Law and Literature Part 7

Oddly paralleled by the ambivalent portrayal of female lawyers in American movies, on which see Carole Shapiro, "Women Lawyers in Celluloid: Why Hollywood Skirts the Truth," 25 University of Toledo Law Review 955 (1995).

The story is a rewrite of her one-act play Trifles (1916). See generally Susan Glaspell: Essays on Her Theater and Fiction (Linda Ben-Zvi ed. 1995). The story is well discussed in West, Caring for Justice, note 72, at 242258.

State v. Hossack, 89 N.W. 1077 (Iowa 1902). See Marina Angel, "Criminal Law and Women: Giving the Abused Woman Who Kills A Jury of Her Peers Who Appreciate Trifles," 33 American Criminal Law Review 229, 241244 (1996).

sential "woman's room," which the men had not thought to search carefully-the women discover the body of a pet bird, its neck broken. Mrs. Hale understands in a flash that the bird had been the only bright spot in the bleak life of this lonely, childless farm woman; that the husband-a cold, hard man-had killed the bird; and that his deed had driven her to kill him. Mrs. Hale decides that the men must not be told about her find. The sheriff 's wife has qualms about withholding evidence but goes along.

The men are smug and patronizing. It would never occur to them that the women might have discovered something they had overlooked. That is the irony in the story, as well as a telling point against the virtual exclusion of women from the legal system, whether as lawyers, judges, or jurors, at the time Glaspell was writing.77 The story makes another point about law. Obviously the breaking of a bird's neck is not the sort of provocation that excuses a murder in the eyes of the law. (Look what happened to Beatrice Cenci, whose provocation was a thousand times greater.) But those are not the eyes the women train on the matter. More sensitive, we are made to understand, than men would be to the psychological context of the crime, less committed to the legalistic view that guilt should be determined in accordance with rules that ignore context (which may be considered only at the sentencing stage), the women are prepared to become accessories after the fact to the murder by suppressing material evidence.

Men, the story implies, abstract from the circ.u.mstances of a dispute a few salient facts and make them legally determinative. That is law as a set of rules-that is what rules do. Women prefer to base judgment on all the circ.u.mstances of a case, unhampered by rules that require a blinkered vision, untroubled by a felt need to conform to general, "neutral" principles. Emphasis on particulars links the feminist and literary approaches to law. Literary expression is characteristically concrete, and many feminists are critical of abstraction, regarding it as the masculine method of apprehending reality.

There is more to the story, including a distant echo of Antigone. In 77.See Leonard Mustazza, "Gender and Justice in Susan Glaspell's 'A Jury of Her Peers,'" 2 Law and Semiotics 271 (1988).

*both the play and Glaspell's story there is a strong sense that the family or household is the woman's domain and politics and law the man's, and that the woman's authority in her domain must be acknowledged. (And Mrs. Hale dominates Mrs. Peters as Antigone dominates her sister Ismene.) But I want to focus on the suggestion that women think differently about law, think about it concretely rather than abstractly-and to point out the lack of the supposed feminine virtue of nuance in this suggestion, which is excessively dichotomous both in its strict gendering of the polar conceptions of law and in its a.s.sumption that law embraces one of the poles to the exclusion of the other. The traditional personification of impersonal justice is a blindfolded G.o.ddess, and the preeminent spokesman for law and order in Eumenides is Athena, though, lacking a mother, she is not the most feminine of G.o.ddesses. Faulkner's Gavin Stevens, on the other hand, is a male Portia, while Agamemnon in Hecuba equivocates between the rival conceptions of law. Literature's princ.i.p.al female exemplars of the alleged feminine outlook on law are the creation of men who often depicted the so-called masculine outlook in an unfavorable, and even an unmasculine, light. The Shakespearean men who embrace the "male" conception of law with the most ardor, Shylock and Angelo, are weak rather than strong figures. Shylock is a pariah; and we have seen how a legalistic conception of law can be the pariah's refuge. Angelo is presented to the reader as naturally submissive. When the Duke tells him he's in charge now, Angelo protests that he's not ready. Rather than take responsibility for his decisions, he retreats behind the law; the law becomes his master in place of the absent Duke. Angelo's legalism is connected with his being a born underling as well as with his desire (until he meets Isabella) to transcend the body and become all spirit. Excessive legalism has been a.s.sociated with immature, weak, and father-fixated personalities.78 Glaspell's suggestion that there is more than an advent.i.tious connection between gender on the one hand and styles of law and justice on the other was elaborated in Carol Gilligan's book In a Different Voice, which distinguishes between an "ethic of justice" (a better term might be "ethic 78. This is the burden of Jerome Frank's famous denunciation of legal formalism, Law and the Modern Mind (1930). See also my book How Judges Think, note 4 above, at 98103.

of rights") that Gilligan deems distinctively masculine and an "ethic of care" that she deems distinctively feminine. Her princ.i.p.al evidence is the different att.i.tudes of boys and girls toward the enforcement of rules in games. Boys are quick to "adjudicate" alleged violations and condemn the violator. Girls, less judgmental, evaluate the alleged infraction in a fuller context (as the women in Glaspell's story evaluate the murder) and, being more empathetic than boys, often will stop playing when an infraction is charged, lest a determination of the merit of the accusation hurt the loser's feelings. The ethic of rights corresponds to the formalistic style of doing law and the ethic of care to the contextual, personal, discretionary style. Gilligan's theory thus contains the germ of a full-fledged feminist jurisprudence-a jurisprudence that is not limited to women's legal issues, such as comparable worth, rape, p.o.r.nography, and s.e.xual hara.s.sment in the workplace, but seeks to make over all law so that it will be less masculine (formalist, rule-bound).

Yet whatever may be the att.i.tudes of male and female children toward rule infractions in games, the ethic of care is no more a female preserve in law than it is in literature. Even before there were female judges and lawyers, the legal system was not as dominated by formalism, strict rules, relish for hard cases, and the like as feminism, Marxism, and the legal establishment itself have claimed. For every Langdell there has been a Cardozo, for every Frankfurter a Murphy, for every Rehnquist a Brennan, and for every Scalia a Blackmun. If we want to emphasize not the epistemological virtues of case-specific legal reasoning but instead sympathy for the underdog (one aspect of the ethic of care), then we have only to list the many male judges who have worn that sympathy on their sleeve. Even the emphasis on maintaining relations.h.i.+ps is not special to feminism; it is the stock-in-trade of those legal scholars, most of them male, who emphasize the relational aspects of long-term contracts. Gilligan may be correct that more women than men have the characteristics that feminists regard as distinctively feminine; it would not follow that more female judges had these characteristics than male judges, since neither female nor male judges are a random draw from the population. But even if female judges are on average closer than male ones to the "care" end of the spectrum, this need imply no more than a s.h.i.+ft along a known spectrum; it need not portend the transformation of law.

*In the early years of Sandra Day O'Connor's service on the Supreme Court, some legal scholars thought they detected in her opinions "a feminine jurisprudence" that "might thus be unlike any other contemporary jurisprudence."79 It has been many years since anyone has said that about O'Connor (now retired). It is even less likely to be said of Justice Ruth Bader Ginsburg, whose opinions are notably emotionless and formalistic. What is true is that these Justices, like most female judges, are highly sympathetic to women's rights. But this does not imply a distinctively feminine style of legal reasoning. It is because of different life experiences rather than different cognitive structures that female judges are more likely than male ones to credit charges of s.e.x discrimination.80 One doesn't want a legal system controlled by Shylocks or Angelos. But if society goes too far in the opposite direction-toward making the administration of law flexible, particularistic, caring-the consequence will be anarchy or tyranny. That is why "people's justice" is rightly deprecated. It was the problem with Athenian justice, ill.u.s.trated by the trial of Socrates, which Plato compared to the trial of a physician before a jury of children upon an accusation by a cook.81 There is a hint of the anarchic in the way the Duke of Vienna conducts state affairs in Measure for Measure, lending point to Graham Bradshaw's observation that the contrast between Angelo and the Duke is the contrast between "unbenevolent principle and unprincipled benevolence."82 The inhuman formalism of an Angelo is the abuse of a good thing rather than the essence of a bad. It is false that "abstraction is the first step down the road of androcentric igno Suzanna Sherry, "Civic Virtue and the Feminine Voice in Const.i.tutional Adjudication," 72 Virginia Law Review 543 (1986). See also Frank I. Michelman, "The Supreme Court, 1985 Term: Foreword, Traces of Self-Government," 100 Harvard Law Review 4,17 n.68, 3336 (1986).

See Christina L. Boyd, Lee Epstein, and Andrew D. Martin, "Untangling the Causal Effects of s.e.x on Judging" (Northwestern University School of Law and Was.h.i.+ngton University School of Law and Department of Political Science, July 28, 2007); David R. Songer, Sue Davis, and Susan Haire, "A Reappraisal of Diversification in the Federal Courts: Gender Effects in the Courts of Appeals," 56 Journal of Politics 425 (1994).

Plato, Gorgias 100101 (W. C. Helmbold trans. 1952). See also the treatment of discretionary justice run wild in Robert Graves's novel Claudius the G.o.d 327336 (1935).

Bradshaw, Misrepresentations: Shakespeare and the Materialists 143 (1993). Ziolkowski, note 30 above, at 174182, draws a similar contrast between Shylock and Portia.

rance" because "the abstract principle that women as the weaker s.e.x belong in a separate sphere, protected and cared for by men, supported the rule preventing married women from owning property."83 Abstraction is a precondition of thinking, and a rule distinguis.h.i.+ng women from men on the ground that women are weaker is less rather than more abstract than a rule treating men and women alike regardless of any difference in strength.

83. Mari J. Matsuda, "Liberal Jurisprudence and Abstracted Visions of Human Nature: A Feminist Critique of Rawls' Theory of Justice," 16 New Mexico Law Review 613, 619 (1986).

chapter 4.

The Limits of Literary Jurisprudence

Kafka

o author of imaginative literature has seemed to have more to say about law than Kafka, himself a lawyer, whose great novel The Trial opens with the arrest of the protagonist, Joseph K., and ends with K.'s execution one year later, and whose short stories and fragments frequently take law for their theme. Kafka has been cited more than 400 times in American judicial opinions,1 though it would be a mistake to attribute the number to unsuspected literary sensibilities on the part of judges or their law clerks. Like "Orwellian," "Kafkaesque" has become detached from the literary works that gave rise to the term on the basis of a superficial acquaintance with them, and is used mainly by persons who never read or have long forgotten those works.

In chapter 6, I examine Robin West's claim that Kafka's fiction is a criticism of the economic model of human behavior, which lies at the heart of the influential school of legal studies known as law and economics. The present chapter considers legal and other meanings of The Trial and 1. Parker B. Potter Jr., "Ordeal by Trial: Judicial References to the Nightmare World of Franz Kafka," 3 Pierce Law Review 195 (2005).

170.

"In the Penal Colony," a short story Kafka wrote in 1914, interrupting his work on the novel.

In the short story, a traveler has been invited to the penal colony of an unnamed European power to witness an execution that is to be conducted in the manner traditional in the colony and to report his impressions to the colony's newly appointed commandant. A soldier on guard duty had fallen asleep, and an officer had struck him with his riding whip. Waking up, the soldier had grabbed the officer by the legs, shook him, and yelled, "Throw away that crop or I'll eat you alive!" For this act of insubordination he has been sentenced to death. The officer in charge of the execution, who is the unnamed protagonist of Kafka's story (there are no proper names in the story), explains to the traveler in loving detail the manner of execution, devised by the former commandant of revered memory (revered by the officer, in any event). The condemned is stripped naked and placed on the table-like surface, which is covered with cotton, of the execution machine-a kind of giant sewing machine. The moving part of the machine, suggestively nicknamed the "harrow," inscribes the judgment-which in the case of this condemned is "Honor Thy Superior!"- with many curlicues and flourishes, by means of moving needles that jab deeper and deeper while the bed of the machine rotates the body and the cotton sops up the blood. The turning point in the execution comes in the sixth hour, when, as the officer explains to the traveler, the condemned, who has not been told what the judgment is, comes to understand it in his body through the repeated jabbing of the needles. In the twelfth hour, having had six hours to reflect on the judgment, the condemned man dies and the machine tosses him into a pit dug next to it.

The traveler expresses surprise that the condemned man is not told the judgment or given any opportunity to defend himself against the charge. But the officer explains that as he is prosecutor, judge, and executioner all in one, the problem of error that plagues complex justice systems is avoided; to give the accused a chance to speak in his own defense would merely undam a torrent of lies. The officer pours his heart out to the traveler, knowing that the new commandant disapproves of the traditional mode of execution and hoping the traveler will render a positive report on it. The officer is particularly distressed by the decline in appropria *tions for executions and in public interest in them-the entire population of the colony, including children, used to attend them, all solemnly awaiting the climactic moment when the condemned man would comprehend the judgment.

The execution now begins. But when the condemned man is laid on the machine, he vomits because standing orders not to feed the condemned too near the time for execution have been disobeyed and lack of funds has forced the officer to use the same gag over and over again. This incident, which results in soiling the machine, combined with the traveler's refusal to join in a zany scheme by which the officer hopes to recapture public support for the method of execution, is the last straw. The officer frees the condemned man, changes the judgment in the machine to "Be just," undresses, climbs on the machine, and places the filthy gag in his mouth. But before he can press the start lever the machine as if by magic begins to operate-at first smoothly, but soon it goes crazy and instead of tattooing the judgment on the officer's body stabs him through the forehead, killing him instantly and thus denying him his moment of illumination (though since he knows the judgment, it is unclear what he hoped to learn from six hours of torture). The back of the machine opens and spills out hundreds of gears.

After stopping briefly at a teahouse where the old commandant is buried under a table in the patio, the traveler takes the first s.h.i.+p leaving the colony. With the death of the officer and the disintegration of the machine, there is no need for him to make a report.

Kafka is often considered an oracular figure, like George Orwell. "In the Penal Colony" is considered a prophecy of the n.a.z.i concentration camps, The Trial a prophecy of the state terror practiced by Hitler and Stalin. A lawyer might be tempted to read "In the Penal Colony" as a commentary on due process and on cruel and unusual punishments. But what is most striking about the story is the juxtaposition of the repulsive absurdity of the mode of punishment with the gravity with which the officer expounds its virtues. The officer's problem, a recurrent one in Kafka's fiction, is his inability to get anybody to take seriously what to him is the most important thing in the world. This inability is signaled by the officer's devotion to a machine that attempts to communicate legal judgments without-communication. The condemned man is a clod, for whom there would have been no ray of insight at the sixth or any other hour. He does not understand the language spoken by the officer and would not understand the machine's "body language" either (who would?). The soldier who guards the condemned man is also a clod. The only other observer is the traveler. He affects a glacial detachment modulating into polite distaste but eventually makes clear his lack of sympathy for the officer's obsession. With the spatial clarity that is a striking feature of Kafka's fiction, we are made to feel the officer's isolation in the grim desert set-ting-the pathos of the obsession that has cut him off from all meaningful human contact. We come to feel sorry for this monster, sensing in him the pathological extreme of the ordinary human inability to get others to share our plans and pa.s.sions.

Lida Kirchberger interprets "In the Penal Colony" as an allegory of law.2 The torture machine symbolizes the "machinery of justice" and its destruction the impossibility of a "mechanical" jurisprudence, a jurisprudence from which all discretion has been banished-the very jurisprudence that Terry Eagleton thinks is entailed by the concept of law. But her interpretation cannot explain the officer's personality or pathos or account for the fact that the torture machine does not formulate rules, find facts, render judgments, or do anything else that a justice system does except administer the sentence.

The Trial, also written in 1914, faithfully reproduces many details of Austro-Hungarian criminal procedure.3 Yet law is not at the heart of this work either. Joseph K.-a finicky bachelor, at once a successful bank executive and a modest boardinghouse resident, bureaucratic in outlook, law-abiding, insecurely self-important, alternatively abject and self-a.s.sertive, sensitive, considerate, rather commonplace, urban rather than urbane, l'homme moyen sensuel-is arrested at his boardinghouse on the Kirchberger, Franz Kafka's Use of Law in Fiction: A New Interpretation of In der Strafkolonie, Der Prozess, and Das Schloss, ch. 2 (1986).

See Martha S. Robinson, "The Law of the State in Kafka's The Trial,"6 ALSA Forum 127 (1982). A better translation of Prozess would be "case" or "proceeding" because what is depicted in parodic form is the stretched-out, nonadversarial Continental criminal proceeding rather than an Anglo-American trial. Theodore Ziolkowski, in The Mirror of Justice: Literary Reflections of Legal Crisis 235239 (1997), argues that The Trial is about the difference between turn-of-the-century Prussian and Austrian criminal law; the latter, he argues, is like the court that condemns Joseph K.-more concerned with the criminal's state of mind than with the criminal act. That is the aspect of the novel that interests Ziolkowski because his project is to quarry works of literature for traces of contemporaneous legal controversies.

*morning of his thirtieth birthday by two plainclothes policemen and an inspector. They produce no identification and give no hint of what law enforcement agency they work for or what the charge against K. is. Since he has committed no offense and is a respectable member of the middle cla.s.s, he is indignant. "What sort of men were they? What were they talking about? What office did they represent? After all, K. lived in a state governed by law, there was universal peace, all statutes were in force; who dared a.s.sault him in his own lodgings?" (p. 6).4 He asks the inspector, "'Who's accusing me? What authorities are in charge of the proceedings? Are you officials? No one's wearing a uniform, unless you want to call your suit'-he turned to Franz [one of the arresting officers]-'a uniform, but it's more like a traveler's outfit'" (p. 14). But they say nothing to the point.

The remark about the traveler's outfit is a clue that something stranger than a critique of denial of due process of law is in the offing. From the outset K. had been fascinated by Franz's outfit. He had noticed that he "was wearing a fitted black jacket, which, like a traveler's outfit, was provided with a variety of pleats, pockets, buckles, b.u.t.tons and a belt, and thus appeared eminently practical, although its purpose remained obscure" (p. 4). K. is preoccupied with aspects of his predicament that are unrelated to due process.

Meanwhile the arresting officers have taken K.'s underwear, allegedly for safekeeping, and are busy wolfing down his breakfast, while through an open window an old woman who lives across the alleyway is staring at the goings-on in K.'s room "with truly senile curiosity" (p. 5). K. asks the inspector whether he can call his friend the public prosecutor. Certainly, the inspector replies, but it's pointless. K. becomes furious and petulantly announces that he won't call the prosecutor after all, as if by this refusal he is scoring a point off the inspector.

The atmosphere of the book is dream-like but until the last chapter not nightmarish. Having arrested K., the mysterious trio informs him that he is free to go about his business-the court will get in touch with him in due course-and they leave. K. is not booked or asked to post bond. There is next a mysterious interlude in which K. makes advances to an 4. My quotations from The Trial are from the 1998 translation by Breon Mitch.e.l.l.

other boarder, Fraulein Burstner, who then disappears; later we are led to understand that K. is mistakenly seeking the aid of women in dealing with the court.

Next (Kafka never finished the book; it is choppy and episodic) K. is summoned for his first interrogation by the examining magistrate of the court, never named, that had ordered his arrest. The court turns out to occupy a rabbit warren of musty rooms in a tenement building. When K. at last finds the courtroom-there are no signs or other trappings of an official agency-the scene is like a cross between the Court of Chancery in Bleak House and a circle of h.e.l.l in the Divine Comedy. It gradually dawns on the reader that no one obtains justice from this court; one just attends until broken by old age, or killed. Needless to say, there is no interrogation. When K. returns the next week (unbidden, but he is trying to expedite his case, or at least find out what the charge is), the place is deserted. He rummages through the books on the judges' bench, but they are not law books-they are dirty novels. He has a brief flirtation with a woman was.h.i.+ng clothes and a run-in with a law student. Next is a scene in which K. opens the door to a storage room at his bank and discovers the two officers who had arrested him being whipped for having stolen his underwear. The site, pretext, whipper's garb, and K.'s reaction mark the episode as a sadom.a.s.o.c.h.i.s.tic fantasy.5 K.'s uncle, who has heard about the mysterious judicial proceeding against his nephew, refers K. to an eminent lawyer, Huld (German for "grace"). Huld turns out to be the Austro-Hungarian counterpart to a "Was.h.i.+ngton lawyer." He lets it be known that he has inside knowledge about the workings of the mysterious court, knows the judges, has heard about K.'s case, has clout, finesse-just leave everything to him. "The most important factor is still the lawyer's personal contacts; they are the most valuable aspect of a defense" (p. 115). Nothing happens. K. becomes distracted by Huld's maid, Leni, and has a flirtation with her that quickly culminates in their having s.e.x.

K. is becoming mesmerized by the case. Not that anyone from the court 5. For good discussions of this episode, see Ronald Gray, Franz Kafka 112113 (1973); Henry Sussman, "The Court as Text: Inversion, Supplanting, and Derangement in Kafka's Der Prozess," 92 Publications of the Modern Language a.s.sociation 41, 43 (1977).

*is bothering him; after that first, abortive summons to an interrogation the court has not communicated with him. But K. is distracted at work and fears that his princ.i.p.al rival, the vice president (K. is chief financial officer-the third-highest official), is gaining on him, though there is no suggestion that the arrest and ensuing proceeding have stigmatized K.

One of his bank clients puts him in touch with a painter, t.i.torelli. After escaping a clutch of faintly sinister teenage girls, K. finds t.i.torelli's tenement apartment. It is in the court's building; all roads lead K. to the court. t.i.torelli-who turns out to be the court's official portraitist-explains that, a.s.suming K. is innocent, there are three possibilities: actual acquittal (which never happens), apparent acquittal (where the accused is liable to rearrest and reprosecution at any time), and protraction (indefinite postponement). The impression conveyed is that K. will never get free from the court's clutches. It's as if he had a chronic, incurable disease that if carefully managed might not shorten his life.

Feeling that he is making no progress with his case, K. decides to fire Huld, who all this time has been working laboriously (or so he says- doubtless lying) on a draft of K.'s first plea. The question of how the plea can be made when neither K. nor Huld has the faintest idea of what the charge is does not faze Huld in the least and is one of the many jokes in this unexpectedly funny book.

Huld has another client, Block, whose case, now five years old, has devoured him even more completely than K.'s case has devoured K.-but then K.'s case is less than a year old. Block has actually moved into Huld's house, and Leni has taken to locking him in her room during the day to keep him out of her hair. To dissuade K. from firing him, Huld performs the lawyer's trick of intimidating a client by making the law seem wholly beyond lay comprehension. He reports a conversation that he's recently had with a judge of the court about Block. Huld quotes the judge as having told him that "'Block is simply cunning . . . But his ignorance far outweighs his cunning. What do you think he would say if he were to learn that his trial hasn't even begun yet, if someone were to tell him that the bell that opens the trial still hasn't rung.' 'Quiet, Block,' said the lawyer, for Block was starting to rise up on his wobbly knees and was apparently about to ask for an explanation" (pp. 196197). One can imagine how Block feels-he has spent all his money on the case only to discover that the case hasn't even begun. The time is ripe for Huld to a.s.sert his mastery: "The judge's remark is of no importance for you," said the lawyer. "Don't go into shock at every word. If you do it again, I won't disclose anything further to you . . . What have I said after all? I've repeated a judge's remark. You know that various views pile up around these proceedings until they become impenetrable. For instance this judge a.s.sumes a different starting point for the trial than I do. A difference of opinion, that's all. There is an old tradition that a bell is rung at a certain stage in the trial. In this judge's view it marks the beginning of the trial. I can't tell you everything that speaks against this at the moment, nor would you understand it all; suffice it to say a great deal speaks against it." Embarra.s.sed, Block ran his fingers through the fur of the bedside rug . . . "Block," said Leni in a tone of warning, lifting him up a bit by the collar. "Leave that fur alone and listen to the lawyer." (pp. 197198) K. has an appointment to show a client of the bank the sights of the city. They are to meet at the cathedral. K. shows up at the appointed hour, but the client does not. It is dark in the almost deserted cathedral. A priest mounts the pulpit. K. does not want to hear a sermon and begins sidling out. All at once "he heard the voice of the priest for the first time. A powerful, well-trained voice. How it filled the waiting cathedral! It was not the congregation that the priest addressed, however; it was completely clear, and there was no escaping it; he cried out: 'Joseph K.!'" (p. 211). The priest turns out to be another functionary of the court-the prison chaplain. He tells K. a parable (separately published by Kafka under the t.i.tle "Before the Law"). Before the law stands a doorkeeper. A man from the country comes and asks to be admitted. The doorkeeper says it is impossible. The man sits down to wait on a stool provided by the doorkeeper. He waits year after year, continually imploring the doorkeeper for admittance. Finally he is an old man, dying, and he says to the doorkeeper, "'Everyone strives to reach the Law . . . How does it happen, then, that in all these years no one but me has requested admittance.' The doorkeeper sees that the man is nearing his end, and in order to reach his failing hear *ing, he roars at him: 'No one else could gain admittance here, because this entrance was meant solely for you. I'm going to go and shut it now'"

(p. 217). The chaplain and K. debate the meaning of the parable inconclusively. As K. is about to leave, he asks, "Do you want anything else from me?" The chaplain answers, "I belong to the court . . . Why should I want something from you? The court wants nothing from you. It receives you when you come and dismisses you when you go" (p. 224).

Nevertheless, in the next and last chapter K. is executed. (Kafka intended to write additional chapters between it and the cathedral chapter.) Like the prisoner in "In the Penal Colony," he is not told what he is being punished for. On the evening before his thirty-first birthday, "two gentlemen entered K.'s lodgings . . . in frock coats, pale and fat, with top hats that seemed immovable" (p. 225). They escort him on foot to the country, and when they get to an isolated spot they place him against a block of stone and one of them takes out a knife. K. understands, without anything being said, that he is expected to plunge the knife into his own chest, but he could not rise entirely to the occasion, he could not relieve the authorities of all their work; the responsibility for this final failure lay with whoever had denied him the remnant of strength necessary to do so. His gaze fell upon the top story of the building adjoining the quarry. Like a light flicking on, the cas.e.m.e.nts of a window flew open, a human figure, faint and insubstantial at that distance and height, leaned far out abruptly, and stretched both arms out even further. Who was it? A friend? A good person? Someone who cared? Someone who wanted to help? Was it just one person? Was it everyone? Was there still help? Were there objections that had been forgotten? Of course there were. Logic is no doubt unshakable, but it can't withstand a person who wants to live. Where was the judge he'd never seen? Where was the high court he'd never reached? He raised his hands and spread out all his fingers.

But the hands of one man were right at K.'s throat, while the other thrust the knife into his heart and turned it there twice. With failing sight K. saw how the men drew near his face, leaning cheek-to-cheek to observe the verdict. "Like a dog!" he said; it seemed as though the shame was to outlive him. (pp. 230231) It is natural to think that the point of The Trial is how awful it is to be arrested, charged with an unspecified offense by a secret court whose inscrutable proceedings drag on interminably, and then clandestinely and summarily executed; that in short it is a book about the perversion of legal justice. But that impression is misleading. The legal proceeding that provides the novel's skeleton is a sick joke on the protagonist, akin to the transformation of Gregor Samsa into a giant bug in the opening sentence of "The Metamorphosis." Imagine waking up one morning and discovering you've been turned into a bug. Imagine waking up one morning to be arrested on unspecified charges and discovering that it is impossible to find out what they are-and anyway you've done nothing that could be thought to violate any law.6 That potent symbol of life's unfairness, strict liability-legal responsibility for the consequences of conduct that may not be blameworthy, indeed may be unavoidable-is bad enough. But Joseph K. is not punished for anything he does, whether blameworthy or not. He has done nothing. In his world not only blameworthiness and punishment but action and punishment have been severed. In The Trial, "guilt is produced by the legal apparatus" instead of being discovered by it.7 In both The Trial and "The Metamorphosis" something at once awful, incomprehensible, and absurd happens to the protagonist and we watch him struggle absurdly and pathetically and finally go down to ignominious defeat. At the same time we are made to feel, as with the torturer in "In the Penal Colony," that the protagonist's grotesque dilemma is somehow emblematic of the human condition. This is easier to accept in the novel than in the penal-colony story because Joseph K. is rather color The mirror image in Kafka's writings of the defendant unable to discover the charges against him is the eponymous hero of "The Stoker," the first chapter of Kafka's unfinished novel Amerika but published separately. The stoker has a grievance against his superior that he is unable to articulate in the hilarious "trial" scene that forms the centerpiece of the story. (Compare this scene to the officer's failure of communication in "In the Penal Colony.") The mob of witnesses whom his antagonist summons to confute the stoker's mindless babble is wonderfully comic overkill. Inability to get anyone to listen and understand is one of Joseph K.'s problems too.

Mark M. Anderson, Kafka's Clothes: Ornament and Aestheticism in the Habsburg Fin de Siecle 192 (1992).

*less and mediocre, an Everyman-perhaps even less, for like Kafka's other protagonists he has something of the schlemiel about him.

I am not suggesting that The Trial has no legal interest. Daniela Pacher is mistaken when she says that I deny the relevance of Kafka's fiction to societal subjects, such as law.8 I just don't want an understanding of the metaphysical and psychological themes of his fiction to be occluded by emphasis on legal relevance, legitimate though that emphasis is. K.'s inability to discover the charges against him is a metaphor of the difficulty that laypersons have in understanding the law, the distress felt by litigants caught up in a legal process they can't understand, and the disjunction between the layperson's expectation that justice will be done and the actualities of the legal process. The parable "Before the Law" "suggests that there is something desirable, radiant, inside the door, but that when an ordinary man, feeling it to be his right, seeks to share it he is tormented with unintelligible legalisms and firmly shut out."9 (Tormented by Huld, for example.) The "radiance that streams inextinguishably from the door of the Law" (p. 216) is a tease; law in action is the doorkeeper, with "his large, sharply pointed nose, his long, thin, black tartar's beard," and his policy of accepting bribes but doing nothing in return ("I'm taking this just so you won't think you've neglected something," id.). But the parable is also a comment on the pa.s.sivity that is so marked a feature of Kafka's characters. Since the door was intended just for the man from the country, couldn't he have been enterprising enough to brush past the doorkeeper and enter?

Like other professionals, lawyers draw a veil of mystery over their work in order to bolster their self-esteem and strengthen their claim to a privileged status. The veil can drive litigants crazy. The man from the country is that figure familiar to all judges, the obsessed litigant. He is Block, Oscar Crease, and d.i.c.kens's Richard Carstone. One is reminded of Judge Learned Hand's remark that "after some dozen years of experience I must 8.Daniela K.Pacher, "Aesthetics vs. Ideology: The Motives behind 'Law and Literature,'" 14 Columbia-VLA Journal of Law and the Arts 587, 602614 (1990).

9. Frank Kermode, "Justice and Mercy in Shakespeare," 33 Houston Law Review 1155, 1174 (1996).

say that as a litigant I should dread a lawsuit beyond almost anything else short of sickness and death."10 For Joseph K. it is sickness and, literally, death.

But to call The Trial a novel about the law and leave it at that would be sadly reductive. There is much more going on in it, notably K.'s efforts to find a human meaning in a universe, symbolized by the court, that has not been created to be accommodating or intelligible to man but is arbitrary, impersonal, cruel, deceiving, and elusive. This universe is like the doorkeeper in "Before the Law," who makes the effort of the man from the country to reach the source of the "radiance that streams inextinguishably from the door of the Law" seem ridiculous and pathetic. For as much good as it does anyone, the radiance could be radiation from a star that died billions of years ago. Man seeks justice but finds the doorkeeper.

The deities reigning over the universe glimpsed in The Trial have descended from the starry heavens to tenement attics11 where all is unintelligibility, dislocatedness, alienation, and bad s.e.x (K.'s furtive coupling with Leni; the judges' perusal of dirty books), a universe in which all of K.'s moves are wrong and there is no way he can right them, because human agency is ineffectual. Not only is K. unable to master (in both senses-understanding and control) the logic of the events that disrupt his life and will lead to his humiliating death, but like the officer in the penal colony he cannot get anybody to listen to his defense.

Kafka wrote The Trial at the same time that Joyce was beginning Ulysses and a few years before T. S. Eliot wrote "The Waste Land." These Hand, "The Deficiencies of Trials to Reach the Heart of the Matter," 3 Lectures on Legal Topics 19211922 89, 105 (a.s.sociation of the Bar of the City of New York 1926).

Many of Kafka's works invite religious interpretations. "In the Penal Colony," for example, could be thought an allegory of the supersession of Judaism by Christianity-of the "Old Law" by the "New Law"; see Thomas Aquinas, Summa Theologica, vol. 1, pp. 9991000 (1947) (question 91, article 5)-with the retributive harshness of the old commandant's system of justice corresponding to the Old Law and the feminized gentleness of the new commandant's system to the New Law. On this interpretation, the execution of the officer, who is the old commandant's spiritual son, by the torture machine is an allegory of the Crucifixion. And the idea that suffering enlightens (the illumination at the sixth hour) is central to modern Christian theodicy.

*cla.s.sics of modernism juxtapose summits of Western culture against sordid aspects of twentieth-century urban culture.12 In Ulysses Homer's hero is reincarnated as a cuckolded Jewish advertising solicitor in twentieth-century Dublin. In "The Waste Land," St. Augustine, Spenser, Shakespeare, Dante, Marvell, and Wagner become the voices of urban decay and "flapper era" s.e.xual dysfunction, and at one level at least (I shall explain the importance of this qualification shortly) the quest for the Holy Grail becomes an aimless wandering through the purlieus of modern London. In The Trial, Dante, who at age 30 escapes from a leopard and travels through h.e.l.l and Purgatory to the portals of Heaven, and Christ, who at age 30 is arrested, condemned, executed, and resurrected, reappear in the guise of a pet.i.t bourgeois who at age 30 is arrested, undertakes a journey that takes him no higher than a tenement attic, and dies like a dog.

There is an instructive contrast to Alice's Adventures in Wonderland. Both it and The Trial are dream novels in which the dreamer finds himself or herself in a fantastic environment (the court in K.'s dream world; the talking animals, height-altering potions, and live playing cards in Alice's). But Alice, a typically intrepid Victorian explorer of exotic continents though she is just a little girl, imposes her will on her fantastic environment, while K. allows himself to be crushed by his. Told by the prison chaplain that he is free to leave, K. stays and dies. (Notice the a.n.a.logy to the man from the country.) Told to stay at the trial, Alice leaves, avoiding a beheading and collapsing the house of cards. "The triumphant close of Wonderland is that she has outgrown her fancies and can afford to wake and despise them."13 Alice's Adventures in Wonderland affirms human agency; The Trial, the story of the nightmare from which Joseph K. does not awake, denies the efficacy of human agency. We are reminded of Hamlet's blunders and hesitations, Macbeth's deception by the witches, Troilus's complaint about the will being infinite but the act a slave to limit, and the "Shadow" that in Eliot's poem "The Hollow Men" falls between the conception and the creation, the emotion and the response.

But this is to paint too bleak a picture, not only of The Trial but also of "The Metamorphosis"-a takeoff on Ovid-is another example.

William Empson, Some Versions of Pastoral 270 (1950).

Ulysses and of "The Waste Land." The quest for the Holy Grail that provides the narrative spine to "The Waste Land" is not a complete futility.14 The poem ends, after the pervasive imagery of aridity, with a burst of rain, "blood shaking my heart," the revival of "a broken Coriola.n.u.s," a boat that "responded / Gaily, to the hand expert with sail and oar / The sea was calm, your heart would have responded / Gaily, when invited," and the fragments "sh.o.r.ed against my ruins." It is a severely qualified attainment, as shown by the words "would have" inserted between "your heart" and "responded" and by the fact that the revival of the broken Coriola.n.u.s is only "momentary." But it is not nothing. And Ulysses ends, in Molly Bloom's soliloquy, with her husband's symbolic triumph over the man who has cuckolded him. The Trial is the bleakest work of the three, yet there is a kind of heroism in Joseph K.'s refusing the prison chaplain's invitation to walk out on the court, instead insisting on seeking understanding and vindication; and perhaps this lends a certain tragic dignity to his death, offsetting his own sense of shame. He didn't just sit pa.s.sively at the entrance to the law, like the man from the country; he tried to shove by the doorkeeper.

Beneath the societal themes of the literary works discussed in this book-and in the case of The Trial and The Stranger the legal themes- there is often a metaphysical theme that invites the reader to reinterpret the societal theme as metaphor rather than subject. That is not always the case; the societal theme is dominant in The Merchant of Venice, for example. It is prominent-but not, I think, dominant-in The Trial. Besides the earlier examples I gave, consider the parallels between the legal process depicted in The Trial and the legal processes employed by Hitler's Germany, Stalin's Soviet Union, and other totalitarian regimes against their real or imagined political opponents. I mentioned the absence of actual acquittal-how no accused is given a clean bill of health but if re 14. Cleanth Brooks, Modern Poetry and the Tradition, ch. 7 (1939). James Wood has an interesting take on the poem's redemptive character. "The Waste Land is founded on the principle of enlargement . . . The ba.n.a.l-the young man carbuncular, the commuters crossing London Bridge-are at once condescended to, and somehow also pitied; for the stored pity of European poetry is brought to watch their ordinariness. And such people are pitied . . . because the poet pities, and includes himself, too." "T. S. Eliot's Christian Anti-Semitism," in Wood, The Broken Estate: Essays on Literature and Belief 128, 141 (1999).

*leased is subject to rearrest and reprosecution at any time and thus to double jeopardy. The prohibition against double jeopardy, resting as it does on the principle that the state is bound by law just as private citizens are (so if it loses a case, it loses it), is central to a nation of laws but contrary to the premises of totalitarianism; it is no surprise that Athens outlawed double jeopardy and Sparta did not.15 By placing the accused beyond the power of the state to reprosecute, actual acquittal would undermine the totalitarian state's pretension to infallibility and omnipotence. Then there is the secrecy of the court in The Trial, its labyrinthine bureaucracy, its existence apart from but parallel to the public organs of the state, its punishment of people for unspecified, even nonexistent, offenses, and its concern with the character and thoughts of people rather than just with their actions. These are all premonitions of totalitarian "justice," as well as echoes of the medieval church militant and therefore aspects of the novel's theological symbolism.

But essential features of a totalitarian system are missing, as we can see by comparing The Trial with Darkness at Noon, Arthur Koestler's novel of the Soviet purge trials of the 1930s. Koestler's protagonist, Rubashov, is an "old Bolshevik" who, though not in fact plotting against Stalin ("No. 1" in the novel), arouses the latter's paranoid fears and is arrested in the middle of the night and hauled off to Lubyanka prison, where he is subjected to subtle psychological pressures (there is no physical torture) until he signs a confession to having plotted the death of No. 1. He comes to believe that his confession is his last act on behalf of the Bolshevik cause, and at his show trial he repeats it with complete sincerity though he knows it is false, after which he is executed by a shot behind the ear in the cellars of Lubyanka.

The novel is chilling, and though in reality most of the confessions introduced into evidence in the purge trials were extracted by less fancy means-for example, by threats to kill the defendant's family-it conveys an authentic impression of totalitarian justice, Soviet style.16 The book 15. Douglas M. MacDowell, Spartan Law 143144 (1986).

16. Robert Conquest, The Great Terror: Stalin's Purge of the Thirties 189191 (rev. ed. 1973). Rubashov is a composite of Bukharin, Trotsky, and Radek. See id. at 190n. Nathan Leites and Elsa Bernaut, in Ritual of Liquidation: The Case of the Moscow Trials (1954), might even interest professional interrogators, as might Porfiry's interrogations of Raskolnikov in Crime and Punishment and Mikulin's interrogation of Razumov in Conrad's novel Under Western Eyes. Darkness at Noon belongs to the genre of twentieth-century doc.u.mentary novels by Malraux, Orwell, Dos Pa.s.sos, and others, while The Trial, despite its authentic legal details, lacks the feel of a doc.u.mentary novel. More than feel is involved; the essential difference is the absence of any political point. Joseph K. has no politics, and the mysterious court that condemns him has no political mission and is no more a part of some official system of intimidation than is the English Court of Chancery in Bleak House-from which Kafka borrowed for his depiction of the court in The Trial.

The Trial has been compared to Michael Kohlhaas.17 Kafka admired Kleist's writings and may have borrowed details from them. Joseph K.'s interview with the prison chaplain echoes Kohlhaas's interview with Martin Luther, while the "shadowy establishment network"18 against which Kohlhaas struggles in his vain quest for justice resembles the attic court with which Joseph K. struggles. Everywhere Kohlhaas turns he finds connections with the n.o.bleman who wronged him; everywhere K. turns he finds connections with the court, as in his encounters with the artist and the priest. But the mood and outlook of the two works are radically different. Kohlhaas is a traditional revenger, with the revenger's standard problem of going too far, and Kleist wants to make a point about the impossibility of obtaining justice in a divided Germany. Joseph K. is a fly caught in a spiderweb partly of his own spinning, who reacts to his predicament not with the revenger's implacable fury but with comically futile gestures.

emphasize the undertone of resistance and the covert messages of defiance in the confessions at the Moscow trials. The brainwas.h.i.+ng of the defendants was far less complete than Koestler's novel suggests. In Bukharin's case, it was a total failure. Stephen F. Cohen, "Introduction," in Anna Larina, This I Cannot Forget: The Memoirs of Nikolai Bukharin's Widow 11, 1719 (1993).

J. M. Lindsay, "Kohlhaas and K.: Two Men in Search of Justice," 13 German Life and Letters 190 (1959); Eric Marson, "Justice and the Obsessed Character in Michael Kohlhaas, Der Prozess and L'etranger," Seminar (A Journal of Germanic Studies), Fall 1966, p. 21; F. G. Peters, "Kafka and Kleist: A Literary Relations.h.i.+p," 1 Oxford German Studies 114 (1966).

John M. Ellis, Heinrich von Kleist: Studies in the Character and Meaning of His Writings 74 (1979). Compare Charles Bernheimer, "Crossing Over: Kafka's Metatextual Parable," 95 Modern Language Notes 1254, 1263 (1980).

*Closer in spirit to The Trial is Friedrich Duerrenmatt's creepy novella Die Panne (1956),19 a suggestive conflation of The Trial and Kafka's story "The Judgment" (see chapter 6). Traps is a traveling salesman with a taste for adultery. When his car breaks down he is offered lodging with a retired judge who together with his equally ancient cronies-a retired prosecutor, a retired defense lawyer, and a retired executioner-amuse themselves by staging trials with any visitor willing to partic.i.p.ate. Traps is willing. Amid much laughter and convivial imbibing of fine wines, the prosecutor wheedles out of him a confession to "murder." Traps's superior, Gygax, whose position he has now taken, had had a fatal heart attack shortly after learning that Traps was having an affair with his wife. Traps admits that he hated Gygax, who was blocking his advancement, and that he is glad his boss died. But the retired defense lawyer points out, plausibly enough, that the fatal heart attack was probably a consequence of the heat (Gygax was known to have heart disease) rather than of the discovery of his wife's infidelity. Traps is indignant. He insists that he is guilty of murder. The web of supposition woven by the prosecutor, in which adultery is the crucial move in a deliberate and successful campaign to kill Gygax and take his place, has invested Traps's life with a shape and meaning that it heretofore had lacked. The judge obligingly sentences Traps to death. The sentence is intended and understood as a joke, but Traps goes up to his room and hangs himself.

Traps is a more thoroughgoing mediocrity than Joseph K. He is incapable of anything big, including murder. He is guilty only of the petty cheats and meannesses of the ordinary man. The mock trial lifts him out of his mediocrity, enn.o.bling him with the status of murderer, which requires for its confirmation the carrying out of the sentence prescribed for murderers. Joseph K. is "guilty" in the same sense as Traps, but is denied even a spurious enn.o.blement. These characters' incapacity for anything as "big" as a capital offense is their capital offense.

19. The t.i.tle means "The Breakdown" or "The Mishap," but the novella was translated into English under the t.i.tle Traps (Richard and Clara Winston trans. 1960).

d.i.c.kens

d.i.c.kens made fog the symbol of the Court of Chancery in Bleak House, a novel framed by an interminable equity case finally dismissed when the estate that was its subject has been entirely consumed by legal fees and other costs. The law's delay is an age-hold complaint; it is one of the things that Hamlet, in his "To be, or not to be" soliloquy, says makes him doubt whether life is worth living. Judges sometimes cite Hamlet's complaint, but more often Bleak House, when they want literary authority for inveighing against the delays and a.s.sociated costs of litigation.20 In their impenetrable mystery and futility, the chancery proceedings depicted in d.i.c.kens's novel resemble those of the court in The Trial. This should not be a surprise, and not only because Kafka greatly admired d.i.c.kens's novels.21 The early nineteenth-century English chancery court, with its leisurely course, its emphasis on doc.u.mentary evidence, and its inquisitorial procedure, resembled the Continental courts more than it did the common law courts of England and America. It is no accident that the centerpiece of d.i.c.kens's other and sunnier law novel, Pick-wick Papers-the trial in the breach of promise case of Bardell v. Pickwick-is a case at law rather than in equity, though equity takes some knocks in Pickwick Papers too.22 The judicial proceedings themselves are mainly in the background in Bleak House, just as they are in The Trial; this may be connected with the attenuation of adversary procedure in an inquisitorial system. The courtroom drama of a Bardell v. Pickwick is missing, along with the sheer legal variety of Pickwick Papers, a novel that touches on bankruptcy and estate M. Todd Henderson, "Citing Fiction," 11 Green Bag (2nd series) 171, 178179 (2008); Jim Chen, "Poetic Justice," 28 Cardozo Law Review 581, 599600 (2005).

George H. Ford, d.i.c.kens and His Readers 254256 (1965); Gray, note 5 above, at 72; Ernst Pawel, The Nightmare of Reason: A Life of Franz Kafka 159 (1984). Specific parallels between Bleak House and The Trial are discussed in Mark Spilka, d.i.c.kens and Kafka: A Mutual Interpretation, ch. 10 (1963), and in Deborah h.e.l.ler Roazen, "A Peculiar Attraction: Bleak House, Der Prozess, and the Law," 5 Essays in Literature 251 (1978).

For a survey of d.i.c.kens's legal novels, see Larry M. Wertheim, "Law, Literature and Morality in the Novels of Charles d.i.c.kens," 20 William Mitch.e.l.l Law Review 111 (1994).

*law as well as on breach of promise and whose gallery of lawyers includes the sympathetic figure of solicitor Perker. Bleak House is particularly rich in unforgettable portraits of repellent lawyers-notably Tulkinghorn and the clerk Guppy-and also of the court buffs who follow litigation, their own or others', with paranoid intensity (for example, Miss Flite), and of the more sober unfortunates who nevertheless become obsessed and eventually ruined by their hope of scoring big in litigation, like Richard Carstone.23 Although there is exaggeration and even fantasy in Bleak House, and although the chancery court is not merely a target of criticism but also a metaphor for human selfishness and indifference, the novel was intended as a serious criticism of a particular legal inst.i.tution. But the criticism was misplaced: chancery procedure had been reformed before Bleak House was written, a point easily missed because the novel confuses will contests with guardians.h.i.+ps.24 Jarndyce v. Jarndyce is a will contest and would therefore have been tried in the probate court rather than the chancery court. Chancery cases were also often protracted, but this was because the chancery court supervised guardians of minors (hence the expression "a ward in Chancery"). The supervision had to continue until the minor reached adulthood.

Pickwick Papers is on the mark as legal criticism. Its centerpiece is Mrs. Bardell's suit against Pickwick for the breach of a marriage promise that he never made and her futile efforts to collect the large judgment the jury mistakenly awards her. The litigation is likely to strike a modern reader- even, or perhaps especially, one with legal training-as a farce. Neither Mrs. Bardell nor Mr. Pickwick testifies, so the best evidence of whether there was a promise of marriage is withheld from the jury. And no pro Bjorn Quiring, "A Consuming Dish: Supplementing Raffield," 17 Law and Literature 397, 403 (2005), argues interestingly that the chancery court in Bleak House "figures as a test of character"; "only people with a strong moral flaw . . . are devoured by the Jarndyce v. Jarndyce case."

Allen Boyer, "The Antiquarian and the Utilitarian: Charles d.i.c.kens vs. James Fitzjames Stephen," 56 Tennessee Law Review 595, 597, 617624 (1989). Boyer also points out that d.i.c.kens's criticisms of the English legal system were greatly influenced by Bentham's (id. at 598599), making it rather a puzzle why d.i.c.kens pilloried Bentham as Gradgrind in Hard Times.

cedure exists for executing the judgment against Pickwick's considerable a.s.sets; all that Mrs. Bardell can do is have him imprisoned for contempt of court when he refuses to pay up.25 But all this is fact, not fiction. When d.i.c.kens wrote Pickwick Papers, parties to lawsuits were not permitted to testify, and securities-the form in which Pickwick's wealth was held- could not be levied against to satisfy a judgment.26 The problem with chancery proceedings before their reform was not that they were encrusted with the kind of legal barnacles that Bardell v. Pickwick sc.r.a.ped up against-equity, as we know already, is more flexible, less hidebound and rule-bound, than the common law-but that they were slow and costly.27 The chancery court had a monopoly of important cla.s.ses of complex and protracted litigation, not only suits involving trusts and guardians.h.i.+ps but also suits seeking equitable relief-an injunction, a receivers.h.i.+p, a complex accounting, or the specific performance of a con-tract28-rather than the standard "legal" remedy, which was (and is) an award of damages. Equitable remedies often require continuing judicial supervision. The chancery court made much greater use of written evidence than the regular law courts did, and this slowed down proceedings too, as did the fact that the Lord Chancellor personally reviewed virtually all the cases litigated in his court.29 Chancery's sluggishness stood out because trials in the regular English courts had traditionally been very swift (they still are); few lasted more than a day. And suits in chancery were This is an inefficient remedy, as game theorists understand, because it sets the stage for a game of chicken: Mrs. Bardell threatens to keep Pickwick incarcerated for the rest of his life if he refuses to pay; Pickwick threatens to remain incarcerated unless she agrees to accept a steep discount from the amount of the judgment. Cf. Linda S. Beres, "Games Civil Contemnors Play," 18 Harvard Journal of Law and Public Policy 795 (1995).

26. William S. Holdsworth, Charles d.i.c.kens as a Legal Historian, ch. 4 (1928).

Id., ch. 3; John P. Dawson, A History of Lay Judges 170172 (1960); G. W. Keeton, An Introduction to Equity 1820, 35 (6th ed. 1965); D. M. Kerly, An Historical Sketch of the Equitable Jurisdiction of the Court of Chancery, ch. 13 (1890).

That is, an order to the contract breaker that he perform the contract on pain of being held in contempt of court if he does not. An order of specific performance is thus a type of injunction.

John H. Langbein, "Fact Finding in the English Court of Chancery: A Reb.u.t.tal," 83 Yale Law Journal 1620, 1629 (1974). This had changed, however, by 1851 (see George W. Keeton and L. A. Sheridan, Equity 7374 [1969])-like so many of the chancery practices derided in Bleak House.

*expensive. Judges were compensated out of the court fees paid by the litigants, and the fees in chancery were very high, in part because the cla.s.ses of litigation that the court monopolized were lucrative ones. The Lord Chancellor had one of the highest incomes in England.

Bleak House is a powerful, if belated,satire on a seriously flawed,though already reforming, legal inst.i.tution. But someone who wanted to learn about the English chancery court before it was reformed would not turn to Bleak House. There are fuller and more sober sources of data. d.i.c.kens's novel is not like the Homeric epics or the Old Norse sagas, which are the main sources of our knowledge of their societies' legal inst.i.tutions. Viewed merely as description and critique of the Court of Chancery, Bleak House is a century-and-a-half-old piece of fictionalized journalism- whose author, moreover, for all his keen sense of injustice, was not a practical reformer.30 d.i.c.kens was indignant at the delays and expense of chancery proceeding but seems to have accepted these things as part of the natural order. He is warning the reader against falling into the clutches of the court, rather than trying to make those clutches less fell.