Law and Literature Part 10

*ersby on the bridge but Georg's friend, who knows nothing of Georg's attempts to avoid distressing him with reminders of his business failure.

The story can even be regarded as a sketch for The Trial and thus pulled directly into the law and literature fold. Though indicted, convicted, and sentenced to death (Das Urteil, the t.i.tle of the story, means "the judgment" in the sense of a legal decision or sentence), Georg, like Joseph K. in The Trial, is guilty of no crime; nor can he get the "tribunal" to listen to him. Notice, finally, the twist that the story gives to the theme of the judge called upon to condemn his son.

Kafka was not a Romantic who believed that people would be happy if only they could escape the clutches of the market and the other social inst.i.tutions of modernity, though there may be a hint of this in "The Metamorphosis," and one strand of Romantic thought-the loneliness of genius, the alienation of the artist from the herd-is prominent in "A Hunger Artist." A mind preoccupied with politics can easily "find" political meaning in Kafka's fiction, overriding the feeble opposition put up by such enigmatic texts. But the more idiosyncratic an interpretation is, the less authority it can draw from the author. If Kafka reminds Robin West of how much she dislikes capitalism and thereby stimulates her to critical reflections about it, that is fine, but she shouldn't wrap her criticisms in the mantle of Kafka's prestige.

This is not to say that great literature can never be mined successfully for economic insights. When the Duke of Venice asks Shylock why he would rather have a pound of worthless flesh than a large sum of money, Shylock replies with a commonplace of liberal theory-the subjectivity of value. He explains that value is determined by willingness to pay, which is a function of the preferences and resources of each individual, rather than by some external, objective, or governmental determination of merit or desert (IV.1.4259): . . . I'll not answer that, But, say, it is my humor. Is it answered?

What if my house be troubled with a rat And I be pleased to give ten thousand ducats To have it baned? What, are you answered yet?

Some men there are love not a gaping pig, Some that are mad if they behold a cat . . .

As there is no firm reason to be rendered Why he cannot abide a gaping pig, Why he a harmless necessary cat, . . . So can I give no reason, nor I will not.

Shylock further defends his position by reference to freedom of contract and the rule of law and implies that the rejection of his claim for the pound of flesh would be redistributive and socialistic (IV.1.90102): You have among you many a purchased slave, Which, like your a.s.ses and your dogs and mules, You use in abject and in slavish parts, Because you bought them. Shall I say to you, "Let them be free, marry them to your heirs! Why sweat they under burdens? Let their beds Be made as soft as yours . . ." So do I answer you: The pound of flesh which I demand of him Is dearly bought, is mine, and I will have it. If you deny me, fie upon your law! There is no force in the decrees of Venice.

In Defense of Cla.s.sical Liberalism Cla.s.sical liberalism, including the free-market ideology that we call "capitalism," places a high value on freedom of choice. But Robin West believes that our choices usually make us worse off; and she argues that Kafka's fiction supports this idea because "most of what happens to Kafka's fictional characters is fully consensual" (p. 390). The argument not only ignores Gregor's being changed into a bug and Joseph K.'s being arrested, but also ascribes meaningful consent to decisions either made under the influence of a mental disease or extorted. West's own fictional creation-a bulimic tomato consumer11-and the hunger artist, who on 11. Who "on a daily basis . . . buys twelve tomatoes, eats five plates of spaghetti, and regurgitates it all, thus destroying her digestive tract" (p. 401). The purpose of this example is to show that even the simplest consumer transaction is fraught with potential disaster.

*the literal plane to which West confines Kafka is anorectic, suffer from a mental disease that disables them from making rational eating choices. Nor could a person who would commit suicide because his father said to him, "I hereby condemn you to death by drowning!" be thought to be acting rationally.

The underlying problem with West's use of Kafka as a critic of cla.s.sical liberalism (apart from the obvious-that he is not a realistic or didactic writer) is that she has confused pathos with tragedy. Tragic protagonists usually come to a bad end because of a choice they made, such as Achilles' choice to let Patroclus wear his armor, Oedipus's choice to run away from home in an effort to defeat the prophecy that he will kill his father and marry his mother,12 Brutus's choice to kill Caesar, and Hamlet's choice (the correct choice, unlike my other examples, but fatal anyway) to try to avenge his father's murder. Kafka's protagonists come to a bad end too, but almost invariably as a consequence not of their choices but of their character or of external circ.u.mstances.

I do not mean to suggest that markets always bring about good, or even efficient, results as long as the people transacting in them are rational. Consider a woman subjected to the s.e.xual advances of a man who has power over her husband's career-the washerwoman in The Trial, according to West. K. is talking to the woman when she notices a law student who, we are told, may someday be a big shot. She goes over to him. He begins kissing her. K. tries to intervene, but the student picks the woman up bodily and makes off with her. K. tries to wrest her from the student, but she tells him to stop because the student is only obeying the orders of the examining magistrate. The student carries her up a stairway in the court's tenement. "The woman waved down at K., and tried to show by a shrug of her shoulders that the abduction wasn't her fault, but there wasn't a great deal of regret in the gesture . . . He could only a.s.sume that the woman had not only deceived him, but lied to him as well by saying she was being carried to the examining magistrate."13 K. would like to believe that in yielding to the law student the woman 12. Oedipus could not have avoided killing his father, but he could have nullified the other half of the prophecy by never marrying a woman who might be older than he is.

13. Kafka, note 4 above, at 6465.

is acting under compulsion. But gradually he realizes that this isn't true, that she and the student are playing with him. So it is not a case of s.e.xual hara.s.sment. And s.e.xual hara.s.sment is not, as West appears to believe, economically efficient and so proof of the moral inadequacy of capitalist economics. s.e.xual hara.s.sment by superiors of subordinates is a form of extortion that reduces the output of both worker and supervisor and may force the employer to pay higher wages to compensate the worker for the unpleasantness of the workplace, much as employers are forced to do when the workplace carries a risk of causing illness or injury to the workers.14 In addition, the productivity of those supervisors and workers who spend their time, respectively, making and fending off (or yielding to) s.e.xual advances rather than working will be reduced. And when s.e.xual hara.s.sment is common, women who are less sensitive or more compliant have a compet.i.tive advantage: they are slower to quit and quicker to be promoted. There is no reason to think them the better workers, so there will be an inefficient sorting of workers to jobs, just as when promotions are based on nepotism rather than merit.

The fact that s.e.xual hara.s.sment is inefficient does not mean that compet.i.tion and the profit motive will eliminate it without any a.s.sistance from law. The costs of detecting and proving it are high, and in any event not every potential efficiency is achieved in every market. More business managers are male than female and they may not evaluate issues of s.e.xual hara.s.sment as clear-sightedly as a genderless robot would-although firms whose managers do will have lower costs than their compet.i.tors and may gradually supplant them.

Most important, s.e.xual hara.s.sment is a disease not of capitalism but of authority. It is no more common in capitalist than in socialist countries and no more prevalent in profit-maximizing firms than in the armed forces, other government employment, and private nonprofit inst.i.tutions. It probably is least common in profit-maximizing firms operating in highly 14. That workers demand and receive wage premiums for a.s.suming risks of physical injury or death was pointed out by Adam Smith in The Wealth of Nations and is well doc.u.mented. See, for example, W. Kip Viscusi, Risk by Choice: Regulating Health and Safety in the Workplace, ch. 3 (1983); Jean-Michel Cousineau, Robert Lacroix, and Anne-Marie Girard, "Occupational Hazard and Compensating Wage Differentials," 74 Review of Economics and Statistics 166 (1992).

*compet.i.tive environments, for those employers are under the greatest pressure to eliminate inefficient practices within their enterprise. The law clerk who carries off the washerwoman is a government employee. Similarly, although West interprets the whipping scene in The Trial as a further commentary on capitalist employment relations, the whipper and the persons whipped are all government employees.

West is troubled by consensual transactions that involve a difficult or risky choice. She gives the example of the h.o.m.os.e.xual who continues to patronize h.o.m.os.e.xual bathhouses but refuses to use, or to insist that his s.e.xual partners use, condoms despite the risk of AIDS.15 But that is just a dramatic example of a common, albeit painful, choice: life style or life expectancy. West may believe that since the s.e.x drive is instinctual, no choice that it influences can be a free one. But most human choices are influenced or even determined by preferences and aversions that have their roots in instinct-the instinct to survive, the instinct to reproduce. Indeed, unless one believes that choice is free in a metaphysical sense, all choices can be said to be "coerced" or "involuntary." A person who wants to work but has only one job offer has "no choice" but to take it. The compulsion may be as great as when a gun-toting robber barks, "Your money or your life." The reason the choice to yield to the robber's demand is deemed coerced in a legal sense and the other not is that society would clearly be better off if the cla.s.s of ostensibly "voluntary" transactions ill.u.s.trated by yielding to a robber's threat were eliminated but that this is not clear in the case of the bad job. For if "bad" jobs are outlawed, what are people to do when they cannot find "good" ones? The set of feasible choices confronting a person is always limited. It does not follow that people should be forbidden to make choices within their feasible set or that the choices they make lack authenticity because other people have larger feasible sets. The wealthier the society, the larger the feasible set is for most people, but a society is unlikely to become wealthy unless it allows people to make choices that may turn out badly for them.

15. West abstracts from the most problematic aspect of the h.o.m.os.e.xual's behavior from an economic standpoint: that a person who puts himself at risk of catching a communicable disease is also imposing a risk on other people-namely, those whom he may infect-and is thus creating an "external cost" that may warrant regulation even under a laissez-faire theory of the state.

Since West wrote, the question whether physician-a.s.sisted suicide should be permitted has become a subject of public debate. The question raises in acute form the issue of the proper limits on choice. Not only can denying people a choice of when to die (the practical consequence, for many people, of forbidding physicians to a.s.sist patients to kill themselves) subject the sick and the dying to horrible suffering; it can increase the number of suicides. For the denial of this choice can induce people to kill themselves in antic.i.p.ation of becoming helpless to do so without a.s.sistance as their illness progresses, whereas they might have recovered or changed their minds had they been able to wait secure in the knowledge that they could obtain a.s.sistance later if they needed it.16 Yet the suicide taboo, and the fear that some people will be pushed by callous or self-seeking relatives or busy physicians into agreeing to end their lives without really wanting to do so, militate against allowing physician-a.s.sisted suicide; and as a result there is no obviously correct answer to whether the choice should be respected.

The hunger artist, if Kafka's story is read literally, as West is wont to do with Kafka's stories, and thus as a marketing report on a declining industry,17 failed to predict consumer preference correctly and found himself displaced by a panther, just as a comedian might find himself displaced in popular favor by a talking cat. In a figurative sense every failed entrepreneur "starves." But if he chose entrepreneurs.h.i.+p with his eyes open, must we feel sorry for him? Is it really an unexpected change in consumer preferences that makes us feel sorry for Kafka's hunger artist?

The purchase of a lottery ticket is an example of taking a risk that has no positive expected monetary return. The cost of the ticket actually exceeds the expected payoff (the prize if you win multiplied by the probability of your winning). Lotteries appeal to people who like risk or uncertainty, to desperate people (it would make sense to spend your last dollar on a lottery ticket if you're going to starve unless you win the lottery), to people who cannot compute odds, to people who believe in their lucky 16. See my book Aging and Old Age, ch. 10 (1995).

17. Not an altogether absurd idea. There really were "hunger artists" on the Continent in Kafka's day, and indeed as late as 1956. Breon Mitch.e.l.l, "Kafka and the Hunger Artists," in Kafka and the Contemporary Critical Performance: Centenary Readings 236 (Alan Udoff ed. 1987); Meno Spann, Franz Kafka 191 n. 1 (1976).

*star, to other fools, and to daydreamers. In contrast, the risk that you take when you buy stock in a highly leveraged company, commit yourself to a risky career such as acting, or marry someone whose qualities you are not sure about is compensated risk: you engage in the risky activity because the net expected payoff to you is positive. If you end up disappointed, that is the risk you a.s.sumed, and bailing you out would just encourage imprudent risk taking. The f.e.c.kless, the reckless, the remiss, the generous, the Hamlets and Ba.s.sanios, the people who take seriously what the Sermon on the Mount says about living as the birds do-these may be very charming people compared to your average M.B.A., but they have no moral claim on the taxpayer.

The paradox of commitment is that surrendering one's freedom can increase one's freedom. Laws that enable people to make binding commitments enable choices that would not be possible otherwise. If the loser in a lottery could redeem his ticket for the money he paid for it, there would be no lotteries and hence no lottery winners. If a surrogate mother cannot make a binding commitment to give up her baby when it is born, she will either not be able to make a surrogacy contract or have to settle for a lower contract price. That a choice may entail a commitment does not make the choice illusory.

The need to choose the lesser of two evils will persist as long as there are evils. In denigrating such choices West identifies herself as a utopian fantasist18 who believes that "the future of community depends not just upon political or even revolutionary action. It also depends upon our imaginative, rational, spiritual, and moral freedom to break free of our present, and to conceive of other ideal worlds."19 She points out that women frequently consent to s.e.x without desiring it and asks rhetorically, "Why is it okay for her to have s.e.x even though she does not want to, but not okay for him not to have s.e.x even though he wants to?"20 The answer A label that she is proud to wear. West, "Law, Literature, and the Celebration of Authority," 83 Northwestern University Law Review 977 (1989).

West, "Jurisprudence as Narrative: An Aesthetic a.n.a.lysis of Modern Legal Theory," 60 New York University Law Review 145, 202 (1985) (reprinted as chapter 7 of her book Narrative, Authority, and Law, note 2 above).

West, "Legitimating the Illegitimate: A Comment on 'Beyond Rape,'" 93 Columbia Law Review 1442, 1456 (1993).

is that in our nonutopian world, in which men generally desire to have s.e.x more frequently than women do, s.e.xual relations.h.i.+ps involve an element of barter-the man compensates the woman for s.e.x by performing services, or providing other benefits, valued by her.

Between the incompetent choice of the mentally ill person and the merely hard choice lies the case of addiction. An alcoholic surrenders an important part of his freedom and, it might seem, gets little in return. Yet to prohibit people from becoming alcoholics would infringe their freedom to choose their preferred, if to the temperate a revolting, mode of life. If the choice to become an alcoholic or some other sort of addict is made on incomplete information or involves uncompensated costs to third parties (for example, in the form of accidents caused by drunk driving), then it is not a choice to which society should defer in the name of economic freedom. But the fact that one chooses to pursue an unfree type of life does not make the choice itself unfree.

West is right that many of the denizens of Kafka's fictive world do not want to make choices; they crave submission to authority. Were this true of most Americans, we would have to rethink our national commitment to free markets and democratic government. But the characters in Kafka's fiction are marked by an extraordinary submissiveness that is uncharacteristic of Americans.21 Submission rather than choice is (to recur to an earlier point) their undoing. This is true not only of Georg Bendemann, Gregor Samsa, Joseph K., and the traveler in "Before the Law," but also of the citizens in "The Refusal," who are relieved when their pet.i.tions for exemption from onerous laws are denied. "The Refusal" is set in an unimportant town in a military empire. Authority is represented by the tax collector, a colonel who rules the town, and by fierce-looking soldiers who intimidate the citizens. The town's public life is limited to occasions on which the colonel receives pet.i.tions for tax exemption or for permission to cut timber from the imperial forests at a reduced price. The pet.i.tions are always refused, and when this happens "an undeniable sense of 21. Incidentally, this appears to have been Kafka's own view, insofar as one can judge from Amerika. Since Kafka never visited America, it's hardly surprising that the novel is inaccurate-he's got the Statue of Liberty holding a sword, for example-but it does convey a sense of America as the land of limitless opportunity and boundless energy.

*relief pa.s.s[es] through the crowd . . . Without this refusal one simply cannot get along, yet at the same time these official occasions designed to receive the refusal are by no means a formality. Time after time one goes there full of expectation and in all seriousness and then one returns, if not exactly strengthened or happy, nevertheless not disappointed or tired"

(p. 267).22 Only the young-those between the ages of 17 and 20-are not content with these refusals.

The people's yearning for authority, fear of change, and m.a.s.o.c.h.i.s.tic submissiveness are palpable. Perhaps in the colonel's refusal to grant exemptions from the laws one can sense an ironic commentary on the theme of "a government of laws, not men." Perhaps the colonel (described as breathing like a frog when he is listening to the pet.i.tion, and collapsing into his chair after delivering his judgment) is the stunted descendant of the oracle at Delphi or the Hebrew prophets. Perhaps he is Kafka's father-or everyone's father in some obscure and disturbing sense. The citizens' relief when their requests are denied puts one in mind of the emotionally anesthetized inhabitants of "The Waste Land" who fear life- and the epigraph of the poem reports the death wish of an oracle. ("The Refusal" was written in 1920, two years before "The Waste Land.") West argues that in another late story, "The Problem of Our Laws," "Kafka straightforwardly describes his vision of the nature of law and legal authority and the mechanism of legitimation upon which it depends. The authority of law, Kafka tells us, is ultimately sustained, not by force, but by the craving of the governed for judgment by lawful, "'n.o.ble' authority" (p. 422). This two-page parable describes a society in which the law is kept secret by the small group of n.o.bles who rule the society. So people begin to wonder, how do we know there are any laws? Some decide the only law is: what the n.o.bility does is law. Most reject this view, instead diligently searching the acts of the n.o.bles for clues that those acts are manifestations of secret laws and hoping eventually to understand the laws-at which point, they believe, the n.o.bility will vanish.

The deference and pa.s.sivity of the population support West's inter 22. Franz Kafka, The Complete Stories 267 (Nahum N. Glatzer ed. 1971). The translation of "The Refusal" is by Tania and James Stern.

pretation, but "straightforward" the parable is not.23 One might read "judiciary" for "n.o.bility" and interpret "The Problem of Our Laws" as a parable about legal formalism and legal realism, or about natural law and positive law. In a sense law is a secret of judges, for until they speak, the law is unknown in detail. The realist or positivist regards the "law" that is behind the judges' decisions as an illusion. To him the law is merely an extrapolation, from past decisions, of what the judges are likely to do when confronted with a new case; nothing outside the decisions themselves counts as law. The formalist or natural lawyer-whose point of view, though contested, still dominates the society depicted in Kafka's parable-clings to the faith that there is some body of enduring and consistent principles generating the judges' decisions and that with enough insight we might discover the principles and then maybe even dispense with the judges.

Hints of such a faith can be found in "The New Advocate," which begins: "We have a new advocate, Dr. Bucephalus. There is little in his appearance to remind you that he was once Alexander of Macedon's battle charger." Yet he "mount[s] the marble steps" to the courthouse "with a high action that made them ring beneath his feet . . . In general the Bar approves the admission of Bucephalus. With astonis.h.i.+ng insight people tell themselves that, modern society being what it is, Bucephalus is in a difficult position . . . Nowadays-it cannot be denied-there is no Alexander the Great . . . So perhaps it is really best to do as Bucephalus has done and absorb oneself in law books."24 Is this just an ironic commentary on the disappearance of the heroic from modern life, on a par with the descent of heaven into the attic court in The Trial? The last sentence of the parable makes one wonder: "In the quiet lamplight, his flanks unhampered by the thighs of a rider, free and far from the clamor of battle, he reads and turns the pages of our ancient tomes" (p. 415). Like the people in "The Problem of Our Laws," with their touching faith in the existence of natural law, Bucephalus thinks that if he reads the ancient tomes carefully enough he may discover something worthy of his heritage. He is more dignified and 23. See Frederick C. DeCoste, "Kafka, Legal Theorizing and Redemption," Mosaic, Dec. 1994, p. 161.

24. Kafka, note 22 above, at 414415 (translation by Willa and Edwin Muir).

*enterprising than they. Yet whatever else he is, Bucephalus is a horse, so that his superior dignity and enterprise reinforce the reader's impression of Kafka's dyspeptic a.s.sessment of human potential, just as the n.o.bility of the horses in Gulliver's Travels, the Houyhnms, reinforces Swift's dyspeptic portrayal of humans (the Yahoos).

Misled, perhaps, by the pa.s.sivity of Kafka's characters, West confuses the desire to surrender the power of choice over the essential conditions of one's life (self-slavery, the pact with the devil, Antonio's bond, the abjectness of the population in "The Refusal") with the decision to submit through ordinary contracting to partial and temporary direction or instruction by others. A person will submit to hierarchical direction by going to work for a company, rather than remain an independent contractor, only if he expects to do better as an employee. The status is freely chosen, and since the choice is not irrevocable there is no surrender of essential autonomy.

What is true is that in our society, as in every society, not all adults are fully competent, capable, or autonomous. This prompts such questions as: How many of these unfortunates are there? What can be done to reduce their number? Are there so many that we should rethink our commitment to free markets? Is there a better system of allocating resources than the market? Even normal people have cognitive limitations and emotional impulses that impair their ability always to make rational choices. What if anything should be done to minimize the effects of those factors on choice? Consistent with her self-description as a utopian thinker, West has nothing to say about any of these questions-so far has the legal-academic left strayed from its roots in the legal realist movement of the 1920s and 1930s. The realists were meliorists. They derided the concept of law as a closed logical system that ideas of public policy must not be allowed to penetrate. Some of them, notably Jerome Frank, were too hostile to "ruledness," which they a.s.sociated, as Shakespeare may have done, with psychological insecurity. But they were not utopian dreamers, they did not believe in the perfectibility of human nature and society, and they had a clear idea of the legal reforms that they wanted to and in large measure did achieve.

West may be making an ironic point-that economists have so unrealistic a conception of human nature (a common view) that even the literal Kafka, the Kafka who is "Kafkaesque," is more realistic than an econo

mist. Even Kafka's strangest characters-the officer of "In the Penal Colony," for example-have a more recognizably human personality than a calculating machine. Indeed, such a tour de force is "In the Penal Colony" that a torturer becomes emblematic of suffering humanity. But the economist's conception of rationality is not exhausted in self-consciously economic choices, or even conscious choices, let alone choices articulated in the language of economics, a language of scholars.h.i.+p rather than of everyday life, commercial or otherwise. Few consumers consciously maximize consumer surplus, and few businessmen consciously equate marginal revenue to marginal cost. The concern of economics is not with states of mind but with behavior.

The Grand Inquisitor and Other Social Theorists West thinks that modern people have the same desire to be ruled with an iron hand as Kafka's characters. They have "cravings for judgment and punishment by n.o.ble authority" (p. 422) and are "attracted to the authoritarian structure of law" and "of fate" (p. 423) and "to the power and punitive authority of the state" (p. 424). Our world, like Kafka's, "is peopled by excessively authoritarian personalities" (p. 387). One can understand, therefore, why she is troubled by a political philosophy that deems most people competent judges of their own best interests. But her description reminds one less of our world than of that of the Grand Inquisitor, who in The Brothers Karamazov tells Jesus Christ that for the great ma.s.s of mankind freedom of choice is a source of profound misery; that what people crave is to be led around like sheep, by miracle, mystery, and authority. "Thou didst not come down from the Cross when they shouted to Thee, mocking and reviling Thee, 'Come down from the cross and we will believe that Thou are He.' Thou didst not come down, for again Thou wouldst not enslave man by a miracle, and didst crave faith given freely, not based on miracle. Thou didst crave for free love and not the base raptures of the slave before the might that has overawed him forever. But Thou didst think too highly of men therein, for they are slaves, of course, though rebellious by nature."25 25. Fyodor Dostoevsky, The Brothers Karamazov 236 (Constance Garnett and Ralph E. Matlaw trans. 1976).

*The Grand Inquisitor's argument can be translated into economic terms-indeed, there is more than a hint of that in his diatribe. Some people do not want the burden of choice. They want government to make their decisions, including their economic decisions, for them. "Dost Thou know that the ages will pa.s.s, and humanity will proclaim by the lips of their sages that there is no crime, and therefore no sin; there is only hunger? . . . In the end they will lay their freedom at our feet, and say to us, 'Make us your slaves, but feed us.' They will understand themselves, at last, that freedom and bread enough for all are inconceivable together" (pp. 233234).

We shall allow them even sin, they are weak and helpless, and they will love us like children because we allow them to sin. We shall tell them that every sin will be expiated, if it is done with our permission, that we allow them to sin because we love them, and the punishment for these sins we take upon ourselves . . . And they will have no secrets from us. We shall allow or forbid them to live with their wives and mistresses, to have or not to have children-according to whether they have been obedient or disobedient-and they will submit to us gladly and cheerfully. The most painful secrets of their conscience, all, all they will bring to us, and we shall have an answer for all. And they will be glad to believe our answer, for it will save them from the great anxiety and terrible agony they endure at present in making a free decision for themselves. And all will be happy, all the millions of creatures except the hundred thousand who rule over them . . . There will be thousands of millions of happy babes, and a hundred thousand sufferers who have taken upon themselves the curse of the knowledge of good and evil. Peacefully they will die, peacefully they will expire in Thy name, and beyond the grave they will find nothing but death. But we shall keep the secret, and for their happiness we shall entice them with the reward of heaven and eternity. (p. 240) The Grand Inquisitor locates the human flight from freedom in the inherent weakness of the human creature. West, in contrast, believes that the inst.i.tutions of bourgeois society have stunted an innate human capacity for freely chosen, rewarding, nonexploitive relations.h.i.+ps, so that if by an effort of sheer will and insight we could overthrow these inst.i.tutions we might transform the human condition. She is a Wordsworthian. When she says that individuals are "capable of empathic nurturing in the public sphere" and quickly adds that "the origin of our capacity for public, empathic nurturing is a dimly remembered feeling of life-giving solidarity with others in our world,"26 we hear an echo of "Our birth is but a sleep and a forgetting." When she says that "to the communitarian scholar, the central concern of law is the tension between our present separateness and our remembered union with the world at large, particularly with the strangers in it,"27 she both puts one in mind of Blake's metaphor of human society as a single human body and ties it to the infant's sense, stressed by Blake and Wordsworth, of oneness with the world (that is, the mother).28 The difference between a poet and a law professor is that we do not ask the poet to show us how to get from where we are to where in his imaginative vision he wants us to be. The urge to break free from conditions of scarcity, morality, hierarchy, and inequality is deeply rooted in human psychology, and no more is needed as a grounding for great literature. It may even be a necessary condition for social reform. But it is not a sufficient condition. The record of utopian social experiments is not encouraging.

West has written about Freud's legal theory,29 and given Kafka's tormented relations.h.i.+p with his father and the amenability of Kafka's fiction to Freudian interpretations it may seem surprising that she does not apply that theory to that fiction. But although legal authority resembles paternal authority and although Joseph K., the citizens in "The Refusal," and other inhabitants of Kafka's fictional world are easily seen as seeking a missing father in their ostensible quest for law, the particulars of Freud's legal theory30 do not fit the mood of Kafka's fiction. Freud thought law a father West, "Law, Rights, and Other Totemic Illusions: Legal Liberalism and Freud's Theory of the Rule of Law," 134 University of Pennsylvania Law Review 817, 859 (1986) (footnotes omitted).

27. Id. at 861 (footnote omitted).

See Northrop Frye, "Blake's Treatment of the Archetype," in English Romantic Poets: Modern Essays in Criticism 55, 62 (M. H. Abrams ed., 2d ed. 1975); Frye, Fearful Symmetry: A Study of William Blake, ch. 1 (1947).

West, note 26 above.

Summarized in id. at 822844.

*subst.i.tute brought into being by the remorse felt by powerful brothers who had ganged up on and killed their father and did not want the same thing to happen to them; the function of law is thus to repress strong men. The people in Kafka's fiction on whom the law bears down, or who are searching for the law, are weak. To Freud, such people would be beneficiaries of law; to Kafka, they are either its victims or its hopeless suppliants.

Freud's idea that the proper role of law and the state is to control the excesses of individualism is also uncongenial to the Romantic view that these inst.i.tutions have perverted man's natural goodness. West likes Freud's theory insofar as it emphasizes the role of law in protecting the weak from the strong. She is disturbed by the traces of Social Darwinism in economic thought and believes that the use of compet.i.tion to allocate scarce resources favors the strong. She does not distinguish adequately between the role of law in preventing the use of force or fraud to reallocate those resources (the Freudian and also, with certain refinements, the economic view) and its role in equalizing the distribution of resources (the left-wing aspiration for law). But she knows that in emphasizing innate human aggressiveness Freud's theory undermines her project of making empathic nurturing society's organizing principle.

chapter 7.

Penal Theory in Paradise Lost

ilton's great poemcan be enjoyed as a supernatural adventure

story in the epic tradition that, as in Homer, depicts human beings as the playthings of the G.o.ds.1 In form, style, even certain narrative details, it is indebted to the Homeric epics as well as to later ones such as Orlando Furioso and The Faerie Queen. It tells the heart-stopping story of a galactic power struggle between a tyrant fearful of rebellion and determined to exact unquestioning obedience at any cost (William Empson compared Milton's G.o.d to Joseph Stalin)2 and an almost equally formidable rebel against the tyrant; and of the collateral damage that the struggle inflicts on a hapless race. In the fairy-tale ending projected beyond the end of the poem, the reader learns that all of Satan's "malice served but to bring forth / Infinite goodness, grace and mercy shown / On man by Satan seduced."3 Man will live in a "far happier place / Than this of Eden, and far happier days" (XII.464465).

This chapter is based on an article coauth.o.r.ed with Jillisa Brittan: "Cla.s.sic Revisited: Penal Theory in Paradise Lost," 105 Michigan Law Review 1049 (2007).

2. William Empson, Milton's G.o.d 146 (1965).

Paradise Lost, bk. I, ll. 217219, in John Milton, Complete Poems and Major Prose (Merritt Y. Hughes ed. 1985). My citations to Paradise Lost are to book and line number in the Hughes edition. I have modernized some of Milton's spelling.

251.

*To tell such a story was not, however, Milton's intention. He thought he was writing a theodicy in the form of an epic poem that would "justify the ways of G.o.d to men" (I.26). "G.o.d" is the Christian G.o.d as understood by English Protestants in the seventeenth century. The specific "ways of G.o.d" that concerned Milton were precisely those features of the Christian tradition that would strike a skeptic as inconsistent with a conception of G.o.d that a person of Milton's intellectual sophistication and moral character would consider plausible. He would not have considered ancient Greek and Roman polytheism plausible, nor the vindictive G.o.d of the Old Testament. He would have insisted that G.o.d is sole and per-fect-omnipotent, omniscient (implying complete foreknowledge), and absolutely good. Milton's challenge was to show how the events narrated in the Bible, events that he as a seventeenth-century Christian was committed to believing were historical facts, could be squared with the conception of G.o.d the perfect.

The focus on justifying G.o.d's conduct explains why many readers, including theologians, have found Paradise Lost "legalistic." There are no human laws in the poem, but there is plenty of punishment inflicted or condoned by G.o.d-punishment of the fallen angels, exiled to h.e.l.l; of Adam and Eve, expelled from the Garden of Eden and condemned to mortality along with their descendants; of the Son, who is going to be executed by the Romans during his incarnation as a human being; of the hapless serpent, unwitting tool of Satan; and of the other animals, who become predator and prey after the fall of man, all having been vegetarian in Eden.

To be justifiable, punishment must be shown to be the just consequence of a transgression. But that is not to say that it must be the just consequence of a violation of positive law. We have a conception of just punishment by parents for the transgressions of children, though in our society (in Milton's too) the punishment is not a sanction having the force of law and the transgression is usually not a violation of law. We can speak of justice within the family and similarly of justice in the cosmic prelegal society depicted in Paradise Lost. By doing so we may gain insights into penal theory, a central concern of law.

The problem of justification was rendered acute for Milton by the difficulty of conceiving of a deity who though omnipotent, omniscient, and absolutely good inflicts savage punishments seemingly gratuitously. Any two of the deity's three traits can be combined without giving rise to that difficulty. Were G.o.d omnipotent and omniscient but not good, the fact of excessive and gratuitous suffering in the world that he created would not be puzzling; likewise if he were omniscient and absolutely good but not the omnipotent creator of all things. And if he were omnipotent and absolutely good but not omniscient, then suffering might occur, even on a grand scale, by mistake. But when, as in Paradise Lost, G.o.d is a.s.sumed to be omnipotent, omniscient, and absolutely good, the extent to which he permits and sometimes inflicts suffering presents a considerable puzzle.

Life on earth, for most people and animals, is full of suffering. This sad truth is presented in the poem, as in orthodox Christian theology, as the punishment for Adam's eating the forbidden fruit in the Garden of Eden. (Had Eve alone eaten it, Adam would presumably have been given a subst.i.tute wife by G.o.d, one who-warned by her predecessor's fate-would not have transgressed.) It seems a disproportionate punishment, especially when Satan, in the guise of the serpent, makes so compelling an argument for Eve's eating the fruit and Adam makes so affecting a case for standing by Eve and sharing her fate.

Satan, pretending to be the serpent, explains to Eve that he ate the apple with no ill effect-on the contrary, it enabled him, alone among animals, to learn to speak. So G.o.d must have been fooling when he said that to eat the fruit would bring death-and imagine, Satan tells Eve, what eating it will do for her intellectual faculties since she already knows how to speak. Given the plausibility of Satan's arguments, Eve at worst is gullible in failing to realize that the serpent might be lying to her-for who, in his or her prelapsarian inexperience, would expect an animal to lie or a devil to be inhabiting an animal? And Adam at worst is uxorious in deciding to share Eve's fate by eating the fruit also. For these rather trivial-seeming transgressions the suffering experienced by billions of Adam and Eve's descendants (as Adam puts it, "in me all / Posterity stands cursed" [X.817818]), along with countless billions of animals, seems excessive.

The serpent is sentenced to crawl ever more on his belly. The punishment is fitting in Genesis because there the serpent is the tempter. But in Milton's poem the creature was sleeping innocently when Satan entered through its mouth and took it over. After tempting Eve, Satan leaves the *serpent's body and presumably the serpent later wakes up and goes about its business oblivious of the malign use to which its body has been put. The serpent is a victim, not a wrongdoer, so why is it punished?

And why does the Son have to suffer being tortured to death on the cross in order to enable some fraction of human beings (and no animals) to be resurrected and thus, in a sense, compensated for their sufferings? Empson thought there was an echo of human and animal sacrifice in the mode by which G.o.d chose to redeem the human race.4 In sacrificial rites the sacrifice is offered to the G.o.d in the hope that he will accept it. The Son offers himself as the sacrifice to G.o.d, and G.o.d accepts the offer.

The punitive events narrated in the poem are particularly disturbing because of G.o.d's foreknowledge, an aspect of his omniscience. He knows that Lucifer will rebel and carry a third of the other angels with him. He knows that Lucifer (renamed Satan) will tempt Eve, precipitating the fall of man-G.o.d arranges for Satan to escape from h.e.l.l so that he can tempt her. He knows that billions of people will suffer horribly as the result of the transgressions of the two human beings whom he created. And he knows that his own Son will be tortured on the cross. He foresees all these things serenely. It seems odd that, being omnipotent and absolutely good (loving, merciful), he could not have arranged matters to avoid the horrors that he foresees with perfect clarity.

The explanation requires a careful a.n.a.lysis of what it means for G.o.d to be absolutely "good" and an awareness of the supreme value that Milton places on free will. To be good is to be loving and merciful, but also to be just. The New Testament emphasizes the loving and merciful aspect of G.o.d's absolute goodness; the Old Testament emphasizes G.o.d's justice; Milton's G.o.d combines both aspects. A crime in the sense of a deed that justice requires be punished is normally understood to be a culpably bad act, and an act is culpable only if it is a product of free choice, at least as Milton understands free choice. (An alternative understanding is that a free choice is simply a choice not constrained by certain especially powerful inducements such as threatening to kill a person if he doesn't surrender his wallet.) G.o.d could have created man to be incapable of committing bad acts, but man so constrained would not be sufficiently G.o.dlike to have been worth creating as a subst.i.tute for the fallen angels. G.o.d needs 4. Empson, note 2 above, at 241247.

Satan in order to enable Adam and Eve to exercise free will; otherwise he could have destroyed Satan and the other rebel angels.

G.o.d could have made Eve incapable of being persuaded by arguments, or Adam a type of person who would have abandoned Eve to her fate. Or he could have imbued both of them with a robotically inflexible instinct of obedience to him. But they would have been insipid creatures. G.o.d made man "sufficient to have stood, though free to fall" (III.99), because without freedom to fall man would not be free-would have no will of his own. As Adam, despite his misgivings, says to Eve when she insists on spending some time by herself: "Go; for thy stay, not free, absents thee more" (IX.372). And when Adam says that "idleness had been worse" than having to work after expulsion from Eden (X.1055), is there not a hint that an immortal race of vegetarian nudists (whom we shall see in chapter 10 created anew in Margaret Atwood's novel Oryx and Crake) would lack a certain savor? Not that Milton would have acknowledged such a heresy, even to himself; but artists do not create with only their conscious mind.

I said that the three defining properties of the Christian G.o.d (omnipotence, omniscience, and perfect goodness) cannot be combined, and what we have just seen is a slight buckling of divine omnipotence. G.o.d cannot be at once perfectly just and perfectly merciful, because perfect justice excludes mercy and perfect mercy excludes justice; nor can he create a worthy race that will be perfectly obedient to him; nor without sacrificing the Son can he save the race in a way that will preserve its freedom. Adam understands that some things are impossible for G.o.d when he says (X.796801): . . . How can he exercise Wrath without end on Man whom Death must end? Can he make deathless death? that were to make Strange contradiction, which to G.o.d himself Impossible is held [to be], as Argument Of weakness, not of Power.

Could G.o.d add 2 + 2 and get 5? Could he create a triangle the interior angles of which summed to something more or less than 180 degrees?

The emphasis the poem places on divine punishment further under *cuts divine omnipotence. We punish those whom we cannot otherwise control. We must punish, in order to exact obedience, because those whom we punish are free to disobey. The distinctively monarchical punishment (in Michel Foucault's sense) to which G.o.d subjects Satan reflects a typically monarchical anxiety about the ability to maintain order without extravagant displays of power.5 No one who actually had absolute power would need to keep reminding his subjects of the fact.

In one influential strand of Christian theology, everything that G.o.d creates is good by nature. G.o.d cannot (omnipotence buckling again) create something that is bad, as that would be inconsistent with his being absolutely good. Bad is the absence of good, and the absence is caused by free choices made by creatures, such as Lucifer, Adam, and Eve, that are good by nature. G.o.d creates the power of choice, which is good, but that gift of power enables the recipient to decide to be bad; if he does so decide, all the blame falls on him or her, none on G.o.d.6 There are loose threads in this theory of divine justice. The serpent has to be punished because Genesis says it is punished and Milton is committed to biblical inerrancy, but the serpent has to be the tool of Satan to be consistent with the overall structure of the poem, in which Satan, rather than some reptile, is the villain. Since the serpent is the unknowing tool of Satan, it is not blameworthy and should not be punished. But Milton is stuck with the Bible, in much the same way that a literal-minded judge is stuck with the text of the Const.i.tution and statutes.

It is also unclear why Adam and Eve's descendants should be punished, or why the punishment should include diseases, famine, and other disasters that afflict people who have not made bad choices as well as those who have. Why does the fall of man lead to cancer? It is not a good answer that suffering is redemptive because it educates, edifies, or tests one's faith, for that is not a justification for punishment but an argument for making Adam and Eve, before the fall, mortal, subject to cancer, and so forth, and G.o.d did not do that.

At this point justification for the manner in which humanity was punished for Adam and Eve's disobedience to G.o.d runs out and the faithfu*5. Michel Foucault, Discipline and Punish: The Birth of the Prison 130 (Alan Sheridan trans. 1979 [1975]).

6. C. S. Lewis, A Preface to Paradise Lost 6667 (1977).

retreat to notions of divine inscrutability, and specifically to the hope that everything that happens, however morally inexplicable, happens according to G.o.d's plan-a good plan by definition but we cannot know what it is and we must therefore suspend judgment. That is the approach taken by other great works of religious literature, such as The Brothers Karamazov-works that unlike Paradise Lost do not seek to justify G.o.d or to fit his actions into a "legalistic" framework. Such a fitting implies notions of proportionality. The punishment must fit the crime. The crimes committed in Paradise Lost vary greatly, and likewise, as we shall now see, the punishments.