"Billy Budd" and the Untold Story of the Law
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Transcript of "Billy Budd" and the Untold Story of the Law
Cardozo School of Law
"Billy Budd" and the Untold Story of the LawAuthor(s): Brook ThomasSource: Cardozo Studies in Law and Literature, Vol. 1, No. 1 (Spring, 1989), pp. 49-69Published by: Taylor & Francis, Ltd. on behalf of Cardozo School of LawStable URL: http://www.jstor.org/stable/27670190 .
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_f_
Billy Budd
and the
Untold Story of the Law
Brook Thomas
It is a story told fairly often in our literature: this untold story of the law. Poe tells it in his detective stories. Unable to solve a crime,
agents of the law have to wait for Dupin to piece together a coherent
story ? a task that often involves the ability to recognize what counts
as evidence. Twain tells it in Puddn'head Wilson, when Puddn'head
introduces fingerprints as evidence in order to clear up the mysterious events in Dawson's Landing. And Susan Glaspell gives it one of its
most articulate expressions in "A Jury of Her Peers," when the sheriff
and county attorney accompanied by the sheriffs wife and another
woman travel to a lonely prairie home where a farmer has been found
strangled in his bed. The wife has been arrested, but the attorney feels
that he needs to find a motive to clinch his case. As he and the sheriff
search for evidence, the two women privately reconstruct the scene of
the crime from the details of the wife's domestic chores, finding the
motive for her crime in the life she was forced to lead. Having recon
structed how her husband had strangled the life out of her as he had
strangled the pet bird that they discover, the two women tacitly con
spire to repress the evidence they have found, evidence that the
county attorney would need to convince a jury.1 "Some definite
thing," he says, "something to show. Something to make a story about." The wife is eventually acquitted by a jury of her peers who are
aware of a story that will never be heard in court.
Of course this story of the untold story of the law is not con
fined to American literature. It is told and retold in many of the great works of world literature. In Antigone. In Michael Kohlhaas. In The
Stranger. It is told so often that we could call it a universal story. But
as universal as the story seems, it is a story with a history. Not all laws are the same; not all legal systems leave the same stories untold.
Indeed, my three examples from American literature point to impor tant differences, differences that could allow us to sketch a short his
tory of critiques of our legal system. In Poe the critique centers on a
lone individual who uses his analytical genius to reconstruct a chain
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of events officers of the law cannot. In Twain it also involves an out
sider, but one who has been professionally trained at an Eastern law
school and one who relies on science more than genius. In Glaspell it
is conducted by representatives of an unrepresented group in Ameri
can society, who rely on the authority of their experience of marginal ization to understand the causes of crime that people lacking that
experience would not recognize. Those involved in the increasingly popular activity of apply
ing recent literary theory to the law would be wise to pay attention to
the history of this story because it has implications for their project. Much attention has been paid to the effect theories of textual indeter
minacy have on the law. Legal scholars who believe in the possibility of establishing a method to arrive at correct interpretation feel com
pelled to combat the deconstructive argument that any effort to estab
lish a full interpretation of a text will be disrupted by the tropological nature of language, that all interpretation is inevitably errant. One
legal scholar, for instance, spouts charges of nihilism, while another
wonders, "What does one do, then, when studying opinions, if one
gives up the enterprise of determining whether or not they are 'cor
rect'?"2 At the same time, some radical legal scholars welcome the
notion of textual indeterminacy because, for them, it illustrates the
arbitrariness of the system by reminding us that the rules of legal
interpretation are set not in stone but social constructs.3
Unfortunately, much of this debate takes place in a historical vacuum. Argue all we like about textual determinacy or indeterminacy, the social function of the law demands that it render judgments, in
evitably errant or not. Indeed, judges did not need deconstruction to
tell them that no matter what judgments they render, they risk error.
Furthermore, the decisions they render are not arbitrary. They are
determined, within a set of institutional constraints. But if someone
like Stanley Fish seems to think we have solved the problem by rec
ognizing that interpretations take place and that they always take place within a set of institutional constraints, it seems to me that our task
has just begun.4 Why, we need to ask, are certain institutional con
straints accepted rather than others? Why are some modes of interpre tation granted authority while others are not? This is an important
question to ask because to try to answer it is to recognize the possibil ity that at particular moments in history some modes of interpretation serve the interests of some segments of society at the expense of
others. In other words, to raise this question is to begin to explore the
question of social justice. And it is at this point that the story about the untold story of
the law takes on added importance because what that story implies is
that there is, after all, an official story to the law, a narrative that allows
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the legal system to determine what is admissable and inadmissable
evidence. An official story that excludes other possible stories. As the
late Robert Cover argued, "No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning."5
Whereas we normally consider a judicial opinion to be the product of
legal reasoning, Cover's insight into the inseparability of law and nar
rative reminds us that the persuasiveness of a decision depends upon an implied narrative that makes its reasoning seem logical. To try, as
Cover proposes, to understand law "in the context of the narratives
that give it meaning" is to try to reconstruct the cultural narratives that
grant the law its authority. That reconstructive task is not so easy, however. Even though
I have referred to an official story of the law, this story is never explic
itly spelled out, since, as we have already seen, part ofthat story is the
belief that legal logic, not a convincing story, determines the outcome
of a case. Paradoxically, then ? Poe's, Twain's, and Glaspell's stories
are examples ? it seems easier to tell what stories are excluded than
it is to reconstruct the narrative that excludes them. So I touch on a
second meaning of my title: the really difficult story to tell about the
law, the one most likely to be untold, is the one that defines the legal
system. To examine the history of the untold stories that are told is
one way to try to reconstruct aspects of this story that is left untold. It
is not, I can assure you, a simple story. In fact, it might be more accu
rate to say that it is made up of many stories, often in conflict with one
another. Because of this complexity, the story I am about to tell will,
unfortunately, leave a lot untold.6
I.
Billy Budd is ideally suited to exploring the untold story of
the law. First of all, few texts leave us with a stronger feeling that the
formal demands of the legal system inevitably exclude some impor tant aspect of human existence. It is the legal system's failure to
respond to Billy's story that causes so many readers to question its
justice. Equally important for my purposes, Melville's narrative
expresses what many take to be a story that any consideration of jus tice must consider ? a story shaped by two related conflicts. One is
between the desire for individual freedom and the need for social
order. The other is between the authority of natural law and that of
manmade law. To understand precisely how Billy Budd interweaves a
narrative bounded by these two conflicts is to understand better an
important aspect of the untold story that shapes our sense of justice. To tell that story I will be forced to deviate from some of the
standard procedures that I was trained to follow as a literary critic. For
instance, while it is fascinating for Melville scholars to try to uncover
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Melville's intention, as far as questions of justice go his intent or non intent is nothing to the purpose. Whether Melville sided with Vere or
not, whether he intended an ambiguous work or not, his intention has no bearing on the justness of Vere's position. My attention, therefore,
will be directed to other questions. Billy Budd gets so much attention in discussions of law and literature because we continue to consider
questions of justice in the space bounded by its narrative. Rather than
join the debate taking place within that space, however, I will argue that Billy Budd dramatizes the limitations of posing questions of jus tice the way we do. The ragged edges of Billy Budd suggest that the
space bounded by its symmetrical conflicts is not the only space in
which questions of justice can be posed. As a first step, I want to establish that the narrative of Billy
Budd does indeed define a space in which we consider questions of
justice by showing how even recent efforts to go beyond traditional
readings remain bounded by the assumptions they claim to replace. The most obvious example is the ironic school that challenged the notion that Captain Vere was Melville's spokesman. Ironic readers turn
Melville's testament of acceptance into a testament of resistance.7 Even
so, the ironic school does not challenge the terms by which traditional critics pose questions of justice. The terms of the conflict remain the same. The ironic school merely chooses different sides, favoring the
individual over society, natural law over manmade law. A variation on the ironic reading comes in the work of Prof.
Richard Weisberg. In The Failure of the Word,8 Weisberg explores the failure of the legalistic approach to reality. He links that failure to the ressentient character, someone who prefers "the safety of wordiness to
the risks of spontaneous human interaction," who employs "complex narrative structures to avoid relatively simple central realities." (xi) For Weisberg Vere is such a ressentient character, whose envy of
Admiral Nelson is displaced onto Billy. By turning Vere into a ressen
tient character Weisberg changes the terms of the conflict as tradition
ally seen. Vere's condemnation of Billy is not the result of his choice of social order over the claims of the individual, but the revenge of one individual enacted on that of another. To substantiate his claim that Vere uses the forms of the law "to serve formless, subjective ends" (153-54), Weisberg refers to the actual laws of the time and
discovers that Vere commits eight procedural errors. For instance, Vere
should have waited until the ship regained the fleet and then referred the case to the Admiral. Vere can get away with these deviations from the forms of the law he claims to honor because, like the typical ver
balizer, he uses words falsely.
Weisberg's criticism of Vere raises questions about the rela
tionship between history and fiction. Is his application of a historical
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set of laws to a fictional text admissible evidence? Certainly, it raises
problems for those trained in formal methods of literary criticism. Yet there are hints in the text that Melville wanted us to catch Vere's devia
tions, such as when he has the ship's surgeon question the captain's actions. But, as I pointed out in a review several years ago,9 even if we
accept Weisberg's evidence, there are problems, problems demonstrat
ing how his spirited challenge to the traditional terms of the book's
conflict also subscribes to a narrative framed by the conflict between
individual and society, natural law and manmade law.
Weisberg opens his book with the example of a Parisian law
yer in 1943 who published a learned treatise arguing for a humane
interpretation of the Vichy government's racial laws. Although con
cluding that the lawyer "was clearly not a villain," Weisberg uses him as a model for the legal mentality that uses language to avoid central realities. The lawyer's learned treatment of the laws avoids the simple truth that they are rotten at the core. By explaining Vere's actions in
terms of ressentiment Weisberg reveals an important shift from this
model. Rather than arguing for a humane interpretation of unjust laws, Vere misuses law for purely personal reasons. This reading not only comes close to turning Vere into a villain, it implicitly legitimates laws
whose foundation needs questioning. If Vere's acts are illegitimate because they deviate from the existing code, that code must be legiti mate. Thus, while Vere might indeed deviate from the procedures laid down by the Articles of War, in basing his case against Vere on his
procedural deviations, Weisberg diverts our attention away from the
important question of whether the Articles themselves are fair.
Instead, in a move typical of lawyers, he concentrates on technicali ties. I, for one, am left wondering if Billy's fate would have been better if Vere had waited for the Admiral to try the case. I also wonder
whether Vere himself would have been punished even if his procedu ral errors were uncovered. If we rely on the historical case of the Somers mutiny that Melville refers to in his text, chances are he would not.
When the Somers' Captain Mackenzie faced court-martial for
hanging three suspected mutineers at sea (not even during wartime), he was acquitted of all charges, even though he admitted that he
deviated from accepted procedures by, among other things, not post
poning the trial. Of course, Weisberg could point to Mackenzie's
acquittal as an example of the institutionalized corruption of the legal system. But his narrative of personal resentment remains inadequate to explain those institutionalized inequities. To stick with the Somers case for a moment, we could perhaps explain Mackenzie's hanging of the sailors in terms of personal resentment, but what are we to do with
his defenders, who included lovers of liberty like the anti-slavery
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lawyers Charles Sumner and Richard Henry Dana? While there are cer
tainly cases in which individuals use the law for resentful revenge, it is
hard to explain these people's support of Mackenzie by Weisberg's contention that "literary lawyers frequently seek to institutionalize their purely personal resentments."
My point here is not to "trash" the law or the desirability of rule by law. Quite the contrary. I prefer rule by law to the alternative
that Weisberg seems to suggest, which is the charismatic example of Admiral Nelson. Melville has already given us a case-study of a captain who controls questions of justice through his charisma. His name is
Ahab. My point is merely that Weisberg's narrative, which blames
injustice on cases of individual resentment, too easily distracts our
attention from questioning the justice of particular legal codes. From
my perspective, Weisberg's reading of Billy Budd anticipates the prob lem I will find with the narrative so many of us subscribe to in order to weigh questions of justice. Traditionally critics pose the question of
justice in Billy Budd in terms of the conflict between the individual and society, between natural law and manmade law, and then choose one side of the conflict. Weisberg avoids the conflict altogether by
choosing one side before the conflict is even established. For him the
story's drama is reduced to a narrative about individuals ? innocent
Billy and ressentient Claggart and Vere. This is not to say that Weis
berg does not implicitly raise the traditional conflict between natural individuals and manmade law. As I have pointed out, his implicit legit imation of the existing code of law demonstrates that for him social
justice must be achieved through appeal to a legal code.10 Indeed,
condemning current trends in literary theory that question textual
objectivity, Weisberg asserts early in his book that social justice results
from "the communal establishment of universal values" embodied in an "enduring body of law" (at p. 18)Justice "exists because an objec tive notion of textuality also exists. Indeed, justice derives from an
unchanging, impersonal text rather than from a private and idiosyn cratic urge for revenge."
So the traditional opposition powerfully surfaces in Weis
berg's overall argument. On the one hand, he champions the romantic ideal of naturally innocent individuals, like Billy, whose spontaneity resists efforts to impose a narrative structure on them. On the other, he champions the neoclassical ideal of justice derived from "an
unchanging, impersonal text." To avoid facing the potential contradic tion in his assumptions, he offers an individualistically based reading
of Billy Budd that allows him to ignore the conflict with which tradi tional critics have been forced to grapple.
As my criticism of Prof. Weisberg should make clear, in urg
ing us to consider an alternative space in which to pose questions of
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justice, I am not urging us to misread Billy Budd by ignoring the con
flicts that it invites us to ponder. I am, however, arguing that we will never achieve a critical perspective on the text so long as we uncriti
cally accept the framework it offers. Another trend in recent criticism
would seem to help us to achieve such a perspective. I refer to the recent return to historical analysis. To situate Billy Budd historically
would seem to place its narrative in perspective. Before turning to two
recent historical readings ? and their limitations ? I want to pause
for a moment to reflect on what it means to historicize a literary text.
To historicize a fictional text like Billy Budd raises problems not posed by the effort to historicize a legal decision. To situate a case
like Santa Clara County v. Southern Pacific RR. Co., we would clearly turn to the historical conditions of the United States in 1886, the year it was decided.11 What, however, do we do with Billy Budd?. Do we
focus on its moment of representation ? the dispute between Eng
land and France at the end of the eighteenth century ? or on its
moment of production ? the time when Melville wrote, but never
completed his story, in late nineteenth-century America? Traditionally critics have focused on its moment of representation. The renewed cry for historical analysis, however, has resulted in a variety of readings that focus on its moment of production. These readings are not
unproblematical, as a brief look at two critics ? John P. McWilliams12
and Michael Rogin13 ? will reveal.
Both claim to give us a perspective on Billy Budd by situating it historically. But in trying to do so they construct narratives of history that are products of the very narrative that they are supposed to be
putting in historical perspective. For McWilliams, Billy Budd registers the change in American legal history from natural law philosophy to
realism and its attack on natural law. Thus he compares Vere to Justice Oliver Wendell Holmes, Jr. "Like Captain Vere," McWilliams asserts, "Holmes is prepared to argue that 'Public policy sacrifices the individ ual to the general good'" (at p. 74). Vere is like "many thoughtful men
of the 1870s and 1880s" who began "to suspect that natural rights, if
they existed at all, must give way to the general welfare" (79-80).14 Whereas McWilliams' focus on postbellum legal thought appears to
give a historical dimension to his reading, in fact it greatly simplifies history. First, the notion that natural rights must give way to the
general welfare did not suddenly arise in the 1870s and 1880s. Melville could have heard his father-in-law Justice Lemuel Shaw make
exactly the same argument in his fugitive slave law decisions in the
1850s.15 And as traditional critics of Billy Budd have noted, similar
arguments can be found in Edmund Burke and other conservatives in
their response to the French Revolution and Paine's The Rights of Man.16 Second, McWilliams also simplifies postbellum legal history.
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Far from sharing Vere's belief in measured forms, Holmes, whose
thought was influenced by and influenced pragmatism, disputed the
period's dominant formalism. It was, in fact, this formalism, not real
ism, that ruled legal thought when Melville wrote Billy Budd. In effect, what McWilliams has done is to take the structure of
a synchronie conflict and project it into a diachronic narrative about
history, turning a conflict that appears within a variety of periods into one between two periods. But such simplistic periodization should no
longer be allowed to masquerade as historical criticism. It certainly does not help us understand what Billy Budd can tell us about ques tions of justice.
Michael Rogin offers a much more sophisticated reading of
Melville's story, but even he constructs a historical narrative similar to
McWilliams'. He, too, turns the antebellum period into the representa tive of natural law philosophy and the postbellum period into the
representative of secular, manmade law. He also compares Vere to
Holmes. That comparison is interesting because it hinges on the ques tion of intention, which Walter Benn Michaels treats elsewhere in the
symposium.17 A brief look at where Rogin's argument goes wrong
might provide further historical background for Prof. Michaels'
discussion.
Using Holmes' famous attempt to separate law from morality to establish his similarity with Vere, Rogin argues that, like Holmes,
Vere "split apart the realms of law and morals, appearance and inte
rior, which antebellum Americans had tried to connect ... The law, as
Vere insisted, avoided intent; it remained in the realm of appearances. Morals addressed intentions, wrote [Justice] Holmes; the law had to
do with external signs and deeds." To make his point about the
change in notions of intention, Rogin compares Billy Budd to the
Somers affair in 1842. According to Rogin, Vere's declaration that
"Budd's intent or non-intent is nothing to the purpose" directly con
tradicts the Somers' Capt. Mackenzie's defense of his hanging of three
sailors accused of mutiny by appealing to the purity of his intentions.
For Rogin, Mackenzie's appeal to intention is a perfect example of the
antebellum effort to connect the realms of law and morals, appearance and interior, that Holmes, like Vere, split apart.
But Rogin, like McWilliams, is guilty of oversimplistic period ization. He is able to make his "historical" point only through a false
comparison. When Vere declares that "intent or non-intent" is irrele
vant, he refers to Billy's act of striking Claggart, not his own hanging of
Billy. To compare Vere's and Mackenzie's appeal to intention we
would need to compare Vere's comments with Mackenzie's on the
relevance of the sailors', not the captain's, intention. Here we find that
Mackenzie's view is identical to Vere's. A major question at
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Mackenzie's court-martial was whether the three sailors actually intended to commit mutiny or were only pretending to do so. Mack
enzie's most eloquent defender, Charles Sumner, argued that the
question of the sailors's intention was irrelevant. Their actual intent, even their guilt, he argues, was not important. What mattered was the
appearance of their actions and the appearance of their guilt. Because
mutiny poses such an immediate threat and because the captain's duty is to save his ship, Mackenzie could not be expected to sort out inten
tions from appearances. All that mattered was that his intentions were
pure, that he acted according to his duty to save the ship. Thus, Rog in's effort to establish a historical difference based on intent is, at least
for this particular case, as flawed as McWilliams'. In both cases the
transformation of a synchronie conflict into a diachronic narrative
does not withstand close scrutiny. In questioning McWilliams' and Rogin's attempts to historic
ize Billy Budd I might seem to support traditional readings that clas
sify the story's conflicts as timeless. Indeed, as I have demonstrated, its
conflicts are not confined to one period of history but persist from
period to period. Nonetheless, as I have already suggested, the con
flicts have a history; their significance can change over time. It is time,
therefore, for me to turn from a criticism of the story others have told to a narration of my own.
ii.
Let's start with the conflict between natural law and manmade
law. When Captain Vere declares that someone cast in a judicial role
should decide a case according to the logic of the law, not an appeal to nature, he affirms a principle of Anglo-American justice with a long
history. It achieved one of its most articulate expressions in Chief Jus tice Coke's response to James I's assertion, based on philosophical
expertise, that as King he had the power to remove cases from the
courts to try them personally. Tactfully admitting the King's extraordi
nary capacity of natural reason, Coke went on to argue that, even so, the King had not acquired professional training in the laws of England.
Therefore, cases "that concern the life, or inheritance, or goods, or
fortunes of his subjects are not to be decided by natural reason but by the artificial reason and judgment of law, which law is an act which
requires long study and experience, before that man can attain to the
cognizance of it."18
Like Vere, Coke opts for the authority of artificial, manmade
law over that of natural law, a choice that many Billy Budd critics con
sider conservative. But within the specific historical situation of early
seventeenth-century England, Coke's position was by no means con
servative. His appeal to manmade law was an important weapon in the
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rising middle class's battle with the crown. The middle class appealed to rule by law to protect its individual rights and property against the
arbitrary power of the King.
By the late eighteenth century, the setting for Billy Budd, the
conflict between natural law and manmade law persisted, but its polit ical significance had changed. Vere does not appeal to rule by law as a
weapon in the middle class' battle with the crown. Instead, rule by law
and the King are aligned in a struggle against those who would violate
established manmade law in the name of the natural rights of man.
"Do these buttons that we wear attest that our allegiance is to Nature?" Vere asks, and then answers, "No, to the King."
It is important to point out that this alliance between the
monarchy and rule by law does not mean that the original progressive force of rule by law had, as it were, been co-opted by the King, so that
by the late eighteenth century it was a tool for his arbitrary use of
power. In fact, it is more accurate to say that the opposite occurred.
Increasingly, the King's power had been subordinated to rule by law. Which is not to say, as Captain Vere tries to argue, that the laws
governing England were disinterested. On the whole they represented the interests of the propertied classes, so that in that context an appeal to artificial manmade laws no longer signaled a progressive defense
against the monarchy, but a conservative defense against the appeal of the French revolution.
This brief historical comparison helps to explain why critics
of Billy Budd associate Vere's positivistic appeal with conservatism. In
the context of the late eighteenth century it was. But the conflict
between Coke and James I should alert us to the danger of making an
inevitable connection between appeals to manmade law and conserva
tism or appeals to natural law and progressivism. Nonetheless, if my
comparison indicates that the tendency inevitably to align natural or
manmade law with particular political positions is incorrect, our his torical investigation should not rest content with the generalization that in political terms the sides of the conflict are infinitely reversible, for to do so is not to do justice to the full story of either Billy Budd or
the legal history related to it. We have, for instance, looked historically at only one of Melville's conflicts. We also need to look at the conflict
between individual freedom and social order. When we do, we can see that Billy Budd continues to intrigue us, not only because it is framed by two conflicts that shape our determination of justice, but also because of the particular way in which those conflicts interrelate.
Too often critics of Billy Budd match the twin conflicts sym
metrically, aligning individual freedom with natural law and social order with manmade law. To do so is to fall prey to the common error
of conflating the doctrines of natural rights and natural law. As the
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example of Coke's dispute with James I demonstrates, an appeal to
natural law need not be an appeal to a doctrine of natural rights. Assuming that it is, Vere's critics too often simplify the complexity of
his position. To restate that complexity is to see more precisely what
Melville's narrative brings into dispute.
Although Vere's unquestioning submission to military duty confuses some, he is not a totalitarian dictator who would inevitably subordinate individual rights to the state. Serving the "flag of founded
law and freedom defined," Vere does not dispute the desirability of
guaranteeing individual rights. His dispute with proponents of the
revolutionary spirit is how best to protect them. That dispute hinges on a disagreement over the origin of individual rights.
Believing that individuals in nature possess rights, Vere's
opponents feel that those rights can be denied by manmade law. In
contrast, Vere does not subscribe to natural rights doctrine. Envision
ing individuals in the state of nature akin to the wild denizens of the
wood ? remember the numerous comparisons of Billy to animals ?
Vere believes that rights emerge only after freedom has been defined
through an individual's entrance into an ordered society. Because they
disagree over the origin of individual rights, Vere and his opponents take opposite sides in a conflict between seemingly naturally innocent
individuals ? like Billy ? and manmade law. Natural rights advocates
side with the individual. Vere sides with manmade law, not because
he is insensitive to individual rights but because, in the same honored
Anglo-American legal tradition as Coke, he feels that individual rights can be protected from arbitrary violations by the state only through
maintaining rule by law. Vere, then, would agree with Melville's
famous father-in-law, Lemuel Shaw, who in upholding the fugitive slave law declared that even a bad law "so long as it remains in force ... is to be respected as the law, and because it is the law, not grudg
ingly and reluctantly, but with honesty and sincerity, because any
departure from this fundamental rule of conduct, would put in jeo
pardy every interest and every institution which is worth saving."19 For citizens of the United States Vere's choice is so difficult
because we are raised to honor both sides of the conflict with which
Melville presents us. On the one hand, we respect the long tradition in
which individual liberty has been defined, maintained, and guaran teed ? a tradition forged by judges like Coke and upheld by those like the honorable judges contributing to this symposium.20 This tradi tion has taught us the value of having a system ruled by laws not men.
On the other, we also honor a tradition, embodied in our own Decla ration of Independence, that appeals to the authority of nature to
combat a system of laws that threatens the rights of individuals. No
wonder, then, that when Melville confronts us with an imaginary situa
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tion in which these two beliefs come into conflict we enter into a
spirited debate, a debate all the more spirited for some of us, no
doubt, because we are waging a debate within ourselves. From my perspective, however, the very intensity of this
debate keeps a different story from emerging ? the story of what the
opposing sides have in common. For the remainder of my paper I want to concentrate on this untold story by suggesting that the very terms of the debate are determined by a shared narrative about how
individuals relate to society. To understand how this shared narrative
shapes the terms of the conflict in Billy Budd is to start to see how
engaging in an unresolvable debate about the origin of individual
rights limits our consideration of social justice.
in.
The narrative shared by Vere and his opponents is that of the social contract. Present in the thought of Hobbes, Locke, and Rous
seau, this narrative posits a presocial state of nature inhabited by autonomous individuals who then join together in a contractual
agreement to form society. How does the social contract model shape the way in which questions of justice are presented in Billy Budd?
First, the very way in which individuals are said to relate to society makes a potential conflict between the natural individual and society
inevitable. Second, it produces an irreconcilable conflict over the
origin of individual rights. They exist either prior to the social contract in the state of nature or after the social contract, a product of the
manmade laws binding individuals together. (I should add that the social contract model makes it possible to deny individual rights alto
gether, since someone like Hobbes does not include them in the con tract that constitutes society. While some associate Vere with this posi tion, to do so, as I have argued, is to simplify his position and the
complexity of Melville's work.) A third effect of the social contract model has to do with our concept of natural rights. Since nature is
inhabited by individuals, an individual is the only entity capable of
being endowed with natural rights. It may be a shock to some for me to imply that natural rights
could belong to something other than an individual. To demonstrate that this is not the case, that our almost inevitable identification of natural rights with individual rights is tied to the modern social con tract model, I want to turn to a work of literature that invites compari son with Billy Budd but was written before the rise of modern social contract theory
? Sophocles's Antigone. This brief look at Antigone
will put us in a better position to return to our topic of justice, for it will help to suggest one kind of story about law excluded by the social
contract model.
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In Antigone, as in Billy Budd,21 natural law is pitted against manmade law, and an individual, aligned with natural law, threatens to
disrupt social order. Only a modern misreading, however, would iden
tify Antigone's appeal to natural law as an appeal for individual rights. Antigone defies manmade law, not in the name of individual freedom, but in the name of a social group
? the family and its right to bury its
dead. No more believing in the possibility of individual freedom out
side society than is Creon, Antigone still has a concept of nature and natural law. The natural state for her is, however, not prior to society, but already social, inhabited by social groups, like the family. It is
these natural groups, not individuals, who have natural rights. Judge Posner, in his review of Professor Weisberg's book,
defines the conflict in Billy Budd as between "Nature personified by Billy Budd" and "Culture and Society personified by Captain Vere."22
By associating nature with Billy, Melville encourages us to identify it with individual freedom, and we often hear critics speak of the time
less conflict between natural individuals and society. Our brief look at
Antigone should remind us that, even though the conflict between
Antigone and Creon resembles that between Billy and Vere, it has a
different significance. To be sure, Antigone and Creon engage in a
conflict between natural and manmade law. But to say that their con
flict personifies a conflict between Nature and Society would be to
imply that nature is not social. Their conflict does not illustrate a time less conflict between natural individuals and society. Instead, it regis ters an important historical transformation as the rule of Greek society transferred from established families to a new form of state.
Indeed, there are a number of ironies involved in those read
ings that too simplistically see the play depicting the tyranny of the state against the rights of the individual. The form of the state against
which Antigone struggles is very similar to the version of the state that we celebrate as the precursor to modern democracies. Challenging family privilege, it asserted the equal rights and obligations of all citi zens. (Not all individuals, mind you.) Creon's inaugural address even
echoes concepts and phrases from the speeches of Pericles. This is not to deny that in Creon Sophocles has given us the character study of a
tyrant. Nonetheless, even though we have turned Antigone into a sym bol of the courageous individual resisting the tyranny of the state, we
should keep in mind that our modern version of the conflict between the individual and society would be unthinkable without the rise of the Greek concept of a society comprised of individuals equal in the
eyes of the state, a concept of society compatible with the social con tract model.
The story of how Western democracies came to accept such a
model for society is, of course, extremely complex. Nonetheless, I
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want to look at one aspect of that story with direct bearing on our
discussion of Billy Budd and justice: the debt modern theories of
social contract owe to one aspect of Roman law. Roman law recog nizes two distinct types of group associations ? the societas and the
universitas. The societas was a form of partnership ? a group made
up of contracting individuals. The universitas corresponds to a corpo
ration, although clearly I do not confine myself to business corpora
tions, which did not exist in Roman times. Instead, a universitas
simply meant a group that has an identity of its own more than the
sum of its individual members. In the middle ages these two types of
associations had essentially the same status. By the end of the medie
val era, however, the Roman word for partnership ? the societas ?
began to enter the field of political theory. As often was the case, polit ical thinkers developed their theories from legal concepts, and when
they did they used the model of the societas to describe the rise of the
modern state. As a result, our models of "human society" and "civil
society" were established from the model of the partnership ? a
group of contracting individuals.
It is beyond the scope of this paper ? and my scholarly
expertise ? to try to explain why the model of societas was chosen
over that of the universitas. Nonetheless, the importance that choice
has for our concept of justice should not be minimized. Once we
realize that the way in which our choice between nature and society has been defined by the narrative of the social contract, what seems to
be a choice is, in an important respect, no choice. This is not to deny the serious consequences of Vere's judgment, especially for Billy. But
it is to argue that to choose one side of the conflict is to confirm the
narrative that determines the terms of the conflict in the first place. What I am asking us to do, therefore, is to shift the ground of
our criticism. The significance of Billy Budd for those interested in
justice may not be the choice it confronts us with between manmade
and natural law, but its poignant illustration of the impossibility of any
satisfactory resolution to that conflict, so long as we pose questions of
justice in a certain way. If this point sounds similar to the type of
deconstructive strategies I criticized in my opening remarks and,to the
brilliant deconstructive reading of Billy Budd by Barbara Johnson,23 I
should point out a crucial difference. The conflict as posed in Billy Budd may not have a satisfactory resolution, but through a historical
examination of Billy Budd's narrative I have shown that it is not inevit
able that we adopt the social contract model. To do this, I have, so far, focused on the story's moment of representation in the late eighteenth
century when the social contract model was most influential. I now
want to turn to the story's moment of production in the late nine
teenth century when the social contract model was seriously ques
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tioned, if not replaced. For instance, Sir Henry Maine in Ancient Law, a
work Holmes read twice in the 1860s, asserts that, "Theories, plausible and comprehensive, but unverified, such as the Law of Nature or the
Social Contract, enjoy a universal preference over sober research into
the primitive history of society and law."24 My turn to the book's moment of production is not to privilege it over the moment of
representation, but to suggest our need to place the two in a dialecti cal relation. And just to keep that opposition from becoming a binary
opposition vulnerable to deconstruction, I want to offer a third tem
poral moment ? the moment of the book's reception; that is, our
present. By triangulating these historical moments we can gain a pers
pective that will first reinforce my claim that the choice of one side of the conflict presented in Billy Budd is in an important sense no
choice, and then point to an alternative way of posing questions of
justice.
IV.
We have already seen that in late nineteenth century America
people like Holmes were questioning natural rights doctrine. That
questioning did not, however, make Holmes' thought identical to
Vere's.25 In the late eighteenth century, the French appeal to natural
rights threatened established order. In late nineteenth century Amer
ica, those appealing to natural rights were often defenders of the sta
tus quo. Fearing "socialistic" governmental interference in the eco
nomic realm, they appealed to the natural right they called "liberty of contract." At times the judiciary listened to their pleas and overruled social welfare legislation. In this context Holmes' attack on natural
rights should not be construed as a defense of the established social order. Instead, by appealing to a social standard of justice, Holmes advocated his own version of judicial restraint, which in his famous Lochner dissent was directed against judicial appeals to individual
rights as a way of overruling legislative acts.
The alliance between natural rights doctrine and social order is perfectly illustrated by a legal writer, Christopher G. Tiedeman. In an influential textbook, Tiedeman defines "the private rights of the
individual" as belonging "to man in a state of nature; they are natural
rights, rights recognized and existing in the law of reason."26 A notor
ious defender of laissez-faire constitutionalism, Tiedeman used these
rights to check the threat of "Socialism, Communism, and Anarchism" that is "rampant throughout the civilized world." In an address to a
select group of lawyers in 1887, however, Tiedeman was quite frank about the actual existence of natural rights. Sounding almost like
Holmes, he points out that natural rights are themselves a social con
struction. There is, he argues, "no such thing even in ethics, as an
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absolute, inalienable, natural right. The so-called natural rights
depend upon, and vary with, the legal and ethical conceptions of the
people." Nonetheless, he continues, these rights have been written
into our Constitution; therefore, fellow conservatives should appeal to
them. "In these days of great social unrest," he adds, "we applaud the
disposition of the courts to seize hold of these general declarations of
rights as an authority for them to lay their interdict upon all legislative acts which interfere with the individual's natural rights, even though these acts do not violate any specific or special provision of the
constitution."
There is an obvious historical explanation for why Tiedeman can use natural rights doctrine the way he does. The very people who
used natural rights to challenge the authority of manmade law in the
late eighteenth century recognized the desirability of having their
conception of natural rights written into law. For people living under a
legal system that has included natural rights within manmade law, the
conflict between natural and manmade law that Billy Budd forces us to
face has been either eliminated or greatly complicated. What, for
instance, are we to do with those who celebrate the bicentennial of
the Constitution by praising this product of manmade law for guaran
teeing our natural rights? One thing such statements should let us see
is the weakness of the position of those who attack Vere's defense of
manmade law by appealing to natural rights. Our present situation, as
well as the one in which Melville wrote his story, shows how easily the
ground of their critique can be taken away. For once a doctrine of
natural rights has been included within manmade law, any criticism of
manmade law through an appeal to nature turns into a social dispute over what is natural (and what is manmade). As Tiedeman points out,
what is considered natural is the product of a social sense of right. What is natural for one culture may not be for another.
Tiedeman's position points to the bankruptcy of most of
Vere's critics in another way, for it helps us to understand the curious
situation in which the figure we are supposed to take as the hero of
the story ?
Billy ?
aligns himself with one of the supposed villains ? Vere. I would like to suggest that Billy's blessing of Captain Vere is
not merely proof of his innocence, but that it also alerts us to the
possibility that from a certain perspective the choice between Billy and Vere is no choice. To question Billy's natural innocence may seem
unfair, but after all, if we are going to read the story ironically, why
stop our irony with Vere? Isn't it only fair to turn it on Billy as well?
When we do, we see that the choice Melville offers us between
"Nature personified by Billy Budd" and "Culture and Society personi fied by Captain Vere" is not much of a choice at all. If it is true, as
Vere's critics point out, that justice is not served by a system that uses
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impressed sailors and released criminals to protect the measured
forms of the law that Captain Vere evokes only to deviate from, it is
equally true that justice is not served by championing a naturally innocent individual whose response to a false accusation is to strike
out and kill the accuser. We should not forget that Billy's "heroic
form" is as flawed as Vere's measured forms are ragged. Nor should we forget that Billy's and Vere's forms are not the only ones flawed.
Melville's tale also has its ragged edges, and those ragged edges sug
gest the need to tell a story that even Melville's inside narrative leaves
untold.
For instance, describing how British warships were manned
by people released from prison, the narrator speculates on why such accounts are not well known. For one, "such sanctioned irregularities"
would prove embarrassing to a government claiming to uphold rule
by law. Furthermore, these events, "affecting the least influential class of mankind, have all but dropped into oblivion." Clearly, one reason
why we sympathize with Billy is not just because he is a naturally innocent individual but also because he reminds us of that class of
mankind impressed into service to man the British navy's warships. Nonetheless, almost all critical debates focus on the violation of Billy's individual rights, not on the rights of the sailors as a group.
This focus on the individual is in part due to the very form
Melville uses to tell his tale, the novel. Indeed, the novel, which devel
oped around the same time as the social contract model, is the genre most clearly associated with individualization of character. While the
form's ragged edges can suggest the story of the least influential class of mankind, that story, for the most part, remains untold as we transfer our attention to the conflicts between individuals. Nonetheless, we
should remember that at the time Billy Budd was written, the form of the novel itself was starting to be stretched by writers whose works
called into question standard notions of individual agency.27 Further
more, in the political realm all sorts of groups ?
including labor unions and business corporations
? were challenging the individual
ized basis of the legal system. As a way to suggest an alternative to the
social contract model, I want to look at a figure whose work made its
way into the legal discussions of the period ? the German legal histo
rian Otto Gierke.
Introduced into the English-speaking world by Holmes' pro lific friend, the British legal scholar Frederic William Maitland, Gierke advocated what he called Genossenschaftrecht, a law of associations, that challenged a formalism in late nineteenth-century German law similar to the Austinian formalism that dominated Anglo-American law. The social theory implied by such formalism will sound familiar to any reader of Billy Budd. Conceived within the framework of the
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social contract model, it concentrates all political power in the sover
eign state, which for Captain Vere is embodied in the king. As a result, the state becomes the exclusive representative of the common inter est. Endowed with the function of maintaining order and justice, it
declares itself to be the sole source of social rights and thereby dis misses as illegitimate all rival centers of authority between it and the
individual.
By now the problem inherent in such formalism should be
clear, but let me restate it in a slightly different manner. Not only does
this formalism posit the existence of a presocial autonomous individ
ual; it also totalizes the notion of society. Captain Vere's defense of British rule by law against the French demonstrates how this totalized notion of society serves the interests of a centralized power that wants to declare all rival social systems illegitimate. Vere would have us
believe that our choice is between the established sovereign or the
dissolution of society and a return to a chaotic state of nature. But the
choice is not between maintaining social order and reverting to a state
of nature. It is between competing notions of social order. By ground ing their criticism of Vere in a presocial individual or a presocial state
of nature, Vere's opponents accept the same totalized notion of
society and absolute theory of the state that he does.29 While Gierke was no radical, his work offers a model by which the justness of the
law can be criticized without a Thoreau-like withdrawal from society.
Refusing to posit a presocial, autonomous individual, Gierke also refuses to totalize society. By claiming that all forms of social
organization between it and the individual are legitimate only when
recognized by the state, modern theories of the state try to eliminate rival centers of authority within society. Gierke, however, insists on
the legitimacy of intermediary forms of social organization between the individual and the state. Through his careful study of medieval
German law, he demonstrates that free associations, such as guilds and
boroughs, preceded the establishment of a centralized state. Having their own form of organization and identity that could not be attrib uted to a higher sovereign, they retained an independent life of their own even when they became units of a larger composite structure. As
capable of bearing rights as individuals, they did not derive their
rights from the state, nor were they formed to guarantee the presocial rights of individuals. Indeed, these associations, in which member's
rights were integral with those of the group, indicate the error of locat
ing the origin of rights prior to or after a mythical social contract.
Rights do not originate in a presocial state of nature, nor do they derive from the authority of the state. Instead, they are inherent in
membership in social groups, which are themselves a natural mode of human existence.
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Clearly, Gierke's research into the medieval law of German
associations is not completely applicable to systems that have estab
lished a centralized state. Nonetheless, it offers an alternative to the
simple binary opposition we establish between the individual and
society and between natural and manmade law. As he insisted, a legal
system that does not recognize the reality of intermediary social
groups between the individual and society-at-large is extremely limited. Indeed, it seems to me that, unless we do so, we will not do
justice to the complexity of multi-ethnic societies like the United
States. Put slightly differently, in order to distribute the justice of our
legal system, we need not escape to a transcendental position outside
society but rather to base our critique on a careful study of the actual
conditions of society. Abstractions, and reified notions of society-at
large, do not lend much guidance to this quest. Of course, as the case of Antigone makes clear, attention to
group rights need not lead to full justice, since they can be used to
establish an inequitable hierarchy between groups. Nonetheless, there
is no logic that says such a narrative must be hierarchical. Similarly, the recognition of group rights need not displace a recognition of
individual rights. Gierke, for instance, works out a system that recog nizes both, which is not to say that the two will not come into conflict.
Indeed, there is ample evidence ? Bork's attempted confirmation is
one ? that, to an extent, they are already in conflict. This conflict
indicates that I would not do justice to our legal system if I did not
acknowledge that, although limited by its individualistic foundation, it
has not been totally unresponsive to alternative narratives of justice. In
the first decades of this century many lawyers listened when people like John Dewey and Harold Laski urged us to cease thinking of politi cal problems solely in terms of a conflict between the individual and
society.30
The legal system's responsiveness only serves to highlight the
need for the type of historical analysis that I am advocating. Although there will always be untold stories of the law, the ability of the legal
system to respond to those stories is clear proof that the terms of the
story must consistently be adjusted. Furthermore, precisely because
we are lucky enough to have a system that responds to exposures of
injustice, we should remember that our task is not only to use works
like Billy Budd and Antigone to place our present historical situation
in perspective but also to continue, as Sophocles and Melville did, to
construct compelling narratives of the untold story of the law, narra
tives that the legal system finds very hard to ignore. And so I come to the final meaning of my title. It refers not
only to that which the law excludes and to the unarticulated narrative
that legitimatizes the existing legal order, but also to the quest: the
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need to imagine and construct a just, more representative story of the law for the future. As I see it, the challenge that Billy Budd poses to its
critics concerned about justice is not to stay confined within the
framework of the story that Melville presents but to follow its ragged
edges in search of a narrative that neither Melville nor his culture
could yet articulate.31
1. For more on the legal aspects of this story, see, e.g., Richard Posner, Law and Litera
ture: A Misunderstood Relation (Cambridge: Harvard, 1988), 112-113.
2. Owen Fiss, "Objectivity and Interpretation," 34 Stanford L. Rev. 739 (1982); Sanford
Levinson, "Law as Literature," 60 TexasL. Rev. 373 (1982), 386.
3. Clare Dalton, "An Essay in the Deconstmction of Contract Doctrine," 94 Yale L.J. 997
(1985); Gerald E. Frug, "The Ideology of Bureaucracy in American Law," 97 Harvard L.
Rev. 1276 (1984), 1288-89.
4. For one of many examples see Stanley Fish, "Fish v. Fiss," 36 Stanford L. Rev. 1325
(1984).
5. Robert M. Cover, "Nomos and Narrative," 97 HarvardL. Rev. 4 (1983), 4-5.
6. For a necessarily different, but nonetheless related story about Billy Budd, one which
I leave untold here, see my Cross Examinations of Law and Literature (London: Cam
bridge University Press, 1987), chs 9 and 10.
7. Joseph Schiffman, "Melville's Final Stage, Irony: A Re-examination of Billy Budd Criti
cism" 22 Am. Lit. 128 (1950); Phil Withim, 'Billy Budd: Testament of Resistance," 20
Modern Language Quarterly 122 (1959).
8. Richard Weisberg, The Failure of the Word (New Haven: Yale, 1984).
9. Brook Thomas, "Legal Fictions," 18 NovelZJA.
10. See Richard Weisberg, "Text Into Theory: A Literary Approach to the Constitution," 20 Georgia L. Rev. 939 (1986), 962-68 (on Nietzsche's approach to codification of the
just will to power). See also Richard Weisberg, "On the Use and Abuse of Nietzche for
Modern Constitutional Theory," in Sanford Levinson and Steven Mailloux, Interpreting Law and Literature (Evanston: Northwestern, 1988), 181-192.
11. Santa Clara County v. Southern Pac. R.R. 118 U.S. 394 (1886). See infra note 31.
12. John P. McWilliams, Jr., "Innocent Criminal or Criminal Innocence: The Trial in
American Fiction," Carl S. Smith, John P. McWilliams, & Maxwell Bloomfield, Law and
American Literature (NewYork: Knopf, 1983)
13. Michael Paul Rogin, Subversive Genealogy (New York: Knopf, 1983).
14. See also, Richard Posner, "Comment on Richard Weisberg's Interpretation of Billy Budd" 1 CSLL 76.
15. See Robert M. Cover, Justice Accused: Antislavery and the Judicial Process (New Haven: Yale, 1975), 1-7.
16. Edmund Burke, Reflections on the Revolution in France and The Rights of Man
(Garden City, NY: Anchor, 1973).
17. See Walter Benn Michaels, "Intentionalism, Again," 1 CSLL 89.
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18. Prohibitions Del Roy, 12 Co. Rep. 63, 64-65, 77 Eng. Rep. 1342, 1343 (K.B. 1655).
19. Cited in Leonard Williams Levy, The Law of the Commonwealth and Chief Justice
Shaw (Cambridge: Harvard, 1957), 329.
20. In addition to Judge Posner, Justice David Saxe, Acting Supreme Court Judge, New
York County, was a panelist at Washington & Lee.
21. For another comparison of these two texts in terms of the same jurisprudential prob
lem, see Cover, Justice Accused, supra note 15, preface.
22. See Posner, Law and Literature, supra note 1, at 164; "From Billy Budd to Buchen
wald," 96 YaleL.J. 1173 (1987), 1186; Posner, "Comment on Richard Weisberg's Interpre tation of Billy Budd," supra, note 14.
23- Barbara Johnson, "Melville's Fist: The Execution o? Billy Budd," The Critical Differ ence (Baltimore: Johns Hopkins, 1980); and Brook Thomas, "Billy Budd and the Judg
ment of Silence," Literature and Ideology (Lewisburg, Pa.: Bucknell, 1982).
24. Sir Henry Maine, Ancient Law (London: John Murry, 1916), 3.
25. Pace Posner; see alsoFosner, "Comment on Richard Weisberg's Interpretation o? Billy
Budd," supra, note 14.
26. Tiedeman, Limitations of Police Power (St. Louis: Thomas Law Book, 1886), vii.
27. Frank Norris, The Octopus (Baltimore: Penguin 1986). Stephen Crane, The Red Badge
of Courage (New York: Norton, 1982).
28. O. Gierke, Political Theories of the Middle Ages (Cambridge: Cambridge U. Press,
1900).
29. Responsive to this point (and essentially agreeing with it), see Weisberg, 1 CSLL 27,
30.
30. Dewey, "The Historical Background of Corporate Legal Personality," 35 Yale L.J. 655
(1926); and Harold J. Laski, "The Personality of Associations," 29 Harvard L. Rev. 404
(1916). See also A. Soifer, "'Toward a Generalized Notion of the Right to Form or Join an
Association:' An Essay for Tom Emerson," 38 Case Western L.R. 641 (1980).
31. Just to disrupt any sense of closure that I might have created, let me add a supple ment of two points. (1) The groups given the most rights in American law seem to be
corporations ever since the Supreme Court declared in Santa Clara (see supra note 11)
that a corporation was a legal person and entitled to 14th Amendment rights. The prob lem here should be obvious. Lacking a way of dealing with group rights, the Court grants a particular group rights almost (not quite) identical to an individual's. (2) The "untold
story of the law" is by no means always a progressive one. The Ku Klux Klan also
responded to a story that it felt Reconstruction law left untold.
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