) makes the argument that animals’ property status does not preclude their having rights since property has always been regulated and protected. Property has never, liberal myths notwithstanding, conferred absolute dominion – indeed, owning property often entails a number of duties, which are correlated with the rights of those toward whom duties are owed. Animals and the law: property, cruelty, rights. 4. See also: J. H. L. (1902). 5. See also: Thornton (1890). 6. Descartes argues that animals have no reason, no language, and thus no soul; they are fundamentally different from man. Whatever animals are able to accomplish should be understood as the product of nature, or body, rather than mind. For the influence of Cartesian dualism on the question of animal rights, see Francione (1995). 7. For a discussion of the relationship between the infliction of physical pain and the dissolution of the self, see Scarry (1985). 8. For contemporary descriptions of these displays and accounts of their whereabouts, see: Henry Bergh and his work, (1879), 875; The instruments of torture, Humane Journal, 9 (1881): 10;. North, F. D. (1982) The taxidermal art, The Century : 238; Their sting is gone, Cleveland, Ohio, News & Herald, 1887; An Interesting Exhibit, Humane Journal, 16 (1888), 5; The Society’s Museum, Our animal friends, 19, January (1892), 102; McCarthy (1905). 9. On the ability of instruments of torture to symbolize both the pain of the tortured and the power of the torturer, see Scarry, pp. 14–17. 10. There is an extensive literature on the question of whether the presentation of pain inspires sympathy, justice, and reform, or whether it inspires either compassion fatigue, narcissistic exploration of one’s own suffering, or, worse, titillation. Much of this debate forms a part of the more general debate over the politics of sentimentalism, and much of it centers on the politics of white abolitionists’ presentation of slave suffering in antebellum America. For some representative works addressing these questions, in addition to Sontag, Wood, and Lacquer, see Clark (1995), Boltanski (1999), Haltunnen (1995), Hinton (1999), McKanan (2002), and Eppler (1993). A subpoint in such debates is the question of whether representing the suffering of the victimized disempowers, abjectifies, or humanizes them since agency lies with the picture’s creator and, finally, its audience. The victims remain silent throughout. This is obviously complicated with respect to animals for whom


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reformers felt obligated to create a voice, and about which the question of humanization is trickier. Though protectionists adopted as their slogan, ‘we speak for those who cannot speak for themselves,’ they also repeatedly insisted that animals did have voices, if only humans would take the time to understand them. The effort to establish a corporeal language of pain is one such case in point. 11. In articulating this point, I am indebted to Alexander F. Robinson’s discussion of greed. Robinson (2001). 12. In helping to articulate this point, I am indebted to Marcus Wood (2000). 13. This decision holds that pigeon shooting contests do not inflict ‘‘unnecessary’’ suffering because they have a legitimate end – to improve marksmanship, which may in turn increase the citizen’s value to the state as a potential soldier. By contrast, Commonwealth v. Lewis, 7 Pa. C.C. R. 558, found the defendant guilty of cruelty for participating in a pigeon shooting match, arguing that such sports had no legitimate purpose and tended to corrupt the public morals, which the anticruelty statutes were designed to protect. This was reversed by a higher court in Commonwealth v. Lewis, (1891), on the grounds that since the object of the match, to shoot pigeons and develop marksmanship, was legitimate, the practice of it was, in this instance, neither needless nor inclined to produce more pain than necessary to achieve the state end – shooting pigeons. Unlike the lower court, the higher court was unwilling to consider the ‘‘necessity’’ of the act in question.

REFERENCES Addresses on Vivisection by Members of the Medical Profession. ([1886]). Philadelphia: American Anti-Vivisection Society. Arrests and Prosecutions. (June 1899). Our Animal Friends, 26, 229. ASPCA. (1866). Charter, Objects, Laws, etc., Relating to the American Society for the prevention of cruelty to animals. New York: Lange & Brother, Printers. ASPCA. (1895). Manual of the American Society for the prevention of cruelty to animals. New York: ASPCA. Baraz, D. (2003). Medieval cruelty: Changing perceptions, late antiquity to the early modern period. Ithaca: Cornell University Press. Barnard, C. (1888). Forms for complaints, under chapter of the public statutes of Massachusetts, relating to the prevention of cruelty to animals, with sundry directions for pleading. Boston: MSPCA. Beven, T. (1909). The responsibility at common law for the keeping of animals. Harvard Law Review, 22, 465–491. Bishop, J. P. (1873). Commentaries on the law of statutory crimes. Boston: Little, Brown, and Company. Bishop, J. P. (1877). Commentaries on the criminal law, (6th ed.), Revised and Greatly Enlarged, Vol. I. Boston: Little, Brown, and Company. Bishop, J. P. (1892). Bishop’s new criminal law. Chicago: T.H. Flood & Company. Boltanski, L. (1999). Distant suffering: Morality, media and politics. Cambridge: Cambridge University Press. Clark, E. (1995). The sacred rights of the weak: Pain, sympathy, and the culture of the individual rights in Antebellum America. Journal of American History, 82, 463–493.

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Commonwealth v. Lewis. 1891 Pa. LEXIS 839, 4. Commonwealth v. Turner. 1887 Mass. LEXIS 76, 8. Curnutt, J. (2001). Animals and the Law. Santa Barbara: ABC Clio. Descartes, R. (1993). In: D. A. Cress (Trans.), Discourse on method and meditations on first philosophy ( 3rd ed.). Indianapolis and Cambridge: Hackett Publishing Company. Eppler, K. S. (1993). Touching liberty: Abolition, feminism, and the politics of the body. Berkeley and Los Angeles: University of California Press. Extracts from address of President Bergh. (June 1868). Our Dumb Animals, 1, 5–7. Francione, G. (1995). Animal rights and animal welfare. Rutgers Law Review, 48, 397–469. Francione, G. (1996). Animals, property, and the law. Philadelphia: Temple University Press. Friedman, L. M. (1973). A history of American law. New York: Simon and Schuster. Grise v. State. 1881 Ark. LEXIS 124, 6–7. Haines, J. (Ed.). (1905). Editorial: John Colam and the Royal Society for the Prevention of Cruelty to Animals. Our Animal Friends, 32, 487–491. Haltunnen, K. Humanitarianism and the pornography of pain in Anglo-American culture, American Historical Review, 100 303–334. Henry Bergh and His Work. (1879). Scribner’s Monthly, 17, 872–884. Hinton, L. (1999). The perverse gaze of sympathy: Sadomasochistic sentiments from Clarissa to Rescue 911. Albany: State University of New York Press. How do you like this? (1871). Our Dumb Animals, 4, 110. Hubbard, F. M. (1915). Prevention of cruelty to animals in New York State. New York: Columbia University Press. Hubbard, F. M. (1916). Prevention of cruelty to animals in the states of Illinois, Colorado and California, Bulletin of Social Legislation on the Henry Bergh Foundation for the Promotion of Humane Education. New York: Columbia University Press. J. H. L. (1902). Cruelty to animals. Law Notes, 6, 139–142. Kelch, T. G. (1998). Toward a non-property status for animals. New York University School of Law Environmental Law Journal, 6, 531–585. Lacquer, T. (1989). Bodies details and the humanitarian narrative. In: L. Hunt (Ed.), The new cultural history (pp. 176–204). Berkeley and Los Angeles: University of California Press. McCarthy, G. M. (1905). The evolution of a sentiment. Jersey City, NJ: G.M. McCarthy, Press of John L Compton. McCrea, R. C. (1910). The humane movement: A descriptive survey. New York: Columbia University Press. McKanan, D. (2002). Identifying the Image of God: Radical Christians and nonviolent power in the Antebellum United States. Oxford: Oxford University Press. Meek, R. L. (1976). Social Science and the Ignoble Savage. Cambridge: Cambridge University Press. Moretti, D. S. (1984). Animal Rights and the Law. London: Oceana Publications, 1984. MSPCA. (1877). Ninth Annual Report. Boston: MSPCA. Negligent keeping of animals. (1883). Central Law Journal, 17, 307–310. North, F. D. (December 1882). The Taxidermal Art. The Century, 25, 230–240. Perkins, D. (2003). Romanticism and Animal Rights. Cambridge: Cambridge University Press. PSPCA. (1871). Third annual report of the Pennsylvania Society for the prevention of cruelty to animals. Philadelphia: PSPCA. Quinlan, O. L. (1894). Have animals rights? Central Law Journal, 38, 160–166. Robinson, A.F. (2001). Greed: Gut feelings, growth, and history. Cambridge: Polity Press.


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Scarry, E. (1985). The body in pain: the making and unmaking of the world. New York: Oxford University Press. Schultz, W. J. (1924). The humane movement in the United States, 1910–1922. New York: Columbia University Press. Shklar, J. (1984). Ordinary vices. Cambridge, MA.: Belknap Press of Harvard University Press. Sontag, S. (2003). Regarding the pain of others. New York: Farrar, Straus and Giroux. State v. Avery. 44 N.H. 392. State v. Bogardus. 4 Mo. App. 215. Story of a good and faithful horse. (1868). Our Dumb Animals, 1, 35. Tannenbaum, J. (1995). Animals and the law: Property, cruelty, rights. Social Research, 62, 539–607. The Check-Rein. (November 1868). Our Dumb Animals, 1, 44. The Society’s Museum. (1892). Our Animal Friends, 19, 102. Thornton, W. W. (May 1890). Cruelty to animals. Criminal Law Magazine and Reporter, 12, 377–405. Trop v. Dulles. 356 U.S. 86. Quoted in Note (1966). The Cruel and Unusual Punishment Clause and the Substantive Criminal Law. Harvard Law Review, 79, pp. 635–655. Turner, E. S. (July 1871). Equine Correspondence. Our Dumb Animals, 4, 119. Turner, J. (1980). Reckoning with the beast: Animals, pain, and humanity in the Victorian mind. Baltimore: Johns Hopkins University Press. Unti, B. (2002). The quality of mercy: Organized animal protection in the United States, 1866– 1930. Ph.D. dissertation, American University. Untitled. (1869). Our Dumb Animals, 1, 72. What Epes Sergeant Says. (July 1868). Our Dumb Animals, 1, 14. Williams, B. (1985). Ethics and the Limits of Philosophy. Cambridge, MA: Harvard University Press. Wood, Marcus (2000). Blind memory: Visual representations of slavery in England and America, 1780–1865. Manchester: Manchester University Press.


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‘‘NOT A STORY TO PASS ON:’’ SEXUAL VIOLENCE AND ETHICAL ACT IN TONI MORRISON’S BELOVED Sara Murphy ABSTRACT Morrison’s Beloved presents a complex anatomy of guilt. This is the perception that underwrites Slavoj Zizek’s recruitment of the 1987 novel in his recent discussion of ethics and politics. In Zizek’s Fragile Absolute (2000), he claims that Sethe’s murder of her child as a privileged instance of what he terms ‘‘the ethical act.’’ Drawing on Lacanian psychoanalytic ethics to articulate a relation between the psychic and the political, Zizek argues that the only truly ethical act is one that breaks with the cycle of law and transgression, evading the superego through a suicidal ‘‘shooting oneself in the foot.’’ This paper argues that while Zizek’s reading of Beloved is in some ways illuminating, Morrison’s novel itself offers a profound analysis of Zizek’s conception of the ‘‘ethical act,’’ exposing the limited nature of this act as part of a larger political strategy. I propose a reading of Morrison’s novel that focuses on its exploration of violence and guilt, reading it both alongside and against dominant psychoanalytic conceptions derived from Freud, Lacan, and Zizek’s deployment of both.

Toward a Critique of Guilt: Perspectives from Law and the Humanities Studies in Law, Politics, and Society, Volume 36, 103–123 Copyright r 2005 by Elsevier Ltd. All rights of reproduction in any form reserved ISSN: 1059-4337/doi:10.1016/S1059-4337(05)36006-6

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1. INTRODUCTION One of the central attributes of Sethe, the fugitive slave woman who is the central character in Toni Morrison’s 1987 novel, Beloved, is that she never avows any sense of remorse in the aftermath of killing her infant daughter. It is her Ohio community that, in shunning her for 18 years, expresses a moral judgment, a judgment intensified over time by Sethe’s apparent resistance to any explicit confession of guilt or remorseful feeling. Even Sethe’s companion from her plantation days, Paul D, seems to want to provoke from her some sort of expression of remorse, his chastisement echoing the dominant white culture’s representation of the African: ‘‘You got two feet, Sethe, not four’’ (1988, p. 165). In an interview around the publication of the novel, Morrison remarked of her heroine: ‘‘She has stepped across the lineyit is understandable, but it is excessive. This is what the townspeople in Cincinnati respond to, not her grief, but her arrogance’’ (Taylor-Guthrie, 1994, p. 252). Yet, the novel is shaped by the eponymous specter, the ghost associated with the word ‘‘beloved,’’1 which disturbs the house in which Sethe lives and everyone close to her. Given that guilt is often figured, at least in literature, in the terms of the spectral, an untimely presence that disrupts the pretense of linear temporality, one might conjecture that if Morrison offers us a heroine who refuses to think of her infanticide in terms of transgression, the novel is precisely for that reason deeply concerned with the problematic of guilt. More precisely, the novel presents guilt as problematic as an affect, an emotion, a haunting that must be re-presented as a problem for literature, and for thought more generally. Perhaps one way that we can begin to account for the problematization of guilt in this novel is to recall its historical intertext: the case of Margaret Garner, an escaped slave who killed her baby daughter in 1851. Morrison has acknowledged in numerous interviews that Garner’s story, widely covered by newspapers at the time, served as a provocation for her writing. Garner’s case became, as Morrison notes, a ‘‘cause celebre’’ for opponents of the Fugitive Slave Law. Underlining the differing fates of her fictional heroine and the historical woman, Margaret Garner, on whom Sethe is loosely based, Morrison comments that ‘‘my invention y is much much happier than what really happened’’ (Taylor Guthrie, 1994, p. 251). While pro-slavery forces saw in the Garner case an illustration of why Africans, with their near-animal capacities, required the patronage of the white man, abolitionists sought to have Garner tried for murder, on the argument that she must have legal responsibility to the state for her actions. Abolitionist activists believed that having Garner charged with child murder in the state

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of Ohio would impel a test of the constitutionality of the Fugitive Slave Law. Garner’s guilt, in this way, would be in Morrison’s words ‘‘a sort of success story’’ (Taylor Guthrie, 1994, p. 251). This case, like that of Sandford v. Scott, demonstrates the complex and ambivalent legal status afforded to slaves; Garner was eventually charged and found guilty of property crimes, not murder, and returned to her owner. The world of Sethe’s historical counterpart – and Sethe herself – is one in which the statutes and laws governing slaves’ legal personhood mark them as criminally responsible for only those criminal acts that pertain to property violations; their legal personhood, so often seen as coterminous with rights and responsibilities vis-a`-vis the state, exists in a shadowy zone, is itself, as Stephen Best has recently argued, fugitive (Best, 2004). That this novel, albeit perhaps in obtuse ways, anatomizes guilt is the perception that underwrites Slavoj Zizek’s (2000) recent recruitment of it in his discussion of ethics and politics. In The Fragile Absolute, he points to Sethe’s murder of her child as a privileged instance of what he terms ‘‘the ethical act’’ (2000, pp. 152–156). For Zizek, drawing on Lacanian psychoanalytic ethics to articulate a relation between the psychic and the political, the only truly ethical act is one that breaks with the cycle of law and transgression, evading the regime of the superego through a virtually suicidal ‘‘shooting oneself in the foot’’ (2000, p. 153). He argues that ‘‘what makes Sethe so monstrous is not her act as such, but the way she refuses to relativize it, to shed her responsibility for ityinstead of compromising her desire by assuming a distance toward her act, qualifying it as something ‘pathological’ – in the Kantian sense of the term – she insists on the radically ethical status of her monstrous deed’’ (2000, p. 156). In other words, Zizek notes, the character of Sethe refuses the conscription of her act into the given sociosymbolic framework that would insist on representing a mother’s murder of her child in terms of either crime or sin; furthermore, she does not acquiesce to the ascription of pathological motives in the medico-legal sense: ‘‘criminal insanity.’’ Importantly, she represents the infanticide to herself as an act of resistance to the dominant slaveholder encoding of the African as ontologically less than human, even as her act appears to a sheriff’s posse and plantation owner as empirical proof of their racist ideology.2 If, however, Zizek’s brief discussion of the infanticide at the heart of Beloved is illuminating for a reading of the novel, the novel itself invites us to a more profound analysis of Zizek’s ‘‘ethical act.’’ Zizek’s attention to the subject position assumed by Sethe, to the attitude toward the murder of her child, draws us closer to the ethical aims of Morrison’s narrative and to the critique of guilt that is central to them. At the same time, reading Morrison’s

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novel emphasizes the limited nature of Zizek’s conception of the ‘‘ethical act’’ as part of a larger political strategy, a subject to which he has frequently returned in his work over the past several years.3 ‘‘This act,’’ he writes, ‘‘far from amounting to a case of impotent aggressivity turned against oneselfychanges the coordinates of the situation in which the subject finds himself: by cutting himself loose from the precious object through whose possession the enemy kept him in check, the subject gains the space of free action’’ (2000, p. 150). While ‘‘changing the coordinates of the situation’’ is legible here as a prescription for incipient social change, the ‘‘act’’ appears to dissolve into a moment of individual liberation. Henry Krips has recently argued that in many instances, Zizek’s discussion of the act ‘‘fails to distinguish [itself] from the existentialist ethic of authentic gratuitous acts, from which they derive much of their inspiration as well as rhetorical force’’ (Krips, 2004, p. 129). The discussion of Sethe’s infanticide in the Fragile Absolute is one such instance. Represented as part of a series of examples that includes scenes from the Hollywood films Speed and The Usual Suspects, this central moment from Beloved seems to be assimilated to a notion of ‘‘the act’’ as effecting primarily, as Krips remarks, ‘‘local, not social’’ change (2004, p. 129).4 More to the point, perhaps, is that Zizek’s deployment of Morrison’s fiction elides the historico-social framework that is central to the novel and would help us to think through the novel as a reflection on the historical horizon of ethics and politics. Sethe’s act, in Zizek’s analysis, appears as precisely what it is not in Morrison’s narrative: detached from the larger historico-legal framework, the ‘‘ethical act’’ constituted by the infanticide does seem closer, as Krips argues, to early middle Sartre. Zizek would take issue with this reading of his work, to be sure; he seems to understand the act as part of a larger strategy that ‘‘[liberating] oneself from the grip of existing social reality’’ entails ‘‘[renouncing] the transgressive fantasmatic supplement that attaches us to it’’ (2000, p. 149) in an act that traverses all available social and symbolic legitimation. Yet, it remains difficult to see precisely how this moment of individual liberation from social norms can be understood in terms of political transformation. Claudia Breger has argued that it cannot, glossing Zizek in these terms: ‘‘Within the symbolic order, resistance is pointless.yIn order to effectively challenge authority-by resisting the temptations of ideology and accepting the Real, for example the leader’s body in its ‘meaningless idiocy – one must annul oneself as a subject’’ (Breger, 2001, p. 84). In Breger’s reading, Zizek’s ethical act is instead a nihilist gesture, proclaiming the hopelessness of any project of social change and taking refuge in suicide.


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Morrison’s project is distant from any sort of nihilism; her endeavor is to bring to representation that which is excluded – by design, by forgetting, or by historical conditions themselves – by history itself and in this way, her novel hints at redemption, at a future African-American subject emergent from traumas that are collective as well as individual. Understood as a response – as perhaps the only possible response that would truly be one – to the specific material, legal, and psychic conditions of slavery, Sethe’s act of infanticide and its aftermath do not so much challenge Zizek’s brief for the Lacanian psychopolitics of the ethical act but resituate it, rendering the act as anything but the gratuitous assertion of individual freedom that it can sometimes appear to be, and opening a space for reflection on the conditions under which social change becomes possible. In what follows, I want to propose a reading of Morrison’s novel that focuses on its exploration of violence and guilt. I want to do this by reading the novel both alongside and against dominant psychoanalytic conceptions, derived from Freud, but also from Lacan’s re-reading of Freud and Zizek’s deployment of both. Morrison’s novel is important for such an investigation because the anatomy of guilt that it submits is not simply focused on Sethe’s guilt or her lack thereof; nor is it solely concerned with guilt as a psychic experience, what Freud called ‘‘the sense of guilt’’ and sought to distinguish from remorse stricto sensu.5 As the exploration of guilt in Beloved articulates the psychic with the social, it is suggestive of the ways, in which the social field mediates the symbolic order. An infanticide committed by an escaped slave in the 1850s may constitute a break with the social and symbolic scaffolding of subject-formation; but if we can read it in this way, it is because Morrison’s novel offers a painstaking examination of how subjectivity is accorded to some and denied to others.

2. PROCEEDINGS TOO TERRIBLE [NOT TO] RELATE Although Beloved is frequently recalled as a novel that centers on an act of child murder, it is also and inextricably one that thematizes and puts into representation the pervasive sexualized violence that enslaved African women endured. We can signal that two events in the life of Morrison’s heroine structure the larger story told here: a brutal sexual assault by the plantation owner and his nephews and Sethe’s ‘‘mad’’ act of murdering one child and attempting the lives of her other children. Both events, significantly, take place in similar barn-like buildings before white men entrusted with varying forms of authority: in the first instance, the authority

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of ownership over lands and people, in the second the authority of the state, a posse acting under the Fugitive Slave Law. Neither event can be told straightforwardly as part of a linear narrative, nor throughout the novel these scenes emerge in fragmentary form, as bits of what Sethe terms ‘‘rememory’’ and from other witnesses’ viewpoints. These are events which can never recede into a past, becoming part of a safely distant historical record; like the ghost named in the title of the novel, the occult temporality of these events, and others which they evoke, fractures any pretense at time’s linearity or progression. These two events are associated in multiple ways; they are indeed causally connected, for the sexual violence and the brutal beating that ensues after Sethe attempts to appeal to the wife of the former plantation owner strengthen her resolution to escape the plantation where she has been all her life, and the murder of her child is evidently connected to her momentarily successful escape. But the causal association is superceded in importance by the proliferation of metonymic linkages that the events call forth. A sexual assault and a desperate act of infanticide condense the pervasive violence against the African female body that is intrinsically a part of the slave economy; at the same time, the very nature of both acts underscores the precise ways, in which African women’s bodies are inscribed in that economy – and in which that economy is literally inscribed on the flesh. The enslaved woman is forced to reproduce the system that enslaves her; for not only do statutes dating from the 17th century proclaim that a slave ‘‘follows the condition’’ of her mother, but the pervasive sexual violence of white men against enslaved women underscores the intimate violence of the property relation as it re-shapes paternity as a form of speculation and dematerializes African mens’ paternity. Morrison’s linkages of these two particular instances of violence resume the traumatic history of the Middle Passage, and the years of slavery by articulating them as the destruction of kinship ties, a destruction that is both reiterated upon and proceeds through the bodies of women. These female bodies are precisely not part of the socially sanctioned system of exchange upheld by the dominant white culture. Thus, the precipitating event in Sethe’s life is her sexual assault at the hands of nephews of the man who has taken over the plantation on which she is a slave after the death of its comparatively more liberal owner. While Sethe is pregnant with one child and nursing another, the two brothers pin her down in a barn and suck from her breasts while their uncle, who is called ‘‘Schoolteacher,’’ takes notes in an attempt to calculate whether Sethe has more human or animal characteristics. Early in the novel, Sethe sums up the devastating force of this attack, when reunited with Paul D, an old friend


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from the plantation ‘‘Sweet Home,’’ whom she has not seen for years. Paul D is disturbed to learn that after telling the cancer-stricken widow of her former master what has happened to her she was whipped. ‘‘They used cowhide on you?’’ he asks. ‘‘And they took my milk,’’ she replies. It is the second time she has made this statement, but Paul D does not seem to grasp its importance to her. He continues: ‘‘They beat you and you was pregnant?’’ And for the third time, Sethe says, ‘‘And they took my milk!’’ (Morrison, 1988a,b, p. 17) In this passage, Sethe, whose major effort at this early point in the novel is not to remember, insists upon bringing the central detail of a sequence of violent assaults to representation. ‘‘They took my milk.’’ More than a theft, more even than the bodily assault that leaves marks readily visible 18 years later, this violence that sought to enforce her animal status in the eyes of these white men contains something so excessive, so extreme that Sethe can only repeat those few words. It is traumatic utterance, marking language’s inadequacy before an experience that exceeds all simple referentiality. Sethe was nursing the daughter whom she will later murder to save from being enslaved. Yet, as the novel will make clear, it is not only an assault upon Sethe’s maternal relation to her child, but upon her humanity; the gruesome attack in the barn invokes all the ways, in which familial relations among slaves are denied, broken, refused, crushed. In Beloved, these relations – and slavery’s destruction of them – are represented in the terms of a negative maternal genealogy. Sethe’s mother-in-law, Baby Suggs, like Sethe, has suffered from the decimation of familial bonds that is inextricable from the system of slavery: ‘‘Anybody Baby Suggs knew, let alone loved, who hadn’t run off or been hanged, got rented out, loaned out, bought up, brought back, stored up, mortgaged, won, stolen or seizedy. What she called the nastiness of life was the shock she received upon learning that nobody stopped playing checkers just because the pieces included her children’’ (1988, p. 23). And Sethe did not see her own mother, who was later hanged, ‘‘but a few times out in the fields’’ (1988, p. 60). The assault in the barn on Sethe’s body, like so much in this novel, is not only a story of one woman. It is integrally and necessarily that, and therefore resists reading in terms of simple allegory. This is a novel that constantly works to disrupt any simple opposition of the figurative and literal; evoking in its title a gravestone, a child, and a ghost, it is also the story of the ‘‘sixty million or more’’ to whom Morrison dedicates the novel. The system of slavery worked toward the eradication of the subjectivity of the Africans, by positing them as ontologically storyless, construing them – as does Schoolteacher – on the far border of the human.

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Precisely in its explicitness and detail, the scene of sexual violence in Beloved operates, then, to link the destruction of African kinship ties – and the assertion of white male patriarchal ones – to a meticulous and systematic dehumanization of the female slave. Morrison’s narrative goes yet further in specifying that in the perverse nature of the assault on Sethe, US slavery is associated with the cultural authority of 19th-century race science. The violence and perversions of individual subjects are not simply rationalized via slavery; the domain of science legitimates individual perversions. An entire socio-symbolic field is concentrated in this scene of sexual violence: a field that has as one of its central agendas the production of ‘‘the human’’ through the marking of its separation from the animal. The representation of sexual violence here is central to the narrative and remarkable in several regards. It brings to representation that which 19thcentury rhetoric of violence, particularly as concerns slavery, bathed in circumlocution and more recent antirape discourses have written as damage to an individual, if gendered, subject.6 Discussing the rhetorical position of the authors of slave narratives, Morrison (1998) has noted that ‘‘in shaping the experience to make it palatable to those who were in a position to alleviate it, they were silent about many things and they ‘forgot’ many thingsyMy job becomes how to rip that veil drawn over ‘proceedings to terrible to relate’’’ (1998, pp. 190–191). In imaginatively ripping the veil in the 1980s, however, Morrison situates sexual violence in terms that neither 19th-century proprieties nor 20th-century antirape discourses have deployed; instead the assault on Sethe is an instance of structural violence that suggests the ways in which violence committed on the level of the individual subject is mediated by legal, social, and symbolic violence. In critical analyses of sexual violence and cultural representation, it has been noted that the scene of sexual violence is often erased. Lynn Higgins and Brenda Silver (1991) have described a ‘‘configuration where sexual violence against women is an origin of social relations and narratives in which the event itself is subsequently elided’’ (1991, pp. 2–3); this is a configuration that recurs in the dominant texts of Western culture from the story of Lucretia’s rape by Tarquin to Freud’s Totem and Taboo. What these narratives share is that they attempt to trace a moment of origin, in which social relations between and among men are constituted; a new order is founded over the violated bodies of women. Yet, in so far as sexual violence has functioned in cultural texts as a signifier for illegitimate political or social authority, we might make the following observation: in order to function as such a signifier, the scene of violence itself must exist in an aporetic relation to representation. It cannot be understood as


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part of a structure because in fact it is prior to, and enabling of that structure. It is this configuration that Beloved addresses, precisely by bringing sexual violence to representation at the same time as it examines the conditions under which it is committed, and those under which it is representable. The novel exposes a version of what Slavoj Zizek terms ‘‘the obscene underside of the Law:’’ a murky zone of illicit activity that functions as a supplement, and actually operates to uphold the symbolic – and here, social – law. For if technically the perverse assault upon Sethe would be looked upon by the gentlemen and ladies of the south as an affront to convention, if not morality and if not determinate legality – Sethe, in fact, runs to tell the widow of her former master, assuming that this kind of behavior will not be tolerated, at least on the ‘‘Sweet Home’’ plantation – the specificity of Morrison’s representation of the assault makes clear that the sexual violence against slave women has an enormous role in upholding and delineating the rule of southern plantation life, not least in establishing male hierarchy and articulating a boundary of the human that enables slavery to continue. The thesis that I read Morrison as positing here, in literary form, is one with radical implications: sexual violence against African women under slavery was not simply a matter of opportunity and enjoyment, or was it only a matter of reproducing labor at cheap cost, although the historical record tells us that both are true. The thesis would be that these institutionalized forms of sexual violence were part of a process of white, masculine subject constitution.

3. OBSCENE UNDERSIDES, SPECTRAL PRESENCES If Beloved suspends the question of the guilt or innocence of its heroine, it does so, I want to argue in the interests of developing a more radical critique of the socio-symbolic universe, in which the infanticide takes place. In this, the novel appears to share ground with Zizek, in his insistence that the act has political implications, and is not a purely individual gesture. The act, Zizek (1989b) writes, ‘‘takes place at the intersection between ethics and politics, in the uncanny domain where ethics is politicized’’ (1989b, p. 148). The novel, with its eponymous specter, is also concerned with an uncanny domain, quite precisely the haunted house at ‘‘124 Bluestone,’’ the haunted present of those who share the past of the Middle Passage and slavery. We can argue, however, that Beloved offers a more thorough and suggestive

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understanding of the ways in which ethics is politicized than Zizek’s reading of the novel would permit. To illuminate Morrison’s critique, and the role guilt plays in it, it is useful to turn to Freud’s 1913 Totem and Taboo, not simply because it is the text that perhaps is most resonant in Zizek’s Lacanian reading of psychopolitics, but because it constitutes the first and central step in Freud’s careerlong attempt to extend psychoanalysis from the consulting room by demonstrating its importance as a tool for understanding society and culture. Totem and Taboo is, in multiple ways, apposite to Beloved; this book of Freud’s in its attempt to articulate the founding moment of social relations with the founding of individual subjects, in positing a sense of guilt as the necessary supplement to subjection to the law, conceals what Beloved uncovers. We will recall that in the fourth chapter of Totem and Taboo, after reviewing a great deal of late 19th- and early 20th-century anthropological literature, Freud himself indulges in the creation of what appears to be an anthropological fantasy. As is well known, he tells the story of ‘‘aycriminal deed which was the beginning of so many things: of social organization, of moral restrictions, and of religion’’ (SE XIII, p. 142). A primal band of brothers, enraged by their all-powerful violent father, comes together to slay him. After the killing, they devour his flesh in order to complete their identification with him and acquire his power. In the aftermath of the primal murder and feast, the brothers confront a problem: the main reason that they hated and envied the father to the point of executing him was that he had kept all the horde’s women to himself. Now they find themselves rivals for the women and in order to, as Freud says, ‘‘rescue the organization that had made them strong,’’ (SE, XIII, p. 144) the prohibition of incest is installed. In addition to renouncing the possibility of assuming the position of primal father, possessing all the women, the brothers make a totem of the father whom they have killed, reassembling thereby the once-violently patriarchal horde under the social organization of fraternal feelings, sanctifying blood ties and enforcing clan solidarity. For Freud, of course, this is not simply an anthropological fantasy; neither is it a story whose historical status could be traced, nor it could be the historical veracity of Hobbes’s or Rousseau’s ‘‘states of nature’’ any more. In his recounting of this mythic crime, which ‘‘the beginning of society and the sense of guilt,’’ Freud is attempting to account for the social institution of that which on the level of the individual subject he will later term the superego (SE XIII, p. 150). In a sense then this too is a political fable, but perhaps we are better off representing it as a fable that articulate the linkage between the political and the ethical. The founding of society is


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articulated with the constitution of subjects through the installation of a sense of moral guilt. No longer held in thrall and terror by the violence of the all-powerful patriarch, the brothers complete their transition from primal horde to social body through the internalization of prohibition, rendering the primal father as an abstract figure of the law. Joan Copjec (1996, p. xxii) has noted that ‘‘the primal murder does not take place in some temporal past, but in a noumenal moment, which is not the same as saying that it occurs outside of time.’’ Like all myths, this one offers its own temporality, tells an untimely story, which in its very untimeliness makes claims for universal applicability. The story of the horde of brothers and their murder of their father operates in Freud’s text from 1913 on as a sort of primal scene of psychoanalysis. Freud recurs to it implicitly and explicitly, as he develops his ‘‘social theory’’ texts. Richard Boothby [1991, p. 165] perhaps understates the case, saying that the story ‘‘exerted an enduring hold on Freud’s imagination;’’ in fact, with the Oedipus, frequently seen as the individual version of this broader socio-cultural narrative, it is the cornerstone of psychoanalytic theory, positing the universal origins of human sociality in a burst of violence that is thereafter only thinly restrained through the internalization of a repressive apparatus. Yet, it becomes clear that there are some substantial differences between Freud’s Oedipal narrative and the Darwinian myth retailed in Totem and Taboo and the major difference that should concern us here is in the matter of guilt. Charles Shepherdson offers an insightful Lacanian gloss on the distinctly different logics that seem to operate in the Oedipus and in Totem, respectively. He notes that in the Oedipus, guilt would seemingly attach to the individual who disobeys the injunction against incest, whereas in Totem and Taboo, ‘‘it is precisely the reverse: the renunciation of incest has the surplus effect of producing guilt – as if the very subjects who follow the law are thereby guilty’’ (2000, p. 144). The horde of brothers experience guilt in the aftermath of killing the primal father; doing away with a figure depicted as all-consuming and violent results not in relief but in ambivalence. And in this ambivalence the figure of the primal father is retained, connected inextricably to a form of guilt that functions as a supplement to adherence to the law. This is a distinctly different reading of the figure of the father than is found in the Oedipus, where the paternal figure functions symbolically to prohibit incest and bring the child into world of language and mediation – signaled in most readings as the capacity to substitute other women for the maternal figure, and it has consequences for an understanding of the role played by guilt. In fact, it demands that we resituate our understanding of guilt altogether.

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The Oedipus marks the installation of the version of the superego, which is most commonly understood in terms of ‘‘conscience;’’ Freud tells us ‘‘the sense of guilt is the perception in the ego answering to the [superego’s] criticism’’ (1923/1991, p. 391). Yet, as Shepherdson’s reading suggests, the Lacanian understanding of the superego bases itself in a reading of Totem and Taboo that is filtered through Freud’s later development of the concept of superego, particularly in The Ego and the Id. Freud (1923) cautions that it is not always easy to identify the superego wholeheartedly with moral agency or conscience. At this point in Freud’s corpus, it becomes clear that the superego is as concerned with punishing the ego for restraints it imposes upon the id as it is with upholding forms of deeply internalized but fundamentally social constraints. ‘‘The sense of guilt,’’ then, understood as the effect of a tension between ego and superego, cannot solely be thought of as the responses of an ego to the moral injunctions of the superego, the vestige of the symbolic father of the Oedipus, but rather something much closer to the mode of survival of the violent primal father of mythic prehistory. Shepherdson notes that whereas the oedipal narrative relegates ‘‘incestuous jouissance’’ to the realm of the preoedipal, marking it as that which is resolutely opposed by the intervention of the paternal, Totem and Taboo ‘‘presents us with a relationyin which the very constitution of desire produces a pathological surplus effect, a dimension of jouissance that takes the form of guiltyit is no longer a matter of going beyond a supposedly infantile sexuality, in the name of a mature and civilizing law, but of a contradiction internal to the law itself’’ (2000, p. 146). Totem and Taboo, in this reading, becomes a parable indeed of the simultaneous beginning of the social order and the sense of guilt, as Freud indicates; but in a way that permits us to see more clearly what Zizek means when he speaks of ‘‘the obscene underside of the law,’’ a shadowy zone of violence that coexists with nominal order and restriction, the continued existence of the violent primal father in the dead father of the psychic law. It also permits us to further clarify what Zizek means by the ethical act: by this act, the subject moves entirely outside the realm of the superego’s demands, performatively underlining, as Lacan (1992, p. 310) says in his seminar on ethics that ‘‘what the superego demands has nothing to do with that which we would be right in making the universal rule of our actions.’’7 Yet, if Sethe’s desperate killing of her child can be read as an act of this order, it is because the novel situates the murder, and its consequences, within a social order, within a system of social laws, within a particular set of temporalities. Here we will note some parallels and disjunctions between Beloved’s depiction of sexual violence and Freud’s 1913 narrative which open a space


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for rethinking not only Sethe’s act not simply as the expression of one woman’s existential freedom, but as something that occurs within a sociosymbolic order where opening a free space for her action means murdering her child, her future. To return to Totem, for a moment, then: Could we say that Freud himself is repressing something in his production of this narrative? The violent primal father is envied because of his possession of all of the horde’s women, who are later distributed judiciously amongst the penitent brothers in order to forestall future violence: ‘‘Each of them would have wished, like his father, to have all the women to himself’’ (SE, XIII, p. 144). Yet these women barely appear, alluded to only as objects of ravishment or, later, exchange. In addition to the other aspects of Totem and Taboo signalled earlier, it is arguably a story in which violence is predominantly articulated in sexual terms, but in which the objects of that violence are excluded from active participation. Perhaps we can put it another way: that in this story, sexual violence remains outside of representation to the extent that it is the incitement to the murderous act that founds the law. That is, as long as there is no law, but that of the anal father, there is no way of representing what we would term sexual violence, except through elision. Yet, as our reading of Totem suggests, the temporal coordinates of this narrative are neither historical or developmental; Totem represents a structure: ‘‘With its ‘aboriginal’ research into ‘prehistory,’ Totem and Taboo wouldyseem to isolate with greater theoretical rigor the difference between developmental timeyand the temporality of the subject’’ (Shepherdson, 2000, p. 148). Totem, we could say, is theoretical representation of one way in which subjects are, by their very constitution, haunted, the lurking violence of the primal father an internal feature of precisely that which nominally seeks to curb it. Yet that violence is not understood in terms of those who experience it, for in Totem, the women have no existence as subjects; it is understood through the optic of those who desire to enact it. In Beloved, sexual violence is refused with the elision associated with it in other texts, but precisely through a delineation of the conditions under which it comes to be representable. Sethe’s rememory marks it not as experience that is, as Cathy Caruth (1996) has described the traumatic, as yet unclaimed; but signifies its historicity, precisely in the sense that it is excluded from the official histories and yet enabling of them. For Sethe’s assault in the barn is not the only sexual assault of white men on slave women in the novel. Allusions to such assaults are repeated through the narrative, for instance in the case of Stamp Paid’s companion Vashti, and that of Ella whose ‘‘puberty was spent in a house where she was shared by a

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father and son, whom she called ‘the lowest yet’’ (1988, p. 256). The sexualized abuse of black women at the hands of white men is pervasive; but what happened to Sethe in the barn underlines its symbolic and its cultural force. The scene of sexual assault in the barn epitomizes Sethe’s experiences at the plantation ‘‘Sweet Home’’. It is the ‘‘pictureythere for you, waiting for you.’’ At times, ‘‘the picture of the men coming to nurse her’’ is ‘‘lifeless,’’ equated with the network of scars on her back, which are always there, but which she never looks at, marking and figuring at once the memory she tries to keep at bay, but cannot. At other times, as when Paul D tells her why her husband, Halle, failed to show up at the appointed place on the night of their planned escape from Sweet Home, she ‘‘is full Goddamn it of two boys with mossy teeth, one sucking on my breast while the other holding me down, their book-reading teacher watching and writing it up’’ (1988, p. 70). For when Sethe at last learns what is known of Halle’s fate, it turns out that he had witnessed the assault on his wife from the barn loft; having witnessed it, he went mad. Thus, this violence – simultaneously literalizing and figuring the destruction of the family under the system of slavery – is not quite an event without a witness; the figure of Halle here, witnessing the assault on the mother of his children and going mad, evokes Giorgio Agamben’s argument that there are events so thoroughly witnessed that there is no one left to symbolize them (Agamben, 1999).8 The resonance we can perceive between Morrison’s text and Freud’s are thus complex. On several levels, Morrison’s narrative brings out the underside of Freud’s story of the birth of society out of the sense of guilt. We could, in fact, say that the novel ironizes the psychoanalytic framework; yet such irony constitutes not so much a refutation but a supplement to the Freudian narrative. It is a supplement that, indeed, operates to challenge Freud’s narrative in its claims to universality. Exposing what Freud’s text conceals, Beloved suggests that Totem’s claims for universal applicability can only succeed by virtue of what they exclude. Its depiction of the violence exercised over the bodies of African women as intrinsic to the psychic and social laws governing the system of slavery illuminates the ‘‘contradiction internal to the law itself,’’ in effect the intricate operation of the law’s own violence. We could say that the novel relocates that violence to specific instances of the mediation of the psychic by the social, to the patriarchalist plantation culture of the nineteenth-century south, to the legal framework that upheld slavery, especially the Fugitive Slave Law and to the larger discourse of 19th-century ‘‘race science.’’


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4. ANTHROPOLOGICS Dressed up as an anthropological experiment executed by Schoolteacher, an amateur participant in the practices and assumptions of 19th-century ‘‘race science,’’ the assault indicts not only the behaviors of these particular characters, nor solely the system of slavery they represent, but also the larger cultural assumptions that enable the system. ‘‘I told you to put her human characteristics on the left, her animal ones on the right. And don’t forget to line them up’’ (1988, p. 193). Underlining the reduction of the Africans to entities existing on the far border of the human, the very nature of the assault on Sethe both signifies the incoherence and violence at the heart of the society that produced the slave system, and by extension the terms under which that society inscribed itself historically. For Schoolteacher’s violent regulation of the boundaries between animal and human is indeed suggestive of a performative enforcement that might be seen to characterize the entire system of slavery as a process of production of the category ‘‘human’’ in terms of whiteness. Positioning Morrison’s narrative of the entry into historical subjectivity of African-Americans alongside Freud’s myth of the emergence of social formations and guilty subjects, the force of her critique comes sharply into focus. The scene of the brothers holding Sethe down and nursing from her breasts while their uncle takes careful notes inverts the scene of the primal horde killing their father. The compulsive rationality and orderliness of Schoolteacher is not simply juxtaposed to, but part of, the violent act. Sweet Home is owned by an extended family, a purportedly ‘‘civilized’’ kinship system; it passes from Garner, the original owner, whose relative liberality with his slaves is signaled by his insistence on treating his slaves as ‘‘men’’ to his brother-in-law, Schoolteacher, on his death. If Garner’s pride in showing that a ‘‘real Kentuckian wasyone tough enough and smart enough to make and call his own niggers men,’’ (1988, p. 11) his death, of a stroke, brings about a new order at the plantation: one marked by the violence of a rationality that discloses what Garner’s management techniques only thinly served to conceal. We can say that the superegoic structures of the white plantation society, of Schoolteacher, function most regularly when the violence they accrue can be vented upon a group who have been designated within this symbolic economy as less than human, as is underlined by the very particularity of the nature of the assault inflicted upon Sethe. Appealing to science, to research, to the need to describe the differential between human and animal in positive terms, Schoolteacher authorizes and annotates the brutality in

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which his nephews function as his delegates, enacting the assault. In effect, Schoolteacher’s subjectivity is distributed between two entities: the persona of rational observing researcher, the subject of science, and the pure aggressivity of the boys themselves, doing his bidding and betraying his racialized anthropologizing as they do, for indeed it is their behavior that is bestial. We can see how vividly the specificity with which Morrison brings sexual violence to representation serves to expose the hidden supports of Freud’s narrative of fathers, sons, and the social order. We can also see how it illustrates the mediation of psychic laws with social law and convention. It is in large measure the authority of an alleged science of which Schoolteacher is just one representative that legitimates the system of US slavery that implicitly and explicitly underwrites the Fugitive Slave Law, for instance, or Roger Taney’s opinion in Sandford v. Scott. The violence of Schoolteacher and his nephews, nominally forbidden violence, is in fact made possible by laws that articulate its parameters and determine its forms. Read in this way, the issues at stake in Totem and Taboo, itself intricated in a discourse on race, culture, and otherness,9 are indeed the founding of a social order, an organization for the appropriate distribution of women, and the sense of guilt, if by guilt we want to indicate the obedience to a law that is necessarily supplemented by the jouissance that derives from transgressing it. But there is also something else at stake in this reading of Totem, through the prism offered by Morrison’s novel: the founding of a social order is articulated with a violent delineation of the category of the human, a marking out of the domain of the human and that of the animal, a process that perhaps cannot really achieve completion, and thus is grimly repeated over and over again.

5. ALTERNATE TEMPORALITIES In killing her toddler daughter, Sethe has successfully removed her, at last, from this system: ‘‘yno one, nobody on this earth, would list her daughter’s characteristics on the animal side of the paperySethe had refused, and refused still’’ (1988a,b, p. 251). Morrison’s novel posits that what haunts Sethe is not guilt for her infanticide, but the effects of having been enclosed in a deeply violent, totalizing system that refused to acknowledge her status as fully human. A system that ultimately enclosed her in a shed where the only choices before her were to give herself and her children up to the law represented in person by Schoolteacher and his nephews, and in the code by


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the Fugitive Slave Act, or kill the children. The scene in the shed, like the scene in the barn, is repeated at several junctures in the novel. But unlike the scene in the barn, the infanticide scene is first narrated from the perspectives of other characters that witnessed it – Schoolteacher, Stamp Paid. But in Sethe’s own version, ‘‘the truth was simpleyShe just flewycarried every bit of life she had made, all the parts of her that were precious and fine and beautiful, and carried, pushed, dragged them through the veilyover there where no one could hurt them’’ (1988, p. 163). In her act of infanticide, she has asserted precisely what the system of slavery refused every African – a refusal emblematized by Sethe’s violation – the bonds of family, rooted in mother bonds. In this sense, then, we can say that Morrison introduces a conception of ‘‘the ethical act.’’ But it differs considerably from Zizek’s version, if we understand Zizek to be championing what is fundamentally an individual assertion of freedom. In Sethe’s ‘‘ethical act,’’ far from a decimation of the subject, what we see is a claim placed on her child, on her role as mother, as the person with the sole sovereign right to determine her child’s future – or lack thereof. In this grim act, act of last resort, she performatively constitutes her maternal bond. Rather than leaving the realm of the symbolic, of language and subjectification, Sethe’s act perhaps could be read as initiating a new symbolic order, bearing marks both of the horrifying privation of choice she faces and her insistence on her maternal position, even where the inscriptions of law and language have refused it.10 Sethe’s murder of her child is bound, in Morrison’s novelistic discourse, to an historical and social universe against which it is an act of resistance. That moment out of time, in which Sethe kills her child, is truly one, wherein the ethical and political intersect in Morrison’s telling. If for Sethe, ‘‘carrying, pushing, dragging’’ her child ‘‘beyond the veil’’ is the ultimate in maternal love, a love that has no anchor or representation within her material world, it is also a thoroughgoing indictment of the veil itself, by which we can understand both the social and legal institution of slavery, and the symbolic support for the constitution of those subjects who uphold it. Yet, of course, readers of the novel cannot forget that it does not end there with a child’s murder in a shed. If Totem and Taboo was for Freud the primal scene of psychoanalysis, articulating the temporality of the subject, in which the traumatic murder of the primal father was destined to be repeated again and again, inaugurating ‘‘the temporality of the subject,’’ the reading I have been proposing of Beloved might cause us to inquire of psychoanalysis: What subject? Beloved tells the story of an alternate

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temporality and another subject; Morrison’s moves are deliberately away from any deployment of history as a positivist context for event imagined in literature. She tells a story of a specter, Beloved, who is at times a baby, then a young woman, at once that baby girl grows up and a voice from the unrecorded sufferings of the Middle Passage. Sethe speaks to her surviving daughter of what she terms ‘‘rememory:’’ ‘‘Some things you forget. Other things you never do. But it’s not. Places, places are still there. If a house burns down, it’s gone, but the place – the picture of it – stays and not just in my rememory, but out there, in the world. What I remember is a picture floating around out there outside my headyeven if I don’t think of it, even if I die, the picture of what I did, or knew, or saw, is still out there. Right in the place where it happened’’ (Morrison, 1988a,b, p. 36).

And she reminds her daughter that rememory is not restricted to individual subjects: ‘‘Where I was before I came here, that place is realyEven if the whole farm – every tree and grass blade of it dies. The picture is still there and what’s more, if you go there – you who was never there – and stand in the place where it was, it will happen again: it will be there for you, waiting for you’’ (1988, p. 36). In Morrison’s account, there is no simple forgetting, no ready oblivion; there is the weight of memory that has been left out of the dominant historical record. But she is charting here the birth of a subjectivity which cannot quite align itself in the terms of murder and guilt offered by the key texts of the psychoanalytic canon. If the symbolic father and his primal double haunt the Freudian subject , Morrison imagines an African-American subject whose specters invoke ancestors and kinship bonds only acknowledged negatively, as what was refused, destroyed, forgotten. Morrison is tracing the painstaking emergence of a subjectivity, which not only must constitute itself outside the law, but also must resolve in some way an irreducibly and historically particular crushing relation to it. We could then say that the politico-ethical mode of subjectivation outlined by Freud in his story of the primal horde is what is rejected. But this would only be partially true; it is the underside of that story that Morrison’s story exposes – not only the violence that it occults in order to institute the subject of guilt, but also the violence that it produces in the process of sustaining itself. Toward the end of Beloved, the narrator’s voice repeats, ‘‘this is not a story to pass on.’’ In similarity to but also in distinction from Freud’s myth, we might understand that dictum as carrying two senses: it is not a story to hand down to further generations, and at the same time it is not a story that can be left to forgetting.


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ACKNOWLEDGMENT I would like to acknowledge the helpful feedback that I received on an earlier, messier version of this essay from the members of the NEH Summer Seminar on Punishment, Politics and Culture, held at Amherst College in the Summer of 2004.

NOTES 1. There is, in the substantial secondary literature on Beloved a lack of consensus on what it is the ghost is supposed to signify. Most obviously the ghost is associated with the spirit of the murdered child, but as the novel unfolds it also evokes, among other things, the experience of the Middle Passage. Above all perhaps it is always quite specifically a female ghost, a daughter, a sister, a mother. When Paul D asks Denver, late in the novel, if she believes the ghost was her sister, Denver replies, ‘‘At times. At times, I think she was – more’’ (1988, p. 166). See e.g. House (1990); Henderson (1991); Bhabha (1994); Radamanovic (1999). 2. In an interview, Morrison underlined the differing fates of her fictional heroine and the historical woman, Margaret Garner, on whom Sethe is loosely based. Garner’s case became a headline-maker, and ‘‘a cause celebre for abolitionists’’ in 1856, Morrison notes; but unlike Sethe, Garner was tried for stolen property and returned to her original owner, who eventually sold her. While pro-slavery forces saw in the Garner case an illustration of why Africans, with their near-animal capacities, needed the patronage of the white man, abolitionists sought to have Garner tried for murder, on the argument that she must have legal responsibility to the state for her actions. In the year before the Dred Scott decision, this argument was not effective. This case, like that of Sandford v. Scott, demonstrates the complex and ambivalent legal status afforded to slaves. See Weisenberger (1998). 3. See Zizek, 1989a, 1989b. 4. Perhaps it is needless to call attention here to the fact that Zizek’s particular Hollywood examples add fuel to the critique that identifies ‘the act’ with an assertion of individual freedom from social norms. His ‘‘heroes’’ here are not only all men – the third in the series is Mel Gibson playing a multimillionaire whose child is kidnapped in Ransom – a fact that Zizek acknowledges. But they are also all film heroes who operate within the conventions of what we might call ‘‘Hollywood masculinity,’’ representing a common pop culture fantasy of the man who by definition attains his masculinity through the flaunting of social norms and bonds. Masculinity in this narrative is identified with a kind of free individual subject who is restrained by no social codes, who is either criminal (Kayser Soze of The Usual Suspects) or an upholder of the law who needs to break the law in order to demonstrate how fully he and he alone upholds it (the Keanu Reeves character in Speed) or who embodies all these different registers of power through his sheer wealth (Mel Gibson in Ransom). In other words, by virtue of these examples, Zizek appears to be running perilously close to precisely that which he seems to want to contest – the privileging of a political and cultural individuality specific to late capitalism.

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5. ‘‘When one has a sense of guilt after having committed a misdeed, and because of it, the feeling should more properly be called remorse. It relates only to a deed that has been done, and of course it presupposes that a conscience – the readiness to feel guilty – was already in existence before the deed took place. Remorse of this sort can, therefore, never help us to discover the origin of conscience and of the sense of guilt in general’’ (Civilization and Its Discontents, Freud, 1930, p. 324). What we might want to notice here is that the reason ‘‘remorse’’ cannot help Freud is that it is an effect of conscience; conscience is designated here as a subset of the larger sense of guilt, a distinction that will be important to our discussion later in the present paper. 6. For a compelling ‘genealogy’ of understandings of rape in U.S. culture from the late 18th to the 20th centuries, see Sielke (2002). Sielke makes some extremely acute, to my mind, linkages between the ‘‘rhetoric of rape’’ in antebellum culture and that of the 1980s and 1990s: see especially pp. 12–34. 7. For a discussion that is nearly contemporary with Lacan’s Seminar on the Ethics of Psychoanalysis and famously develops this point in terms of a discussion Kantian ethics in its uncanny connections to Sadeian violence, see Lacan’s ‘‘Kant avec Sade.’’ For a further analysis of what is at stake in Lacanian ethics, see Zupancic (2000). See also Pender (2003). 8. Agamben is speaking of a very different context, the concentration camps, when he evokes the figure of those called ‘‘musulmanner,’’ individuals so psychically destroyed by the camps that they lost all will to try to survive. Halle’s ultimate fate remains unresolved in the novel; his closest friends last see him smearing himself with butter that he has been assigned to churn: ‘‘Nobody knows what happened. Except for the churn, that was the last anybody saw of Halle’’ (Morrison, 1988, p. 224). While Sethe, Paul D and the rest of the black community in Cincinnati live on with the trauma of slavery, we might say that Halle represents those for whom the brutality of what they witnessed decimated their subjectivity. For a now-classic analysis of how the Middle Passage effected a traumatic de-gendering of the body of the slave, see Spillers (2003). 9. Sander Gilman offers a compelling approach to the relations of Freud and his work to race, science, and the domain of medicine in nineteenth-century Vienna, focusing on the ways in which Freud – and other Jewish scientists and medical men – coped with hegemonic anti-Semitism. One of the ways, he notes that Freud sought to ‘reshape the rhetoric of the biology of race’ was to invert and universalize aspects of dominant stereotypes. Arguably, some of this is at stake in Totem and Taboo, although the dominant framework is derived from anthropological research and specifically from Darwin. See Gilman (1993). 10. Wyatt (1993) develops at length an argument similar to this.

REFERENCES Agamben, G. (1999). Remnants of Auschwitz: The witness and the archive. Cambridge, MA: Zone Books. Bhabha, H. (1994). The location of culture. New York and London: Routledge. Boothby, R. (1991). Death and desire: Psychoanalytic theory in Lacan’s return to Freud. New York and London: Routledge.


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Breger, C. (2001). The leader’s two bodies: Slavoj Zizek’s postmodern political theology. Diacritics, 31(1), 73–90. Caruth, C. (1996). Unclaimed experience. Baltimore: The Johns Hopkins University Press. Copjec, J. (1996). Radical evil. London and New York: Verso. Freud, S. (1913). Totem and taboo. In: J. Strachey, et al. (Eds), The standard edition of the complete psychological works of Sigmund Freud, 24 vols. Vol. 13 (pp. 1–161). London: Hogarth Press (1958). Freud, S. 1923. The ego and the id (Standard Ed.), (vol. 19) (19) pp. 1–66. Freud, S. (1930). Civilization and its discontents. In: Strachey, J., (Edited and Translated by), Civilization, society and religion. The Penguin Freud Library: Vol. 12. (General Ed., Dickson, A.) Harmondsworth: Penguin (1991). Gilman, S. (1993). The case of Sigmund Freud: Medicine and identity at the Fin-de-Siecle. New York: Columbia University Press. Henderson, M. G. (1991). Toni Morrison’s beloved: Remembering the body as historical text. In: S. Hortense (Ed.), Comparative American identities: Race, sex, and nationality in the modern text. New York: Routledge. Higgins, L., & Silver, B. (1991). Introduction: Rereading Rape. In: Higgins & Silver (Eds), Rape and representation (pp. 1–11). New York: Columbia University Press. House, E. (1990). Toni Morrison’s ghosts: The beloved who is not beloved. Studies in American fiction, 18, 17–26. Krips, H. (2004). Couching politics: Zizek’s rules for radicals. Psychoanalysis, Culture and Society, 9, 126–141. Lacan, J. (1992). In: J. A. Miller (Ed.), D. Poster (Trans.), The ethics of psychoanalysis: The seminar of Jacques Lacan book VII. New York: Norton. Morrison, T. (1988). Beloved. New York: Plume. Morrison, T. (1988a). Unspeakable things unspoken: The Afro-American presence in American literature. The tanner lectures in human values. Ann Arbor: University of Michigan Press. Morrison, T. (1998). The site of memory. In: S. Zinsser (Ed.), Inventing the truth: The art and craft of Memoir (pp. 183–199). Boston: Mariner. Pender, S. (2003). The act and the law: An ethics of the radical good. The Journal of Lacanian Studies, 1(1), 66–84. Radamanovic, P. (1999). Forgetting futures. Lanham and New York: Lexington Books. Shepherdson, C. (2000). Vital signs: Nature, culture, psychoanalyis. New York and London: Routledge. Sielke, S. (2002). Reading rape: The rhetoric of sexual violence in American literature and culture 1790–1990. Princeton: Princeton University Press. Spillers, H. (2003). Papa’s Baby, Mama’s Maybey. Chicago: University of Chicago Press. Taylor-Guthrie, D. (Ed.) (1994). Conversations with Toni Morrison. Jackson: University Press of Mississippi. Weisenberger, S. (1998). Modern Medea: A family story of slavery and child-murder in the old South. New York: Hill and Wang. Wyatt, J. (1993). Giving body to the word: The maternal symbolic in Toni Morrison’s. PMLA, 108(3), 474–486. Zizek, S. (1989). The sublime object of ideology. London: Verso. Zizek, S. (1989a). The plague of fantasies. London: Verso. Zizek, S. (2000). The fragile absolute. London: Verso. Zupancic, A. (2000). Ethics of the real. London: Verso.


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PART III: LONGER VIEWS

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WAS CAIN INNOCENT? THE EARLY RABBIS INTERPRET GUILT Chaya Halberstam ABSTRACT Rabbinic literature of Late Antiquity encompasses legal and exegetical texts. Whereas legal texts delineate criminal procedures to determine a guilty party and advise appropriate punishment, exegetical texts suggest an almost entirely indeterminate and indeterminable understanding of guilt. This chapter examines rabbinic interpretations of the paradigmatic biblical story of guilt, Cain’s murder of his brother Abel, in which Cain’s guilt is mitigated and the stable relationship between evidence and guilt is challenged. I argue that these conflicting views of guilt in early rabbinic thought need not be harmonized – that a legal understanding of determinate guilt need not require a philosophical, or theological, counterpart.

INTRODUCTION The dual sense of guilt, which comprises both absolute, moral responsibility and provable, act-oriented rendering of culpability, may gesture toward both religious and legal world-views. The Hebrew Bible has the definition and articulation of human guilt as one of its chief concerns. As John Barton writes, ‘‘the Old Testament’s assumption [is] that human beings are Toward a Critique of Guilt: Perspectives from Law and the Humanities Studies in Law, Politics, and Society, Volume 36, 127–140 Copyright r 2005 by Elsevier Ltd. All rights of reproduction in any form reserved ISSN: 1059-4337/doi:10.1016/S1059-4337(05)36007-8

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responsible agents, not the playthings of God’’ (2003, p. 8). Old Testament law may delineate ethical stipulations, but only the narratives fully reveal a portrait of the guilty heart. However much ambiguity and complexity the Hebrew Bible’s narratives contain regarding moral obligations, ‘‘we come away from reading such narrativesywith a clear picture of what it is to be a moral agent’’ (Barton, 2003, p. 11). These biblical stories not only define guilt, but they suggest that it is accounted for and judged by a higher power: ‘‘the meaning of history is to be foundyin the regular succession of sin and punishment’’ (Eichrodt, 1983, p. 26). Thus, internal, moral guilt is viewed as an [end in itself], an almost self-catalyzing act that brings about its own inherent judgment.1 In the legal sphere, internal, moral culpability is relevant insofar as it represents one aspect of a legally prosecutable crime. Legal scholars have discussed extensively how relevant (if at all) moral responsibility is to criminality,2 but whether morality is invoked or not, there is a virtual consensus that some kind of internal guilt is a necessary component of legal guilt. As Samuel Pillsbury puts it, ‘‘to be guilty of a crime, a person must have made a bad choice, not just a choice that had harmful results’’ (Pillsbury, 1998, p. 80). While the ‘‘harmful results’’ may be established through scientific evidence, triers of fact are often instructed that ‘‘the knowledge that a person possesses at any given time may not ordinarily be proved directly because there is no way of directly scrutinizing the workings of the human mind’’ (Pillsbury, 1998, p. 92). Nonetheless, this knowledge is considered a key ingredient for rendering a guilty verdict in countless criminal cases. I would like to explore how these two concepts of unequivocal internal guilt and qualified legal guilt are associated and indeed merged by the early rabbis, religious leaders who shape a notion of guilt that is at once internal and indeterminate. I will examine the biblical story of Cain’s killing of his brother Abel – the first homicide in human history, according to the Bible – in order to fully illustrate a paradigm of human guilt. I will then turn to rabbinic interpretations of this narrative, noting how they dismantle this paradigm only to subtly suggest a more nuanced alternative, one in which guilt ultimately is either shared or unknown.

CAIN’S GUILT Cain is often invoked as the archetypical murderer, the one who purposefully chooses not to curb his criminal impulses, instead opting to slay his

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own brother. The narrative is constructed so that Cain’s premeditation and intent is clear – this was not a crime of passion, even though Cain’s overwhelming anger is manifest. 3

In the course of time Cain brought to the LORD an offering of the fruit of the ground, and Abel for his part brought of the firstlings of his flock, their fat portions. And the LORD had regard for Abel and his offering, 5but for Cain and his offering he had no regard. So Cain was very angry, and his countenance fell. 6The LORD said to Cain, ‘‘Why are you angry, and why has your countenance fallen? 7If you do well, will you not be accepted? And if you do not do well, sin is lurking at the door; its desire is for you, but you must master it.’’ 8Cain said to his brother Abel, ‘‘Let us go out to the field.’’ And when they were in the field, Cain rose up against his brother Abel, and killed him. (Genesis 4:3–8) 4

The narrative thrust of the story, which leaves off in verse 5 only to resume again in verse 8, is interrupted by a short commentary on the action by God himself. It is God’s words which frame Cain’s emotion as potentially sinful and yet ultimately conquerable; God tells Cain, and the narrator tells the reader, that Cain’s murderous deed is a freely willed choice. The resumption of the narrative in the following verse then accentuates Cain’s pre-meditation. Cain did not merely ‘‘rise up against his brother,’’ but he lured him away to a deserted location and killed him there.3 Thus Cain not only murders, but he murders after he has been told explicitly that his act can be avoided, and after he has been warned implicitly that if he does not control his passions, he will not ‘‘be accepted.’’ As Johnson Lim writes, ‘‘Cain cannot claim ignorance or helplessness as he was given divine counsel’’ (2002, p. 155). He therefore knows right from wrong, but he chooses wrong nonetheless. His awareness of the shamefulness of his deed is underscored when he is confronted by God, and he ‘‘tries to cover up his murder by lying’’ (Lim, 2002, p. 156). 9 Then the LORD said to Cain, ‘‘Where is your brother Abel?’’ He said, ‘‘I do not know; am I my brother’s keeper?’’ 10And the LORD said, ‘‘What have you done? Listen; your brother’s blood is crying out to me from the ground! 11And now you are cursed from the ground, which has opened its mouth to receive your brother’s blood from your hand. (Genesis 4:9–11)

Cain does not show remorse, nor does he confess. Instead, he claims ignorance of his brother’s whereabouts. But God confronts Cain with undeniable evidence of his crime; he tells Cain that it is his brother’s blood that condemns him. Indeed, it is the very physicality of the spilled blood which reveals Cain’s murderous deed. As John Skinner (1930, p. 108) explains, The idea that blood exposed on the groundyclamours for vengeance is persistently vivid in the Old Testament.y In this passage we have more than a mere metaphor, for it

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is the blood which is represented as drawing Yahwe’s attention to the crime of Cain. (1930, p. 108)

Cain is trapped by the evidence of his own crime; his guilt is portrayed as unequivocal, fully meriting the measure of punishment which God deals him. This biblical narrative establishes a model of guilt, which includes motive, knowledge of right from wrong, uncoerced choice, and lack of repentance. In Gerhard von Rad’s (1972, p. 105) summary, ‘‘man’s responsibility to sin is not in the least annulled; on the contrary, this [narrative] imposes on him the whole responsibility.’’ If the first homicide reveals the deficiency of the human condition, it also indicates that the source of responsibility for evil can be identified, and as a consequence, purged through individualized punishment.

CAIN’S INNOCENCE If the Hebrew Bible employs narrative to convey models of moral responsibility, the early rabbis turn to midrash, a kind of playful and creative interpretation of biblical narrative, to impart their own moral lessons. While there are no rabbinic tracts which discuss philosophy or theology overtly, rabbinic interpretations of narratives in the Hebrew Bible often reveal much about how the rabbis reconceived ideas of guilt and responsibility, especially in those instances in which interpretations diverge significantly from the apparent sense of the original text. In responding to the narrative of Cain and Abel, rabbinic midrash creates a kind of ‘‘reasonable doubt,’’ suggesting that Cain’s guilt may be mitigated by a number of variable circumstances. The rabbinic readings primarily address the peculiar punishment that God levies upon Cain: 13 Cain said to the LORD, ‘‘My punishment is greater than I can bear! 14Today you have driven me away from the soil, and I shall be hidden from your face; I shall be a fugitive and a wanderer on the earth, and anyone who meets me may kill me.’’ 15Then the LORD said to him, ‘‘Not so! Whoever kills Cain will suffer a sevenfold vengeance.’’ And the LORD put a mark on Cain, so that no one who came upon him would kill him. (Genesis 4:13–15)

The ‘‘Mark of Cain’’ is far from a badge of shame – it is a protective sign, a warning to all who would lay a hand upon him that they will be punished ‘‘sevenfold.’’ Thus, Cain’s punishment consists specifically of a kind of protective exile, rather than a complete exposure to the elements. The difficulty with this sentence, however, is that it flies in the face of the biblical


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principle of equal and corresponding retribution. Only several chapters farther in Genesis, God commands Noah the lex talionis: he who murders shall be put to death (Genesis 9:6). Why does Cain merit special protection from death when he has brazenly shed innocent blood? Why does Cain escape from capital punishment? An anthology of rabbinic commentaries, Midrash Genesis Rabbah, addresses this problem by uncovering subtleties in the biblical text that may be read ‘‘against the grain,’’ that may indicate a counter narrative in which Cain is no longer the exemplary guilty subject. In other words, the rabbinic readings justify Cain’s lenient punishment by suggesting that though he has indeed killed Abel, he does not bear the full weight of responsibility. One midrash relates a parable in which Cain and Abel are cast as two wrestlers, fighting for sport in front of a king: R. Simeon b. Yohai said: It is difficult to say [the following], and the mouth cannot utter it plainly: Think of two athletes wrestling before the king; had the king wished, he could have separated them. But he did not so desire, and one overcame the other and killed him, [the victim] crying out [as he died], ‘‘Let my cause be pleaded before the king!’’ Thus, the voice of your brother’s blood cries out against me. (Genesis Rabbah 22:9)

In this scenario, the murder victim’s cry is seen as an indictment of the king – the parable’s figure for God. The midrash’s reading is based on the phonetic similarity between the Hebrew preposition in the biblical text (elai) and another, related Hebrew preposition (alai). The biblical text reads, ‘‘the voice of your brother’s blood cries to me’’ – elai. The midrash, however, notes another phonetic resonance in the text: ‘‘the voice of your brother’s blood cried against me’’ – alai. Thus the midrash depicts God no longer as the removed arbiter of good and evil but as an integral player in the events that unfold. God’s warning to Cain, which interrupts the narrative to make clear Cain’s awareness of right from wrong, also serves to highlight God’s participation in the entire scenario. If God could warn Cain, could foretell a coming disaster, could he not also have prevented it? Indeed, the gravity of the entire murder scene is greatly diminished in this parable. Viewed from God’s perspective, the jealousies of Cain and Abel are no more than a sporting match. Just as God could have quickly put an end to the struggle, he is also implicitly responsible for initiating it. The scenario of the parable has two athletes wrestling ‘‘before the king’’ – presumably for the king’s entertainment. Did God instigate the fight between Cain and Abel by accepting Abel’s sacrifice and rejecting Cain’s? And, perhaps more disturbingly, could he have done so for nothing more than sport? The Hebrew Bible’s contention, as John Barton articulates, that ‘‘human beings are

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responsible agents, not the playthings of God’’ is here inverted by the rabbinic midrash; as playthings of God, the responsibility of human beings for their criminal and sinful actions is greatly mitigated. In fact, Alan Dershowitz discusses this rabbinic comment from a legal perspective, and concludes even within the strict definitions of common law Cain’s guilt ought to be minimized. He writes, ‘‘it becomes understandable why God would mitigate Cain’s punishment. Provocation has traditionally been recognized as a mitigating consideration’’ (Dershowitz, 2000, p. 52). Hence this parable shifts responsibility for Abel’s murder from Cain and towards God himself (the audaciousness of which is not lost on R. Simeon b. Yohai, who prefaces his comment with the phrase, ‘‘the mouth cannot utter it plainly’’). In attaching this parable to the biblical words ‘‘the voice of your brother’s blood cries out to me,’’ the midrash effects more than a mere sound pun. God does not invoke his omniscience when he confronts Cain; instead, he calls attention to the damning physical evidence of Abel’s blood, spilled on the ground. R. Simeon b. Yohai’s reading of this particular verse indicates that the condemning evidence need not point in only one direction: it indicates beyond a shadow of a doubt the brute fact of murder, but it does not – and cannot – assign responsibility. Such an approach to guilt insists that responsibility for evil acts is contextual or relational, a theory of responsibility and punishment which has gained prominence among recent legal and moral philosophers. Alan Norrie, for example, criticizes traditional (Kantian) notions of ‘‘a blameworthy individual, ya choosing being whose actions are morally untrammeled by the influence of character or society’’ (2000, p. 94). Only by positing such an individual can a justice system freely punish ‘‘a formal legal subject whose actions are judged in isolation from the substantive moral context in which she acts’’ (Norrie, 2000, p. 95). While this ‘‘choosing,’’ ‘‘blameworthy’’ legal subject undoubtedly characterizes the biblical writer’s understanding of Cain, Norrie’s alternative more closely describes the approach of R. Simeon b. Yohai. He writes, Responsibility exists both in and beyond individual moral agents in the same moment. Responsibility is contemporaneously shared between the individual and the ‘significant others’ in her community or communities, and, indeed, with those communities themselves. (2000, p. 201)4

God’s culpability for Cain’s murder results from his specific participation in the individual and particular lives of Cain and Abel, his acceptance and rejection of their offerings, casting himself as a ‘‘significant other’’ in their lives. The archetypical nature of this story, however, insists that its lessons be generalizable. The midrash does not speak directly of a deity but of a


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king, a human being, whose position in society is most privileged. R. Simeon b. Yohai adumbrates Norrie’s contention that criminal justice must always be aware of guilt as a ‘‘blaming relation’’ (Norrie, 2000, p. 198), and thus mitigates the requirements of punishment of criminal guilt with the awareness of shared responsibility. A further midrash insists as well that Cain’s guilt for Abel’s murder is not as full and weighty as the biblical text attempts to render it. Rather than commenting on the presentation of evidence, as R. Simeon b. Yohai does, this midrash by R. Judah addresses several problems inherent in Cain’s unusual punishment. First, a simple difficulty relates to biblical continuity: according to Genesis Chapter 3, Cain and Abel were the only children of Adam and Eve, the first man and woman. Of whom, then, is Cain afraid as he wanders the uninhabited earth? What sense can be made of his complaint, ‘‘anyone who meets me may kill me?’’ (Genesis 4:14). Second, God responds by promising sevenfold vengeance on anyone who dares kill Cain, but to whom does he address this warning? In the biblically construed dialogue, this assurance is made to Cain alone; if this is the case, how could the promise of such recompense in any way act as a deterrent to violence? R. Judah provides a setting for the conversation between God and Cain in order to fill these narratological gaps: R. Judah said: The cattle, beasts, and birds assembled to demand justice for Abel’s blood. Said the Holy One, blessed be He, to them, ‘I say to you, whosoever slays Cain, vengeance shall be taken on him sevenfold.’’

In this midrash, R. Judah imagines not the wanton killing of a wandering, homeless Cain by other humans, but rather a demand for justice by the only other beings around – all the animals that roam the earth. In this fable-type scenario, the avenging of innocent blood, the lex talionis, is depicted as inherent in the natural order; nature steps in to demand justice when God seems to arbitrarily prevent Cain from receiving his deserved punishment. But God then turns to the animals, according to R. Judah, and warns them: whoever slays Cain will be avenged sevenfold. R. Judah thus concludes his midrash with a lingering sense of ongoing injustice. The question that remains, which was articulated above – what reason did God have for his bewildering leniency towards Cain? – is confronted by R. Nehemiah, who comments on R. Judah’s midrash: R. Nehemiah interpreted: Cain’s judgment shall not be as the judgment of other murderers. Cain slew, but had none from whom to learn; but henceforth, all who slay shall be slain. (Genesis Rabbah 22:12)

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R. Nehemiah explains that Cain, as the first murderer in history, deserves a special judgment because he ‘‘had no one from whom to learn’’; in other words, he could not have fully understood the consequences of his murderous act. Again, Dershowitz elucidates in legal language, that ‘‘this defense is an early variant on what eventually became the McNaughton rule of legal insanity, which exculpates a person who does not understand ‘the nature and quality’ of his act or know that it is ‘wrong’’’ (Dershowitz, 2000, p. 52). But Dershowitz himself recognizes that this excuse does not adequately apply to Cain’s case: There are several problems with this argument. First, the legacy left to Cain by his parents [Adam and Eve] included knowledge of right and wrong, and anyone with such knowledge understands it is wrong to murder. We refer to crimes such as murder as malum in se – wrong in themselves, inherently wrong. No criminal statute is required to tell a civilized person that it is wrong to killy. Finally, God did warn Abel, though not specifically about murdery. (2000, p. 53)

While Dershowitz uses this reasoning to dismiss R. Nehemiah’s argument outright, and insist upon the unfairness of Cain’s lenient punishment (he argues that Cain literally ‘‘gets away with murder’’), the midrash is perhaps better understood as making a more nuanced argument than the invocation of the insanity defense. Even though God warns Cain in the biblical narrative that ‘‘sin lurks at the door,’’ R. Nehemiah argues that a prerequisite for the assignment of unmitigated guilt is not just a formal understanding of right from wrong but a real knowledge, an experiential, or historical, knowledge of what transgression is, and what kind of punishment will ensue. In R. Nehemiah’s reading, God does not simply choose an appropriate, if lesser, punishment; he defies the demands of natural justice, or the cosmic order, because of the lack of historical precedent. The midrash continues by asserting that after Cain, a precedent has been set: ‘‘henceforth, all who slay shall be slain.’’ R. Nehemiah thus transforms this question of guilt, which requires immediate, personal knowledge – into a statement of law: the creation of a rule and a precedent. Hence, while R. Nehemiah claims that Cain cannot be held fully responsible for his crime, he skirts the issue of subsequent criminals’ individual responsibility entirely by simply declaring that now that a precedent has been set, we may consider murderers guilty and punish them appropriately. Contrary to Dershowitz’s evocation of natural law, that murder is malum in se, R. Nehemiah allows us to witness the creation of legislation, the moment of deciding future criminal responsibility. R. Nehemiah absolves Cain, and


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refuses to engage in the question of the moral guilt of future criminals, opting for legal guilt instead. Another series of parables in the midrash blur the line between a legal definition of guilt and the assignment of full, moral responsibility. They describe three different situations in which the guilt of a perpetrator is clearly communicated to an onlooker through incontrovertible physical evidence. While the parables appear to highlight the absurdity of Cain’s protestations of innocence in the face of such clear proof of his murderous act, they simultaneously confuse the assignment of guilt that ought to result from such unambiguous signs: And the Lord said unto Cain: where is Abel, etc. (1) This may be compared to a prefect who was walking in the middle of the road, and found a man slain and another standing over him. ‘Who killed him?’ he demanded. ‘I will ask you [that question] instead of your asking me,’ rejoined the other. ‘You have answered nothing,’ he retorted. (2) It is like the case of a man who entered a garden, and gathered mulberries and ate them. The owner of the garden pursued him, demanding, ‘What are you holding?’ ‘Nothing,’ was the reply. ‘But surely your hands are stained [with the juice]!’ Similarly, [God said to Cain], the voice of your brother’s blood cries to me from the ground. (3) Again, it is as if a man entered a pasture ground, seized a goat, and slung it behind him. The owner of the pasture pursued him, demanding, ‘What have you in your hand?’ – ’Nothing.’ ‘But it is bleating at your back!’ he exclaimed. Similarly, [God said to Cain]: the voice of your brother’s blood cries to me from the ground. (Genesis Rabbah 22:9)

These parables compare Cain’s situation to those in which incriminating evidence is more than persuasive; in fact, the obviousness of the denier’s guilt increases in intensity with each subsequent parable. In the first parable, the evidence of the murder is apparent, but the assignment of guilt is entirely circumstantial – a man has been seen alive, and then he is seen dead with another man standing over him. Nonetheless, the events of the murder can easily – and acceptably – be assumed, because the circumstantial evidence is so overwhelming: no one else is present to have committed the crime except the man who is standing over the body. And yet, the accused denies his act by answering the onlooker’s question with another question, much as Cain responds to God’s inquiries. Nevertheless, it appears from the end of the parable as though the perpetrator is caught: ‘‘you have answered nothing,’’ the witness retorts, dismissing the man’s attempt at evasion. The second parable creates even more tension by invoking some direct evidence of the theft of mulberries – the hands of the perpetrator, stained

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red with berry juice. Even though the onlooker has not seen the actual theft, and even though the stolen items are not themselves found, a direct link between the perpetrator and the crime is visible and manifest. Even in spite of the presence of this evidence, the perpetrator denies his act. This is more brazen than in the parable above, in which there remains no direct link between the perpetrator and the crime. This parable suggests that Cain not only denies his murder of Abel, but he does so even more audaciously in the presence of Abel’s blood, spilled on the ground. Therefore, the parable ends with the quotation from the biblical passage, ‘‘your brother’s blood cries to me from the ground.’’ The final parable once again furthers the one that precedes it: in this case, not just evidence of the item, but the stolen item itself remains in the possession of the perpetrator. A man has stolen a goat, is confronted, and tries to deny his deed despite the very presence of the stolen item. Though it is hidden from sight, its bleating makes its presence known, and the questioner can clearly link the perpetrator to his crime. In this parable, the connection to the biblical passage is somewhat more abstract; the bleating is connected to the voice of Abel’s blood which ‘‘cries from the ground.’’ According to this interpretation, Cain may have killed Abel, but he has not silenced him. Cain’s protestations of innocence come not only in the face of circumstantial or physical evidence, but also the plaintive testimony of his victim. All of these parables suggest the absurdity of Cain’s protestations of innocence in spite of the obviousness of his guilt – he should have recognized that God would certainly be perfectly aware of his unspoken deed. What is unusual, however, is that no appeal is made throughout this midrash to God’s unique divine qualities or indeed his omniscience. The rabbinic commentary instead casts God as a mere character in a juridical drama; God is analogized in each parable to a witness who must rely on evidence to reconstruct events and assign guilt. In subjecting Cain’s murder to human scrutiny, the rabbinic scenario, contrary to the biblical version, suggests that Cain’s guilt is never established with divine certainty. In fact, each parable presents not only a human encounter, but a confrontation between two individuals of equal standing; the perpetrator is not confronted by a court of law or even multiple people in a public square. Therefore, though in each case the witness may be utterly convinced of the guilt of the person he confronts, guilt is never proven or even acknowledged by the suspect. The reader is led to wonder what may happen after these confrontations, as only a sole witness can verify the course of events.


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In fact, another rabbinic story, which closely resembles these parables evidently intends to depict the helplessness of a single witness to a crime in establishing the perpetrator’s guilt: Simeon ben Shetah said: May I see the consolation if I did not see someone run after his fellow, with a sword in his hand. The man went before him into a ruin, and the [pursuer] ran in after him, and then I came in right after him, and found [the victim] slain, with a knife in the hand of the murderer, dripping blood. I said to him, ‘You evil person! Who killed this one? May I see the consolation if I did not see him [run in here]. Either you killed him or I did! But what can I do to you? For your case is not handed over to me. For lo, Scripture has said, ‘‘At the testimony of two witnessesyshall he who is on trial for his life be put to death’’‘ [Deut 17:6]’. (t. Sanhedrin 8:3)

In this rabbinic passage, Simeon b. Shetah describes an incident in which a man runs into a ruin – a place known to be isolated – and another man runs after him, sword in hand. Though the other character, Simeon b. Shetah, does not witness the murder itself, he is left with no doubt as to the identity of the murderer after seeing all the circumstantial and direct evidence of the crime. But he reluctantly admits that the man’s guilt will never be proven in a court of law, and it will never be certain to anyone but himself: Simeon b. Shetah’s rhetorical statement to the murderer, ‘‘either you killed him or I did!’’ identifies the precise quandary any trier of fact would find herself in when hearing this case – the dilemma of one person’s word against another’s. Hence, the biblical requirement cited by Simeon b. Shetah, that at least two witnesses are needed to establish the facts of a crime and assign guilt. All of the parables above hint at the same problematic ambiguity found in the Simeon b. Shetah story; it is made explicit in the first parable when the murderer responds to the prefect’s question of ‘‘Who killed him?’’ with ‘‘I will ask you [that question] instead of your asking me!’’ The perpetrator’s response indicates his awareness of the difficulty others’ would have in identifying the murderer: if any other person were to pass by, both the murderer and the prefect would be seen ‘‘standing over the body,’’ and the guilty party would no longer be discernable. The midrash’s relating of two other parables implies that this undecidability of guilt applies whenever there is only one witness to a crime, regardless of how much evidence is present. If R. Nehemiah’s midrash subordinates the objectivity of guilt to the establishment of legal precedent, these parables similarly de-emphasize the importance of determining absolute guilt when the knowledge or certainty of an individual’s responsibility can never be sufficiently known or proven. The rabbis leave aside the biblical idea of divine insight into the transparent human heart and instead highlight the confusion about guilt

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that characterizes the human world – one often cannot even distinguish between the innocent bystander and the murderer. Even if there are in fact instances in which guilt is incurred entirely by one individual (rare cases, indeed) what use is this theoretical ‘‘absolute, moral guilt,’’ the rabbis ask, if it can never be absolutely perceived or proven in the human world? The rabbinic readings of Cain’s crime and punishment demonstrate the rabbinic challenge to the very notion of guilt as a determinate concept. The biblical narrator emphasizes that Cain may either choose evil or choose to overcome it, and therefore holds him solely responsible for his crime when he chooses evil. Several rabbinic interpreters are not convinced, however, that responsibility need fall entirely upon the perpetrator. R. Nehemiah remarks that Cain did not deserve the death penalty because he could not fully understand the enormity of his crime. R. Simeon b. Yohai lessens Cain’s guilt by impugning God himself as an eye-witness, who could have intervened before Abel was killed, but instead chose to remain silent, allowing him to die. The anonymous authors of a series of parables question whether a guilty party can ever be positively identified. By calling into question the guilt of the Bible’s paradigmatic murderer, the rabbis implicitly raise questions about whether anyone, at any time, can truly be considered guilty. Although the rabbis were framers of a legal system, which must clearly demarcate between guilt and innocence, they nonetheless seem not to have required an absolute approach to the concept of guilt. An accused may meet legal standards for a guilty conviction and receive proper punishment, according to rabbinic texts.5 But at the same time, the very framers of these legal standards may admit that a legal conviction does not correlate to absolute, moral guilt, that the neatness of a courtroom naming of the guilty party does not allow for the shading and sharing of guilt that any action or even inaction engenders. Indeed, not even God, according to the midrash, can cleanly divide the innocent from the guilty. The concept of guilt is, thus used by the early rabbis to both define and challenge legal, and moral, categories, allowing for moral ambiguity alongside definitive legal decisions.

NOTES 1. For a full exploration of the ‘‘reflexivity’’ of sin and punishment in the Hebrew Bible, see Koch (1983). 2. For some discussion on this topic see Hart (1970).


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3. The Masoretic (Hebrew) text of the Bible omits the first occurrence of the phrase ‘‘let us go out into the field,’’ but it is widely accepted by biblical scholars that the omission is merely a scribal error (Speiser, 1964, pp. 30–31). 4. Indeed, Alasdair MacIntyre (1981, p. 33) points out that the pre-modern conception of the self is one in which ‘‘it is through his or her membership in a variety of social groups that the individual identifies himself or herself and is identified by others.y They are part of my substanceyThis is opposed to a modern, ‘‘emotivist’’ understand of the self in which ‘‘everyone canybe a moral agent, since it is in the self and not in social roles or practices that moral agency has to be located’’ (p. 32). Jonathan Sacks (1993, pp. 154–147) specifically opposes this view of the self with the Jewish, and even biblical understanding, which sees the self as deriving its moral agency from the will of God; though he is certainly correct in his assertion that moral obligation derives from God in the biblical world view, the moral agency is nonetheless, in the particular instance of Cain, seen to reside entirely with a self who is able, in MacIntyre’s words, ‘‘to stand back from any and every situationyand to pass judgment on it from aypoint of view that is totally detached from all social particularity’’ (1981, pp. 31–32). 5. Many scholars have noted that rabbinic legislation for capital punishment entailed so many safeguards to protect the accused that no one could have ever conceivably been convicted; see, for example, the classic article by Blidstein (1965). Nonetheless, the rabbinic legislation (whether theoretical or not) never abdicated the responsibility of developing a system of objective criteria by which an individual could be prosecuted and sentenced, revealing that the rabbis refused to give up on the idea of individual responsibility altogether.

REFERENCES Barton, J. (2003). Understanding Old Testament ethics. Louisville: Westminster John Knox Press. Blidstein, G. (1965). In Judaism 14, pp. 159–171. Dershowitz, A. M. (2000). The genesis of justice: Ten stories of Biblical injustice that led to the Ten Commandments and modern law. New York: Warner Books. Eichrodt, W. (1983). Faith in Providence and theodicy in the Old Testament. In: J. L. Crenshaw (Ed.), Theodicy in the Old Testament (pp. 17–41). Philadelphia: Fortress Press. Hart, H. L. A. (1970). Punishment and responsibility: Essays in the philosophy of law. Oxford: Clarendon. Koch, K. (1983). Is there a doctrine of retribution in the Old Testament? In: J. L. Crenshaw (Ed.), Theodicy in the Old Testament (pp. 57–87). Philadelphia: Fortress Press. Lim, J. T. K. (2002). Grace in the midst of judgment: Grappling with genesis 1-11. Berlin: Walter de Gruyter. MacIntyre, A. (1981). After virtue: A study in moral theory. London: Duckworth. Norrie, A. (2000). Punishment, responsibility, and justice: A relational critique. Oxford: Oxford University Press. Pillsbury, S. H. (1998). Judging evil: Rethinking the law of murder and manslaughter. New York: New York University Press.

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Sacks, J. (1993). One people? Tradition, modernity, and Jewish unity. London: Littman Library of Jewish Civilization. Skinner, J. (1930). A critical and exegetical commentary on genesis. V. 1 international critical commentary series. Edinburgh: T & T Clark. Speiser, E. A. (1964). Genesis. V. 1 anchor Bible series. Garden City, NY: Doubleday. Von Rad, G. (1972). Genesis: A commentary. London: SCM Press.

ETERNAL REMORSE Linda Ross Meyer ABSTRACT None of the standard theories of punishment can explain the ‘‘remorse discount’’ juries and judges seem inclined to give when sentencing. This chapter argues that sentencing ought to change its nature when a defendant is remorseful, sanctioning instead of punishing. The emotion of remorse is so closely tied to retribution that there is no further need for punishment. Instead, a merciful settlement, or sanction, is required to bring an end to the retributive pain of remorse. In short, for remorseful defendants, we sentence in order to mitigate remorse, rather than looking to remorse in order to mitigate sentence.

1. REMORSE AND PUNISHMENT Under the Federal Sentencing Guidelines, typical of sentencing statutes generally in this respect, an offender may mitigate his sentence by ‘‘acceptance of responsibility.’’ The extent of the reduction depends upon the seriousness of the crime, though, in general, the longer the sentence, the smaller the proportion of the reduction (USSG 3E1.1 background notes). In practice, the reduction is usually automatic for defendants who plead guilty (application notes), and remorse, rather than the extent to which

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government prosecutorial resources have been conserved, plays very little role (O’Hear, 1997; Sarat, 1999). The application notes, which once included remorse as a factor, no longer mention it, except in passing (O’Hear, 1997). Yet, judges, juries, attorneys, and academics have acknowledged that remorse is one of the most important considerations in sentencing (Sundby, 1998; Eisenberg, Garvey, & Wells, 1998). Why do we have this intuition that remorse should matter to criminal sentencing? Is this intuition correct? If so, why do our sentencing systems tend to skirt the question? I answer below that, while traditional theories of punishment fail to explain ‘‘the remorse discount,’’ remorse is a critically important factor in sentencing, even in cases involving serious crimes. Acceptance of a defendant’s sincere remorse changes the nature of sentencing. Instead of punishing a remorseful offender, that is, imposing pain to cancel a debt, deter, or teach, we sanction a remorseful offender, imposing a settlement, not a retribution, that is necessary to put an end to remorse itself. In short, I conclude that for the remorseful defendant, we sentence in order to mitigate remorse, rather than using remorse to mitigate sentence.

2. BACKGROUND: THE THEORIES OF PUNISHMENT AND THE REMORSE DISCOUNT From a traditional retributivist viewpoint, remorse seems irrelevant. It simply has nothing to do with the extent of culpability of the offender at the time of the crime. At most, it suggests that the offender, once her debt is paid, will not reoffend, which is all for the best, but not relevant to punishment for this crime. Jeffrie Murphy has suggested that the pain of remorse might be the appropriate kind of pain to count as partial retributive punishment, an idea fleshed out below, but even he believes that remorse should affect sentencing only at the margins (Murphy, 1997, pp. 156–160). Character retributivism, the view that one should base a punishment on the extent of a defendant’s bad character, at least in part, rather than simply on the extent of culpability for the particular crime, would take remorse into account as a sign of good character (Robbins, 2001). But again, such adjustments are at the margins, for most agree that punishing solely on the basis of bad character would distort the penalty structure (small crimes done by bad actors would receive longer sentences than greater crimes), and that judging character is a perilous business, both because we cannot know what

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secrets lie in others’ hearts and because we may not fully understand them in light of our own flawed moral and cultural vision. From the perspective of (simple) deterrence, remorse suggests a disposition not to reoffend, lessening, perhaps, the need for specific deterrence. A painful emotional state may take the place of painful punishment in making future criminal conduct seem less attractive to an offender. But, tempering punishment for remorseful defendants may defeat the aims of general deterrence to the extent that other offenders believe they can fake remorse (even if that belief is mistaken) and also receive the lower punishment. So, even if we could accurately determine who is remorseful and who is not, and that is itself a contested issue, a deterrence theory would likely not mitigate punishment for remorse, for fear of weakening general deterrence. A more sophisticated deterrence theory might wish to factor in the sociological fact that most people believe remorse should matter to punishment. Such a theory might wish to take this sociological fact into account in order to ensure that the justice system seem just, thereby encouraging voluntary compliance (Robinson & Darley, 1997). But even so, the theory would allow remorse a role to play only so far as necessary to prevent dissatisfaction with the system that would undermine voluntary compliance, not for its own sake. From the perspective of a victim-oriented theory of punishment, remorse may be relevant insofar as it involves ‘‘self-abasement and humiliation’’ and ‘‘a kind of alienation from oneself’’ (Brown, 1997, p. 33). If the offender is humbled, then on this model, her arrogation of superiority vis-a-vis the victim in committing the crime is cancelled, restoring the victim and offender to equality (Hampton, 1992). If this humbling of the offender is accomplished by remorse as well as punishment, then it seems at least possible remorse could mitigate or even take the place of punishment. However, most victim-centered theories of punishment also suppose that a more public ceremony of punishment is necessary to communicate the victim’s restoration to the community generally and avoid the appearance of condoning the victim’s abasement (Hampton, 1992; Fletcher, 1995). Remorse, without public punishment, may not be sufficient for this purpose. Remorse would also not be necessary, if other methods of ‘‘humbling’’ the offender were used. With respect to ‘‘expressive theories’’ of punishment, the place of remorse is puzzling. If the communication involved in punishment is for the purpose of making the defendant understand the seriousness of the crime, as in Herbert Morris’ paternalistic theory of punishment, then the remorseful

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defendant already knows this, and needs no further punishment-ascommunication (Morris, 1981). Hence, remorse would discount or even eliminate the need for punishment in such a system. Morris’s paternalistic account of punishment, then, is one of the few that would justify mitigation of punishment when the defendant is remorseful. Most expressive theories of punishment, however, consider the social meaning of the punishment as well as its communication to the offender. If, as in Durkheim, the punishment-as-communication is directed to the community as well as the offender, and the publicity of restating the norm through punishment is essential to the community’s self-definition and self-understanding, then punishment is necessary, regardless of whether the offender already feels and understands the gravity of the crime. The only other concept of punishment that seems to have remorse at its center is punishment as atonement (Garvey, 1990). Here, remorse is the essential first step to expiation and reconciliation with the victim and the community, so the ‘‘repentance discount’’ of traditional sentencing practice seems, at first glance, ‘‘easy to explain’’ (Garvey, 1990, p. 1824). According to Stephen Garvey, however, remorse is still not sufficient; penance, or punishment, is still required: It follows that the wrongdoer, because he identifies with the victim whom he has insulted and diminished, will himself feel insulted and diminished. And just as his victim will feel legitimate anger and its accompanying urge to strike back, so too will the wrongdoer feel legitimate anger and the urge to strike back – only at himself. This self-directed anger is guilt. Guilt is thus a product of empathic self-identification that manifests itself as a form of self-directed anger. If a wrongdoer identifies with the victim of his wrongdoing, he will experience all that his victim experiences as a consequence of that wrong. He will feel smaller than before, just as he has made his victim feel smaller. He will experience anger and resentment toward himself, just as his victim feels resentment and anger toward him. Moreover, just as his victim’s moral worth cannot be restored unless the wrongdoer is punished, so too the wrongdoer cannot restore his own moral standing unless he submits to punishment (Garvey, 1990, pp. 1822–1823).

But if atonement is the object, why is it necessary for the remorseful defendant to be punished at all? Garvey suggests that punishment restores the wrongdoer’s ‘‘moral standing.’’ Garvey might explain punishment as an expressive fix, along the lines suggested above, sending the ‘‘right’’ message about the relative worth of the victim and defendant. I have disputed that view elsewhere (Meyer, 2003). Is there another explanation? And if Garvey is right that punishment is still necessary, why the ‘‘punishment discount’’ for the repentant offender? If punishment is needed to restore ‘‘moral

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worth,’’ then the punishment discount seems not to be so ‘‘easy to explain’’ after all. The answers to these questions depend critically on the nature of remorse. What is it about remorse that leads to the intuition that the remorseful should receive a lesser punishment than the remorseless, other things being equal? The next section, using both philosophical and literary sources, tries to understand the emotion/cognition of remorse and its power for us. Only then can we decide why a sentencing system, jury, or judge might think it matters.

3. THE CHARACTER OF REMORSE Remorse, like guilt, requires that one believes one has done wrong. But, remorse is more than a cool belief or passing acknowledgment. The Latin roots of remorse mean, ‘‘to bite again.’’ Unpacking this metaphor is revealing. First, biting is painful. Bites are jagged, tearing and unclean. They are very likely to become infected and fester. Bites are also animal-like, ignoble, inhuman, and disgusting. Vampires, monsters, and animals bite – not humans. Being bitten or eaten is a horrific or nightmarish prospect. In Antigone, as in a host of other stories, punishment practices, and myths, leaving a corpse to be bitten and eaten by scavengers is the consummate degradation. As a biting, then, the bite of remorse is a revolting, disgusting, and festering ‘‘type of self-punishment’’ (Sarat, 1999, p. 169). This biting knowledge that one has done wrong is also a rebite, a return of the crime. Remorse ‘‘implies a degree of empathic pain on the part of one who has caused the fracture’’ (Cox, 1997, p. 24). In remorse, one becomes one’s own victim, as Garvey recognized in the quotation above. But the pain rebounds in a peculiar way: one is both the biter and the bitten. Not only does one suffer the pain one inflicted on one’s victim, but one also suffers both the pain and the degradation of having inflicted it. Remorse bites again in another way, too. It recurs, it lives inside one, and it continues to bite. There is no way out from oneself. In the deepest circle of hell, Dante imagines sinners are eaten over and over and over. Prometheus pays for his crime by having his liver eaten anew each day. The biting of remorse is figured in these mythic stories as remorseless and eternal. Unlike guilt, which may linger like a vague cloud in the background of the conscience, remorse bites and spurs one to act. These recurring feelings of self-disgust, self-hate, and empathy for the victim’s pain create

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a turning away from oneself, a desire to expunge the guilt, or a desire to flee oneself.

3.1. Remorse and Violence Remorse is often accompanied by outward forms of self-inflicted punishment. Oedipus blinds himself, monks whip themselves, teenagers cut themselves, and people seek out destructive relationships or onerous forms of service. Briony in Ian McEwan’s novel, Atonement, volunteers as a nurse’s assistant in the military hospital during World War II to punish herself for falsely accusing her sister’s lover of rape. Arthur Dimmesdale, the clergyman whose lover Hester receives Hawthorne’s Scarlet Letter, is tortured by remorse to his death, cutting his own scarlet letter into his own flesh. Gene, in John Knowles’, A Separate Peace, believes that serving in the front lines of World War II will assuage his guilt for causing his best friend’s crippling accident. One way or another, the remorseful demand their own punishment. The physical pain seems to blunt the mental pain, to ease the biting conscience. Physical pain may seem less painful than remorse, to replace it and externalize it, literally, to expiate it. Physical pain substitutes for mental agony, at least for a while. But, unless the physical punishments keep recurring, something else must be done. External pain alone does not destroy the self-hatred and self-disgust of the offender anymore than it alleviates the suffering and humiliation of the victim. Remorse rebites. Martha Grace Duncan also reminds us that remorse can be endless, destructive and even the cause of more violence. She quotes E.M. Forster’s line in Howard’s End: ‘‘Of all the means to regeneration, Remorse is surely the most wasteful. It cuts away healthy tissues with the poisoned. It is a knife that probes far deeper than the evil.’’ (Duncan, 2002, p. 1522) She gives us the case study of Peter, a remorseful murderer, who attempted suicide, escape, self-isolation, and never adjusted to prison life, boding ill, rather than well, for rehabilitation (Duncan, 2002, p. 1522). John Knowles also probes this insight. Gene, in A Separate Peace, becomes violent when his friend Leper accuses him of bouncing Phineas out of the tree, ‘‘crippling him for life.’’ Curiously, however, Gene’s violent response is not a denial of his responsibility, but precisely the reverse. Gene has confessed his guilt to Phineas already, but Phineas refuses to believe it. Gene is left with remorse that no amount of submission to Phineas can heal. Leper, in his accusation, has touched a festering

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wound, and Gene blindly lashes out in reflex-like response. Gene is trapped by his biting conscience, and the pain of it leads him to strike out in frustration.

3.2. Remorse and Escape In addition to prompting physical violence against oneself or others, remorse may also be accompanied by various attempts to escape from oneself, through drugs or alcohol or suicide or forms of denial or repression. After his unsuccessful attempt to buy back Jesus’ life, the agonized and remorseful Judas hangs himself. The remorseful Rochester, in Jane Eyre, pursues a different course of escape: dissipation and restless pleasure seeking through all the capitols of Europe (Bronte, 2003). But the attempt to escape, short of suicide, is usually unsuccessful. One cannot flee from oneself. Jimmy Buffet’s famous country tune, Wastin’ Away Again in Margaritaville, goes through several verses of inebriated denial (‘‘it’s nobody’s fault,’’ ‘‘it could be my fault’’), but ends with the confession: ‘‘but I know, it’s my own damn fault.’’ Briony, in Ian McEwan’s Atonement, says: ‘‘The only conceivable solution would be for the past never to have happened.y She longed to have someone else’s past, to be someone else, like hearty Fiona with her unstained life stretching ahead, and her affectionate, sprawling familyyAll Fiona had to do was live her life, follow the road ahead and discover what was to happen. To Briony, it appeared that her life was going to be lived in one room, without a door.’’ (McEwan, 2003, p. 272) Living one’s life in one room, without a door, is a perfect metaphor for remorse, which traps one in one’s own past. It is also, of course, life imprisonment. Nietzsche (1969) argues that this form of eternal, life-imprisoning individual remorse is spawned by the modern social context. For Nietzsche, the ‘‘bad conscience’’ tortures the healthy activity of life and ultimately results in an effete and spineless nihilism. Historically and psychologically, Nietzsche argues, guilt gradually comes to the fore, as strong, selfish, lifeaffirming, healthy impulses must be repressed and resisted in an increasingly disciplined society. Eventually, guilt comes to pervade all action, a guilt so overpowering that it can be alleviated and forgiven only by supernatural forces in another life (as in Christianity). Nietzsche thus believes this eternal remorse to be the ultimate nihilism: life generates guilt that only death can assuage (Nietzsche, 1969). Whether or not one accepts Nietzsche’s historical

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and cultural account of guilt, it is clear that he too sees remorse as a form of living hell, a life imprisonment with no hope of exit except death.

4. REMORSE AND RETRIBUTION Remorse in many ways parallels retribution. Like retribution, remorse is a boomerang of the crime. The offender gets his own law thrust back upon himself, to experience for himself the pain of the crime, the world as it would be if his act were a universal law. The offender must live with his biting deed. He must own it. Here is a second parallel with retribution. Accepting responsibility for one’s actions, the key to moral responsibility presumed by theories of retribution, also requires owning them as mine. While remorse is often understood as disassociating oneself from a crime, or, as Jeffrie Murphy puts it, from those aspects of one’s character that led to the crime (Murphy, 1997), too much disassociation amounts to evasion of responsibility. The skepticism one feels for a person who too quickly declares himself to be ‘‘a new man’’ stems from this source. Michael Moore expects that we all look askance at a murderer who argues that a few years imprisonment is sufficient punishment, as he has seen the error of his ways and reformed (see Moore, 1987). We do not trust it, the disassociation from one’s ‘‘old self’’ seems an evasion. Therapeutic approaches have this potential flaw: explaining one’s past behavior as the product of outside influences or old behavior patterns that have been ‘‘fixed’’ may make one feel like a ‘‘new person’’ only by refusing to own the old one. Sherri Colb, for example, suggests that sex offenders may be more amenable to therapy when they are given the chance to distance themselves from their past acts by seeing them as ‘‘caused’’ rather than chosen (Colb, 2003). This stance does not look like remorse. On the other hand, Colb argues that owning the acts fully means that they continue to bite, again and again, causing repression and denial, not rehabilitation. There seems no way to exorcize the past without evading responsibility for it. Nietzsche says that it would take a truly heroic being to will ‘‘the eternal return of the same,’’ yet that is just what responsibility demands (Nietzsche, 1966, p. 68). To own and live with each of our actions through an eternity of lives would be the ultimate heroism and the ultimate horror. It would, in short, be remorse – the rebite of our deeds. Each of our actions we must own, hold to us, keep with us, though they bite and sting. To deny responsibility is to deny our own will, our own freedom, and our own power. To acknowledge our free will is to experience remorse, to own all our worst deeds completely,

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without cavil, yet at the same time, to be disgusted by them, and to feel them bite us, over and over again. Accepting responsibility requires accepting the life imprisonment of remorse. Remorse is, then, the perfection of retribution. Usually, however, retribution is thought to require proportionality – the criminal should suffer only the rebound of the crime and no more. Remorse, on the other hand, recognizes no such proportionality, for the past cannot be undone. How does retribution achieve a proportionality that remorse does not? One traditional way to think of proportionality in retribution is to imagine that the crime is a debt from the past that can be paid in the present and thereby undone. Nietzsche points out that this way of thinking makes the infliction of pain a good – pleasure in another’s suffering is the ‘‘repayment’’ (Nietzsche, 1969, pp. 91–92). If we wish no longer to treat cruelty as a luxury item, or admit that we experience pleasure at an offender’s suffering which compensates for the pain of the crime, equal pain is not justice, it is only twice the suffering. So, this account of proportionality is not satisfying. If we refine retributivism, as in Hegel’s view, punishment mends the will of the offender by treating that will as free. Giving the errant will the consequences of its own law renders it human once more, by treating that will as a universal will. But, I have argued that treating the criminal as fully human, requires exactly not giving the offender the full consequences of her crime (Meyer, 2002). To give the offender the full consequences of her crime, the criminal would be abased and humiliated and disgusting to herself, just as she humiliated the victim in willing the commission of the crime. Remorse then, is more perfect as retribution, for it makes the offender feel disgust at her own act. But, Hegel’s view of retribution, in which we treat the criminal as a full member of the human community with dignity, is necessarily merciful in this respect. It does not give the criminal the full measure of the pain she inflicted, but accepts her once again as a member of the community. So, the proportionality supposedly required by retributivism is really a form of mercy, not justice (Meyer, 2002).

5. REMORSE AND SANCTION Remorse lacks proportionality precisely because it is perfect retribution: the full return of the crime, never to be disassociated from the self. Remorse does not have a natural end or moment of redemption for the criminal. ‘‘The disgust with dirt can be so great that it keeps us from cleaning

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ourselves – from ‘justifying’ ourselves.’’ (Nietzsche, 1966, p. 86) It does not make the criminal once again a member of the community of free willers. It only locks out the criminal, for the criminal’s will is henceforth divided against itself, placed to suffer at the deed again and again, a deed that cannot be undone, repaid, fixed, or compensated. The offender must suffer eternally, because nothing can vitiate or change the past. Remorse, then, is a form of hell, and hell a way of characterizing ‘‘the immeasurability of punishment and guilt’’ (Nietzsche, 1969, pp. 91–92). Again to quote McEwan’s character Briony: ‘‘The problem of these fifty-nine years has been this: how can a novelist achieve atonement when, with her absolute power of deciding outcomes, she is also God? There is no one, no entity or higher form that she can appeal to, or be reconciled with, or that can forgive her. There is nothing outside her.’’ (McEwan, 2003, p. 350) All of Briony’s victims are dead; they cannot forgive her, except in her own fiction. But, Briony’s conundrum points to a way out of the hell of remorse – it must come from outside the offender, from an other with the standing to forgive and renew. In A Separate Peace, Gene, by contrast, does in the end, receive Phineas’ forgiveness: ‘‘It is okay because I understand and I believe you. You have already shown me and I believe you.’’ (Knowles, 1988, p. 183) Gene has ‘‘shown’’ Phineas in many ways: by confessing, by keeping his place as roommate, by not running away and enlisting, by agreeing to allow Phineas to ‘‘trade places’’ with him by training for an imaginary Olympics, by recognizing that he does not know himself as well as Phineas knows him, by knowing (through loving) Phineas’s character even better than Phineas does, and finally, by feeling that he belonged with Phineas in his pain and even in his death, ‘‘I could not escape a feeling that this was my own funeral.’’ (Knowles, 1988, p. 186) Gene’s sense of union with Phineas, guiding his life by what ‘‘Phineas would do,’’ is what ultimately allows him to overcome the ‘‘savage underneath’’ and achieve redemption. So, ironically, rather than being a reason for foregoing punishment, remorse creates the necessity for punishment, but not as more pain (punis), but as sanction (sanctification). Punishment as pain at best brings home the crime to the unrepentant criminal (Morris, 1981), in hopes that he will feel his pain as his victim’s pain, awaken his empathy and the retribution of remorse. ‘‘This is how it feels. This is how serious it is. Now do you understand what you have done?’’1 Punishment as pain is not necessary for the remorseful defendant (though it may be welcome as it dulls his own pain for awhile). Instead, the remorseful require sanction. Sanction sets the conditions of reunion: it has an end. It shows faith in the remorseful defendant and grace in extending

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another chance, trusting in someone who has lost self-confidence, caring for someone who has lost self-love. Sanction is purgatory rather than hell. This is the element of grace or mercy, the allowance that there can be renewal, satisfaction, of a wrong done. The past cannot be changed, but the future can be freed from its chains, by fiat, by settlement, by grace. Sanction is the outward penance or settlement that ends the inner hell of remorse. Sanction is not justice, but mercy. It is arbitrary, precisely not measured by the wrong of the crime, precisely not ‘‘equal’’ in any respect to the suffering of the victim. If one ‘‘deserves’’ the retribution of remorse, sanction gives ‘‘less’’ than someone ‘‘deserves’’ and is thereby unjust. Nietzsche’s response is that we must embrace this injustice. Zarathustra, Nietzsche’s vision of a strong lifeaffirming human, thanks the adder (of conscience) for its ‘‘bite,’’ but then orders it to ‘‘take thy poison back! Thou art not rich enough to present it to me.’’ The adder of remorse then licks the wound it inflicted (Nietzsche, 1950). Zarathustra then affirms himself as the ‘‘destroyer of morality.’’ He overcomes remorse (the adder), but in overcoming remorse, he also overcomes justice. So, as Nietzsche says, we need ‘‘justice which is love with seeing eyes,’’ and which is an unjust justice, a ‘‘justice, which acquitteth every one except the judge!’’ (Nietzsche, 1950, p. 72). In sum, the only justice that allows for grace is necessarily unjust in both of the traditional senses of giving what is deserved (retributive justice) or even what is equal (distributive justice). Punishment as the rebound of crime (retributive justice) would be the hell of remorse; punishment as the payment of debt (distributive justice) would be the currency of cruelty (equal suffering is justice). Neither is satisfactory. So, as Nietzsche says, we need an unjust justice. The need for this ‘‘unjust justice’’ is highlighted by the experience of those in prison for life without parole, those condemned to live their lives ‘‘in one room without a door.’’ Lifers express remorse, but say how impossible it is to expect eternal remorse, remorse every day of one’s life. As lifers say, one cannot live like that, for the urge to live and change and grow and contribute is cut off by the requirement of eternal remorse (Bergner, 2003). Understood in light of the discussion here, the penalty of life imprisonment is no sanction, but a living hell.

6. SANCTION AND THE STATE Here it is that Hegel’s requirement that the State must come into play in sanction makes the most sense. The state is (usually) the only authority,

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which can claim one’s life or demand one’s death. Only the state has power to forgive and renew, and therefore to require one to forgive oneself. Even the individual victim cannot do this, unless the victim has the kind of deep union with the offender exemplified by Gene and Phineas, for the victim can only forgive for her own pain, but cannot take away the offender’s selfloathing and self-disgust, or accept future risk for others. Only the love of an Other can do that. For Hegel, that Other is the State. For the religious, that Other is God. In a personal setting, that other may be a Phineas, a close friend or relative who not only forgives, but also loves and takes on the future risk of relationship. This is similar to the conclusion Austin Sarat comes to in his exploration of the film, Dead Man Walking. He writes: ‘‘while the discourse of responsibility insists on autonomy, the process through which Poncelet comes to take responsibility emphasizes his relationship to Sister Heleny. It is this relationship with its promise that confession leads to forgiveness that enables Poncelet to do what law, with its promise of punishment, was unable to get him to do’’ (Sarat, 1999, p. 182). So back to the initial question: why do we care about remorse? What is its relation to sentencing? We may punish in hopes of generating remorse, because remorse is the truest retribution. (Garvey, 1999; Murphy, 1997. But see note above.) Yet, we cannot leave an offender in eternal self-hatred. That is hell. We must extend grace. This steps outside of justice, which has become impossible, except as a hell, and restores a clean slate by fiat, not by desert. In the end, ironically, it may be that we should not alleviate punishment because of remorse, but sanction in order to alleviate remorse. Sanction would be seen no longer as the return of the crime, the expression of community outrage, or a payment in kind to the victim, but as a settlement, undeserved, that sets the terms of reunion. The ‘‘sentencing reduction’’ for remorse, then, may be explained in this way. Sentencing of the remorseful is no longer retribution at all, for retribution has already been achieved. Sentencing of the remorseful becomes a settlement or sanction. But for the offender who is not remorseful, sentencing takes on the character of punishment – either as moral education pace Morris in an effort to achieve remorse, sheer behavioristic deterrence, or perhaps, a form of preemptive self-defense. The existence of remorse, then, is critical, because it transforms the sentence from one of punishment (the infliction of pain for a purpose) to one of sanction (sanctification and settlement). Not only the extent of the sentence, but its nature may be changed. For example, community service may be far more appropriate than prison for a

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remorseful defendant, because it celebrates the defendant’s change of heart and gives the defendant a means of expressing gratitude for the grace of his crime being ‘‘settled.’’ The ‘‘positive social meaning’’ of community service is here not muddied (Kahan, 1996), for the sentence is not meant to convey shame or disrespect of the offender, but to celebrate a reunion. Restitution would also be appropriate, for healing the harm to the victim would be a recognition of union. Treatment opportunities should be available, for a remorseful defendant may need help to change behavior patterns and become the ‘‘new person’’ she would want to be. Also, civil disabilities upon conviction would be less appropriate for a remorseful defendant. If sanction is reunion, there is little sense in a settlement that imposes life-long restrictions, for these deny the trust that can put an end to retribution and remorse. Remorseful defendants, in short, should be treated very differently than those who are not remorseful. But the problem remains, at least in the public sphere, how can we know? Spontaneous apologies, voluntary restitution to the victim, compliance with treatment programs, cooperation with law enforcement officials, good behavior in jail, etc. are all markers that are usually suggested by sentencing systems (see e.g. USSG 3E.1.1). The problem is, they are only markers, and it is quite possible for a remorseless defendant with a good lawyer to do all of these things. In practice, the markers themselves, as in the Federal Sentencing Guidelines, replace the search for remorse, and may actually reward those who can cannily play the system, be the first to betray their friends, and are ultimately the least remorseful of all (O’Hear, 1997). Juries are also very influenced by a defendant’s demeanor and emotional tone. ‘‘Arrogant’’ defendants and defendants with apparently flat affect do not appear remorseful and may be sentenced accordingly (Sundby, 1998; Eisenberg et al., 1998). These demeanor cues, however, may be culturally determined and are not always accurate indicators of remorse, especially in the case of young offenders from ‘‘tough’’ backgrounds (Duncan, 2002). Another look at A Separate Peace suggests what is really at the heart of true remorse. Phineas forgives Gene, not because Gene has helped him around campus or run endless laps at his command. Phineas forgives Gene after Gene tells him two things. First, Gene has explained his coming to Phineas’ hospital room because he ‘‘felt he belonged’’ there. Second, Gene tells Phineas that Phineas would not have made a good soldier, because he does not have the character to hate, be jealous, or have enemies. In this exchange, Gene shows that he knows Phineas better than Phineas knows himself, and admires him. Both of these statements, for Phineas, show that Gene does not hate him, but on the contrary, loves him like another self.

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Gene’s crime was motivated by a malicious impulse borne of jealousy of Phineas, but that jealousy was always mingled with and finally, crowded out by admiration, love, and solidarity. Because Gene loves him, Phineas forgives him. Can this translate into the public realm? What would we look for? Though I can only sketch a suggestion here, I believe it can, to some extent, based on other factors we commonly take into account at sentencing: military service, family responsibilities, and community service. These factors, especially family responsibilities, are very influential in the federal sentencing practice, and are even more influential in military sentencing (Meyer, 2004), though completely incomprehensible from the standpoint of traditional retributive theory. All of these factors evince strong ties to community, a willingness to sacrifice one’s own interests for others, and a capacity for attachment and love. These traits make true remorse more likely, for they demonstrate that the offender can identify with the victim, at least where the victim is part of the community that the offender has previously served. And unlike apologies, restitution, and demeanor, these factors are based on precrime conduct that cannot be dramatically affected by good advocacy or savvy advice. The factors can also be challenged and countered by hard evidence on the nature of the service or family ties. In sum, remorseful defendants should be sanctioned, not punished. The traditional ‘‘repentance discount’’ recognizes this distinction, and other traditional mitigating factors, like family and community service, can be used to support the evidence of remorse.

NOTES 1. Note, however, that Nietzsche, at least, denies that inflicting pain usually has this effect, and if remorse is reached this way, it is hard to unravel from submission and cringing abasement: ‘‘punishment makes men hard and coldyIf it happens that punishment destroys the vital energy and brings about a miserable prostration and self-abasement, such a result is certainly even less pleasant.’’ (1969, p. 81). Colb and Sarat similarly question the effectiveness of punishment in achieving remorse (Colb, 2003; Sarat, 1999).

REFERENCES Bergner, D. (2003). When forever is too long. The New York Times, June 17, p. A27. Bronte, C. (2003). Jane Eyre. New York: Barnes & Noble.

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Brown, H. (1997). Godly sorrow, sorrow of the world: Some Christian thoughts on repentance. In: A. Etzioni (Ed.), Repentance: A comparative perspective (pp. 31–42). Lanham, MD: Rowman and Littlefield. Colb, S. (2003). Oil and water: Why retribution and repentance do not mix. Quinnipiac Law Review, 22, 59–87. Cox, H. (1997). Repentance and forgiveness: A Christian perspective. In: A. Etzioni (Ed.), Repentance: A comparative perspective (pp. 21–30). Lanham, MD: Rowman and Littlefield. Duncan, M. G. (2002). ‘So young and so untender,’: Remorseless children and the expectations of the law. Columbia Law Review, 102, 1469. Eisenberg, T., Garvey, S., & Wells, M. (1998). But was he sorry?: The role of remorse in capital sentencing. Cornell Law Review, 83, 1599. Fletcher, G. P. (1995). With justice for some. New York: Addison-Wesley. Garvey, S. P. (1999). Punishment as atonement. University of California Los Angeles Law Review, 46, 1801. Hampton, J. (1992). Correcting harms versus righting wrongs: The goal of retribution. University of California Los Angeles Law Review, 39, 1659. Kahan, D. (1996). What do alternative sanctions mean? University of Chicago Law Review, 63, 591. Knowles, J. (1988). A separate peace. New York: Bantam p. 183. McEwan, I. (2003). Atonement. New York: Anchor Books p. 272. Meyer, L. R. (2003). Herbert Morris and punishment. Quinnipiac Law Review, 22, 109–121. Meyer, L. R. (2004). Mercy in the military. Draft on file with author. Moore, M. S. (1987). The moral worth of retribution. In: F. Schoeman (Ed.), Responsibility, character and the emotions. New York: Cambridge University Press. Morris, H. (1981). A paternalistic theory of punishment. American Philosophical Quarterly, 18, 263–271. Murphy, J. (1997). Repentance, punishment and mercy. In: A. Etzioni (Ed.), Repentance: A comparative perspective (pp. 143–170). Lanham, MD: Rowman and Littlefield. Nietzsche, F. (1950). Thus spoke Zarathustra. In: T. Common (Trans.), The philosophy of Nietzsche (pp. 1–368). New York: Modern Library Edition. Nietzsche, F. (1966). In: W. Kaufmann (Trans.), Beyond good and evil: Prelude to a philosophy of the future. New York: Random House. Nietzsche, F. (1969). In: W. Kaufmann (Trans.), The genealogy of morals. New York: Penguin. p. 91–92. O’Hear, M. (1997). Remorse, cooperation, and ‘acceptance of responsibility’: The structure implementation and reform of section 3E1.1 of the federal sentencing guidelines. Northwestern University Law Review, 91, 1507. Robbins, B. D. (2001). Resurrection from a death sentence: Why capital sentences should be commuted upon the occasion of an authentic ethical transformation. University of Pennsylvania Law Review, 149, 115. Robinson, P., & Darley, J. (1997). The utility of desert. Northwestern University Law Review, 91, 453. Sarat, A. (1999). Remorse, responsibility and criminal punishment: an analysis of popular culture. In: S. Bandes (Ed.), The passions of law (pp. 168–190). New York: New York University Press. Sundby, S. (1998). The intersection of trial strategy, remorse, and the death penalty. Cornell Law Review, 83, 1557.


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