once you've enclosed a mind's understanding within these nihilistic binary codes of 1/0, of some-thing/no-thing, good/evil, right/left...you can manipulate it at will.
You can even propose a solution to the dualsitic dilemma by promoting one pole as the singularity, as the all-encompassing Noumenon, and then give it any name you like. The absent absolute is now present, because it has been named. Baptized into existence.
Shlain is a gynocentrist who bemoans the displacement of the goddess culture with patriarchy in his book Alphabet vs. the Goddess. He traces rigid systems of patriarchal society to writing, codifications, and literacy - the left brain,, and liberal systems of the goddess cults to images, pictographs, oral culture - the right brain.
He, for instance, distinguishes the Spartan and Socratic liberality to them never leaving written records in comparison to Athenian severity and Aristotle's misogyny to written abstractions. Some of it is quack, but it has some interesting parts, esp. when it comes to the Old Testament commandments.
Understanding language begins by understanding what it is, before one proceeds to understand what it is attempting to transmit.
Language makes the schizophrenia of Modern man possible, when it is confused as that which it is representing, or alluding to, or when it is taken literally and not figuratively.
With words referring to noumena, which then refer back to other noumena, excluding the phenomenon from the process, the behaviour, the (inter)activity of sex, for example, can be reinvented, and turned into a social construct, or a personal choice, or a matter of taste. In this case "sex" the noumenon referring to a reproductive function, is detached from this phenomenon, and is reattached to "taste", and/or "choice", which are then left in limbo, as if they men something on their own, and require no explanation.
The concept of "taste" is left hanging, as if it emerges out of nothing, without referring to a biological process, in reference to phenomena. Free-Will is insinuated, trying to explain why these words are detached from world, are "free" - the culprit is "will", as if this explains it. But what of will? What does it refer to, what does it mean?
Attaching the word "will" to the world takes us to the brain, and how it can focus upon an object/objective. The best definition of will is that agency of mind, that part of brain, which is entrusted with focusing the organism's aggregate energies upon an external object/objective. Attaching the word "taste" to the world we return to the organism from which this expression of preference emerges. Taste is the byproduct of organ hierarchies and how they interrelate, resulting in a dominant need directing the will towards specific patterns, also called elements.
In relation to sexual taste we must compare this direction of Will with the function of sex, to determine if the taste is constructive or destructive, or simply irrelevant, with no outcome. If sex evolved to replicate genes then homosexual preferences implies a dysfunction, a mutation which is unfit, as it results in no replication of genes. Then we must understand why the sexual impulse can go astray, can be warped to a degree where it no longer functions as it was intended to, through natural selection. This will take us back to organ hierarchies, and how hormones can unbalance the organism's internal structures, by either being too much or too little during the crucial years when male/female sexual types are being determined in the womb.
Language is a tool for representing processes, and/or behaviours. In a world of increasing chaos (randomness) and fluctuating (inter)activities, worlds being static representations, can refer to a world that is counter-intuitive. Intuition being ordered, and the world being disordering, and/or fluctuating, in Flux.
Language can allude to reality, approximate it, hint at it, as a painting can allude to movement by using techniques on two dimensional canvas.
I became aware of the relationship between language and persuasion when listening to Christian church sermons, and realized what music is and why it affects the human psyche.
In language there is a rhythm established by sentence structure, and the notes of words, their reverberations, the parts of the mouth and larynx used to form and express them. "The Medium is the Message"... With the concepts what is transferred to the listener is the sonic vibrations, relating to particular parts of the brain and nervous system and organs (mind/body). Depending no the listeners own organ hierarchy (psychology) and the weaknesses/strengths involved, particular sentence structures, using particular words will have greater effect than others....and in this we must include memes that establish, early on (education, indoctrination) automatic psychosomatic (re)actions to particular words and the sounds that go along with them. In ancient times philosophy was practised using poetry, and I think this is effective even today. The talent of the speaker, rhetorician, to combine words into eloquent, flowing, sentences, while delivering cohesive abstractions, adds to his ability to be convincing.
Linguistics is "the scientific study of language and its structure, including the study of morphology, syntax, phonetics, and semantics. " - Google
The one thing that gets in the way time and time again of productive discussions in philosophy is misunderstanding and a lot of that misunderstanding I see due to different levels of understanding different word meanings. Language can be very confusing with words meaning different things when people don't utilize them understanding there are different meanings. So while someone may use a word in a proper sense, they may not necessarily understand that there are different senses of that same word that can have an entirely different meaning, and both be logically correct in the context of the discussion. When that occurs, it is imperative the author differentiate to avoid confusion. On the other hand, there are instances of a word being conveyed that really only has one sense that it must have logically been referred to, otherwise in context the author doesn't make sense. This burden, rests upon the reader in order to understand. While it can be nice for the author to mention the definition, that can get tedious.
This can lead us to a slippery slope of defining (state or describe exactly the nature, scope, or meaning of.) every (used to refer to all the individual members of a set without exception. used before an amount to indicate something happening at specified intervals. (used for emphasis) all possible; the utmost.)) word ( a single distinct meaningful element of speech or writing, used with others (or sometimes alone) to form a sentence and typically shown with a space on either side when written or printed.) we state.
Philosophy requires in depth thinking and master of language in order to comprehend it due to the nature of philosophy that by nature, attempts to have us arrive to the deepest level of understanding that we can. Those who know the senses of words and have mastered the senses of words will understand that there are rules to play by, rules to communicate effectively and rules to understand information to communicate effectively. I have presented two of those reasons above, I hope the readers take the time to take that to heart so that they do understand. However taking it to heart is not merely enough. Understanding language is a matter of intelligence - in that it can be very difficult if you do not process information quickly. There are over a million words in the English language. Most adults use 20,000 - 35,000 words. Each one of those words typically has multiple senses in of itself. Remember, a word is just a symbol for the larger meaning of it, which definitions only hope to convey the meaning accurately. It can be very difficult to communicate effectively but in Philosophy is extremely important.
Meaning comes from within the conveyors mind, it is a construct of a person's understanding of not only the concept a word is referring to but also the known definitions that people utilize to communicate. As such, there are problems found in both ways of providing meaning, not necessarily understanding the concept and not understanding the definition. Things can make sense in a person's mind but don't to others, usually due to a failure here in these two areas. Aside from that, even if both of these are gotten right, people don't always think logically. As such, this isn't a problem of communication if solely this occurs, but a problem of thinking in ones mind.
Words don't mean things, people do
"Meaning" - as defined by Merriam Webster 1. what is intended to be, or actually is, expressed or indicated; signification; import: the three meanings of a word. 2. the end, purpose, or significance of something: What is the meaning of life? What is the meaning of this intrusion? 3. Linguistics. the nonlinguistic cultural correlate, reference, or denotation of a linguistic form; expression.
Now sense #1 is used colloquially when referring to "the meaning of words" or "what does that word mean?" But when I state, "Words don't mean things, people do" I am referring to sense #3. Now this is somewhat ironic in how meaning of words and meaning of people and language can get very confusing and or muddled; words and communication are dynamic, in that there are many ways words can be used metaphorically, aside from all the different senses of a words. I would contest in certain words, it is nothing short of brilliant in able to utilize these certain words "in every sense of the word" and to mean every sense of the word. By stating "words don't mean things, people do" as in people mean things - I am in a way, can be seen as being ambiguous or dubious in my communication. The receiver of the communication could easily not understand what I am stating - it could be that they don't know about sense #3, which is often the case when I bring this statement up to say, Joe Schmoe. They might response, "words mean things, I can look up the meaning of words in the dictionary!". But that would be Joe Schmoe using sense #1 strictly - in a sense that "meaning" is synonymous with having a definition. I don't like the definition of sense #1 myself, it can create problems for our frame of reference on understanding what meaning I would say, should be. It is more meaningful to utilize meaning in sense #3, I would contend.
There are reasons why that is, a stating "words have definitions" is very straight forward as opposed to "words have meanings". What does it really mean that "words have meanings". It's a rabbit hole in so much as it can mean quite a bit, and quite a bit more than one should be inundated with during communication. There are problems in language, because language is only a means to an end. That mean is conveying symbols (spoken or written) in a manner that hope to express the meaning of the communicator.
"Throughout human history, as our species has faced the frightening, terrorizing fact that we do not know who we are, or where we are going in this ocean of chaos, it has been the authorities -- the political, the religious, the educational authorities --- who attempted to comfort us by giving us order, rules, regulations, informing -- forming in our minds -- their view of reality. To think for yourself you must question authority and learn how to put yourself in a state of vulnerable open-mindedness, chaotic, confused vulnerability to inform yourself." - Leary
This quote ties together in that language, definitions, are constructed through and form a supposed ontology of how the world is, but this is done through other humans, popular usage so to speak. But that doesn't mean it is right even, nor does it mean a words implications are actually real. I will leave it there to let some minds run wild, hopefully.
Language is at the heart of what I call [You must be registered and logged in to see this link.]. To disarm Nihilism, and Moderns using words as cushions and magical toys to exploit human stupidity and to comfort themselves, we must return words back to their utility as noumenon connecting to phenomenon. Then, and only then, can we discern the abstractions of mysticism, attempting to represent the incomprehensible, from words meaning specific actions in world - observable activities. Confusing language as sometimes literal and sometimes figurative, depending on our desired outcome, is how Moderns build their bullshit uni-verse on emotion, and self-serving, self-flattering lies.
Language is at the heart of what I call [You must be registered and logged in to see this link.]. To disarm Nihilism, and Moderns using words as cushions and magical toys to exploit human stupidity and to comfort themselves, we must return words back to their utility as noumenon connecting to phenomenon. Then, and only then, can we discern the abstractions of mysticism, attempting to represent the incomprehensible, from words meaning specific actions in world - observable activities. Confusing language as sometimes literal and sometimes figurative, depending on our desired outcome, is how Moderns build their bullshit uni-verse on emotion, and self-serving, self-flattering lies.
Moderns referring to simpletons in all times and places, part of every culture, which exist within the perceptual-event-horizons of what is most current, or popular. Placing what is most immediate and self-gratifying above patterns perceived across time, or being unable to factor in such patterns.
We can relate this to the "last man". The most current, up-to-date, basing his evaluations on what is most popular, what is tending, what feels good.
Those exploited by liars and charlatans with no sense of shame and no pride. All EGO.
Detaching language from reality, or the symbol/noetic from the apparent/phenomenon, is what permits morons, liars, hypocrites, cowards, imbeciles con-artists to construct any feel-good bait to attract every weakness, every mutation, and exploit its ignorance, its weakness, its neeeeed.
It is similar to how money was unhinged from the gold standard resulting in the con-artistry that resulted in the recent economic collapse in the States.
But this is nothing new. Christian made it into an institution. Detachment from reality, experienced by imbeciles and cowards as liberation, salvation, enabled the restructuring of sentences along non-linear directions...in other words contrary to the experienced. This gave them artistic licence, crazy-creativity, to place love before life, as some magical entity they then defended by calling it God, or consciousness outside the organism. Words placed in any order in a sentence, altering, in theory, in the mind, how one elates to reality.
The concept of love, for example, referring to a behavior which is part of the cooperative reproductive and survival strategy, was mystified into a magical feeling, some mystical force. No reasoning required, other than how it makes the target mind feel.
Other charlatans, more recent, like those found on ILP, simply use different words. Like that self-declared "heir of Nietzsche" who uses the word "value" in exactly the same way, and then claims that he is revolutionizing philosophy. In that case Nietzsche is simply pretext to impress a specific target audience, but Jesus is also used to broaden the product's appeal. Unlike Nietzsche it is the effect, and not the motive which is the center piece, which is the ideal motivating the actor. I use this example not because it matters, but because I like to use real life, interactive, accessible to all, examples to support my views. That particular individual has become a joke, even among his own kind, even in a forum that has gathered all sorts of crazies in its protective embrace. Only there can he hope to have an impact, to gain power through others.
Nietzsche's power over minds, is coveted, and it is assumed that this was his motive: to influence and seduce young males, or old women, to gain notoriety, fame and fortune. The motive is not exploring and exposing world, but power measured by the quantity of human minds it can manipulate and control.
The word must be "positive" to the one seduced. This is the oldest con-game in history. When you sell the absurd that the other wishes were so, common sense, experience logic goes out the door. Detaching words from world feeds into this method of manipulation.
There's a reason why money and words were detached. I've offered my own theories.
They, under cover of darkness, tear down the tower of Babel, stone by stone, to build their Synagogues, pulverizing them for mortar, and I, beneath the sunlight, return each stone to its place, before it is too late.
The Crisis of Language project is more properly a crisis of language in America; whether it will most likely resolve itself within the same premises of liberal introspection to "smoothen out any friction in communication" is to be seen.
"Flaubert’s mockery of bourgeois indifference to justice and legality contrasts his own devotion to justice as the supreme literary value, the virtue in which all others are comprehended. The just word – le mot juste – is a phrase expressing his ideal of linguistic precision associated with painstaking craft seeking exactly the right word to express exactly the right idea to convey exactly the right impression to his readers. Writing well, he claimed, is more than a matter of verbal felicity, although felicity is its reward. “[T]o write well is everything,” a writer’s first duty, he told George Sand (Flaubert, Letters 2.231), but it is not an end in itself. Although he once proposed writing a book “about nothing, a book dependent on nothing external, which would be held together by the internal strength of its style” (1.154), his letters reveal that he was not satisfied with style for its own sake. It should be an avenue to illumination and “exaltation” (2.80). The wrong word is an affront not just to harmony, but to clear-sightedness and clear thinking.
For the moment a thing is True, it is good . . . When I come upon a bad assonance or a repetition in one of my sentences, I’m sure I’m floundering in the False. By dint of searching, I find the proper expression, which was always the only one, and which is, at the same time, harmonious. The word is never lacking when one possesses the idea. (2.231)
The right word appears when the idea is true, but only the right word will express its truth. Le mot is juste when it contributes to a justice of expression, thought and judgment. It permits a fusion of aesthetic and ethical values, which is the subject of this book about the “jurisdiction” of literary language – the speaking of the law in spaces that the law defines, inhabits, protects, but also, sometimes, neglects.
That a word can be just rather than merely harmonious suggests not only Flaubert’s devotion to craft, but an underlying faith in the nature and efficacy of language. He scorned the inaccuracy of customary speech because of the shoddy thinking it conveyed. His satirical Dictionary of Accepted Ideas is a compendium of complacent bourgeois cliche ́s, which are no less fatuous for occasionally stumbling into truth. They illustrate how language not only permits but also encourages stupidity. He considered adding to his final novel Bouvard and P ́ecuchet, to which the dictionary is an appendix, the subtitle Encyclopedia of Human Stupidity (Flaubert, Letters 2.193). If, when abused, language is a vehicle of self-deception, however, it can also be illuminating, provided it is used judiciously. His contempt for bourgeois smugness reflects a mistrust of human nature generally, but it is countered by a belief that language may be not only eloquent and accurate, but just. He envisioned such a style in a letter to Louise Colet:
a style that someone will invent some day, ten years or ten centuries from now, one that would be rhythmic as verse, precise as the language of the sciences, undulant, deep-voiced as a cello, tipped with flame: a style that would pierce your idea like a dagger, and on which your thought would sail easily ahead over a smooth surface, like a skiff before a good tail wind. (1.159) When words are beautiful in their precision and precise in their beauty, they reveal that the world, the ordering power of the mind, and the structure of language are congruent.
At its most sublime, this view asserts that the forms of reality, our perceptual and rational faculties to apprehend reality, and the power of language to articulate that apprehension all correspond. The world is intelligible to intelligent people whose command of language is supple: being, knowing, and saying are mutually supportive. In a “perfect language,” Paul Ricoeur speculates, there would be “a complete homology between the sign and the thing with nothing arbitrary about it, therefore more broadly a complete homology between language and the world” (Ricoeur, Reflections 111). I will argue later that when justice aspires to a messianic sublimity it can become dangerous, but the danger already lurks in Flaubert’s ideal. There should be a natural accord of thought, speech, and their objects; or at least, they can be brought into accord through the proper disciplining of thought and language. Words are a trustworthy medium only if used tactfully. It is tempting to oversimplify the situation by praising art for rendering justice in an unjust world, but the writers I will be examining are more cautious. As Flaubert’s satire illustrates, the natural fit of mind and language to the world is not secure, because it competes with a contrary tendency, equally natural and powerful, for them to drift apart. The bourgeoisie with their “well-bred ignorance” (Barzun are the latest agents of this cultural entropy; in response, artists must be vigilant. Maintaining an alignment of world, mind, and word is the function of justice understood, as Aristotle suggests in my epigraph, as the coordinating virtue of virtues, the ruling principle of balance and adequacy in human affairs. Seen in this way justice, too, appears to be “natural,” that is, inherent in the very structure of things and of humanity, either because their intrinsic composition makes them so, or through divine providence. Cicero offers a famous endorsement of the latter view:
True law is right reason in agreement with nature; it summons to duty by its commands, and averts from wrongdoing by its prohibitions . . . And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times, and there will one master and ruler, that is, God, over us all, for he is the author of this law, its promulgator, and its enforcing judge.
Law, he proclaims with an authority evoked by his sonorous style, is a verbal summons independent of the specific language (that of Rome or Athens) in which it is framed. It commands universally because it derives from a higher source to which the law always gestures.
Gesturing in order to invoke authority, especially when both gesture and authority strike theatrical poses, is one of the functions of art, so it is not surprising that Flaubert’s cultivation of le mot juste reveals how a pursuit of justice pervades literary theory.
Literary justice is defined differently in different historical periods, but traditionally it is associated with the virtue of poetic thought to organize, interpret, and justify the chaotic misrule of experience. The source of that misrule also varies in different periods. For example, in Essay on Criticism, Alexander Pope offers “wit” as the faculty that renders justice, not only by discerning truth in a murky world, but by showing how truth pervades our thoughts, ennobles our lives, and delights us:
"True Wit is Nature to advantage dress’d, What oft was Thought, but ne’er so well Exprest, Something, whose Truth convinc’d at Sight we find, That gives us back the Image of our Mind" (Pope 153)
When the expression is just, knowledge seems to be grasped “at Sight” with the impact of direct sensation. The spontaneity of literary certitude, its ideas piercing like a dagger as Flaubert said, will be a recurring theme but also, as the sharp dagger suggests, a constant danger. One might also be stabbed by eloquent falsehood – le mot injuste. For Pope, when poetic form, content, and expression fall into perfect alignment, the mind and nature reflect each other through a reciprocal animation by which each enhances the other:
"Those RULES of old discover’d, not devis’d, Are Nature still, but Nature Methodiz’d; Nature, like Liberty, is but restrain’d By the same Laws which first herself ordain’d." (Pope 146)
Pope might have been recalling Shakespeare’s lines in The Winter’s Tale: Yet nature is made better by no mean But nature makes that mean: so, over that art Which you say adds to nature, is an art That nature makes. . . . This is an art Which does mend nature – change it rather – but The art itself is nature. (4.4.89–92, 95–7)
Nature is governed by its own rules, which must be articulated through art, especially language, which, unfortunately, can also be deceitful. For this reason, inept criticism – which, Pope warns, abounds “in these Flagitious Times” (Pope 160) – is all the more hazardous. When thought is not guided by “right reason,” when language is not scrupulous, they lead the mind away from nature into an illusory world of their own devising. Samuel Johnson raised the same concern when he scorned those writers who “being able to add nothing to truth, hope for eminence from the heresies of paradox” (Johnson 239).
Literature not only permits but encourages stupidity, and like Flaubert, Pope delighted in the foolishness of the dunces around him.
One of our greatest linguistic talents is lying; indeed, it is hard to imagine many non-verbal means of deception or of self-delusion. The fear that thought and language may perversely conspire to become heretical agents of injustice intensified in romantic theory, when the times were even more flagitious (criminal, scandalous) and the alienation of thought from reality seemed more intense. All the stronger, therefore, was the demand to reconcile them through perfected speech. Literary schools often begin with a call to reform language as the first step in a larger program of cultural renewal. We hear this call in Wordsworth’s rejection of poetic diction in his “Preface” to the Lyrical Ballads, leading to his assurance: “[The Poet] considers man and nature as essentially adapted to each other, and the mind of man as naturally the mirror of the fairest and most interesting properties of nature” (Wordsworth 17). We hear it enthusiastically in Emerson’s essay “The Poet,” which declares: “The world being thus put under the mind for verb and noun, the poet is he who can articulate it . . . so the poet turns the world to glass, and shows us all things in their right series and procession” (Emerson 230). And of course, we hear it in Flaubert’s defense of le mot juste:
In the precise fitting of its [a well-written book’s] parts, the rarity of its elements, the polish of its surface, the harmony of the whole, is there not an intrinsic Virtue, a kind of divine force, something eternal, like a principle? (I speak as a Platonist.) If this were not so, why should there be a relation between the right word and the musical word? (Flaubert, Letters 2.233)
In modernist writing, le mot juste is not regarded as an agent of transcendental or platonic insight, but as one of realism. It is “just” in its ability to do justice to its subject, that is, to touch the world and render the intensity of its physical presence. The sense of touch is often adduced to explain the heft of the right word. For example, one spokesman of the English imagist poets, T.E. Hulme, extolled “the luxurious torture of the finger” (Hulme, Speculations 237) as it grates against reality. He advocated a “concrete” style that is “a compromise for a language of intuition which would hand over sensations bodily. It always endeavours to arrest you, and to make you continuously see a physical thing, to prevent you gliding through an abstract process”. Here, “touch” does the metaphorical job previously assigned to “taste,” but in an earthier way. Poetry becomes tactile rather than tasteful. By making the experience of reading feel tangible, it offers what Pope praised: the conviction that knowledge can be grasped with the immediacy of sensation, or that knowledge and the experience that gives rise to it occur simultaneously.
Similarly Ford Madox Ford recalled that he and Joseph Conrad spent hours assessing the relative weights of different French and English words. What was “the desirability of the word bleu-fonc ́e as an adjective to apply to cabbages in a field” (Ford Madox Ford, Joseph 53)? What were the merits of “blue” as opposed to “azure” (171), of “penniless” as opposed to “without a penny” (87)? By distinguishing between “penniless” and “without a penny,” Ford wanted to show not only that he was as scrupulous as Flaubert, but that words are the small currency of literary justice, which is due even to cabbages. Paradoxically, he said, the more physical a word feels, the more it operates invisibly as if to present reality directly rather than represent it verbally: “We wanted the Reader to forget the Writer – to forget that he was reading. We wished him to be hypnotized into thinking that he was living what he read” (Ford Madox Ford, Thus 53).
When realism becomes hypnotic, it becomes something more than real, if not quite Platonic or Ciceronian. Ford was content to be called an impressionist rather than a realist, and Flaubert denied that he was a realist writer, but both indicate that a preoccupation with literary justice, even when firmly rooted in physical sensation, aspires to some kind of transcendence. This survey shows that the justice of le mot juste may be formulated differently, but in each case it relates consciousness to the world by seeking higher forms of accommodation and satisfaction, both of which are implied in the notion of jurisdiction.
If Flaubert’s aim was to cure French writers of inane speech and thought, then to do so would deprive him of his wicked delight in mocking their inanities. The spectacle of failure was precious to him not only in order to correct it, but for its own sake, as a revelation of our absurdly flawed humanity. We are never more human than when we exhibit our failings, especially when we lie to ourselves. To relish the spectacle, however, one must be keenly aware of how and why we are flawed. When Flaubert insists that a writer must find the just word, he implies that all other words are wrong, and his own scrupulous revisions, word by word, page by page, show how composition proceeds by excluding the false in order to arrive at the true. Once found, le mot juste stabs like a dagger, but until it is found, it must be sought. This exclusionary task illustrates a process of limitation inherent in any judicial judgment, which succeeds only by setting and policing limits, that is, by establishing a jurisdiction.
To be effective, justice must suspend proceedings at key moments signaled, for instance, by the banging of a judge’s gavel signifying that an authoritative judgment has been pronounced and must now prevail. It is necessary to impose a halt ceremonially in order to restrain a contrary judicial impulse to be comprehensive, to seek “the whole truth” from an ever greater frame of reference. In a courtroom, exclusionary acts are continually enforced, for instance when evidence or testimony is ruled inadmissible. Corresponding ceremonies appear in literature, both to frame a work as a whole and to define its jurisdiction – its area of command – as it proceeds. The final words “The End,” once routinely placed at the end of a novel or film, are a clumsy example. More elegant is the formal Epilogue with which A Midsummer Night’s Dream declares its limit by bidding farewell to the audience and soliciting its applause. Earlier in the play, when the audience enters fairyland, the fairies sing to drive away the vicious, natural forces that threaten their Queen. By singing, they draw a protective circle around their festive comedy:
You spotted snakes, with double tongue, Thorny hedgehogs, be not seen; Newts and blind-worms do no wrong; Come not near our Fairy Queen. (2.2.9–12)
Note that the dangerous forces are natural; the protective force is supernatural. The latter chants a magic spell to define a comic jurisdiction, a space in which the voice of comedy can speak and rule. The resemblance of genre to jurisdiction begins as a useful analogy, but as this progresses, it should become something more. By “jurisdiction” I understand not just the political, social, and conceptual area within which a set of laws wields authority, but as the terms “juris-diction” suggest, the speaking of the law – the many ways in which language articulates judiciousness. Like justice, comedy is a vehicle of hope sustained by confidence in human intellectual, verbal, and moral powers (le mot juste); but it is suspicious of how easily those faculties grow unruly; and intolerant, even cruel, when those same faculties lead us astray, as – comedy ruefully implies – they usually will. Northrop Frye observes that the rhetoric of comedy is similar to the rhetoric of jurisprudence (Frye, Anatomy 166) with the advantage of being funny. Comedy offers itself as a rectifying, rewarding genre, which assures us that the earth is our home.
Nature offers all the conditions necessary for human flourishing provided that we ward off its dangers, using reason when appropriate, magic when necessary, and provided that we do not abuse our intellectual and verbal powers. Comedy shows that, of course, we will abuse these powers, but only in foolish or ridiculous ways that can be remedied by act 5, when human rationality is realigned with natural abundance.
One might say that, viewed in this way, John Rawls’s A Theory of Justice aspires to be a philosophical comedy by defining what is fair and then clarifying procedures to make it attainable. His hypothetical starting point, “the original position of equality [which] corresponds to the state of nature in the traditional theory of the social contract” (Rawls 12), establishes a perspective to survey the requisite logical and social conditions, a discursive space rather like the comic jurisdiction. And as in comedy, its prospect of natural bounty, fair distribution, and reasonable reward requires a calculated limitation, a setting of limits. Accurate judgments are possible only if we do not know too much; a “veil of ignorance” ensures that justice will begin by being impartial and end by being satisfactory (136 ff ). The veil of ignorance that makes justice clear-sighted is like the magic circle keeping natural perils at bay.
The veil also reveals a puzzle in defining a jurisdiction, which must be both self-limiting (the circle) and self-exceeding (the magic). This dilemma is usually analyzed as a tension between justice as an ethical ideal, the virtue of virtues, and law as a series of practical accommodations. Walter Benjamin depicts their tension as a confrontation between two violent, social urges: law-preserving (restrictive, repressive) and law-making (expansive, revolutionary) (Benjamin 284). Their rivalry appears even in Shakespeare’s lovely song, which illustrates how comedies must ceremonially acknowledge deadly forces in order to keep them away. Literature is always about making and breaking rules, establishing new rules to be challenged in turn, working within genres whose borders are permeable. This, too, is a violent process, because violence is inherent in all literary forms: in their twists of plot and obsessive characters, in the agon (struggle) they depict, in their power to evoke sympathy (“feeling, suffering with”). The impulses to make and break rules are staged in accordance with the presiding genre of a work, whose conventions define what I am calling its jurisdiction. In A Midsummer Night’s Dream the protective, law-preserving force is expressed as benevolent magic and music; the contrary, liberating, law- disrupting force is represented by Puck, the mischievous agent of misrule who lets affairs get wildly out of control until he, too, is restrained by Oberon and, in the Epilogue, domesticated by carrying a broom.
Malvolio in Twelfth Night is a more ambiguous figure in this contest, because his role shifts as the play proceeds until he threatens its comic rule. At first he is a puritannical agent of repressive law as he squabbles with Sir Toby, who obeys only the commands of delight and appetite: “Dost thou think, because thou art virtuous, there shall be no more cakes and ale?” (2.3.114–15). Later, however, Malvolio, yields to his own wild desires, first ridiculously by displaying his legs to Olivia, and later, when he is tormented, in baffled frustration. At the end of the play, when the conservative forces of comedy reassert their authority, he becomes a malcontent who refuses to join the festivities and stomps off swearing revenge. Depending on how the performance is staged, he can embody a bitterness so disruptive that he unsettles the comic fabric of the play. Like the snakes and hedgehogs he must be banned from the stage, but he stills lurks outside. Every instance of literary justice has its Malvolio, and must devise a way of coping with his “ill will.”
As a puritan Malvolio imposes the law in a spirit of nasty self-satisfaction, but as an innocent if foolish victim he demands justice in a way that the rules of comedy cannot satisfy. Although he is not heroic, only absurd, he reveals – if only briefly before the festivities continue – how a thirst for justice can upset the law, and because it is a thirst or appetite, it is not entirely reasonable. On the one hand, as Cicero proclaims, justice is transcendent, a “messianic” hope beyond “calculated proportion” (Cornell 113); a “social fullness” continually expanding its scope (Laclau 184); a “structural urgency” yearning for some future event that “exceeds calculation, rules, programs, anticipations and so forth” (Derrida, “Force” 27). The messianic impulse can be highly disruptive.
For this very reason, on the other hand, justice must call a halt by declaring, “this case is closed.” It is also enclosed. In one of its meanings, “jurisdiction” refers to the political arena (city, state, nation) or conceptual space (criminal, civil, family law) within which laws have authority, and authorities impose laws. We glimpse its limiting force in English expressions forbidding further activity, doubt, or hesitation: “that’s just the way things are,” “just do it,” “just because I say so,” “just because you must.” The word “just” both announces that a limit has been reached and claims the authority to impose such a limitation.
These colloquial phrases define a jurisdiction by invoking authorities of several kinds. They may appeal to a supreme power (God, parent, king, tradition) which issues a verdict that cannot be questioned. They may appeal to a moral limit – seen most boldly in the Kantian categorical imperative – by marking duties that oblige us to choose between right and wrong, but forbid us from evaluating those choices any further. They may appeal to nature (just the way things are) by marking primary causes or sources. Rudyard Kipling’s Just So Stories, which tell how the tiger got its stripes and the camel its hump, are literary expressions of this mode of justification. Or they may appeal to a controlling design by marking ends or inevitable effects that conclude a story. Literary designs are always fatal, whether the verdict is marriage in comedy or death in tragedy. Death is a poetically just ending in tragedy, not because it is what the hero deserves, but because it fulfills a pattern imposed internally by the plot, and externally by the generic laws governing tragedy. Tragic heroes like Hamlet rarely deserve their catastrophic fates, which is why tragedy is a transgressive genre that looks for something beyond justice, something that justice cannot satisfy.
Comedy promises something “better than the truth” (Rymer’s phrase), but it grows wary when the truth is unpalatable and must be expelled. Some truths are intolerable. However, when justice is assessed only according to its limiting function, when it is both done and seen to be done, then it is “satisfied.”
Genres are characterized by the kind of satisfaction they define and provide, where satisfaction involves a vision of what is just and proper. To govern in this way, their satisfaction must be understood not only subjectively as gratification or complacency, but also structurally as suggested by the word’s Latin root, satis, “enough.” Satisfaction is a matter of fulfillment, sufficiency, completion to exactly the right degree. There is nothing more to be done, because enough has been done, and done properly – the end. We feel satisfied when justice is satisfied, and it is satisfactory when it fulfills its own principles and formal procedures. This ideal may seldom be realized in everyday experience, but one of the joys of literature is that it convinces us, at least for as long as we are reading, that we can know exactly what is sufficient, and be content when it is achieved.
For many years contemporary literary critics have waged a campaign against closure, which is judged a pernicious effect that stifles a text’s more liberating possibilities. In even the most self-satisfied works they detect open or ambiguous endings, heterogeneity or undecidability. Before proceeding along this line, I would stress that the satisfaction afforded by literary forms may be an illusion, but like the magic circle in A Midsummer Night’s Dream and the “baseless fabric of this vision” in The Tempest (4.1.151), it is a wonderful illusion worthy of respect. It distinguishes art from life, if only precariously. Nevertheless, literature can indeed have the reverse effect. It can unsettle certainty about all its satisfying conditions: certainty about what actions mean, what characters deserve, what is fair or unfair. As The Merchant of Venice illustrates, it can breed a fertile, critical discontent which is, in its own provocative way, satisfying. Wai Chee Dimock admires literature when it is profligate. It depicts a world of accidents and irresolution, entangling readers in all the messy particulars of life ignored by justice, which insists on general rules impartially imposed. The novel especially presents “something like a constitutive ground for incommensurability” (168), because it is alert to the odd exceptions to the rule, and to the oddity of rules. Martha Minow defends the value of storytelling in law in similar terms: “Storytelling can disrupt the illusion that social sciences create in the service of rational administration, the illusion that the world is a smoothly managed house- hold. Storytelling invites both teller and listener to confront messy and complex realities – and to do so in a way that promotes communication and thinking about how to connect the past and the future by thinking about what to do” (Minow 33).
Here is another version of poetic justice. It is just, not because it honors an exact system of moral accountability, but because it is true to what is irregular in human experience and unaccountable in the convolutions of thought. Rymer asks literature to supply something “better than the truth”; Dimock worries that justice, if it is to work systematically and authoritatively, requires something less than the truth. Their disagreement is clarified by Shoshana Felman, who explains that because justice must seek “a force of resolution” in its practical operation, it can tolerate only as much truth as will lead to a decisive verdict, whereas literature aims not at “finality” but at “meaning”:
A trial and a literary text do not aim at the same kind of conclusion, nor do they strive toward the same kind of effect. A trial is presumed to be a search for truth, but, technically, it is a search for a decision, and thus, in essence, it seeks not simply truth but a finality: a force of resolution. A literary text is, on the other hand, a search for meaning, for expression, for heightened significance and for symbolic understanding. (Felman 54–5)
Literature gives free play to all the “equivocations, ambiguities, obscurities, confusions, and loose ends ” that the law cannot afford to acknowledge if it is to rule effectively. A judicial trial requires just enough truth to reach a legally satisfying resolution, which would be obscured by too much testimony or by evidence improperly presented, even if both are true. Truth must yield to propriety, in which case the word “verdict” (“true saying”) seems ironic. If a murderer is found not guilty after a fair trial in which the prosecution fails to mount a convincing case, or the defense raises reasonable doubt, then the verdict is correct. Justice is satisfied in the sense that the legal system has been respected and preserved from abuse, but surely there is something more to say.
Dimock and Felman expect something more from literature, because their revaluation of poetic satisfaction reflects a deeper disagreement about the primary assumption of le mot juste in relation to nature: the belief that world, mind, and word are companionable. As I noted, this faith finds expression in the healing forms of traditional comedy (which is only one kind of comedy), which assures us that the earth is our home. Working together, nature and reason (“Nature Methodiz’d”) can remedy our ills. Dimock and Felman want stronger medicine. They share Nietzsche’s scorn for justice conceived only as arithmetic: as a calculation that begins by “setting a price on everything and making everyone strictly accountable” (Nietzsche, Birth 205).
Thomas Hardy ruefully observed: “We [human beings] have reached a degree of intelligence which Nature never contemplated when framing her laws, and for which she consequently has provided no adequate satisfactions” (Florence Hardy 163).
Literary justice is now a matter of exploring and assessing dissatisfactions, a job approached by theorists with a curious mixture of pragmatism and hope. The pragmatism appears in Stanley Fish’s essays proving that all principles are groundless “formal abstractions” with “no content of their own,” and so must stoop to take both content and energy from politics, that is, from “the very realm of messy partisan disputes about substantive goods of which they claim to be independent” (Fish 142).
This messy realm sounds like the world of the novel praised by Dimock. Fish calls it an “agonism” (126), an endless conflict waged rhetorically: “strictly speaking . . . there are no principles, just more or less persuasive uses of highly charged vocabularies by politically situated agents” (233). Justice is conceived not as arithmetical balance or reciprocity, but as excess, not as a remedy for heretical conduct but as itself impatient, outrageous, even lawless. For Derrida, the most influential exponent of this view, justice becomes an unpresentable “experience of absolute alterity,” “overflowing,” exceeding “calculation, rules, programs, anticipations and so forth” (Derrida, “Force” 27). For Aristotle, justice was the virtue of virtues, and so it is, mutatis mutandis, for Derrida: “Justice in itself, if such a thing exists, out- side or beyond law, is not deconstructible. No more than deconstruction itself, if such a thing exists. Deconstruction is justice” (14–15). Formulated in this way, deconstruction is poetic justice.
I have used comedy as a test case, because it releases laughable forms of mischief – foolishness, misunderstanding, youthful disobedience, erotic desire, or any of the humors in the comedy of humors – in order to make a calculated show of taming them. These unruly energies make traditional comedy seem transgressive, but finally it is a conservative form that allows a short holiday from responsibility only to restore its grip more wisely, or that replaces an irrational law with a sound one (Frye, Anatomy 169). Because comedies celebrate fertility and replenishment, their worst foe is mortality, which they must either laugh away or defy through mockery, but which they cannot ignore. Shakespearean comedies usually include a brush with death, which is comically averted, for example in the inept sword fights that hurt no one in A Midsummer Night’s Dream and Twelfth Night. Like the sorcerer’s apprentice, however, comedies risk being overwhelmed by the disruptive energies that they engage. If Bottom could not shed his ass’s head, or Ariel could defy Prospero in The Tempest, then they might become monstrous rather than delightful.
Ariel would turn into Caliban. The more problematic the comedy (The Merchant of Venice, Measure for Measure), the more menacing death becomes, and the more miraculous is the means of averting it. Salvation may then take the form of good luck or a wonderful accident – but these solutions are themselves problem- atic, since they are produced by mere chance rather than by the rational authority of justice. If the solution requires a true miracle, a supernatural intervention, then comic justice will be impotent and another kind will be necessary to satisfy, or artfully dissatisfy, the audience. According to Frye’s scheme of genres, we will then pass from comedy into romance with its pattern of death and resurrection (The Winter’s Tale, Cymbeline). Comedy finds justice within the healing powers of nature, whereas romance is truly transgressive and traces ghostlier demarcations. Comedy is medicinal in the sense that it is a healing genre that finds its medicine in nature, for example in the love potion applied by Puck or in the herbs praised by Friar Laurence in Romeo and Juliet:
O, mickle is the powerful grace that lies In herbs, plants, stones, and their true qualities. For nought so vile that on the earth doth live But to the earth some special good doth give; (2.3.15–18)
The word “grace” reveals the divine source of curative powers, the higher justice that attends on nature, but because Friar Laurence lives in a tragedy, he promptly warns that nature is also the source of poison:
Nor aught so good but strain’d from that fair use, Revolts from true birth, stumbling on abuse. ... Within the infant rind of this small flower Poison hath residence and medicine power: (2.3.19–20, 23–4)
Unlike comedy, romance and tragedy are genres that employ a rhetoric of sacrifice to surpass the boundaries imposed by justice. Although the structure of sacrifice appears to resemble the neat symmetry of justice which aligns cause with effect, crime with offense, virtue with reward, in fact it is asymmetrical. The innocent (scapegoat, lamb, child, hero, Christ) suf- fer to redeem the guilty, thereby giving characters far better (romance) or far worse (tragedy) than they deserve. Justice permits restoration; sacrifice promises transformation. It offers grace rather than equity but only through poison and cruelty, unlike a judicial execution where the supreme penalty of one’s life is reckoned equivalent to one’s crimes. Instead, sacrifice pro- vides an unmerited gift, which Derrida calls a “gift beyond exchange and distribution, the incommensurable or the incalculable” (Derrida, “Force” 7). Romance and tragedy are more than satisfactory: they begin in scarcity and end in excess. Thus Hamlet reprimands Polonius for promising to do only what is fair: “Use every man after his desert, and who should ’scape whipping? Use them after your own honor and dignity: the less they deserve, the more merit is in your bounty” (Hamlet 2.2.529–33). His advice begins with an assumption of insufficiency: we are all not good enough for this world. It ends with a prospect of unmerited bounty for the giver as well as the recipient. If all of us deserve whipping, then how great can our honor and dignity be? They will increase only after the undeserved gift is presented by an undeserving giver. Hamlet’s liberality distinguishes him from Polonius, a figure of both the precision and folly of the law, but it also marks him for tragedy. The generosity he advocates here is the inverse image of his own fate, which will entail the deaths of innocent and guilty alike. He must discover that disclosing the truth about his father’s murder cannot redeem past injustice, and only the gift of his own death will resolve the tragedy. If comedy promises something better than truth, tragedy shows that truth is necessary but not enough.
The therapeutic alliance between justice and comedy as satirized in the operas of Gilbert and Sullivan. They devise absurd legal fictions to show how the law reaches into fantasy to satisfy its logic of atonement, for instance in a judicial sentence of “life plus ninety-nine years.” The very absurdity of the satire becomes so compulsive, however, as to reveal a precarious alliance between logic, music, and magic." [Poetic Justice and Legal Fictions]
Life plus ninety-nine years: The fantasy of legal fictions
"Ah, my Lords, it is indeed painful to have to sit upon a woolsack which is stuffed with such thorns as these!" (W.S. Gilbert, Iolanthe, in Plays 210)
"The most rigorously rationalized law is never anything more than an act of social magic which works." (Pierre Bourdieu, Language and Symbolic Power 42)
Oliver Cromwell died on September 3, 1658 and was buried with all the ceremony due to the Lord Protector of the Realm. In 1661, after the restoration of Charles II, the body was dug up and hanged in its shroud at Tyburn; its head was cut off and displayed outside Westminster Hall for almost twenty years (Fraser 678–9). This belated punishment can be seen as the fanciful execution of a justice whose ferocity was entirely symbolic, since only a decaying corpse remained to exhibit the shame and pain that Cromwell could no longer suffer. Its gruesome display illustrates how justice resorts to fantasy in order to render its severest judgments. Cromwell was given what he deserved, just as he had been buried in accordance with a more reverent judgment of his merits. According to the new authorities, however, his crimes were so horrendous that even the supreme penalty of death was insufficient, and some humiliation beyond the grave had to be devised. His punishment also demonstrates that justice is always public in the sense that it is a civic ritual affirming social order and official power.
Justice must be seen to be done, not only to ensure that it is done fairly, but as part of its larger structure and meaning. Even a prisoner doomed to solitary confinement in an obscure oubliette remains, in a sense, on public display, out of sight but not out of mind.
As Paul Gewirtz notes, although courts of law must be isolated from the public world, they must also be open to the public gaze; consequently, “there is always a struggle between this idealized vision of law – which proclaims that law is and must be separate from politics, passion, and public resist- ance – and the relentless incursion of the tumult of ordinary life” (Gewirtz 135). This dialectic of form (detached judgment) and energy (tumult) is essential to literature as well, and in both, their interaction generates im- aginative pressure that affects both the performance and meaning of the law. The ceremonies of justice are isolated by peculiar costumes and rituals – robes, wigs, woolsacks, Latin phrases – which make them theatrical and so invite scrutiny from the public audience that they exclude. Cromwell’s head remained as a dramatic prop until it was eventually rescued by a puritan sympathizer. Otherwise it might have remained permanently on display, as if to suggest that no amount of mortification would atone for the wrongs that its owner had inflicted on Britain.
Similarly, a vicious criminal today might be condemned to life plus ninety-nine years in prison. Ninety-nine is a magical number whose efficacy is symbolic rather than practical since, from the prisoner’s point of view, life plus one minute would last no longer than life plus a century. It is an example of how justice, in striving to be rigorous, reaches into fantasy to satisfy the logic of atonement: only the most precise calculation can compute the extraordinary punishment commensurate with an appalling crime. For example, The New York Times reports that after two police detectives were found guilty of serving as assassins and spies for the Mafia, one was sentenced to life plus 100 years and fined $4.74 million; while the second, who evidently was less culpable, received only life plus eighty years and was fined a mere $4.25 million. A further legal reckoning allows, however, that both will continue to receive tax-free disability pensions while in prison.1 Such meticulous discrimination seems to confirm Pierre Bourdieu’s observation: “the most rigorously rationalized law is never anything more than an act of social magic which works” (Bourdieu 42).
The Savoy operas of W.S. Gilbert and Arthur Sullivan, frolic with justice in its different guises: divine, social, literary, dramatic. They provide satirical insight into judicial logic by rendering it absurd, thereby exposing the magic within logic. Gilbert, who was called to the bar in 1863 and appointed Justice of the Peace in 1891 (Stedman 20, 281), was fascinated by the impudence of jurisprudence. He sensed, as M.K. Sutton perceptively remarks, that “the law had some primal connection with humor” (Sutton 23), partly because its theatricality inspires reverence for fallible authorities, but also, as I noted earlier, because they share a common rhetoric. In virtually every opera Gilbert satirizes abuses of the British legal system: its maze of regulations, the corruption of power, the folly of obeying incomprehensible rules, the privileges of rank that undermine equality before the law, the charade of courtroom solemnities concealing bias or incompetence. My concern is less with abuses of a just system, how- ever, than with inconsistencies evident within the system when justice and legality are at odds – an oddity that Gilbert exaggerates by lampooning the conventions of romantic comedy. More specifically, I will argue that a logic of proportional substitution, by which crime is matched symbolically with a punishment whose aim is to achieve atonement through suffering, forces the reach of justice to exceed its grasp. Justice reaches in two directions – upward to divinity, and downward to nature – but Gilbert mischievously shows that it cannot find a secure foundation in either, because it relies on the unruly discourses of legality, discourses guilty of the very errors they are intended to correct.
My object all sublime I shall achieve in time – To let the punishment fit the crime – The punishment fit the crime; And make each prisoner pent Unwillingly represent A source of innocent merriment! Of innocent merriment! (Mikado, in Gilbert, Plays 331)
For Bourdieu, the law culminates in fantasy because it begins in magic. The magic of the law is its quasi-divine power of command, which compels faith in judicial authority and social assent on matters of life and death: “Legal discourse is a creative speech which brings into existence that which it utters. It is the limit aimed at by all performative utterances – blessings, curses, orders, wishes or insults. In other words, it is the divine word, the word of divine right” (Bourdieu 42). As a divine word, the law can even project itself beyond death, as Cromwell’s fate illustrates, but to do so it must draw on the resources of art. An earlier account of how social institutions artfully invest themselves with religious authority appears in Moses Maimonides’s The Guide for the Perplexed, which I offer as a religious counterpart to Bourdieu’s sociology.
Maimonides insists that laws are not self-sufficient – they are not just simply because they are legal – but must derive their authority from prophecy, which is inspired by the divine agency of an angel bearing the word of God: “Even Moses our Teacher received his first prophecy through an angel. ‘And an angel of the Lord appeared to him in the flame of fire’ (Exod. iii). It is therefore clear that the belief in the existence of angels precedes the belief in prophecy, and the latter precedes the belief in the Law” (Maimonides 356). Naturally, belief in God precedes the belief in angels. Maimonides is concerned to anchor legality in morality, and morality in divinity; otherwise the law, left to define itself, might be arbitrary or partial. The law is true and just only because it is God’s Law, which, however, is not immediately knowable but requires a line of transmission urged by revelation, recorded in scripture, and sustained by faith. The logic of justice begins and ends in fire.
Bourdieu calls this attenuated process, by which justice is conveyed to humanity, articulated in law, and granted supreme authority, “symbolic power,” but he explains its function sociologically rather than theologically. Symbolic power operates not through prophecy but through “ministry”: “the delegation by virtue of which an individual – king, priest or spokesper- son – is mandated to speak and act on behalf of a group, thus constituted in him and by him” (Bourdieu 75).
A group delegates a leader who, in effect, creates the group by representing it, that is, makes it recognizable to its own members by articulating their needs. The complex transaction though which social power is ascribed to an individual who assumes the prior right of command must always be shrouded in mystery if it is to seem legitimate: “that is the very definition of symbolic power” and the cloak by which the law conceals its arbitrariness and partiality. Ironically, when justice is seen to be done, its inner dynamic is not seen at all. It is “misrecognized” through an ideological reversal of cause and effect, a mystification achieved through symbols like Maimonides’s angel, which have the uncanny ability to become the power that they represent. Thus a politician or judge derives his truly magical power over the group from faith in the representation that he gives to the group and which is a representation of the group itself and of its relation to other groups. As a representative linked to those he represents by a sort of rational contract (the programme), he is also a champion, united by a magical relation of identification with those who, as the saying goes, “pin all their hopes on him.”
Justice is rational, but in order to work effectively it requires a charismatic champion to sum up a community’s aspirations. In order to account for its origins, its power, and the righteousness of its consequences, it must supplement reason with fantasy.
The charismatic champion becomes Gilbert’s booby – the foolish judges, admirals, and Lord Chancellors who lord it over his operas. Through them, he discloses the absurdity of judicial power by seizing on moments when rational deliberation calls on magic, in Bourdieu’s sense of the word, to devise legal fictions. Rivka B. Siegel suggests that legal fictions are essential to judicial thinking, not just in the case of “a few quaint counterfactuals” but as “the figural terrain” of the social world “on which we fight some of the major social conflicts of our day” (Siegel 228). As an example, she cites the fact that a corporation is legally considered a “person” whereas the unborn are not (227). Gilbert pounces on and elaborates moments when the social standing of legal fictions seems wobbly. These he renders preposterous by word-play and equivocation, by treating figurative expressions literally (insisting on the letter of the letter of the law), or by arranging a conflict of jurisdictions.
As a historical parallel, consider the odd legal fiction at issue in Francis v. Resweber, “in which the United States Supreme Court allowed the State of Louisiana to attempt to execute a convicted murderer twice” (Sarat and Kearns 213). In May, 1946, Willie Francis was executed in the electric chair, but while he suffered painfully, he did not die, either because the machine malfunctioned or because he was so robust. He then appealed against a second execution on the grounds that it would be cruel and unusual punishment, which is banned by the United States Constitution. In a sense, Francis had already been executed and it would not be fair to execute him again, since the punishment must not exceed the crime.
Michel Foucault quotes from the French penal code of 1791 stipulating only “one death per condemned man,” and cites a tradition that a “condemned man should be pardoned if the execution happened to fail (Foucault, Discipline 12, 52). However, the United States Supreme Court ruled that Francis should be executed twice, although in a dissenting opinion Justice Bruton objected to authorizing “death by installments” (Sarat and Kearns 216), and raised the concern that the electrocution might fail again, in which case the court would have to rule how many executions were enough. Gilbert would have felt right at home in this courtroom. Whatever the legal merits of the case, that the debate should arise at all illustrates how the law risks absurdity precisely when it takes itself most seriously in matters of life and death.
Coincidentally, Gilbert had encountered a similar case in 1895, when he was sent a newspaper editorial, “Dead, Yet Alive,” which “dealt with the comic problems of an electrocuted criminal, pronounced legally dead, but resuscitated” (Stedman 306). Although he did not use the story, a year later he mounted his final collaboration with Sullivan, The Grand Duke, in which the comic device of a “Statutory Duel” (the duelists draw cards rather than use weapons) allowed him to invent a “legal fiction” whereby the loser suffers only a “social death” by forfeiting his position to the winner, who takes the loser’s place with all its advantages and obligations. This scheme is painlessly and mutually beneficial, since “it is a beautiful maxim of our glorious Constitution that a man can only die once. Death expunges crime, and when he comes to life again, it will be with a clean slate” (Grand Duke, in Gilbert, Plays 575, 576). Justice is done through a contractual exchange of identities that is treated literally rather than figuratively, as the winner is publicly recognized in his new identity, while the loser temporarily remains invisible. All of the operas use legal sleight of hand of this sort, as Gilbert seizes on judicial oddities and pushes them into fantasy.
Behind the nonsense are real legal dilemmas, however, as Willie Fran- cis attests. Any judicial system seeking equity in human affairs, whether through contracts, salaries, benefits, punishments, or obligations, aspires to establish an exact fit between (at least) two acts: crime and punishment, deed and reward, promise and enactment. How are we to measure the nature and intensity of the second act in compensatory relation to the first?
Gilbert is famous for stretching this relationship by devising grotesque punishments for trivial faults, like the “billiard sharp” in The Mikado condemned to play “On a cloth untrue / With a twisted cue / And elliptical billiard balls” (332). Like Cromwell and Francis, the billiard sharp gets what he deserves, but if there is no angel to guide us, how do we assess the kind and degree of punishment or reward commensurate with conduct judged blameworthy (punitive justice), or praiseworthy (distributive or compen- satory justice), or fair (exchange)? Extreme cases call for extreme measures, but measuring accurately may require imaginary solutions – posthumous torture, life plus ninety-nine years, death by installments – to real problems.
A punishment is supposed to reverse an earlier misdeed, for instance by returning what has been stolen or undoing what has been done. To restore the social balance, restitution must be as direct and immediate as possible. Often, however, losses cannot be restored or injuries redressed exactly, in which case a symbolic substitution must be devised as compensation, usually in the form of payment or suffering (344). Justice is an art of substitution, since there is no natural or literal connection between, for instance, the act of parking a car in a proscribed location and a fine of $43. The connection is arbitrary, not only because the fine could be different or some other penalty might be exacted, but because a recognizable social code must maintain the link between crime and penalty. One circumstance entails the other, but the entailment is possible only because the two events are joined through a judicial symbolism that is an elaborate expression of cultural thinking and values. Every society has a repertoire of symbolic relations defining the sorts of act that can serve as punishment and are deemed fair in kind and degree. These include: apology, payment, public humiliation, physical confinement, forfeiture, forced labor, enslavement, banishment, mutilation, torture, and finally, death through various kinds of ceremonial execution.
We can characterize a culture or historical period – or a literary genre – by analyzing its judicial semiotic, although our judgment will inevitably reflect our own scale of values. What seems cruelly unfair to a modern sensibility might have seemed reasonable and just, though no less terrible, to an earlier one. Here is a baroque verdict from seventeenth-century England:
The Court doth award that you be drawn upon a hurdle to the place of execution and there shall be hanged by the neck, and, being alive, shall be cut down and your entrails to be taken out of your body, and, you living, the same to be burnt before your eyes, and your head to be cut off, your body divided into four quarters, and head and quarters to be disposed of at the pleasure of the King’s Majesty: and the Lord have mercy on your soul! (quoted in Dick 23)
Even the hurdle is chosen as a suitably demeaning form of transport. This prisoner might find little consolation in learning that his torment is a semiotic exercise constituting a “signifying field” in which “[t]he criminal is punished primarily as a sign, then, a salient example, condensing and displaying in his person an entire structure of prohibition. And, as a sign, he is posted mostly for the benefit of others, held up to serve them due warnings” (Dimock 32).
But this should remind us that culture is a tissue of symbols, which are as real as heads and guts. The difficulty in “reading” a judicial semiotic is not just a consequence of different sensibilities or historical distance. Today the same problem arises in feminist criticism, which argues that our judicial system cannot serve women fairly because it fails to articulate their experiences within its symbolic grid of permissions and prohibitions. It fails to see them: “If a victim’s claim still cannot be adequately translated, her harm goes unnoticed. If she lies completely outside the current representation of justice, her harm, and indeed her very self disappear” (Cornell 109).
As we will see, Gilbert’s strategy is usually the reverse: he employs a judicial semiotic so familiar to his audience that he must defamiliarize it operatically, for example, in Nanki-Poo’s sentence in The Mikado:
When the day comes there’ll be a grand public ceremonial – you’ll be the central figure – no one will attempt to deprive you of that distinction. There’ll be a procession – bands – dead march – bells tolling – all the girls in tears – Yum-Yum distracted – then, when it’s all over, general rejoicings, and a display of fireworks in the evening. You won’t see them, but they’ll be there all the same. (Gilbert, Plays 316)
The problem of devising fair punishment for an indefinable crime is also satirized in Utopia Limited when the King is baffled by irresponsible jour- nalism: “That’s precisely it. I – I am waiting until a punishment is discovered that will exactly meet the enormity of the case” (523).
The problem of devising fair punishment for an indefinable crime is also satirized in Utopia Limited when the King is baffled by irresponsible journalism: “That’s precisely it. I – I am waiting until a punishment is discovered that will exactly meet the enormity of the case” (523).
The difficulty in measuring penalties is complicated by the need for justice to be “righteous” as well as right (Maimonides 345). It demands more than a simple congruence between crime and punishment, because its purpose is threefold: to repay the victim, to punish the criminal, and to act as a public example to deter others. To achieve these ends, justice must be exorbitant. Wrongdoing exacts not only repayment but expiation, which requires an additional burden of cost, labor, or pain from the wrongdoer. According to a more precise moral reckoning, then, the punishment should exceed the crime, since it must not only restore a lost balance – measure for measure – but also must chastise and so redeem the criminal, as well as admonish the public. Hence Maimonides’s calculation: “‘whom the judges shall condemn he shall pay double unto his neighbor’ (Exod. xxii, 8 ); namely, he restores that which he has taken, and adds just as much [to it] of his own property”. The punishment exceeds the crime, but only to the correct degree, in order to serve as just and fruitful recompense. Maimonides’s inventive but precise arithmetic is necessary if justice is to prevail, because “it is impossible for man to be entirely free from error and sin”, and sin must be expiated conscientiously.
Justice presupposes a view of human nature, whether it is regarded as created by God, fixed by “nature” or biology, or devised ideologically. Justice requires a basic model of human interaction, so that it can control that interaction for the benefit of all. We could have justice without law, because knowledge of right and wrong would be intuitive, and expiation of wrongdoing instantaneous.
This ideal state recalls the exalted promise of le mot juste whose truth, Flaubert said, should pierce like a dagger; or as Pope wrote: “Something, whose Truth convinc’d at Sight we find” (Pope 146). In Bourdieu’s terms, it would mean the obliteration of logic by magic, which would dismantle not only law, but society itself. Bourdieu regards society as a restless current of symbolic displacements through which knowledge, power, and prestige (“cultural capital”) are constantly negotiated between groups, which are defined only in shifting relation to each other.
A state of utter self-sufficiency is inconceivable, because it is counter to the nature of human beings – here is Bourdieu’s primary assumption – as sociable, symbol-wielding, insecure animals. For Bourdieu, people are not imperfect so much as incomplete, but we complete ourselves only imperfectly through acts of social magic such as justice. In a sense, we are always reliving Hans Christian Andersen’s fable of “The Emperor’s New Clothes,” which shows how political power commands by pretending to be invisible and by inducing citizens to accept the pretence. Despite ourselves, we believe in the magical clothes (the woolsacks, robes, and wigs of authority), so that we can trust the justice of the Emperor’s rule. Because human character cannot change instantly, because there is no justice without law, we require a recuperative process, at once painful and imaginative, through which to atone for our sins. Pain is essential to both justice and comedy, because it is the agent linking logic to magic.
Justice requires fictions that do not recognize their own fictionality; it is a “dream of objective adequation, its dream of a world exactly equal to the verdict it sees fit to pronounce” (Dimock 197). Dimock prefers literary jurisdictions, especially the novel, because it is so beautifully muddled by accidents and misfortune that it presents “something like a constitutive ground for incommensurability". It stretches justice “almost to its breaking point”, the point beyond which Gilbert pushes his legal conundrums. She praises the “illogic” of literature over the instrumental logic of justice and seeks in the former an antithetical mode of appreciation, which is more nuanced than the straightjacket of judicial reasoning:
I want to experiment with a nonintegral conception of reason, theorizing it, that is, as a field of uneven definition: more heterogeneous, more responsive to con- trary plausibilities, and therefore less harmonizing, less effective as a foundational guarantee. Imagined as the ground for disagreement rather than the ground for commensurability, human reason might turn out to underwrite not a unified propositional universe but many domains of thought, many styles of reasoning.
Here, Dimock plays a merciful Portia to the strict Shylock of jurisprudence. Although she does not quite say so, she hints that there is something more just – more compassionate, generous, and responsive – about poetic justice than there is in the law’s rigor. Because, in Drucilla Cornell’s words, “the absolute determination of what justice is, is itself unjust” (Cornell 114), dis- playing its insufficiency in literature is a corrective act, a form of restitution. In this view, literature is the necessary angel of earth, speaking prophet- ically, not by extolling God’s justice (Maimonides) or by championing a society’s aspirations (Bourdieu), but by proclaiming the vital multiplicity of the world’s particulars.
The law has a primal connection with humor because it offers a satisfactory resolution of human misconduct or misfortune, but also because it is apt to get things wrong. Both are conditions of comedy, which strives, with varying degrees of success, to rule those disruptive forces (misunderstand- ing, rivalry, greed, erotic desire, danger) that it must release in order to make a show of disciplining them. The law’s misrule also has an internal source. Robert M. Cover explains in a commentary on the theology of Jewish Law that according to Maimonides “the Messiah himself could do nothing against the law. He would have no power to change or transform the law, but only to oversee its more perfect implementation” (Cover 194). This extraordinary discipline, through which nature constrains even the supernatural, will reappear as a condition of natural law. Cover finds the same desire to trans- form the law in Jewish mysticism, noting that its urge to renounce legality on behalf of justice carries with it “a risk of madness,” because “Messianism implies upheaval and fairly total transformation. Law ordinarily requires a cautious discernment among commitments” (Cover 196).
These terms apply nicely to Gilbert and Sullivan’s Savoy operas, provided one has a sense of humor that regards madness as loony. Their judicial fantasies begins with an unruly rule of this sort, arising from Geoffrey O’Brien’s observation that in performance, words and music compete for our sympathies by offering conflicting visions of human nature.
Gilbert’s witty but misanthropic lyrics offer “mordant variations on themes of vanity and avarice, self-serving unctuousness and moral cowardice,” while his characters present a “parade of cynics, toadies, grasping senescent figures, gleefully duplicitous bureaucrats, and self-infatuated romantic leads” (O’Brien 16). If theories of justice always respond to a view of human character, then Gilbert’s vision is jaundiced and ironic: “I’m really very sorry for you all, but it’s an unjust world, and virtue is triumphant only in theatri- cal performances” (Mikado, in Gilbert, Plays 337). Throughout his career he was criticized for lacking “geniality and heart” or for displaying too cynical a view of human motives (Stedman 65, 73). Hesketh Pearson refers to his “ineradicable faith in the corruptibility of mankind” (Pearson 219).
In counterpoint to this pessimism, however, is Sullivan’s music, which is exhilarating, tender or buoyant, “as if to elicit a compassion otherwise alien to Gilbert’s creatures . . . Gilbert and Sullivan respectively reached different parts of one’s being, Sullivan offering emotion and worldly color, Gilbert a brilliance spinning in the void, withering to any notion of sincere feel- ing: the oddity of their collaboration was that they did both in the same instant” (O’Brien 16).3 G. Wilson Knight neatly called this collaborative rivalry “the mastery of the sadistic by melody” (Knight 300)
In Gilbert’s uncharitable world, the law is the source of both stability and instability. On the one hand, it is a tangle of restrictions supervised by punctilious officials who hinder love and freedom. As if to confirm Dimock’s claim that in fiction, bad luck confounds the symmetries of justice, Gilbert presents a spectacle of lost identities, mismatched lovers, exchanged babies, missing parents, and disasters caused by noble intentions. “Here’s a pretty mess,” sing the trio of unfortunates in The Mikado (Gilbert, Plays 327), voicing a bewilderment felt by all the ineffectual heroes who are led astray by the rules that are supposed to protect them. “Quiet, calm deliberation / Disentangles every knot!” sing a corresponding quartet in The Gondoliers (492), only to discover that deliberation is the source of trouble, as they think themselves into a tizzy.
They feel duty-bound to follow stultifying laws whose authority they trust absolutely, but whose value they cannot explain.
On the other hand, his dilemmas are resolved only within the law. In Alan Fischler’s analysis, a Gilbertian plot typically begins with “a problematic law which creates a conflict for the sympathetic characters between duty and desire” (Fischler, Modified 97); after lamenting, scheming, and singing, they solve the problem, not by flouting the law but by embracing it. The audience is enticed to laugh at the law, but only in a cathartic spirit that “purge[s] their reservations about its adequacy”, thereby reaffirming the status quo. Gilbert’s art is conservative:
And law, in Gilbert’s Savoy librettos, is consistently portrayed as protector and savior; indeed, his characters achieve their ultimate happiness not by overturning or abandoning law in the pursuit of liberty, as in traditional comedy, but rather by appealing to the precepts of law and submitting themselves to its arbitration. The quibbles through which the Lord Chancellor in Iolanthe, Ko-Ko in The Mikado, and Robin in Ruddigore manage to adjust or defend their actions in order to square them with obedience to the law illustrate one means by which Gilbert brings about his happy endings; the decisive revelations of the legal facts of Ralph’s identity in HMS Pinafore and Luiz’s in The Gondoliers illustrate another. (Fischler, “From Weydon-Priors” 218)
This assessment sounds too comforting to me, but it shows how Gilbert both foments and resolves problems by summoning the paradoxes of legality. What Bourdieu calls “social magic” – the faith that seeks jus- tice in rules and fallible rulers – is precisely the object of Gilbert’s satire. He writes comedies of “misrecognition” in which “legal furies” (Trial by Jury, in Gilbert, Plays 49) are released to confuse the plot, but eventually are tamed through inventive verdicts, loopholes, and byzantine judgments that turn the law inside out. Nonsense is corrected by nonsense. (The same might be said of Shakespeare’s Merchant of Venice.)
The Yeomen of the Guard summons the same frantic logic:
So the reason for the laying on of hands is the reason for the taking off of hands, and herein is contradiction contradicted! It is the very marriage of pro with con; and no such lopsided union either, as times go, for pro is not more unlike con than man is unlike woman, yet men and women marry every day . . . (408)
The artful entanglement through which the law logically creates problems that it is supposed to solve, and then magically solves the problems it has created, is satirized in Trial by Jury. Fischler claims that Gilbert’s faith in law reflects the Victorian preoccupation with “the disap- pearance of God”: “In the absence of divinity, law – imperfect though it may be – embodies the only reliable set of objective ethical standards left to society” (Fischler, “From Weydon-Priors” 219).
Although divinity is largely absent from the operas, the connection between transcendence and justice is still important to Gilbert, but (as always) with a twist. Gilbert shares Maimonides’s assumption that people are inherently flawed and need correction, but he is unsparing in his satire of all standards of correctness. On the one hand, he shows that “man cannot bear perfection long” (Stedman 294) and is happy only when prop- erly discontented. In Utopia Limited, the lotusland of Utopia is civilized to perfection by importing English institutions, but the resulting peace is so stultifying that it has to be enlivened by fractious party politics, another English legacy that produces “sickness in plenty, endless lawsuits, crowded jails, interminable confusion in the Army and Navy, and, in short, gen- eral and unexampled prosperity!” (Gilbert, Plays 559). On the other hand, Gilbert shows that the means of improving the human lot are as corrupt as humanity itself. The attenuated link between divinity and legality is not broken but given a devious turn. Instead of divinity inspiring justice, we find legality befuddling divinity. Here is Mercury, mes- senger of the gods, reduced to a drudge in Thespis, Gilbert and Sullivan’s first collaboration:
Oh, I’m the celestial drudge, From morning to night I must stop at it, On errands all day I must trudge, And I stick to my work till I drop at it!
Another misguided angel who tries to reconcile law and love, form and energy, appears in Iolanthe, which disastrously mingles the human and superhuman through a marriage “against . . . fairy laws” between a man and a fairy. The fruit of their illicit union is Strephon, “a fairy down to the waist – but his legs are mortal”. His joy is hampered by the law, since he is prevented from marrying Phyllis, a Ward of Chancery under the protection of the Lord Chancellor, who wants her for himself. He is Bourdieu’s social minister portrayed as a booby:
The Law is the true embodiment Of everything that’s excellent. It has no kind of fault or flaw And I, my Lords, embody the Law. The constitutional guardian I Of pretty young Wards in Chancery (208)
Legal language pervades this play but manages only to confuse things by creating a frantic conflict of jurisdictions, represented by Strephon’s divided nature. “My brain is a fairy brain,” he explains, “but from my waist downwards I’m a gibbering idiot” (205). He attempts to take command by becoming a Member of Parliament, but since his top half is Tory and his bottom half is Radical, he is unsure how to vote “on a division”. Disastrously, his dual character permits him to lead both parties in Parliament and so to pass every bill, no matter how silly, including opening the Peerage to competitive examination. In its farcical way, Iolanthe reveals the arbitrariness of the law when it is not sanctioned by divine authority.
Anything can be made legal, provided it is passed into law with due ceremony, but what ensures that laws will be just if there is no higher source of ratification? The Lord Chancellor is the play’s legal expert, but he is cast into a quandary when he discovers a split in his own authority. How can he judge himself for betraying his position by falling in love with Phyllis? What is his position? Can he give his own consent to his own marriage with his own Ward? Can he marry his own Ward without his own consent? And if he marries his own Ward without his consent, can he commit himself for contempt of his own Court? And if he commit himself for contempt of his own Court, can he appear by counsel before himself, to move for arrest of his own judgment? Ah, my Lords, it is indeed painful to have to sit upon a woolsack which is stuffed with such thorns as these! (210)
The solution is simply to rewrite the text by adding a single word – in pencil, the stage direction says – so that what was forbidden now is mandatory. Marriage between mortal and immortal becomes the law, rather than a crime. This is “The Emperor’s New Clothes” with a twist. Instead of dispelling the illusion of political power, the characters find a new tailor to weave a new legal fiction. Effortless solutions to intractable problems, such as abruptly reversing a statute or cutting the Gordian knot, always seem at once trivial and magical. Instead of submitting to a cumulative judicial process through which suffering gradually earns atonement, the miracle of comedy provides instant redemption through love and laughter. Similarly in The Pirates of Penzance, the mere mention of Queen Victoria’s name is enough to disarm the pirates; then the revelation that they are all “noblemen who have gone wrong” (154) is enough to set them right.
At the heart of Gilbert’s nonsense is the dilemma that there is no justice without law, but laws may be unjust – a problem for which he devises fantastic solutions. The fact that something is legal does not make it fair; it must be sanctioned by something more secure than a set of edicts written in pencil. I have noted two ways of anchoring legality in justice: through Maimonides’s faith in a divine sanction, conveyed prophetically; and through Bourdieu’s Nitzschean reversal of priorities, whereby justice is really the legality of the dominant social class, administered through the mystification of symbolic power. Gilbert relies on artistic versions of both prophecy and ministry, but he does so simply by writing plays in which poetic justice satisfies a bizarre fictional world. For divine law, he follows the rules of romantic drama (farce, burlesque, melodrama, comedy), which entice the audience to embrace a joyful distribution of reward and ridicule simply because it is too delightful to be doubted, at least for the duration of the opera. Literary justice is a function of genre, and comedy is a healing genre, with love and nature as its salves. More specifically, comic laws decree that love and nature – the heart’s truth and natural justice – constitute a higher authority that triumphs over wrongful social regulations. The truth of true love provides a sure measure by which the audience can judge the rightness of things:
Love that no wrong can cure, Love that is always new, Love is the love that’s pure That is the love that’s true. (Patience, in Gilbert, Plays 187)
In performance, songs like this appear at once sublime and quaint. The laws of sentimental romance direct the plot to its happy end, but they are also improbable, and Gilbert heightens their improbability by lampooning their exaltation of love and nature as healing agents. Even as he exposes their rule as illusory, however, Sullivan’s music ensures that the illusion retains its beauty, its melodic guarantee of rightness. This leaves the audience in an awkward position, because the comedy’s jurisdiction is insecure. Gilbert likes insecurity.
He pushes dramatic conventions to their breaking point, as if dar- ing the audience to believe, for instance, that “in marriage alone is to be found the panacea for every ill” (Sorcerer, in Gilbert, Plays 62), but then making the medicine taste sour. He casts doubt on the justice of his own plays, until the audience is soothed by the charm of Sullivan’s music. In Patience and The Gondoliers he proposes a lottery to pair off lovers, as if chance is as reliable a matchmaker as is affection.
But Patience’s faith in pure love as the measure of truth is twisted into a Gilbertian knot. According to another romantic precept, which she dutifully obeys, love so pure must be utterly selfless, which means that she must renounce the man she loves. To remain pure, love must sacrifice itself and remain unsatisfied. At a more caustic moment in the opera marriage was derided as “penal servitude for life” (Gilbert, Plays 207).
Some of Sullivan’s most poignant songs are sung by older women (contraltos) who contemplate the passing of time, for example Katisha’s “Hearts do not break! / They sting and ache” and Jane’s “Silvered is the raven hair”. Marriage is thus either a punishment or a reward, depending on the character, but in either case it is conclusive.
The case of Phoebe in The Yeomen of the Guard is so troublesome... their dialogue becomes painfully strained, as she offers him her hand but not her heart, as if to confirm that cunning and malice can successfully enlist legality in their service:
phoebe : Oh, father, he discovered our secret through my folly, and the price of his silence is – wilfred: Phoebe’s heart. phoebe: Oh dear, no – Phoebe’s hand. wilfred: It’s the same thing! phoebe: Is it? (Yeomen, in Gilbert, Plays 444)
Poetic justice fails her when she is blackmailed into marrying her beloved’s official torturer. For Gilbert, love, law, and nature are not reconciled, and he pushes to the breaking point the artistic convention that love is nature’s blessing. According to Maimonides: “[T]he law always follows Nature, and in some respects brings it to perfection; for Nature is not capable of designing and thinking, whilst the Law is the result of the wisdom and guidance of God, who is the author of the intellect of all rational beings” (Maimonides 352).
The law is “Nature Methodiz’d” as Pope said (Pope 146), delicately poised between nature, its source of raw energy, and God, its source of rational design. To obey the heart’s law is to follow nature, and natural laws are supposed to be fairer than social regulations, since “Nature never errs” (Princess Ida, in Gilbert, Plays 256). On the contrary, for Gilbert the heart always errs – is errant. “Hearts often tack,” shifting unaccountably with the winds of chance:
Ten minutes since my heart said “white” – It now says “black.” It then said “left” – it now says “right” – Hearts often tack. ... In sailing o’er life’s ocean wide No doubt the heart should be your guide; But it is awkward when you find A heart that does not know its mind! (Ruddigore, in Gilbert, Plays 365)
And when Strephon fervently argues the case for natural law in Iolanthe – My Lord, I know no Courts of Chancery; I go by Nature’s Acts of Parliament. The bees – the breeze – the seas – the rooks – the brooks – the gales – the vales – the fountains and the mountains cry, “you love this maiden – take her, we command you!” ’Tis writ in heaven . . . (214) – the Lord Chancellor promptly asks for “an affidavit from a thunderstorm, or a few words on oath from a heavy shower” to show the folly of Strephon’s appeal.
Literature illuminates judicial thinking by recasting it as aesthetic form, making its symbolic linkages visible as they conform – or ironically fail to conform – to the conventions of genre. Northrop Frye notes that comedic plots approach a catastrophe or ritual death, as if to deliver themselves from the one thing that comic justice cannot accommodate, the one thing that laughter cannot heal (Frye, Anatomy 178–9). The Mikado makes a joke of this danger by continually threatening to execute its lovers in order to satisfy the Mikado’s capricious law against flirting, until the threat evapor- ates through a legal quibble that argues death into inconsequence. Ko-Ko simply declares a figure of speech to be a literal fact:
"When your Majesty says, “Let a thing be done,” it’s as good as done – practically, it is done – because your Majesty’s will is law. Your Majesty says, “Kill a gentleman,” and a gentleman is told off to be killed. Consequently, that gentleman is as good as dead – practically, he is dead – and if he is dead, why not say so?"
"mikado: I see. Nothing could possibly be more satisfactory!"
(Gilbert, Plays 344–5)
Logical, ethical, and emotional satisfaction is the ideal reward of both justice and literature. Just as justice is satisfied when its institutions provide exactly enough (satis) recompense or punishment to discharge the judicial process, so literary works strive for closure, which they may or may not achieve. This does not mean that all literature concludes neatly, only that proposing and pursuing a satisfactory goal are primary literary motives, which may be fulfilled in a “triumphant matrimonial finish” (Utopia Limited, in Gilbert, Plays 516), or artfully frustrated in an ending that shocks, puzzles, or vexes us. There can be satisfaction even in frustration if the effect is stimulating enough. If we are puzzled at the end of Henry James’s The Turn of the Screw, we still feel that the screw has been well turned.
All genres subsume agents of dissatisfaction, who must either be reconciled to the prevailing justice or be excluded as outlaws. In comedies, there are malcontents and misanthropes who refuse to join in the final festivities (Frye, Anatomy 176) and who continue to mind the why and wherefore long after others have accepted a comic verdict. Similarly, readers who defy a work’s generic laws are critical malcontents who usually seek a different order of justice. A feminist or postcolonial critique of a classic work, for instance, exposing Huckleberry Finn as subtly racist, is a case in point.
Comedy ritualistically banishes its malcontents through ridicule, partly to purge their ill humors and partly because it cannot afford to keep them in view during the concluding festivities. Some characters are so disconcerting, so far at odds with comic justice, that banishment is not enough and they must be sacrificed. With sacrifice, we reach a frontier that judicial logic cannot cross even with the aid of fantasy and pass into a different imaginative order.
While the structure of sacrifice resembles the balanced duality of justice, its character and effect are different. Sacrifice does not envision the world as a commensurate order, but as unbalanced and unfair to its victims. Justice is rational; sacrifice is mystical, as its name implies, a “making holy” through unmerited grace. Justice satisfies; sacrifice blesses. Frye calls the pharmakos or scapegoat a “random victim” (Frye, Anatomy 41) who does not fit into the systematic reckoning of justice because he or she is neither innocent nor guilty. He is innocent in the sense that what happens to him is far greater than anything he has done provokes . . . He is guilty in the sense that he is a member of a guilty society, or living in a world where such injustices are an inescapable part of existence. The two facts do not come together; they remain ironically apart. (41–2) that he is a member of a guilty society, or living in a world where such injustices are an inescapable part of existence. The two facts do not come together; they remain ironically apart. (41–2)
Justice cannot tolerate such irresolvable gaps. It secures social order by restoring an ethical balance, whereas sacrifice is disproportionate in its effects: it redeems society by giving it more than it has lost, more than it deserves. For this reason, Frye associates sacrifice with the revolutionary impulse of romance more than with the conservative consolidation of comedy (Frye, Secular 149). As Cromwell’s posthumous fate illustrates, justice calls on fantasy to reach beyond death in order to maintain social well-being, whereas sacrifice redeems us from death by promising “a higher world than that of ordinary experience,” a world that “transcends the cycle of nature". This promise far exceeds the satisfactions of justice, and Frye sees as its ultimate symbols not the fruitful union of marriage, but virginity and fraternity. Romance concludes by envisioning a paradoxically “atomized society” combining the solitary and the sociable, an imagined order comparable to the messianic justice-beyond- all-law envisioned by Derrida. He too foresees a wonderful sociality of discreet individuals:
This “idea of justice,” seems to be irreducible in its affirmative character, in its demand of gift without exchange, without circulation, without recognition or gratitude, without economic circularity, without calculation and without rules, without reason and without rationality. And so we can recognize in it, indeed accuse, identify a madness. (Derrida, “Force” 25)
Gilbert’s characters are loony rather than mad in this exalted manner, and his plots still rely on marriage – the social contract that disciplines the wildest passions – to restrain the transgressive energy that Derrida invokes here. His operas do not transcend law, but they map its cruelties before sinking back into bemused irony. Farce does not permit heroism. Jack Point in The Yeomen of the Guard is Gilbert’s most abject character and the one most cruelly sacrificed. Like King Gama, he is one of “Nature’s blunders” (Princess Ida, in Gilbert, Plays 255), a brooding, cynical jester who generally is identified with Gilbert himself (Pearson 181). Hounded by a mob, scorned and jilted, he is finally betrayed by both love and nature:
I am a salaried wit; and is there aught in nature more ridiculous? A poor, dull, heart-broken man, who must needs be merry, or he will be whipped; who must rejoice, lest he starve; who must jest you, jibe you, quip you, crank you, wrack you, riddle you, from hour to hour, from day to day, from year to year, lest he dwindle, perish, starve, pine, and die! (Yeomen, in Gilbert, Plays 427–8 ) All the schemes, accidents and coincidences in the plot conspire against Point, who incongruously dies on stage in the midst of the final festivities, a visible reminder of an agency that justice cannot reward, punish, ridicule, or heal. It may be in accordance with the dictates of the comedy, but it really is not fair." [Poetic Justice and Legal Fictions]
"and you will know the truth, and the truth will make you free" (John 8:32)
"truths are illusions of which one has forgotten that they are illusions . . . Art is with us in order that we may not perish through truth." (Nietzsche, “Truth” 694; Will 264)
It appears in Ezra Pound’s complaint that in the modern republic “the health of the very matter of thought” is weakened when “the application of word to thing” becomes “slushy and inexact, or excessive or bloated” (Pound 21). It appears more cautiously in George Orwell’s essay “Politics and the English Language,” where he warns that modern political discourse must be reformed, not just because it is sloppy but because it deliberately clouds judgment, making the most atrocious injustice seem normal. He, too, believed that an honest style would sharpen critical and moral insight (although he excluded literary language from his analysis1): “the present political chaos is connected with the decay of language, and . . . one can probably bring about some improvement by starting at the verbal end” (Orwell 157).
However the verbal end is unruly, not just because it is so hard to formulate truth or to interpret its documented traces, but because the relations between truth, legality, and justice are always strained. Judicial procedures may claim to seek “nothing but the truth,” but because they find “the whole truth” far too much to assimilate, they must exclude testimony or evidence by following a rule of appropriateness that is continually disputed. When, for example, is evi- dence unduly prejudicial, and when is it merely incriminating? When is a person’s past behavior relevant to a case, and when it is unfairly distracting? I have adapted Shoshana Felman’s suggestion that criminal trials especially are concerned as much with closure as with truth. They are formally satisfied when a verdict is delivered in accordance with correct procedures, whether the accused person actually committed the crime or not. The so-called “Blackstone ratio” derived from William Blackstone’s Commentaries – “Better that ten guilty persons escape than that one innocent suffer” (Volokh) – is a calculation that accepts a remarkable margin of error.
In Gilbert and Sullivan’s operas, in comic jurisdictions truth is often expressed as true love: the right couples are rightly paired off to the satisfaction of both characters and readers. Comic truth is also expressed as clear vision: after a trial of error, characters and readers come to see reality accurately and to accept it as just. Seeing is believing. In the final scene of Twelfth Night, Shakespeare uses the simple expedient of placing all his characters on stage without disguise for the first time. Their simply seeing each other is sufficient to permit a dramatic recognition that resolves the comic confusion. The “talking cure” associated with Freudian psychology aims at a similar effect of bringing truth to light (Launer). Encouraged by the sympathetic questioning of a psychologist, a patient speaks freely to disclose the subconscious source of his or her neurosis. Knowing the truth, however painful or shameful, is therapeutic. The same hope motivated South Africa’s Truth and Reconciliation Commission. Even Freud’s account of the traumatic “return of the repressed” suggests that the truth will re- present itself as nightmare until it is confronted. That one can be cured by truth is as refreshing a belief as that one can be cured by literature.
If justice cannot tolerate too much truth, how much falsehood can it withstand? Tragedy reveals not only the inadequacy of passion and clear vision in revealing truth, but the inadequacy of truth itself. Discovering the truth is necessary for a tragic hero, but it is not enough, and a more radical purgation is required. Oedipus’ severe social and psychological problems are exacerbated by his learning the truth about his parents; Hamlet’s revelation of his father’s murder brings vengeance but not justice; in Billy Budd, the truth is endlessly debatable and ultimately irrelevant. In a more ironic mode, to which I now turn, truth becomes the problem rather than the solution. Neither therapeutic nor purgative, it becomes unbearable, so that it is an act of kindness or cowardice, or both, to conceal it from the weak- hearted. “Human kind cannot bear very much reality,” Becket laments in T.S. Eliot’s Murder in the Cathedral (Eliot, Murder 75; the phrase is repeated in “Burnt Norton”). This solicitude prompts the “necessary lie” or well-intentioned deception associated with Socrates’ advice in the Republic that the populace must be told “some magnificent myth” rather than the unpalatable truth about their social origins (Plato 115–16). The necessary lie reappears in Nietzsche’s warnings that “truth” is an erratic, linguistic fiction that makes life seem intelligible and worthwhile to all but the heroically minded: The world that concerns us at all is false – that is to say, is not a fact; but a romance, a piece of human sculpture, made from a meagre sum of observation; it is “in flux”; it is something that evolves, a great revolving lie continually moving onwards and never getting any nearer to truth – for there is no such thing as “truth.” (Nietzsche, Will 107)
According to these views literature offers “poetic justice,” either in Rymer’s sense of a reassuring falsehood, or in the sense of a just aware- ness of the fundamental incommensurability and untruthfulness of things. In the first case we read with the grain: we may know that the myths are false but prefer to treat them as if true. In the second we read against the grain: we resist the solace of “romance,” but because Nietzsche’s explanation cannot itself be true (“for there is no such thing as ‘truth’”) we are left suspended between belief and disbelief. Both conditions are evoked by the final words of Conrad’s Marlow, the narrator of Heart of Darkness, who wavers between illusion and delusion – between Plato’s politic misrepresentation and Nietzsche’s compulsive mirage.
Coleridge longed “to destroy the old antithesis of Words & Things, elevating, as it were words into Things, & living Things too” (Coleridge, Letters 626), in which case the poetic word would touch us palpably: “it heats and burns, makes itself to be felt. If we do not grasp it, it seems to grasp us, as with a hand of flesh and blood, and completely counterfeits an immediate presence, an intuitive knowledge” (Coleridge, Inquiring 101). Tactile language later becomes the mot juste of modernist poetry proclaimed in T.E. Hulme’s imagist manifestos: “With perfect style, the solid leather for reading, each sentence should be a lump, a piece of clay, a vision seen; rather, a wall touched with soft fingers” (Hulme, Further 79); and by William Carlos Williams: “Oh catch up a dozen good smelly names . . . But can you not see, can you not taste, can you not smell, can you not hear, can you not touch – words?” (Williams 10).
Truth, even scientific truth, is always tinged by magic, which, like inspiration, is too unruly to be a reliable ally. Like the sorcerer’s apprentice in Goethe’s fable, it might release chaos as well as freedom.
All the nobler aspects of our life are based upon fictions . . . The higher aspects of life are based upon noble delusions. (Hans Vaihinger, The Philosophy of “As If ” 84)
till the poets among us . . . can present for inspection, “imaginary gardens with real toads in them” (Marianne Moore, “Poetry”, in Collected Poems 41)
Justice may falter, not only through the inadequacy of its agents – incompetent judges, biased juries, false testimony – but through its own inner contradictions. Giving a common ground to all of these interests is the role of fiction as both an organizing principle and a medium of exploration, as a rational principle permitting imaginative discovery. I conclude with some observations on this fictive ground, which marks the border between art and life.
Marianne Moore’s imaginary garden containing real frogs suggests the strange alliance of enchantment and reason conveyed by the word “fiction,” which must be understood in its twin meanings of artefact and enabling illusion. Its Latin roots (fingere, fictio) suggest “to shape, fashion, form, mold”; “to devise, represent, conceive.” This first meaning denotes both a structural principle and the understanding that it yields – a thing formed and formulated, rendered intelligible through its adherence to rules. However, this sense does not distinguish between, for example, a true story and an invented one, since both are designed with the same tools. The second more familiar meaning, which links fiction to falsehood, expresses suspicion that our ability to design forms is a creative but corrupting talent. It permits us to invent and so to deceive others and even to fool ourselves. Fictions then become pleasing or instructive false- hoods, which may mislead us or which may be enjoyable even when we know they are false, as in the case of literary fictions. Because literature entices us into a subjunctive world – what might be, should be, or might have been – it has always sparked disputes about the relations between fiction, falsehood, truth, and pleasure. This is a familiar theme.
“The truest poetry is the most feigning,” says Shakespeare in As You Like It (3.3.17), recalling Aristotle’s advice that the successful dramatist will follow Homer’s art of telling lies convincingly, and will prefer plausible falsehood to an incredible truth (Aristotle, Poetics 133). The intent is not to deceive, but to please and to reveal through pleasure. Feigning can be an avenue to truth, even if it is not itself true, as Polonius advises in Hamlet:
Your bait of falsehood takes this carp of truth; And thus do we of wisdom and of reach, With windlasses and with assays of bias, By indirections find directions out. (2.1.64–7)
A religious account of the interplay of fiction, falsehood, truth, and fairness would ascribe their devious partnership to human impurity or sin. Because of our fallen nature, we see through a glass darkly and must earn enlightenment through an ordeal of error and injustice. A philosophical account might locate the problem in reason itself, which can accomplish its task only by devising heuristic devices, which are strategies known to be false but useful because they offer insight. For example, social contract theories of the origin and character of society (Hobbes, Locke, Rousseau) do not require that a specific historical event occurred when the contract was devised; instead they provide an analytical model that illuminates the conditions and relations prevailing in any society.
Hans Vaihinger is the modern philosopher most closely associated with the practical value of heuristic fictions. His philosophy of “as if” (first published in 1911) discerns “consciously false ideas, or rather judgments” (Vaihinger xli) at work in all systematic understanding, in all disciplines, in social life, and in the very reflexes of reasoning through analogy. All employ the “ingenious dexterity” of “fictional thought” in order to make the world liveable. Fictions are instruments, whose value depends on their adequacy. Because thought is “an instrument for finding our way about more easily in this world”, its success must be assessed in tactical terms – according to how well it succeeds. Unlike hypotheses, which are proposed in the belief that they may be verified, fictions are “artifices of thought” that never aspire to be true, only to be effective. They cannot be rejected as false, since they never claim to be true; they can be only satisfactory or unsatisfactory. For Vaihinger fictions operate like the necessary lies that we have noted in literature: they offer something better than truth, namely a sustaining, rewarding adaptation to reality. This is one possible definition of justice. He could be taking Aristotle’s advice when he declares that “fruitful errors” are better than “barren truths” and far more valuable than “harmful truths”:
“Fiction is, after all, merely a more conscious, more practical and more fruitful error”.
Vaihinger is so enthusiastic about divulging fictive thinking that he finds it pretty well everywhere. Careful inspection reveals that all the grand, metaphysical ideas (freedom, substance, the absolute) are logical monstrosities, because they are not only contrary to reality but contradictory in themselves. Nevertheless they are indispensable as fictions: “Without the imaginary factor neither science nor life in their highest form are [sic] possible. The real tragedy of life is that the most valuable ideas are, from the point of view of reality, worthless”.
Worth and worthiness are the prizes that Vaihinger seeks, but he ensures that they remain perilously dependent on falsehood. In his account, humanity must adapt itself to a world for which it is ill adapted through a subterfuge that fools no one, or at least no philosopher. Because all knowledge is analogical, that is to say fictive, “it is utterly impossible to attain knowledge of the world, not because our thought is too narrowly circumscribed . . . but because knowledge is always in the form of categories and these, in the last analysis, are only analogical apperceptions” (29–30).
This defect is especially shocking when we consider essential categories of judicial judgment such as freedom and justice. Ironically, the many vices produced by human fallibility can be assessed and corrected only through ethical fictions, whose necessity is itself “a consequence of human imperfection, and, like the various aids to reflective thought, [they] are by no means an unmixed blessing”.
Defect must correct fault. Responsibility, culpability, and liability must be calculated through fictions displaying the lineaments and powers of moral subjects who thereby can be called to account for their actions. Such fictions shape our most intimate notions of personal identity and agency. Just as Polonius’ carp of truth snaps at the bait of indirection, and Marianne Moore’s frog of reality appears only in an imaginary garden, so Vaihinger’s ideal of justice is articulated only in “juristic fictions” (33), all based on the fundamental principle, known to be false but too valuable to reject, that individual cases can adequately be subsumed by general categories. He insists that this artifice of rea- soning is not only erroneous but unjust – incapable of rendering justice to specific cases – yet without it justice is impossible.1 Here’s a pretty mess.
Like other rhetorical tropes, legal fictions are not literally true, but they permit a line of thinking that leads to a desired destination by granting the law explanatory and justifying force. Sometimes it is the explanation, sometimes the justification that requires a fictive boost. The Oxford Dic- tionary of Law explains that legal fictions provide short cuts through pro- cedural complications by curtailing archaic procedures, offering remedies to cumbersome problems, untangling legal knots, and enlarging a court’s jurisdiction (Martin 188). They are used not just in unusual or awkward cases, but pervasively and with far-reaching implications.
In literary fiction we find a hopeful alliance of touch, tact and tactics – the sensory, sensible, and effective; the aesthetic, contem- plative, and practical. Their alliance is competitive as much as cooperative, however, because the three agents stimulate the moral imagination to make justice conceivable and desirable, but also to set concept and desire at odds. Both the hopefulness and the disorderliness of their alliance – their unruly rule – are captured in Wallace Stevens’s uncanny evocation of the imagin- ation in “The Idea of Order at Key West”:
Oh! Blessed rage for order, pale Ramon, The maker’s rage to order words of the sea, Words of the fragrant portals, dimly-starred, And of ourselves and of our origins, In ghostlier demarcations, keener sounds. (Stevens, Palm 98–9)
Order is motivated by a rage that it can never completely master; rage is inspired by an orderliness that it can never quite attain. Form and energy, law and its blessing, justice and the thirst for justice, all inhabit each other with an intensity that only a poetic image can express." [Poetic Justice and Legal Fictions]