Law’s Madness

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Law’s Madness

edited by
Austin Sarat,
Lawrence Douglas,
and
Martha Merrill Umphrey

The University of Michigan Press

Ann Arbor
Copyright © by the University of Michigan 2003
All rights reserved
Published in the United States of America by
The University of Michigan Press
Manufactured in the United States of America
c Printed on acid-free paper

2006 2005 2004 2003 4 3 2 1

No part of this publication may be reproduced, stored in a retrieval system, or

transmitted in any form or by any means, electronic, mechanical, or otherwise,
without the written permission of the publisher.

A CIP catalog record for this book is available from the British Library.

Library of Congress Cataloging-in-Publication Data

Law’s madness / edited by Austin Sarat, Lawrence Douglas, and Martha

Merrill Umphrey.
p. cm. — (The Amherst series in law, jurisprudence, and
social thought)
Includes index.
isbn 0-472-11329-1 (cloth : alk. paper)
1. Law—Psychological aspects. 2. Insanity—Jurisprudence.
I. Sarat, Austin. II. Douglas, Lawrence. III. Umphrey, Martha Merrill.
IV. Series.

k346 .l393 2003

340'.19—dc21 2003005042
To Stephanie, Lauren, Emily, and Benjamin.
(A.S.)

To KRM and TJUM.

(M.U.)

For NEP.
(L.D.)
Contents

Madness and Law: An Introduction 1

Martha Merrill Umphrey, Austin Sarat,
and Lawrence Douglas

Policing Stories 29
Peter Brooks

Narrating Nymphomania between Psychiatry

and the Law 49
Elizabeth Lunbeck

“A Situation So Unique That It Will Probably Never

Repeat Itself”: Madness, Youth, and Homicide in
Twentieth-Century Criminal Jurisprudence 79
Jonathan Simon

The Claims of the Dead: History, Haunted Property,

and the Law 119
Cathy Caruth

Rethinking Legal Ideals after Deconstruction 147

Drucilla Cornell

Contributors 169

Index 171
Madness and Law: An Introduction

Martha Merrill Umphrey, Austin Sarat,

and Lawrence Douglas

Why conjoin the categories of law and madness? After all, in principle
legal institutions work hard to keep these two notoriously slippery
terms separate. As a normative matter we posit madness as outside the
law—something that should be the obverse of what the rule of law is
understood to represent. If madness signals the loss of rationality and a
resulting disorder, then law epitomizes the engagement of reason for
the promotion of order; if madness is signified by the breakdown of
language,1 law is power exercised in and through language employed
with great precision; if madness marks a space where meaning is
absent, in law meanings are intensified by the capacity to enforce them
violently.2 From that perspective madness appears to be law’s foil, the
chaos that both escapes law’s control and justifies its existence.3
And yet this volume’s provocation is to link the two terms, and to
see what that linkage generates. Our very title—“law’s madness”—
suggests a connection that is both possessive (madness as it is defined
by legal discourse and institutions) and constitutive (a madness that
resides in law). The essays that follow address both of those under-
standings, and in doing so signal the panoply of questions and mean-
ings that can arise from the conjunction of “law” and “madness.” It is
not the claim of this volume that law is in some way definitionally
“mad”; rather, we use the trope of “madness” to signal an unstable, dis-
rupting, indeterminate, yet constitutive relation—the relation between
that which is imagined as law and that which is withheld or masked as
something other than law in order to produce that imagining.
Thus on the most general level, our contributors sketch the ways in
which law takes its definition in part from that which it excludes, sup-
2 Law’s Madness

presses, or excises from itself, and attend to the “symptoms,” whether

rhetorical, institutional, or theoretical, that signal the repressions neces-
sary to those definitional gestures. In that light, this volume engages in
an archaeological project: what, we ask, must be disavowed or forgot-
ten for law to be sustained? Is it, as our contributors suggest, law’s deep
engagement with narrativity, with psychiatric discourses, or with his-
tory and origin themselves? In addressing these questions, our contrib-
utors explore the instability and permeability of the distinction
between inside and outside, law and not-law, and the ways in which
law—or perhaps we as legal subjects—attempt to recuperate law’s
authority and legitimacy in the face of its own ineffability. Perhaps,
these essays suggest, law’s insistent claims to knowability and to
autonomy, to rationality and to moderation, are symptoms of a deep
anxiety about this very instability and about contamination by other
discourses and discursive forms.

Varieties of “Madness”

What are some of the more specific manifestations of this general rela-
tion that might give rise to such a theory of law? On the most concrete
level “madness,” understood as severe mental illness, is positioned as
external to the sphere of law’s authority and operation. Though the his-
tory of the insanity defense suggests that the concept of “mental ill-
ness” has no fixed meaning,4 legal recognition of insanity, however the
term is defined, sets limits on the reach of law’s power to punish. The
classic modern test for insanity, which remains in effect in almost half
of the nation’s state jurisdictions, is the 1843 English M’Naghten rule: in
order to be excused from criminal responsibility on the basis of insan-
ity, a defendant must prove that at the time of the alleged criminal act
he or she was unaware of the nature and quality of the act, and that it
was wrong.5 The Model Penal Code modifies that strict standard in
light of changing conceptualizations of insanity so that a defendant is
excused “if at the time of the crime as a result of mental disease or
defect the defendant lacked the capacity to appreciate the wrongful-
ness of his or her conduct or to conform the conduct to the require-
ments of the law.”6 Under either standard, decision makers do not con-
demn a person who cannot, for physiological or psychological reasons,
stand in a responsive relation to law’s commands—that is, one who
An Introduction 3

cannot respond to reason, who can neither be deterred from, nor

repent, wrongdoing.
In this imagining of the relation between law and madness, trial
courts and legal doctrine are set apart from the unruly realm of the
insane and partially cede their authority to another discipline—med-
icine—which governs and controls the world of unreason. As both
Elizabeth Lunbeck and Jonathan Simon demonstrate, that legal
recusal is a fraught one, subject to the vagaries of public opinion, sci-
entific credibility, and politics at any given historical moment. But
however the line between law and medicine is drawn, such limits on
legal authority are necessary and foundational to any liberal legal sys-
tem whose theories of punishment presume a world of reasoning,
self-governing individuals who can respond to legal imperatives and
legal punishments.7
That rather flat view of the self and the social world has been con-
tested famously on a conceptual level by a wide variety of scholars
interested in puncturing, on the one hand, the idea of the autonomous
self8 or, on the other, the presumption of rationality as the basis of
human action.9 Within the framework of the latter arise questions that
go to the very heart of the liberal legal enterprise. What if in most crim-
inal cases defendants’ actions are determined by forces, whether bio-
logical or environmental, beyond the shaping capacity of human will?
What if, at critical moments, humans act impulsively rather than ratio-
nally? What if decision makers themselves act at least in part on the
basis of prejudice, intuition, or human impulse rather with reasoned
deliberation?10
Thus if, in the classical age, Aristotle famously defined law as “rea-
son unaffected by desire,”11 contemporary examinations of law’s work-
ings increasingly address the role emotion and psyche play in shaping
doctrine and informing judgment. New scholarship interested in law’s
relation to emotion focuses not on the inner world of mental illness, but
rather on law’s relation to everyday emotions and, more generally, on
the effects the emotional landscape of the public sphere has on the
workings of law.12 “Emotion pervades the law,” Susan Bandes argues,
and to that extent law’s capacity to constrain the excesses of human
passion are paradoxically compromised by the mechanisms and
makeup of law itself.
Indeed, analyzing this paradox highlights our investment in conjur-
4 Law’s Madness

ing the domain of law as a space where emotion is kept at bay.13 To the
extent that emotion is one of the human qualities law is designed to
mediate, the assertion that emotion permeates the inner workings of
law is a very threatening one. In his work on victim impact statements
and public responses to trials, for example, Paul Gewirtz worries that
public passions signal a kind of irrational politics of feeling that have
the capacity to contaminate and sully the deliberative and discursive
spaces of law. “The mob may have their faces pressed hard against the
courthouse windows,” he argues, “but the achievement of the trial is to
keep those forces at bay, or at least to transmute their energy into a styl-
ized formal ritual of proof and judgment.”14 For Gewirtz, “the relent-
less incursion of the tumult of ordinary life” places a destabilizing pres-
sure upon law. Increasingly, he claims, our cultural tendency—fueled
by various forms of media—is to judge in accordance with hot feeling
rather than cool reason,15 and the kind of “public opinion” produced by
that tendency can “assault and undermine legal processes.”16
In both these examples—of the insanity defense and of the role of
emotion in law more generally—the normative gestures defining the
law are simultaneously gestures of exclusion: legal spaces are spaces of
reason and constraint, set apart from the roil of the irrational, which is
external to the proper domain of the legal. Yet other imaginable rela-
tions between “law” and “madness” might more properly be under-
stood as internal to law rather than in and of themselves boundary-
drawing, and they point to certain fundamental tensions, even
paradoxes, in the constitution of law itself. Two in particular can serve
to illustrate our more general theoretical claims about the problematics
of defining law by exclusion or, more precisely, repression: the first
might be called the paradox of embodied sovereignty, and the second,
following Robert Cover, the “moral-formal dilemma.”17

Embodied Sovereignty

Ernst Kantorowicz’s classic The King’s Two Bodies18 analyzes the English
legal fiction of the “corporation sole,” a theory of sovereignty positing
the indivisibility of the “body politic” (or the policies and government
of the nation) and the “body natural” (the mortal body) of the king. In
this medieval fiction, the king, it was said, was essentially immortal
and invincible because his body politic could never die, could do no
An Introduction 5

wrong, and existed everywhere in the land. Quite obviously, his body
natural (the lesser of the two) could and did fail, but because it was sub-
sumed into his body politic, it could not in its frailties and disabilities
frustrate or invalidate the actions of body politic.19 The disruptive body
natural of the king was, by virtue of this fiction of incorporation,
enveloped and in effect negated by the more perfect body politic. Thus
the death of a king was instead labeled his “demise,” signaling a sepa-
ration of his two bodies and the transfer of his “body politic” to his heir,
another body natural.20
This dual nature of sovereignty highlights a critical internal instabil-
ity that must be negotiated constantly in order for the state to maintain
its legitimacy. Consider the problem as it is raised in the film The Mad-
ness of King George,21 a text that plays on the instability between body
politic and body natural as it represents the power struggles surround-
ing the onset of madness in England’s King George III. The film por-
trays King George from the outset as a mercurial, distracted, and comic
ruler whose eccentricities are tolerated as part of the prerogatives of
kingship. But when we see him running through fields in his night-
dress at 4 A.M., forcing himself upon a mistress in front of his wife, and
defecating in the middle of a crowd, we are made to know that King
George has “lost himself,” crossing the line separating eccentricity and
madness.
The severity of George’s illness in effect threatens to unravel his sov-
ereignty at the moment that the proper distinction between public and
private fails. Physically tortured by quacks and separated from his
beloved wife, the king’s “body natural” is literally hidden away by his
foppish son, who maneuvers to have himself declared regent in order
effectively to ascend to the throne in spite of the immortality of the
king’s “body politic.” The parsonlike Doctor Willis, once he has taken
the case, offers a precise definition of sovereignty and a diagnosis of the
illness affecting the state: until you can govern yourself, he tells the not-
quite-King George, you are not fit to govern others. And to govern one-
self means recognizing the distinction between public duty and private
desire or necessity, and keeping mortal urges in check while perform-
ing the public role of king of the body politic. Legitimate sovereignty is
thus predicated upon an act of repression.
In their own ways, both medieval English legal doctrine and this
contemporary English film suggest that sovereignty itself is consti-
6 Law’s Madness

tuted by a dual gesture: on the one hand a recognition of the distinc-

tion between public and private, between body politic and body nat-
ural; and on the other the subsumption of the private into the public.
Perhaps more disturbing, the film suggests that the structure upon
which sovereignty is predicated is a great deal more fluid and unsta-
ble than we might wish. At the moment of his introduction to a thor-
oughly abject King George, Willis asks whether there is, after all, a
meaningful distinction to be made between madness and the arbitrary
exercise of sovereign power. The state of monarchy and the state of
lunacy share a frontier, he says as he wonders what ought to be under-
stood as “normal” in a king who is offered a “daily dose of compli-
ance.” Following Willis, one might wonder further whether it is pre-
cisely because arbitrary power resembles madness that the body
mortal must be denied, disavowed, and repressed in England’s “cor-
poration sole” theory of sovereignty. Detached from its immortal,
infallible status, sovereignty resembles nothing more than might. The
repression demanded by this theory of sovereignty is in effect a willed
forgetting, on the level of legal theory, of the violent, mortal origins of
kingship.22

The Moral-Formal Dilemma

Robert Cover begins his study of antislavery judges in the antebellum

era with a discussion of Herman Melville’s novella Billy Budd.23 For
Cover, Billy Budd captures perfectly the predicament arising from con-
flicts between positive law and individual conscience that Northern
abolitionists on the bench faced prior to the Civil War. At a critical
moment in Melville’s novella, Captain Edward Fairfax Vere addresses
the drumhead court he has assembled aboard his ship Bellipotent to
judge and sentence the handsome sailor Billy for the sudden and
unpremeditated killing of the ship’s insidious master-of-arms Claggart.
Billy, struck dumb with rage, has killed Claggart with one great blow
after having been accused falsely of mutiny, and it falls to the tribunal
to determine his guilt and punishment. The proper course of action is
clear enough to Vere, but the court members appear hesitant to apply
the English Mutiny Act of 1842, “war’s child” as Vere calls it, which
commands the death penalty for any killing aboard a navy ship, inten-
tional or otherwise. “I . . . perceive in you,” says Vere, “a troubled hes-
An Introduction 7

itancy, proceeding, I doubt not, from the clash of military duty with
moral scruple—scruple vitalized by compassion.”

If, mindless of palliating circumstances, we are bound to regard the

death of the master-at-arms as the prisoner’s deed, then does that
deed constitute a capital crime whereof the penalty is a mortal one?
But in natural justice is nothing but the prisoner’s overt act to be con-
sidered? How can we adjudge to summary and shameful death a fel-
low creature innocent before God? I too feel that, the full force of
that. It is Nature. But do these buttons that we wear attest that our
allegiance is to Nature? No, to the King. . . . Would it be so much we
ourselves that would condemn as it would be martial law operating
through us? For that law and the rigor of it, we are not responsible.
Our vowed responsibility is this: That however pitilessly that law
may operate in any instances, we nevertheless adhere to it and
administer it.24

This passage can easily—perhaps too easily—be viewed as a moment

of the triumphal assertion of a positivist vision of law.25 Vere’s insistent
legal formalism—his claim that the law governing Billy Budd’s case is
knowable and easily applied—in his mind binds him ineluctably to
that recognition.26 Hence his disavowal of responsibility both for the
consequences of the act’s commands and, much more disturbingly, for
its divergence from the laws of nature. The troubling, perhaps immoral
violence demanded by the Mutiny Act against Billy, the embodiment of
natural innocence, cannot in this view of law play any part in the
determination of his legal guilt. “The existence of law is one thing;”
argues John Austin, “its merit or demerit is another.”27
And yet Vere’s insistence on the binding power of formal law is in
this critical moment so overdetermined that the reader cannot help but
identify with the equitable position that Vere disavows. Indeed Vere
raises the stakes of obedience to law by according enormous status to
human sympathy: it does not emanate simply from the realm of senti-
ment, but rather from the realm of innate morality. He addresses the
court:

Something in your aspect seems to urge that it is not solely the heart
that moves in you, but also the conscience, the private conscience.
8 Law’s Madness

But tell me whether or not, occupying the position we do, private

conscience should not yield to that imperial one formulated in the
code under which alone we officially proceed?28

Rather than embodying an unrelenting embrace of positivism, this pas-

sage illustrates a fundamental ambivalence in the legal subject’s rela-
tion to the law and in law itself, an ambivalence born of the moral ten-
sion here between command and conscience. Law presents itself
disavowing this ambivalence and, in a very real sense, is constituted by
that disavowal. We know that we are bound by the law only at the
moment when we would do otherwise than the law would have us do,
when we would give in to the dictates of the heart. In Captain Vere’s
view, private conscience must yield to the progeny of war. War estab-
lishes the conditions that give birth to summary “justice” under martial
law; the violence of war spawns the violence of the Mutiny Act because
mutiny, like war, threatens the very existence of the sovereign. In that
context, law must be pitiless because the very survival of the regime
that promulgates it is at stake. And yet Vere is not solely the embodi-
ment of imperial dictate; rather, Janus-faced, he is also a compassion-
ate, Freudian father figure to Billy Budd. If, in the moment after Billy
kills Claggart, that fatherly compassion is eclipsed by the “military dis-
ciplinarian,”29 Vere once again plays the role of father to the young
sailor the night before his execution. Curiously, Melville veils this sec-
ond encounter between Vere and Billy. “It was Captain Vere himself,”
remarks Melville’s narrator, “who of his own motion communicated
the finding of the court to the prisoner . . . [but] what took place at this
interview was never known.” He continues:

[Vere] was old enough to have been Billy’s father. The austere devo-
tee of military duty, letting himself melt back into what remains
primeval in our formalized humanity, may in the end have caught
Billy to his heart, even as Abraham may have caught young Isaac on
the brink of resolutely offering him up in obedience to the exacting
behest.30

“What remains primeval in our formalized humanity”: in this

phrase we are reminded of the constitutive presence of sentiment, an
“irrational” element of human behavior that can never fully, finally, or
completely be expelled from the province of legal judgment. The Vere
An Introduction 9

presented here is an imaginary father, one ready to embrace his son

even as he lays him on a sacrificial altar, and the narrative presentation
of this scene—as veiled and hypothetical—suggests that whatever
compassion may lie in the heart of law must be kept from view.31 The
scene of compassion as an expression of justice must be repressed in
order for law to retain its authority in times of crisis.32 We might wish
to dismiss this imagined encounter as a projection of the narrator’s
hopes—as a fantasy of justice—were it not for the clear manifestation of
symptoms that etch the effects of this repression on Vere’s face, which
a witness describes as “the agony of the strong.”33
Vere’s symptoms of internal struggle suggest the anxiety and ten-
sion inhering in the act of judgment, and the strength demanded to
ward off his impulse toward compassion redounds back into and mag-
nifies the tenaciousness of his intent to condemn Billy Budd. If we can
understand Vere’s tenaciousness as an effort of repression in the psy-
choanalytic sense of the term—that is, as the effect of the effort to dis-
avow or refuse uncomfortable instinctual impulses (in this case eros)—
then we can explain the mystery of his otherwise inexplicable deathbed
words: “Billy Budd, Billy Budd.”34 The narrator says that these are not
“the accents of remorse”; rather, they can be understood as “the return
of the repressed,” an eruption that signifies the inevitable miscarriage
of repression gone too far.35
Indeed the story suggests, in the narrator’s words, that “the con-
demned one suffered less than he who mainly had effected the con-
demnation.”36 As evidence for that proposition the narrator recounts
the haunting execution of Billy Budd. Billy’s own agony abated, says
the narrator, because of “something healing in the closeted interview
with Captain Vere,”37 and, in the last moment of his life, Billy almost
inexplicably cries out “God Bless Captain Vere!”38 In “resonant sympa-
thetic echo” the crew responded in kind—“God Bless Captain Vere!”—
following which, the narrator tells us, Captain Vere (either through
stoic self-control or “a sort of momentary paralysis induced by emo-
tional shock”) “stood erectly rigid as a musket in the ship-armorer’s
rack.”39 Rigid, paralyzed, stoic, disciplined: Vere as the embodiment of
law is all of these things; and yet it is the hidden side of law, the balm
Billy feels after his veiled encounter with Vere, that produces the ring-
ing legitimation of his own sacrifice. If Vere is bound by the law, and
suffers for those ties, Billy, enthralled by Vere the father figure, is
bound to the law in its paradoxical constitution as that which both
10 Law’s Madness

represses and reveals the irrational pulls of conscience, love, and mad-
ness itself, endorsing his own destruction without equivocation.40 The
authority and legitimacy of Vere’s judgment thus depend upon how he
negotiates the constitutive and dynamic tension between the imposi-
tion of violence and the exercise of compassion.
Robert Cover’s brilliant work on antislavery judges who enforced
the antebellum Fugitive Slave Acts provides a real-world example of
just this kind of clash. Indeed Cover has speculated that Melville wrote
Billy Budd as an allegory about the dilemmas his antislavery father-in-
law, Massachusetts Chief Justice Lemuel Shaw, faced prior to the Civil
War. Cover argues that the “moral-formal” dilemma faced by Shaw
and others produced a kind of cognitive dissonance that one can see
coded in their written opinions. These judges faced the moral horror of
collaborating in the return of escaped (and sometimes released) slaves
to a state of bondage. Asserting that they were bound by the law, these
judges also bound themselves to it: like Vere, they imagined law as
clear and confining; but they also embraced their judgments returning
people to bondage, however immoral, as the greater good, the law
being in their view the only line between order and anarchy, peace and
the literal dissolution of the state in civil war.41 Cover sees these argu-
ments as not just rationalizations but symptoms of psychic distur-
bance—in our terms, of repression. Repression may not be the same
thing as cognitive dissonance, which is a term emerging out of cogni-
tive rather than Freudian psychology; but they are clearly related con-
cepts. Those judges were, in the terms of Cathy Caruth, haunted by
moral qualms they refused to honor but could not utterly disavow.

Law as a Psychic System

To read law this way is to read it symptomatically, as if it were itself a

kind of psychic system. In that light, though not every essay here
employs it, the language and conceptual tools of psychoanalysis can
help us to generalize about and theorize the dynamic of disavowal as
constitutive of law as much as of the individual subject. Though psy-
choanalysis has not yet established a strong foothold among contempo-
rary legal theorists, we are certainly not the first to note its suggestive-
ness for the field.42 The legal realist Jerome Frank first drew upon
Sigmund Freud’s work to develop a psychoanalytic theory of law in
1930, arguing in Law and the Modern Mind that the legal subject’s relation
An Introduction 11

to the law is defined by a yearning not for reason per se but for an infal-
lible father-substitute that can provide us with clear, knowable, and
immutable rules.43 More recently, a number of scholars including Pierre
Legendre,44 Peter Goodrich,45 Alain Pottage,46 David Caudill,47 and
Anne Dailey48 have argued, with perhaps more subtlety than Frank, for
the relevance and theoretical acuity of psychoanalysis as it has devel-
oped in the late twentieth century. Their work poses several general
questions about the operations and effects of law. What is the constitu-
tive relation between that which is asserted consciously and overtly in
law and that which it disavows? How is the public image of law fash-
ioned through the dynamic exchange between the evident or visible and
the repressed or disruptive? What might reside in law’s unconscious?
Goodrich has suggested that symptomatic readings of law should
attend to the desires that underpin it, the most central of which is to
establish and promulgate order.49 Indeed, Freud makes a similar claim
in his analysis of the development of civilization. In Civilization and Its
Discontents Freud claims that “civilization,” that state of advancement
that distinguishes us from our animal ancestors and regulates our
social relationships so that we may live in relative peace with each
other, is dependent upon the sacrifice and disavowal of instinct—
specifically our drives toward aggression and toward individual sexual
satisfaction. Civilization is produced out of the disavowal, or repres-
sion, of those drives. Law, in turn, is a premier engine and signifier of
civilization: it assumes the right to punish in order to prevent the
“crudest excesses” of individual desire.50
This dynamic of state repression and punishment resembles the rela-
tion within an individual psyche between superego and id. The super-
ego develops in an individual as he or she internalizes the edicts of an
outside authority (which Freud typically figures as the father). Thus as
Freud conceptualizes it, the superego is the instinct toward aggression
internalized and turned against itself as a means of producing and pre-
serving a self capable of living in society. It is punitive, judging and
censoring desire, and standing as a watchman who drives instinctual
desires back from the threshold of the conscious mind into the uncon-
scious by producing a sense of guilt.51 To the extent that law can be said
to function as a social superego, it is thus implicated by virtue of that
role in the very violence and desire it seeks to contain.
At the same time, though, while acknowledging the constitutive
relation among law, violence, and irrationality, one ought not as a
12 Law’s Madness

result conclude that law is somehow “only violence,” or purely irra-

tional. Some contemporary scholars, such as Paul Campos, have
argued that “in its more extreme manifestations, what Americans call
the ‘rule of law’ can come to resemble a form of mental illness.”52 In his
recent book Jurismania: The Madness of American Law, Campos argues
that there are no rationally determinable answers to the most difficult
legal questions, and law’s “mania” for giving reasons is “the very
essence of jurismaniacal excess, and indeed is the source of our cul-
ture’s irrational addiction to reason in general.”53 We are “enchanted”
with reason,54 argues Pierre Schlag, but that very enchantment is symp-
tomatic of our own investment in an unreal fantasy—a delusion.55
Yet psychoanalytic theory suggests that our enchantment with, or at
any rate investment in, reason is less a delusion than a necessary fea-
ture of law and, more broadly, human civilization. Indeed we argue
that what we understand to be performances of reason—the repeated,
compulsory, yet in the end non-conclusive gestures of the judge and
legislator—are absolutely necessary components of anything we call
law. Of course, no system attempting to produce social order and deal
with human iniquity can be one of pure reason because any such sys-
tem, at least in liberal democracies, is vulnerable to the irrationalities of
politics and emotion. But to argue, as we do, that law’s discourse of rea-
son is performative is not to argue that it is a lie. Rather, it is a necessary
posture of speaking that, nevertheless, cannot seal law off completely
from the irrationalities that definitionally constitute it.
We turn to psychoanalysis as one way to draw together the insights
of a number of strands of contemporary sociolegal theory that analyze
law’s multiple and contradictory meanings and manifestations.56 This
new scholarship suggests that law’s paradoxes, far from dissolving into
incoherence, in fact help to erect and sustain law.57 Thus the essays in
this volume explore, in so many words, the project or projects of legal
self-fashioning. They ask: What face does law put on? How does it
make itself up? What lies underneath that it anxiously wishes to cover?
In response, the essays highlight the contaminations that constantly
threaten to undermine law’s authority and legitimacy, illuminating
both the desire to separate madness from legality and its constitutive
force in legal doctrine, legal institutions, and legal practices.

We begin with “Policing Stories,” Peter Brooks’s provocative essay on

the role of narrative in legal decision making. Adopting an explicitly
An Introduction 13

psychoanalytic approach to judicial rhetoric, Brooks argues that narra-

tive is central and dangerous to law; that is, while narrative is a funda-
mental mode by which humans experience and understand the world
both inside and outside law, telling all the “sordid story details” that
underlie any given case can disrupt the coherent articulation of legal
principles and the exercise of reason. Drawing upon Justice Souter’s
majority opinion in Johnny Lynn Old Chief v. United States,58 Brooks ana-
lyzes the ways in which judges work to keep narrative at a distance
from law, as narrative is the suppressed antithesis of law’s reason. In
Old Chief Souter argues that a defendant can stipulate to a prior convic-
tion over the objections of a prosecutor who wishes to introduce the
“full story” of the defendant’s past acts precisely because of the power
the details of that story might exert on decision makers, luring them
into convicting on the basis of bad character rather than the facts of the
case before them. Paradoxically, Old Chief’s earlier encounter with the
law is excluded because the inclination to connect past with present is
too seductive, the “persuasive power of the concrete and particular” (as
Souter puts it) so overwhelming as to become illegitimate in the court-
room.
Brooks argues that Old Chief is an example of the ways that law con-
trols the disruptive potential of stories by formalizing the conditions
under which they can be told and by excluding certain kinds of espe-
cially troubling stories (stories that might be “prejudicial,” forced con-
fessions, and so forth) from the arena of proper legal speech.59 Law’s
relationship to madness is reenacted as narrative forced into the legal
unconscious and is placed, in psychoanalytic terms, under negation.
But far from being completely excluded, narrative continually enters
and structures legal speech. It is put “under erasure”; traces of disrup-
tive stories remain visible as evidence of law’s repression.
As further evidence of the constitutive nature of this repressive
dynamic of law, Brooks offers symptomatic readings of the opinions in
three well-known cases: Palsgraf v. Long Island Railroad Company,60 Rusk
v. State and State v. Rusk,61 and Francis v. Resweber.62 In each, the shape
that judges give to the story of the case—the details they include,
emphasize, banish to footnotes, or replace with abstract hypotheti-
cals—in turn informs and structures their legal judgments. Brooks is
concerned that this shaping process is largely unconscious in the
judge’s mind, to the detriment of a clear (and more just) understanding
of the processes by which defendants are judged and punished. The
14 Law’s Madness

desire to banish the particulars of narrative from legal rhetoric persists,

however, because we continue to be attached to the fantasy that law
can transcend the sordidness of everyday conflict and human iniquity,
that it can govern on the basis of principle and reason and remain at a
remove from irrationality, prejudice, and emotion. The narration of
particulars, Brooks suggests, can risk a “veritable deconstruction of all
legal argument.” Facts and details must in effect be censored by a legal
superego that uses rhetorical sleight of hand in order to purify, and
thus legitimate, a rhetoric of judgment invested in the performance of
reason.
With this analysis, Brooks details the ways in which law sifts
through and frames the kinds of evidence it deems relevant in order to
try to exclude irrationalities and bolster its image as an ordered and
principled means of judging. The cases he cites illustrate the ways in
which law controls the materials of everyday life that it confronts, so
that each individual adjudication can be connected coherently to a (fic-
tive) larger whole. This display of mastery is dependent upon law’s
capacity to incorporate successfully not only everyday experience, but
also other forms of knowledge and expertise that can themselves chal-
lenge law’s coherence and authority to judge. This kind of conflict is
particularly evident, in the modern era, in law’s relationship to scien-
tific knowledge. Hence two of our contributors consider law’s relation
to psychiatry as an external and competing source of judgment that
puts into question law’s competence in an area that literalizes the prob-
lem of madness for law—responsibility and mental capacity.
Elizabeth Lunbeck’s “Narrating Nymphomania between Psychiatry
and the Law” analyzes the narrative encodings of the nymphomanic or
“erotic liar” as she came into being and came to be represented in twen-
tieth-century medical and legal texts. Nymphomania—an abnormal
interest in sex on the part of a woman—was one of the emerging “per-
sonality disorders” promulgated by psychiatrists interested in the
topography of the “normal” and “near-normal” beginning in the early
twentieth century. Invoked in cases involving both mental competency
(wills, estates, and the like) and testimonial credibility (particularly in
rape cases), nymphomania marked a liminal space in law’s demarca-
tions between sanity and insanity. Lunbeck’s analysis illustrates the
ways in which law depends upon psychiatry even as the very distinc-
tions law considers critical to the determination of legal incapacity or
credibility make no sense in the language of psychiatry.
An Introduction 15

Lunbeck offers a sharp-sighted analysis of law’s desire for clear

medical truths to aid in its judgments and of its constant frustration at
what she describes as the “vexing incompatibilities” of legal and psy-
chiatric epistemologies. If, theoretically, law sharply distinguished
between sanity and insanity, psychiatry understood nymphomania
and other psychopathic tendencies like it to lie on a continuum between
abnormality and normality. The indeterminacies of psychiatric lan-
guage confused law’s desire for a sharp distinction between “mad” and
“bad,” and placed any belief in a singular or knowable “truth” about
the mental state of the nymphomaniac in grave doubt. And yet, Lun-
beck argues, even given these fundamental differences, the figure of the
erotic liar produced in psychiatric discourse found a comfortable home
within a legal tradition wary of the power of women’s words. In par-
ticular, science found easy entry and acceptance into law in early- to
mid-twentieth-century rape cases, where defense attorneys took
advantage of psychiatric diagnoses indicating that “nymphomaniacs”
were unreliable narrators of sexual experience in order to discredit the
testimony of female accusers.
Lunbeck’s evidence suggests that for much of the twentieth century,
at least in this area, law turned to science in order to shore up its
authority despite the inexact fit between legal and psychiatric concep-
tualizations of mental capacity. But as cultural common sense about
women’s sexuality shifted in the 1960s and 1970s, law began to disown
the figure of the erotic liar. Ironically, lying is now considered a symp-
tom not of sociopathy but of rape trauma syndrome, proving the occur-
rence rather than nonoccurrence of rape. To the extent that legal
“truths” about the credibility of women’s rape narratives have shifted,
law’s earlier reliance upon psychiatric diagnoses of nymphomania
appears collusive in the perpetration of injustice. While pointing to that
injustice, Lunbeck’s argument destabilizes the truth-status of any kind
of authoritative claims framing women’s stories about sex and vio-
lence, whether legal or medical. Here she returns us to the problemat-
ics of narrative that Brooks posed. If law’s dependence upon certain
kinds of unsupportable psychiatric diagnoses looks suspect from an
early-twenty-first-century political perspective, law’s continuing suspi-
cion of psychiatry’s insistence upon the primacy of individual patients’
narratives indicates its own anxious investment in imposing categori-
cal abstractions that cannot attend to the vagaries of human experience
and the irrationalities of human desire.
16 Law’s Madness

Jonathan Simon’s “ ‘A Situation So Unique That It Will Probably

Never Repeat Itself’: Madness, Youth, and Homicide in Twentieth-
Century Criminal Jurisprudence” also takes up the question of law’s
relation to psychiatry over the course of the twentieth century,
addressing not the problem of testimonial credibility but the assess-
ment of mental capacity in order to determine just levels of punish-
ment. How and to what extent, asks Simon, have courts accorded
“psy-knowledge”63 authority as judges face the predicament of sen-
tencing adolescent killers? Apparently (like the nymphomaniac) nei-
ther “insane” within the strict legal definition of the term nor fully
responsible adult legal subjects, lethally violent young people elude
law’s capacity to fix and define their quantum of responsibility, posing
ultimately unresolvable questions about proper levels of punishment.
Simon contrasts medicolegal dialogue from the 1924 case of Leopold
and Loeb and the 1999 case of Kip Kinkel, analyzing the claims and
rhetoric of psy-experts, defense attorneys, prosecutors, and judges in
both cases. In so doing, Simon invites us to consider the extent to
which law cedes to medicine the authority to judge; that is, the extent
to which law acknowledges its dependence upon and contamination
by something external even as it performs the ultimate legal act of
imposing punishment.
In each of these notorious cases, attorneys for the defendants first
entered guilty pleas, then sought to convince their presiding judges
to mitigate punishment by introducing expert testimony diagnosing
their client’s psychological states. Clarence Darrow’s famous defense
of Leopold and Loeb focused on the link between madness and
youth, and the experts he called to testify stressed the defendants’
abnormality at a historical moment when determinist-oriented psy-
knowledge garnered a great deal of respect in the courtroom. Thus
Darrow could argue credibly to the court that science, in speaking
courageously about madness, was at the vanguard of advancing civ-
ilization, and that in forgoing the death penalty the judge in Leopold
and Loeb’s case could stand above the seething calls for vengeance
issuing from the mob’s unreasoning, uncivilized hatred. In a much
more subdued defense, Kip Kinkel’s attorney Mark Sabitt allowed
that retribution was a legitimate element of the state’s rationale for
punishment and asked only for moderation in its exercise. In a shift
indicative of a more general decline in the will to explain through
psy-knowledge, the idea of civilization was redeployed; no longer
An Introduction 17

invoked to quell the violent retributive impulses of the public, pro-

tecting “civilization” became the implicit foundation of an argument
to limit public risk.
If Leopold and Loeb were spared because Judge Caverly punished
“in accordance with the dictates of enlightened humanity,” Judge Mat-
tison made Kip Kinkel “pay the price” for his acts—111 years in
prison—in order to protect society and fulfill demands for accountabil-
ity. In this shift, Simon sees a return of Gemeinschaft and the imposition
of a collective desire for vengeance. From a psychoanalytic perspective,
one might be tempted to see this shift as a return of the repressed in
law, a movement away from Freud’s vision of civilization. But as
another symptom of repression one might point to the ambivalence
with which law treats the psy-sciences, its competitor in judgment.
Even in the Leopold and Loeb case, Judge Caverly simultaneously dis-
missed the testimony of experts as irrelevant to the task of sentencing
and adopted Darrow’s argument that mitigation accorded with the
march of civilization. Similarly, Judge Mattison allowed testimony
about Kinkel’s delusions and hallucinations, yet dismissed it as unre-
lated to the twin goals of community safety and accountability and
therefore irrelevant to his judgment.
In these mirror gestures of ambivalence we can see both judges
struggling over the issue of law’s authority in relation to medicine, anx-
ious about their capacity to judge correctly or legitimately in these
cases. In contrast to the uneasy collusion of law and medicine on the
subject of female sexuality, here we find explicit disavowals of science
and its relevance to legal judgment: in both the Leopold-Loeb and
Kinkel cases, the judges claimed in the end that medicine could not
offer final diagnoses that would be meaningful in helping them to
judge correctly.64 If both decision makers were ultimately disappointed
that the psy-sciences could not provide a firm basis upon which to
ground judgment, their ambivalence about medical expertise points to
a continuing desire for the kind of definitive external truths legal deci-
sion makers so often desire but can never obtain.
It is the history of anxiety about legal legitimacy—or the repression
of that history of anxiety—that our final contributors address. Both
Cathy Caruth and Drucilla Cornell are occupied with ways in which
law remembers and forgets its foundations and origins, and in particu-
lar the consequences of willed disavowal for the exercise of justice.
Caruth analyzes the denial of history in Restoration France, and Cor-
18 Law’s Madness

nell examines history’s misremembering and mythologizing in U.S.

constitutional discourse. Both view the negation of the past as a psy-
chiatric symptom as well as a kind of tragic violence done by law to
legal subjects; and yet both remain optimistic about the possibility of
reimagining law’s relation to that negation in ways that move it closer
to the promise of justice and equality.
In “The Claims of the Dead: History, Haunted Property, and the
Law” Caruth examines the cultural and legal implications of a remark-
able legal decree of historical forgetting, the French Charter of 1814, as
they reverberated through Honoré de Balzac’s 1832 novel Colonel
Chabert.65 Louis XVIII’s Charter, which in large part reiterated in modi-
fied form the legal legacy of the Revolution—Napoleon’s Civil Code—
nevertheless commanded the courts and citizens of postrevolutionary
France to forget “all research into opinions and votes issued up to the
Restoration.” Balzac’s Colonel Chabert, as Caruth reads it, is a medita-
tion upon the ways in which that law is both a symptom and a reposi-
tory of the traumatic past that Louis XVIII wished to repress. In the
novel this impossible fantasy of pure law, of law without history, is dis-
rupted by a haunting. The text’s main character Colonel Chabert, a hero
of the Napoleonic Wars, literally returns from the dead, having been
declared killed in battle “as a matter of historical record.” But, as
Chabert tells the lawyer Derville who interviews him at the beginning
of the novel, he in fact escaped from a pile of corpses to return to the
world of the living only to discover that he has lost his identity—his
title, his fortune, and his wife—as a result of legal mistake. Chabert is
not recognized as human because he has lost his legal status as a prop-
ertyholder. One “death” has produced another.
The novel thus concerns the “dead” man’s appeal to the law for a
return to memory and for the redress of a wrong that resulted from a
mistake of history. Derville—the only attorney to believe Chabert’s
narrative of death and rebirth—attempts to revive Chabert as a legal
subject by contacting his wife, who has since his disappearance married
a member of the nobility, in order to arrange a property settlement.
Chabert’s demand for property materializes the link between past and
present; its bestowal would in effect constitute an act of remembrance
precisely because it would recognize Chabert as a legal subject with a
right to make a claim to the holdings and identity he once had.
Acknowledging Chabert as himself would thus undo the traumatic
rupture marking the era of Revolution and empire from that of Restora-
An Introduction 19

tion. But in an act of willed refusal of recognition, Chabert’s former

wife denies his claim to identity. In that repetition of Chabert’s death,
Caruth reads a double gesture in law: recognizing human beings as
rights-holders signals the corollary possibility of the non-rights-holder’s
non-recognition before the law. If the law erases Chabert’s identity it also
denies his humanity as rights-holder.
Thus negated, Chabert is a specter lurking in the law of the Restora-
tion, which can neither escape nor encompass him. Ultimately he con-
cedes the futility of his demand for a return to history as a legal subject.
Instead, Caruth argues, in taking a new name and distancing himself
from his heroic past, Chabert—however diminished—opens up new
possibilities for freedom beyond the law. The law of the present is lim-
ited and delegitimated by its disavowals, and it becomes some future
law’s task, she suggests, to find a new way to recognize Chabert and
bear witness to his, and its own, traumatic past. This optimistic reading
of Balzac’s tragedy should not be understood as a call for a new law, a
new moment of founding; indeed the whole of the novel, and Caruth’s
analysis of it, highlights the misguided nature of such an enterprise.
Rather, Caruth’s call for new and more inclusive ways of recognizing
legal subjectivity echoes Drucilla Cornell’s appeal for reconceptualiz-
ing justice as a horizon of possibility, a new embrace of what, in this
world, is labeled the ghostly, the irrational, the insane.
“In the case of law,” Cornell argues, “there is reason to be afraid of
ghosts,” and the legal system’s erasure of the mystical foundations of
its authority is a horror story in need of telling. In “Rethinking Legal
Ideals after Deconstruction” Cornell invites us to consider the question
that shadows all of these essays: to what extent is law’s investment in
the appearance of reason, the appearance of coherence, the appearance
of authority, and the appearance of justice a mad masquerade that
denies us the capacity to judge law itself? Cornell’s concern in this
essay is twofold: to defend a deconstructionist theory of law against
scholars who criticize such an approach as irrational and ultimately
unable to articulate any positive justification or ground for the asser-
tion of justice; and, at the same time, to illustrate the ways in which
legal justifications for violence are always incapable of erasing a deci-
sion maker’s ultimate responsibility for the imposition of that violence.
In his essay “Force of Law: The ‘Mystical Foundations of Author-
ity,’”66 Jacques Derrida argues that there is no ultimate ground upon
which law can depend to justify itself, and no way to describe justice in
20 Law’s Madness

relation to a set of established moral principles. Left-leaning critics of

deconstruction such as Dominick LaCapra have worried that such a
claim in the end leads to only one possible justification for law’s author-
ity: that might makes right. In defending and elaborating the decon-
structionist position here, Cornell uses Justice White’s majority opinion
in Bowers v. Hardwick67 to illustrate the ways in which deconstruction in
fact opens up, rather than closes down, the possibility of justice.
White’s attempts to justify denying a right of privacy to Hardwick
on principled grounds necessarily fail, Cornell argues, because he con-
flates legal justification with an appeal to myth rather than to any objec-
tive external standard. White’s opinion depends upon the interpreta-
tion of two silences: the silence in earlier privacy cases on the issue of
homosexuality, and the silence of the Founders on the relation between
homosexuality and “fundamental rights.” He understands both of
these silences to be exclusionary: because homosexuality is mentioned
neither in the Constitution nor in any precedent, the Court is not
empowered to extend the right of privacy to protect homosexual activ-
ity from state regulation. Cornell counters that claim by arguing
against its mistaken presumption that silences are readable. The twin
myths that support White’s argument—the myth of originary founda-
tion and the myth of “plain meaning” in the Constitution and in legal
precedent—constitute in effect a repetition of the violence of law’s
founding—a violence that becomes self-conserving68 without further
capacity to justify itself on determinable legal and moral principles.
White’s turn to “history and tradition” as a way to deny Hardwick
constitutional protection reenacts the story of Colonel Chabert even as
it represents a failure of the judicial responsibility to judge the law. Such
responsibility inheres, Cornell claims, in the very act of deconstructing
law’s relation to justice, which cannot be one of equivalence because we
can never finally know in a stable way what justice is. Rather, Cornell
argues, deconstruction is justice insofar as, in positing the ultimate
undecidability of any rationalization of violence or any final justifica-
tion for its exercise, deconstruction makes clear a critical corollary: that
because of this undecidability, law can never completely close the door
against challenges to its authority. It is constituted by its relation to that
which it disavows. Textual silence in this view no longer signifies the
space of that which is excluded from law, but rather that which has not
yet been put into words. And justice can be embraced not as a know-
able destination, which is impossible, but as an aesthetic ideal that can
An Introduction 21

be compared with other aesthetic configurations and judged on that

basis; it becomes a horizon of possibility to which law can constantly
aspire if judges are bold enough to take responsibility for the violence
they do in every instance of judgment.
Thus a deconstructive theory of law suggests that at bottom it is this
responsibility to justice—to an account of the unprincipled particulari-
ties of human existence—that haunts the law. In effect Cornell argues
in favor of exploiting for the sake of responsibility the agonistic relation
between law’s desires for coherence and foundation and its disavowed
histories and negated narratives. Rather than “dressing itself up as jus-
tice” in a gesture that denies its relation to, and sometimes violent inter-
vention in, the world of human experience, law would do well to
attend to the doubts and inconveniences that disrupt its smooth func-
tioning as a means of aspiring to do violence justly.
Taken together the essays in this book illuminate both the desire to
separate nonrationality from legality, and the constitutive force of the
nonrational in legal doctrine, legal institutions, and legal practices. Our
contributors examine what we have called the various performances of
repression that reveal the symptoms of a legal “unconscious”—the
repeated denials and expulsions from law of conscience, compassion,
narrativity, psychiatry, history, and deconstruction. These essays offer
an opportunity to see in law’s “madness” not the end of law, but a hori-
zon of new possibilities.

NOTES

1. See Nikolai Gogol, “Diary of a Madman,” in The Complete Tales of Nikolai

Gogol, vol. 1, ed. Leonard J. Kent, trans. Constance Garnett (Chicago: University
of Chicago Press, 1985); see also Shoshona Felman, Writing and Madness: (litera-
ture/philosophy/psychoanalysis), trans. Martha Noel Evans (Ithaca: Cornell Uni-
versity Press, 1985).
2. Robert Cover, “Violence and the Word,” in Narrative, Violence, and the
Law: The Essays of Robert Cover, ed. Martha Minow, Michael Ryan, and Austin
Sarat (Ann Arbor: University of Michigan Press, 1992).
3. One can find this imagining of a prelegal chaos in a number of classical
political theorists’ writings, the most notorious of which is Hobbes’s conjuring
of the state of nature as a war of all against all. For a thorough overview rele-
vant to this issue, see Austin Sarat and Thomas R. Kearns, “A Journey Through
Forgetting: Toward a Jurisprudence of Violence,” in The Fate of Law, ed. Austin
Sarat and Thomas R. Kearns (Ann Arbor: University of Michigan Press, 1991).
22 Law’s Madness

4. See generally Thomas Maeder, Crime and Madness: The Origins and Evo-
lution of the Insanity Defense (New York: Harper and Row, 1985); Donald J.
Herrmann, The Insanity Defense: Philosophical, Historical, and Legal Perspectives
(Springfield, Ill.: Thomas, 1983); and Allen Thiher, Revels in Madness: Insanity in
Medicine and Literature (Ann Arbor: University of Michigan Press, 1999).
5. On the history of the M’Naghten test, see Richard Moran, Knowing Right
from Wrong: The Insanity Defense of Daniel McNaughtan (New York: Free Press,
1981).
6. Model Penal Code §4.01. The MPC’s looser standard for acquittal on the
basis of insanity reflects a history of continuing critique of the M’Naghten stan-
dard as too stringent. Similarly, though the civil test for capacity (in testamen-
tary and contractual transactions) is applied in such a way that it is easier to
claim or assign insanity (which in a civil context must be proven by a prepon-
derance of the evidence rather than beyond a reasonable doubt), as a general
matter the language of the civil test mimics the M’Naghten concern with cogni-
tive capacity: for example, a testator must have the capacity in executing a will
to “understand the nature and extent of his/her property and how he/she is
disposing of it and to recognize the natural objects of his/her bounty.”
7. See, for example, Tison v. Arizona, 481 U.S. 137 (1987), in which the
Supreme Court equated the mental state of “reckless indifference to human
life” with intentional killing in order to endorse the use of the death penalty in
some felony murder cases; that is, cases in which the defendant on trial did not
him- or herself actually kill anyone. Jennifer Culbert argues that in doing so, the
Supreme Court acted to shore up the figure of the “normal person” in law,
“normal” being associated in this instance with autonomy, rationality, and self-
determination. Jennifer L. Culbert, “Beyond Intention: A Critique of the ‘Nor-
mal’ Criminal Agency, Responsibility, and Punishment in American Death
Penalty Jurisprudence,” in The Killing State: Capital Punishment in Law, Politics,
and Culture, ed. Austin Sarat (New York: Oxford University Press, 1999).
8. Michel Foucault’s work is exemplary on this point. See in particular
Madness and Civilization: A History of Insanity in the Age of Reason, trans. Richard
Howard (New York: Vintage, 1988); and Discipline and Punish: The Birth of the
Prison, trans. Alan Sheridan (New York: Vintage, 1977). See also Nikolas Rose,
Governing the Soul: The Shaping of the Private Self (New York: Routledge, 1990).
9. Quite obviously the psychological literature on this question is enor-
mous. Sigmund Freud’s work is the most relevant for the argument that fol-
lows. See in particular his two general introductory texts: Introductory Lectures
on Psycho-Analysis, ed. and trans. James Strachey (New York: Norton, 1966);
and New Introductory Lectures on Psycho-Analysis, ed. and trans. James Strachey
(New York: Norton, 1964).
10. See in particular Jerome Frank, Law and the Modern Mind (1930; reprint,
Gloucester, Mass.: Peter Smith, 1970); Stephen J. Adler, The Jury: Disorder in the
Court (New York: Doubleday, 1994); see also Harry Kalven and Hans Zeisel,
The American Jury (Chicago: University of Chicago Press, 1966); and Rita James
Simon, ed., The Jury System in America: A Critical Overview (Beverly Hills, Calif.:
Sage, 1975).
An Introduction 23

11. Aristotle, The Works of Aristotle: Politica, ed. W. D. Ross, trans. Benjamin
Jowett (Oxford: Clarendon Press, 1921), bk. III, chap. 16.
12. See in particular Susan Bandes, ed., The Passions of Law (New York: New
York University Press, 1999).
13. Bandes, 1–2.
14. Paul Gewirtz, “Victims and Voyeurs: Two Narrative Problems at the
Criminal Trial,” in Law’s Stories: Narrative and Rhetoric in the Law, ed. Peter
Brooks and Paul Gewirtz (New Haven: Yale University Press, 1996), 135.
15. Gewirtz, 152. Similarly, in his book When Law Goes Pop, Richard Sherwin
decries what he sees as a convergence between the domains of law and partic-
ular forms of popular culture, and suggests that “legal meanings are flattening
out as they yield to the compelling visual logic of film and TV images and the
market forces that fuel their production.” Richard Sherwin, When Law Goes Pop:
The Vanishing Line between Law and Popular Culture (Chicago: University of
Chicago Press, 2000), 4. Sherwin argues that this logic—of association rather
than ratiocination, of speed rather than deliberation—by its very nature under-
mines the legitimacy of the law itself.
16. Gewirtz, 149.
17. Robert M. Cover, Justice Accused: Antislavery and the Judicial Process (New
Haven: Yale University Press, 1975).
18. Ernst Kantorowicz, The King’s Two Bodies: A Study in Medieval Political
Theology (Princeton: Princeton, 1957).
19. Kantorowicz, 7–8.
20. Kantorowicz, 13. Should we be inclined to relegate this strange doctrine
to the distant past, it might be worth considering the extent to which the more
general principle of dual sovereignty is excavated when the “private” ethical
failings of contemporary heads of state are made into a question of fitness for
public office.
21. The Madness of King George, dir. Nicholas Hytner, Channel Four Films,
1994.
22. One can find a similar kind of forgetting in, for example, the self-imag-
inings of postcolonial states. Postcolonial scholars argue that the very identity
of many modern Western nations is predicated upon a repression of the vio-
lence done to indigenous peoples at the moment of national origin, and the
telling symptom of such repression, Peter Fitzpatrick has argued, is myth. To
the extent that myths of origin authorize and organize specific legal orders by
misrecognizing the violent actualities of founding, both Cathy Caruth’s analy-
sis of legal hauntings and Drucilla Cornell’s meditation on the mystical foun-
dations of authority (this vol.) highlight the central place of that misrecognition
in that process of authorization and legitimation. See Collin Perrin, “The Post-
colonial and the Rights of Indigenous Peoples,” Law and Critique 6 (1995): 55–74;
Peter Fitzpatrick, The Mythology of Modern Law (London: Routledge, Chapman
and Hall, 1992). On the impossibility of knowing origins, see also Peter Fitz-
patrick, Modernism and the Grounds of Law (Cambridge: Cambridge University
Press, 2001), esp. 16–20.
23. Herman Melville, Billy Budd, Sailor and Other Stories (New York: Pen-
24 Law’s Madness

guin, 1986). Billy Budd, Sailor is considered a late masterpiece by Melville and
has generated a good deal of critical analysis. It was left incomplete at the time
of his death in 1891 and finally published in unfinished form in 1924. For a
chronicle and analysis of its writing, see Hershel Parker, Reading Billy Budd
(Evanston, Ill.: Northwestern University Press, 1991). Richard Chase offers a
psychoanalytic reading of the story in Herman Melville: A Critical Study (New
York: Macmillan, 1949), chap. 11. For a good overview of the literary scholar-
ship on Billy Budd, see Robert Milder, Critical Essays on Melville’s Billy Budd,
Sailor (Boston: G. K. Hall, 1989). Robert Ferguson links Billy Budd with mid-
nineteenth-century legal positivism in Law and Letters in American Culture
(Cambridge: Harvard University Press, 1984), 288–89.
24. Melville, 361–62.
25. As conceived by the English legal philosopher John Austin (in a work
published just ten years before the enactment of his nation’s Mutiny Act), law
is a command, or “signification of desire,” emanating from the sovereign and
buttressed by an enforcing sanction. John Austin, “Law as the Sovereign’s
Command,” in The Nature of Law, ed. M. P. Golding (New York: Random
House, 1966), 81.
26. As Stanley Fish has characterized it, “Formalism is the thesis that it is
possible to put down marks so self-sufficiently perspicuous that they repel
interpretation; it is the thesis that one can write sentences of such precision and
simplicity that their meanings leap off the page in a way no one—no matter
what his or her situation or point of view—can ignore; it is the thesis that one
can devise procedures that are self-executing in the sense that their unfolding is
independent of the differences between the agents who might set them in
motion.” Stanley Fish, “The Law Wishes to Have a Formal Existence,” in The
Fate of Law, ed. Austin Sarat and Thomas R. Kearns, 161.
27. Austin, 95.
28. Melville, 362.
29. Melville, 350.
30. Melville, 367.
31. From a psychoanalytic standpoint, Vere-as-stern-disciplinarian is also
symbolic father who lays down the law to his son, provoking simultaneous
hatred and reverence. Indeed this scenario is Freud’s primal scene of law. See
generally Sigmund Freud, Totem and Taboo: Several Points of Agreement between
the Mental Lives of Savages and Neurotics, trans. James Strachey (New York:
W. W. Norton, 1950). Other scholars, including Frank and Legendre, also stress
the “paternity” of law in this sense. See Frank, Law and the Modern Mind, esp.
3–23, 259–69, and Goodrich’s synopsis of Legendre in Law and the Unconscious,
9. See also Peter L. Hays and Richard Dilworth Rust, “‘Something Healing’:
Fathers and Sons in Billy Budd,” Nineteenth-Century Fiction 34, no. 3 (Dec. 1979):
326.
32. This is precisely the point coeditor Lawrence Douglas makes, in some-
what different terms, in his analysis of Melville’s narrative strategies in Billy
Budd. Douglas argues that the veiling of this encounter between Vere and Billy
An Introduction 25

from an otherwise omniscient narrator marks the discursive limits of law; that
is, it indicates the ways in which the judge (who in many ways resembles the
narrator) and the condemned “exist in separate normative universes which
cannot be discursively made one.” As a result, the narrator cannot gain access
to this encounter because, like Vere, he is aware that there are “structural limits
that prevent omniscience from being transformed into persuasive authority.”
Effective judgment demands the cordoning off of explanatory space. Lawrence
Douglas, “Discursive Limits: Narrative and Judgment in Billy Budd,” Mosaic
27:4 (Dec. 1994): 152, 151.
33. Melville, 367.
34. Melville, 382.
35. Sigmund Freud, “The Psychotic Doctor Schreber,” in Three Case Histo-
ries, ed. Philip Rieff (New York: Collier Books, 1963), 144.
36. Melville, 367.
37. Melville, 371.
38. Melville, 375.
39. Melville, 376.
40. Legendre understands this dynamic to be one of the “capture of the sub-
ject,” the structure of whose entry into law is a structure of love. Goodrich, Law
and the Unconscious, 20.
41. Cover, 199.
42. Anne Dailey has argued that despite scattered references to psycho-
analysis, “the law has remained remarkably resistant to the methods and
insights of psychoanalysis generally and the study of irrationality in particu-
lar.” Anne Dailey, “Striving for Rationality,” Virginia Law Review 86 (2000): 349,
350. See also Goodrich, Law and the Unconscious, 5.
43. Frank, 9. Frank argues that we create an ideal figure in the judge, whom
we mistakenly imagine to be superhuman and passionless, and this father wor-
ship leads to a “noxious thralldom to mere authority.” Frank, 143, 104, 245. For
a recent commentary on these same themes see Austin Sarat, “Imaging the Law
of the Father: Loss, Dread, and Mourning in The Sweet Hereafter,” Law and Soci-
ety Review 34 (2000): 3.
44. In addition to the Goodrich volume of his translated works, see Pierre
Legendre, “The Other Dimension of Law,” in Law and the Postmodern Mind:
Essays on Psychoanalysis and Jurisprudence, ed. Peter Goodrich and David Gray
Carlson (Ann Arbor: University of Michigan Press, 1998).
45. Peter Goodrich, Oedipus Lex: Psychoanalysis, History, Law (Berkeley: Uni-
versity of California Press, 1995).
46. Alain Pottage, “Crime and Culture: The Relevance of the Psychoanalyt-
ical,” Modern Law Review 55 (1992): 421; “Recreating Difference,” Law and Cri-
tique 5 (1994): 131.
47. David S. Caudill, Lacan and the Subject of Law: Toward a Psychoanalytic
Critical Legal Theory (New Jersey: Humanities Press, 1997); “Freud and Critical
Legal Studies: Contours of a Radical Socio-Legal Psychoanalysis,” Indiana Law
Review 66 (1997): 651.
26 Law’s Madness

48. Dailey, “Striving for Rationality.”

49. Goodrich, Law and the Unconscious, 17.
50. Sigmund Freud, Civilization and Its Discontents, trans. James Strachey
(New York: W. W. Norton, 1961), 70.
51. Freud, Civilization and Its Discontents, 86–100. See also Sigmund Freud,
Introductory Lectures on Psycho-Analysis, trans. James Strachey (New York:
W. W. Norton, 1966), 368.
52. Paul F. Campos, Jurismania: The Madness of American Law (New York:
Oxford, 1998), ix.
53. Campos, 191.
54. On our faith in, and even deification of, reason in law, see Pierre Schlag,
The Enchantment of Reason (Durham, N.C.: Duke University Press, 1998).
55. Janet Malcolm’s The Crime of Sheila McGough (New York: Knopf, 1999)
offers one example of a legal subject—in this case an attorney—arguably driven
insane by her fetishization of legal rules. Of course in The Trial Kafka’s Herr K.
suffers more or less the same result from the opposite cause—the law’s lack of
relation to reason. Franz Kafka, The Trial, trans. Willa and Edwin Muir (New
York: Vintage, 1937).
56. See, for example, Austin Sarat and William L. Felstiner, Divorce Lawyers
and Their Clients: Power and Meaning in the Legal Process (New York: Oxford Uni-
versity Press, 1995); Patricia Ewick and Susan S. Silbey, The Common Place of
Law: Stories from Everyday Life (Chicago: University of Chicago Press, 1998);
Peter Fitzpatrick, The Mythology of Modern Law (New York: Routledge, 1992);
Drucilla Cornell, Michel Rosenfeld, and David Gray Carlson, Deconstruction
and the Possibility of Justice (New York: Routledge, 1992); J. M. Balkin, “Under-
standing Legal Understanding: The Legal Subject and the Problem of Legal
Coherence,” Yale Law Journal 103 (1993): 105–76; Stanley Fish, Doing What Comes
Naturally: Change, Rhetoric, and the Presence of Theory in Literary and Legal Studies
(Durham, N.C.: Duke University Press, 1989). Indeed the specific project of
deconstructionist legal theory is bound up with this conceptualization of law to
the extent that it also analyzes violence—the denial and suppression of the
other—in order to uncover the outsider excluded or concealed by the opera-
tions of language. In addition to Deconstruction and the Possibility of Justice, see
Drucilla Cornell, The Philosophy of the Limit (New York: Routledge, 1992).
57. Ewick and Silbey argue, “The multiple and contradictory character of
law’s meanings, rather than a weakness, is a crucial component of its power.”
Ewick and Silbey, 17.
58. 117 S.Ct. 644 (1997).
59. Brooks explores the complicated speech-act of the confession, both liter-
ary and legal, in Troubling Confessions: Speaking Guilt in Law and Literature
(Chicago: University of Chicago Press, 2000).
60. 228 N.Y. 339 (1928).
61. 406 A.2d 624 (1979) and 424 A.2d 720 (1981).
62. 329 U.S. 459 (1947).
63. The term is from Nikolas Rose, The Powers of Freedom (Cambridge: Cam-
bridge University Press, 1999).
An Introduction 27

64. Judge Caverly argued that to the extent that all criminals are abnormal,
psy-knowledge could not offer any probative evidence in individual cases.
Judge Mattison dismissed medicine as unable to guarantee Kinkel’s future
safety and understood judgment to be a gesture of guarantee that could not be
compromised by such uncertainty.
65. Honoré de Balzac, Colonel Chabert, trans. Carol Cosman (1832; New
York: New Directions, 1997).
66. Jacques Derrida, “Force of Law: The ‘Mystical Foundations of Author-
ity,” in Deconstruction and the Possibility of Justice.
67. Bowers v. Hardwick, 478 U.S. 186 (1986).
68. On this distinction, which Derrida ultimately deconstructs in “Force of
Law,” see Walter Benjamin, “Critique of Violence,” in Reflections: Essays, Apho-
risms, Autobiographical Writings, ed. Peter Dementz, trans. Edmund Jephcott
(New York: Harcourt Brace Jovanovich, 1978).
Policing Stories

Peter Brooks

I will be talking here about the law from the perspective of an out-
sider—a perilous enterprise, but one in which I take some comfort from
recent arguments, especially by Austin Sarat and Paul W. Kahn, that
legal culture and discourse need critique from without: that most legal
scholarship, however critical of the law, situates itself within the law, in
a reformist enterprise that cannot, by its very nature, stand outside law
as a system. “There is remarkably little study of the culture of the rule
of law itself as a distinct way of understanding and perceiving meaning
in the events of our political and social life,” writes Kahn in The Cultural
Study of Law.1 My own effort here may be in the nature of what the
Russian Formalists—that remarkable group of critics and theorists who
flourished in the Soviet Union just after the revolution, before Stalinism
put an end to their experimentalism—called ostranenie, “making
strange,” the attempt to bathe the familiar in a new light, in order to ask
questions of legal business-as-usual. In particular, I want to think about
the place of narrative in the law, and the strange manner in which the
law recognizes that place: by way of denial.
I begin with a Supreme Court case from 1997, Johnny Lynn Old Chief
v. United States (117 S. Ct. 644). The question at issue is whether a defen-
dant with a prior conviction on his record should be allowed to “stipu-
late” to the prior conviction, thus disallowing the prosecution from pre-
senting the facts of the earlier felony in making the case against him for
his new alleged crime. In other words, the defendant here knew he had
to admit to a prior crime and conviction—on an assault charge—but
didn’t want the prosecutor to be able to detail the prior crime, for fear
that it would aggravate his sentence on the new crime (which in fact
was quite similar to the prior one). The prosecutor refused to accept the

29
30 Law’s Madness

stipulation, and the district court judge ruled in his favor: the full
record of the prior crime and conviction was offered as evidence. Old
Chief was found guilty on all counts of the new charges of assault, pos-
session, and violence with a firearm. He appealed. His conviction was
upheld by the Ninth Circuit, which essentially restated the traditional
position that the prosecution is free to make its case as it sees fit. This
will be the position argued by Justice O’Connor when the case reaches
the Supreme Court. O’Connor writes for the four dissenting justices
(Rehnquist, Scalia, Thomas, and herself): “That a variety of crimes
would have satisfied the prior conviction element of the . . . offense
does not detract from the fact that petitioner committed a specific
offense. The name and basic nature of petitioner’s crime are inseparable
from the fact of his earlier conviction and were therefore admissible to
prove petitioner’s guilt” (657).
But this claim is rejected by the majority (consisting of Justices
Souter, Stevens, Kennedy, Ginsburg, and Breyer) in an opinion written
by Souter that is full of interest. Souter argues that introduction of the
full story of the past crime could be unfairly prejudicial; it could lead
the jury to convict on grounds of the defendant’s “bad character,”
rather than on the specific facts of the new crime. The story of the past
crime might “lure the factfinder into declaring guilt on a ground differ-
ent from proof specific to the offense charged” (650). The story of the
past crime must be excluded, not because it is irrelevant, but because it
may appear overrelevant: “It is said to weigh too much with the jury
and to so overpersuade them as to prejudge one with a bad general
record and deny him a fair opportunity to defend against a particular
charge” (650–51, citing Justice Jackson in Michelson v. United States, 335
U.S. 469, 475–76). The story of Old Chief’s past crime must be excluded
because it risks creating too many narrative connections between past
and present, and presenting the story of a bad actor deserving punish-
ment whatever the specific facts of the new case.
Souter in this manner orders the exclusion of the past story, reverses
Old Chief’s conviction, and remands the case for further proceedings.
But the most interesting moment of his opinion comes in his discussion
of the dissenters’ point of view, their argument that the prosecution
needs to be able to present all the evidence, including the story of past
crime and conviction, in its specificity. He concedes the need for “evi-
dentiary richness and narrative integrity in presenting a case” (651). He
Policing Stories 31

goes on to say that “making a case with testimony and tangible things
. . . tells a colorful story with descriptive richness.” And he continues:

Evidence thus has force beyond any linear scheme of reasoning, and
as its pieces come together a narrative gains momentum, with power
not only to support conclusions but to sustain the willingness of
jurors to draw the inferences, whatever they may be, necessary to
reach an honest verdict. This persuasive power of the concrete and
particular is often essential to the capacity of jurors to satisfy the
obligations that the law places on them. (653)

It is almost as if Souter had been reading literary “narratology”

(which he may have been, since he appears to be the most erudite and
curious of the current justices) and been persuaded by the argument
that narrative is a different kind of organization and presentation of
experience, a different kind of “language” for speaking the world. In
conclusion to this section of his opinion, he writes:

A syllogism is not a story, and a naked proposition in a courtroom

may be no match for the robust evidence that would be used to
prove it. People who hear stories interrupted by gaps of abstraction
may be puzzled at the missing chapters . . . A convincing tale can be
told with economy, but when economy becomes a break in the nat-
ural sequence of narrative evidence, an assurance that the missing
link is really there is never more than second best. (654)

Here Souter turns back to the case of Old Chief, to argue that the pros-
ecution’s claim of the need to tell the story of the earlier crime is unwar-
ranted because that is another story, it is “entirely outside the natural
sequence of what the defendant is charged with thinking and doing to
commit the current offense.” Old Chief’s stipulation does not result in
a “gap” in the story, it does not displace “a chapter from a continuous
sequence” (655).
Souter hence rules out the prosecution’s longer, fuller narrative as
the wrong story, something that should not be part of the present nar-
rative sequence. It is interesting that in so doing he feels the need to dis-
course on the place and power of narrative in the presentation of legal
evidence: its “richness,” its “momentum,” its “persuasive power.” “A
32 Law’s Madness

syllogism is not a story”: in this phrase, Souter recognizes what some

scholars concerned with “law and literature” have argued, that the
law’s general assumption that it solves cases on the basis of reasoning
alone is inadequate, and indeed a falsification. Storytelling is present
everywhere in the law, from the competing stories presented in the
courtroom, to the reformulation of those stories from the written record
at the appellate level, on up to the grand narratives of the Supreme
Court, which must match the story of the case at hand to the continuing
narrative of constitutional interpretation.
Souter here breaches the bar over what you might call an element of
the repressed unconscious of the law, bringing to light a narrative con-
tent and form that traditionally go unrecognized. Yet curiously, or per-
haps predictably, he does it by way of arguing that in the present case
the lower courts failed to guard against the irrelevant and illegitimate
power of narrative, admitting into evidence story elements—the story
of Old Chief’s prior crime—that should not be considered part of the
“natural sequence” of the present crime. The past story would give too
much credence to the present story that the prosecution must prove. It
is in defending against the power of storytelling that Souter admits its
force.
This defensiveness is typical of the law: its recognition of the claim of
narrative in the law most often comes—though rarely in such open and
perspicuous form as Souter gives it here—by way of its desire to limit
the play of narrative, its desire to set narrow formal limits to story-
telling. The law rarely recognizes overtly how much it in fact does
implicitly, almost preconsciously, recognize the power of storytelling.
We detect this implicit recognition in the ways that law has been intent,
over the centuries, to formalize the conditions of telling, in order to
assure that narratives reach those charged with judging them in con-
trolled, rule-governed forms. In modern judicial procedure, stories
rarely are told directly, uninterruptedly. They are elicited piecemeal by
attorneys intent to shape them to the rules of evidence and procedure,
then reformulated in persuasive rhetoric to the listening jurors. The
fragmented, contradictious, murky unfolding of narrative in the trial
courtroom is subject to formulas by which the law attempts to impose
rule on stories, to limit their free play and extent. Should Nicole Simp-
son’s 911 phone call be considered part of the story of her murder? Or
is that part of another story which, brought within the sequence ending
in homicide, takes on a misleading significance and force? All the
Policing Stories 33

“rules of evidence”—including the famous “exclusionary rule,” bar-

ring illegally seized evidence—touch on the issue of rule-governed sto-
rytelling. The judge must know and enforce these rules. And when sto-
ries are culled from the trial record and retold on the appellate level, it
is in order to evaluate their conformity to the rules. At this level, all nar-
ratives become exemplary: they illustrate a point of law, a crucial issue
in justice, a symbolic moment in the relations of individual and state. So
it is that the law has found certain kinds of narrative problematic and
has worried about whether or not they should have been allowed a
place at trial—or what place they should have been allowed. Rules gov-
erning confessions by criminal suspects—formulated in the well-
known Miranda warnings—offer a perennially controversial example.
There is also the hotly contested question of victim impact statements
used in the sentencing phase of trials on capital offenses.2
In a famous paper on the concept of “negation”—or denial—Sig-
mund Freud writes: “Negation is a way of taking cognizance of what is
repressed.”3 In other words, the patient’s denial of an explanation or
association that arises in analysis does not erase its truth, but rather
strikes a line through it, so it is visible under the act and the fact of its
negation. In the restatement of Freud’s definition by the French ana-
lysts Laplanche and Pontalis, negation is “the procedure by which the
subject, in the process of formulating one of his hitherto repressed
desires, thoughts, feelings, continues to defend himself from it by deny-
ing that it is his own.”4 In negation, one could say, what is denied is vis-
ible under its erasure. The bar of repression keeps the narrative content
and form of the law under erasure, subject to formal rule, visible but
unarticulated. Souter in Old Chief does articulate the nature and force of
narrative in the law, in a startling move that I have not found in other
legal opinions.
Let me try to make this clearer—and to make the stakes of the issue
clearer—by way of discussion of a classic torts case from 1928, one that
every first-year law student knows by heart. This is Palsgraf v. Long
Island Railroad Company (248 N.Y. 339), where the Court of Appeals of
the State of New York, in a famous opinion by its chief judge, Benjamin
Cardozo, reversed the tort finding against the railroad. I begin with the
“facts of the case” as stated by Cardozo himself:

Plaintiff was standing on a platform of defendant’s railroad after buy-

ing a ticket to go to Rockaway Beach. A train stopped at the station,
34 Law’s Madness

bound for another place. Two men ran forward to catch it. One of the
men reached the platform of the car without mishap, though the train
was already moving. The other man, carrying a package, jumped
aboard the car, but seemed unsteady as if about to fall. A guard on the
car, who had held the door open, reached forward to help him in, and
another guard on the platform pushed him from behind. In this act,
the package was dislodged, and fell upon the rails. It was a package of
small size, about fifteen inches long, and was covered by a newspa-
per. In fact, it contained fireworks, but there was nothing in its
appearance to give notice of its contents. The fireworks when they fell
exploded. The shock of the explosion threw down some scales at the
other end of the platform, many feet away. The scales struck the
plaintiff, causing injuries for which she sues. (340–41)

Legal commentators for decades clucked admiringly over the laconic

clarity of Cardozo’s presentation here. More recently, Judge John Noo-
nan has pointed to some of the relevant ancillary facts we don’t get,
such as the nature of Helen Palsgraf’s injuries, her income and family
status, the financial resources of the Long Island Railroad, the number
of injuries annually resulting from railway accidents, and so forth: facts
that would tend to go into a modern torts settlement.5 But what inter-
ests me here is less those other facts than how the admirable concision
of Cardozo’s narrative of the accident controls that very narrative, lim-
iting its reach as a story, keeping it within well-policed boundaries.
Cardozo, like most judges, only appears to tell the story of the event
under adjudication. He recasts the story events so that they make a
legal point, rendering it a narrative recognizable in terms of legal prin-
ciple. He wants to demonstrate that the defendant, in the person of the
railway guard, could not reasonably have foreseen the harm to the
plaintiff:

The conduct of the defendant’s guard, if a wrong in its relation to the

holder of the package, was not a wrong in its relation to the plaintiff,
standing far away. Relatively to her it was not negligence at all.
Nothing in the situation gave notice that the falling package had in it
the potency of peril to persons thus removed. (341)

The alliteration of this sentence gives it a kind of conclusive panache.

After running through a brisk series of hypothetical narratives
Policing Stories 35

intended to show that “prevision so extravagant” as to include the

remote consequences of acts cannot be a basis for a ruling in favor of the
plaintiff, Cardozo writes, “Negligence, like risk, is thus a term of rela-
tion” (345). It has to do with a relation of a legal duty of care and fore-
seeable harm, which Cardozo cannot find here. His concise narrative of
the incident on the railway platform is an antinarrative in that it seeks
precisely to destroy relation, to show that certain linkages of cause and
effect are “extravagant.”
The eloquent dissent in Palsgraf, by Judge William Andrews, gives a
narrative of the incident even more laconic than Cardozo’s, which is
strange since one would think it in Andrews’s interest to elaborate on
this story. Instead, Andrews meditates philosophically on kinds of rela-
tion established in stories, and he presents us with a series of hypothet-
icals: a dam with faulty foundations breaks, injuring property far
downstream; a boy throws a stone into a pond, and “the water level
rises. The history of that pond is altered to all eternity”; “A murder at
Sarajevo may be the necessary antecedent to an assassination in Lon-
don twenty years hence. An overturned lantern may burn all Chicago”;
and:

A chauffeur negligently collides with another car which is filled with

dynamite, although he could not know it. An explosion follows. A,
walking on the sidewalk nearby, is killed. B, sitting in a window of a
building opposite, is cut by flying glass. C, likewise sitting in a win-
dow a block away, is similarly injured. And a further illustration. A
nursemaid, ten blocks away, startled by the noise, involuntarily
drops a baby from her arms to the walk. We are told that that C may
not recover while A may. As to B, it is a question for court or jury.
We will all agree that the baby might not. (353)

In fact, says Andrews, there are no fixed rules to guide us here. “It is all
a question of expediency” (354). The best guide he can offer is: “The
court must ask itself whether there was a natural and continuous
sequence between cause and effect.”
What Andrews is getting at is something akin to Souter’s “narrative
integrity,” and the question of what should be included in the story.
How far do the Rube Goldberg–like consequences of the dynamite-
laden car exploding extend? Where do you declare the story to be over?
Without saying so—and again, without unpacking the incident on the
36 Law’s Madness

railway platform—Andrews seems to point to a problem in the doc-

trine of “foreseeability” of harm. We know what harm was caused only
retrospectively, after it has occurred. Narrative itself is retrospective, its
meanings become clear only at the end, and the telling of a story is
always structured by anticipation of that end, the “point” of the story,
the moment at which its sequences and their significance become clear.
It is only in hindsight, retrospectively, that one can establish a “chain of
events,” in the manner of Sherlock Holmes concluding one of his cases.
“‘You reasoned it all out beautifully,’ I exclaimed in unfeigned admira-
tion. ‘It is so long a chain, and yet every link rings true’”—as Dr. Wat-
son admiringly declares at the end of one of Holmes’s stories.6 In this
sense, there are no principles to guide you, there is only the causal and
sequential linkage of events, the concrete particulars that narrative
alone can convey.
Now, in the tellings and retellings of the Palsgraf story I can find
nothing about the narrative particular that seems to me most deeply
mysterious and important: those scales that, in Cardozo’s account,
were “thrown down” by the shock of the explosion, injuring Helen
Palsgraf. Where and what were these scales? What did they look like?
Were they attached to the wall, or freestanding? How did they become
dislodged from their customary position in such a way as to strike
Helen Palsgraf?7 And how did they strike her, and what kind of injuries
did they cause? You seek in vain, in both the majority and the dissent-
ing opinions, for any attempt to render this vital moment—the moment
of the injury—in the story. Any student in Creative Writing 101 would
be sent to rewrite his or her draft for omitting this crucial information.
The very clever student might, in detective story fashion, reserve it for
the end. One can imagine Holmes and Watson in discussion: “So those
scales, you see . . .”
Cardozo once eloquently declared in a speech that as “a system of
case law develops, the sordid controversies of the litigants are the stuff
out of which great and shining truths will ultimately be shaped.”8 The
statement makes very clear the rationale for repressing the sordid story
of Mrs. Palsgraf on the railway platform. But surely those great and
shining truths in Palsgraf depend intimately on narrative constructions,
on “sordid” story details, which the opinions in the case repress even as
they recognize their importance. Cardozo and Andrews both recognize
that there is a story to be told, and the dissent, in particular, notices that
how it is constructed makes a difference. But they both then eviscerate
Policing Stories 37

the particular story at hand, indeed they spend more time and give
more particulars in their hypothetical narratives. Their recognition of
the importance of the story is denied by their determination that the
story exists only to reach the “great and shining truths” of legal prece-
dent and rule. The gesture of the judges here could almost be analo-
gized to classic scenarios of denial and repression in Freud, for instance
the child’s simultaneous recognition and repression of sexual differ-
ence. Here, recognition of the need to narrate what happened is used to
deny any real narrative of what happened.
I have dwelt at some length on Palsgraf, not because I have any
thoughts to contribute to tort law, but because I think it offers a classic
instance of how the law simultaneously recognizes and represses its
narrative involvements and commitments. Let me offer another, very
different kind of example. It comes from the troubling subject of rape, a
subject that of course needs to be taken up only with the greatest care,
but which is almost unavoidable to someone interested in the
unavowed narrative content and form of the law since it so crucially
poses the question, Whose story is it? How do you adjudicate two nar-
ratives of the same event that have utterly different meanings and legal
consequences? Studying a well-known case from Baltimore, Rusk v.
State (1979, in the Court of Special Appeals of Maryland), and then State
v. Rusk (1981, in the Court of Appeals of Maryland), one becomes con-
vinced that Edward Salvatore Rusk believes that his conduct was noth-
ing more than Saturday night business as usual, while the woman the
court identifies only by the pseudonym “Pat” believes she was raped.
Rusk was convicted at trial; the conviction was reversed in the first
appellate court, then reinstated in the higher court.
In the decisions on each appellate court, there was a majority opin-
ion and a dissent, starkly opposed to one another. Thus we have four
different retellings of what we know is the “same” story—the story of
what happened between a man and a woman one night in Baltimore,
the story then constructed at trial. The different retellings of course
have dramatically different results: results that send Rusk to prison for
seven years or else release him. How can these four stories, based on
the same “facts”—and none of the principal events of what happened
that night was in dispute—have different outcomes? The answer, I
think, is that the narrative glue is different: the way incidents and
events are made to combine in a meaningful story, one that can be
called “consensual sex” on the one hand or “rape” on the other. In each
38 Law’s Madness

case, the blanks (what the literary theorist Wolfgang Iser would call the
Leerstellen) of the story are filled in according to each judge’s general
understanding of human behavior and intent. It becomes virtually a
problem of literary genre: How do we know whether this tale fits in the
category of the “consensual sex story” or in that of the “rape story”?
What I have called the narrative glue—the way incidents combine
into a meaningful whole that can then be labeled as a certain form of
action—depends in large part on the judges’ view of standard human
behavior, on what words and gestures provoke fear, for instance. Any
given narrative will be built to some extent on what Roland Barthes
liked to call doxa, that set of unexamined cultural beliefs that structure
our understanding of everyday happenings. In this case, the judges
who rule against the rape conviction at the two appellate levels tend to
construct their narratives on the basis of how they believe a woman
ought to behave in certain circumstances. A key moment of the story
comes when Rusk, in the passenger seat of Pat’s car, asks her to come
up to his apartment; when she refuses, he gets out of the car, walks to
the driver’s side window, reaches in and removes the keys from the
ignition, and says: “Now will you come up?” Here Judge Thompson
writes: “Possession of the keys by the accused may have deterred her
vehicular escape but hardly a departure seeking help in the rooming
house or in the street” (406 A.2d 624, 626). One could go on at some
length in analysis of this sentence. “Deterred her vehicular escape”? A
translation would be: Pat is totally stranded in a deserted street in an
unknown and sinister section of downtown Baltimore in the middle of
the night. A phrase such as “vehicular escape” in its very pompousness
should alert us that we are faced with some avoidance maneuver. And
“a departure seeking help” is similarly obscuring—it translates into
something like: running though the deserted street screaming for help.
The sentence is one of many that eschews narrative precision in favor of
an arch rendering of the story from a normative narrative standpoint
which is that of the judge. It is part and parcel of a narrative point of
view in which Pat is always referred to as “the prosecutrix,” described
as “bar-hopping,” and characterized as “a normal, intelligent, twenty-
one year old vigorous female.”
It is on the basis of such a retelling of the story that the first appeals
court reverses Rusk’s conviction. In the higher court, the conviction is
reinstated, but over the strong dissent of Judge Cole, who writes, for
instance:
Policing Stories 39

She [the victim] may not simply say, “I was really scared,” and
thereby transform consent or mere unwillingness into submission
by force. These words do not transform a seducer into a rapist. She
must follow the natural instinct of every proud female to resist, by
more than mere words, the violation of her person by a stranger or
unwelcomed friend. She must make it clear that she regards such
sexual acts as abhorrent and repugnant to her natural sense of pride.
(Md., 424 A.2d 720, 733)

What he means is made more specific toward the end of his opinion:

I find it incredible for the majority to conclude that on these facts,

without more, a woman was forced to commit oral sex upon the
defendant and then to engage in vaginal intercourse. In the absence
of any verbal threat to do her grievous bodily harm or the display of
any weapon and threat to use it, I find it difficult to understand how
a victim could participate in these sexual activities and not be will-
ing. (734)

Again, the detail of the recounting would deserve much closer atten-
tion than I can give it here. The one word participate, for instance,
speaks volumes about Judge Cole’s views of sex (especially oral sex), of
women, and of the world. Participate in itself conveys a whole concep-
tion of a narrative incident that needs to be unpacked and analyzed.
The differing outcomes in the retellings of the Rusk cases offer a dra-
matic instance of how narratives take on design, intention, and mean-
ing. Narratives do not simply recount happenings; they give them
shape, give them a point, argue their import, proclaim their results.
And where the law is concerned, they shape the judgment. The lack of
awareness of how they are telling the story on the part of Judges
Thompson and Cole needs to be exposed for what it is: the telling of a
stock story based on preconceptions about men, women, and sex that
does not deal adequately with the story events that need to be con-
nected and shaped. What is at issue here is not legal rule or reason but,
in Souter’s phrase, a question of “narrative integrity.” Souter to the con-
trary, however, this is not a concept generally recognized by judges,
who tend to repress narrative integrity in order to reach what they see
as the “great and shining truths” of the case.
In their recent book Minding the Law, Anthony Amsterdam and
40 Law’s Madness

Jerome Bruner argue that the “traditional supposition of the law” that
it can find answers to questions by way of “free-standing factual data”
must be contested by a recognition that “both the questions and the
answers in such matters of ‘fact’ depend largely upon one’s choice
(considered or unconsidered) of some overall narrative as best describ-
ing what happened or how the world works. . . . much of human reality and
its ‘facts’ are not merely recounted by narrative but constituted by it.”9 I
agree with this, and Bruner, as author of a well-known essay entitled
“The Narrative Construction of Reality,” is in a particularly good posi-
tion to argue that the law doesn’t simply assemble facts into stories,
that our sense of the way stories go together, how life is made mean-
ingful, presides at our choice and organization of facts. Where I think
Bruner and Amsterdam are in error is in their apparent assumption
that the law knows this. Commentators on the law may recognize its
inherent narrativity, but legal actors do not—cannot, in their under-
standing of what law is—allow that recognition into consciousness.
To the extent that it knows its own narrativity, I have suggested, the
law represses and censors that knowledge. While it is true that court-
room advocates know they must tell an effective story—and textbooks
on trial practice for law students make the point—one searches legal
doctrine in vain for recognition of narrative as a category of thought
and practice.10 In discussions of legal decision making, in arguments on
rules of evidence, on causes and effects, there is no overt recognition—
Souter’s statement on the subject is a rare exception—that how stories
are told may be a major shaping force in selecting facts and reaching
those shining truths. Absent this recognition, legal actors who are in
fact often adjudicating on the basis of narrative constructions have no
conceptual and analytic tools for understanding and unpacking these
constructions.
My final example is especially stark and gruesome, a case from 1947
that bears revival in the context of a renewed American debate on cap-
ital punishment. Francis v. Resweber (329 U.S. 459) takes up the case of
Willie Francis, whom Louisiana tried but failed to execute from a mal-
function of the electric chair, to decide whether a second electrocution
would violate the double jeopardy provision of the Fifth Amendment,
and the cruel and unusual punishment provision of the Eighth Amend-
ment. Austin Sarat and Thomas Kearns have forcefully shown how the
rhetoric of “rules” in Francis v. Resweber keeps the extreme violence that
the law is here exercising at arm’s length, indeed makes it very nearly
Policing Stories 41

invisible.11 The rhetorical form in which the exclusion of violence

occurs is also a negation of the narrative of Willie Francis’s experience.
“Accidents happen for which no man is to blame,” writes Justice
Reed in the opinion of the Court (462), which sends Francis back to a
second encounter with the electric chair. And Frankfurter in his con-
curring opinion characterizes the failed execution as “an innocent mis-
adventure” (470). Reed repeatedly speaks the language of foreseeabil-
ity (like Cardozo in Palsgraf) and of intent: “The fact that an
unforseeable accident prevented the prompt consummation of the sen-
tence cannot, it seems to us, add an element of cruelty to a subsequent
execution. There is no purpose to inflict unnecessary pain,” he writes
(464), and therefore one cannot allege any cruel or unusual results.
The dissent by Justice Burton (joined by Douglas, Murphy, and Rut-
ledge) ineffectively attempts to combat the majority’s decision in a
rhetoric of generalized moral outrage. He calls the circumstances of the
case “unique in judicial history” and urges that “taking human life by
unnecessarily cruel means shocks the most fundamental instincts of
civilized man. It should not be possible under the constitutional proce-
dure of a self-governing people” (472, 473–74). In addition, “it is
unthinkable that any state legislature in modern times would enact a
statute expressly authorizing capital punishment by repeated applica-
tions of an electric current separated by intervals of days or hours until
finally death shall result” (474). This rhetoric of high principles stands
in refreshing contrast to Frankfurter’s crabbed and narrow legal rea-
soning on the case, but it really achieves little more than a kind of noble
moral stuttering.
Burton is reduced to arguing that the Louisiana Criminal Code pro-
vides for “the application and continuance of such current through the
body of the person convicted until such person is dead” and therefore
does not permit multiple applications of the current (475). This logic
leads Burton to hypothetical narratives: “If the state officials deliber-
ately and intentionally placed the relator in the electric chair five times
. . . [a]lthough the failure of the first attempt, in the present case, was
unintended, the reapplication of the electric current will be intentional.
How many deliberate and intentional reapplications of electric current
does it take to produce a cruel, unusual and unconstitutional punish-
ment?” (476), and so on. Burton’s hypotheticals in fact play into the
hands of the majority, since they all turn on the question of intent, on
the interpretation of the narrative from the point of view of the state’s
42 Law’s Madness

agents—of the executioners—and thus displace what should be at

issue: the lived experience of the man condemned to die twice, the ret-
rospective narrative of what in fact happened.
What is so peculiar and striking to the nonlegal reader of Francis v.
Resweber is that the relevant narrative does appear: but only at the very
end, and only in a footnote, which Burton smuggles in because the
material quoted indicates “the conflict of testimony that should be
resolved”—that is, the amount of electric current that reached Francis’s
body. The footnotes cite affidavits of the official witnesses to the
attempted execution. To quote only the first of these, and part of the
third:

Then the electrocutioner turned on the switch and when he did

Willie Francis’ lips puffed out and he groaned and jumped so that
the chair came off the floor. Apparently the switch was turned on
twice and then the condemned man yelled: “Take it off. Let me
breath.”
Then the hood was placed before his eyes. Then the officials in
charge of the electrocution were adjusting the mechanisms and
when the needle of the meter registered to a certain point on the dial,
the electrocutioner pulled down the switch and at the same time
said: “Goodby Willie.” At that very moment, Willie Francis’ lips
puffed out and his body squirmed and tensed and he jumped so that
the chair rocked on the floor. Then the condemned man said: “Take
it off. Let me breath.” Then the switch was turned off. Then some of
the men left and a few minutes after the Sheriff of St. Martin’s Parish,
Mr. E. L. Resweber, came in and announced that the governor had
granted the condemned man a reprieve. (480–81, n. 2)

One might have thought that this was precisely the material that Bur-
ton needed for his dissenting argument—the story that should have
stood at the head of his opinion, as an irrefutable claim that the reexe-
cution of Francis would be a violation of the Eighth Amendment. It,
rather than Burton’s hypotheticals, is a full narrative, with macabre
beginning, middle, and end.
But the narrative of Willie Francis’s ordeal is largely repressed and
denied, in the dissent as in the majority opinion, since the weight of legal
tradition claims that the case must be decided on principle—not story—
Policing Stories 43

including the claim that the hypothetical narrative of what might con-
stitute cruel and unusual punishment (recall the hypotheticals of Pals-
graf) is relevant whereas the narrative of what really happened is not.
Yet in a case that needs to decide whether a given punishment is “cruel
and unusual,” one might think that the experience of punishment—as
undergone by a particular body and mind—was precisely relevant. The
legal cover-up of what seems the inescapable narrative in Francis v.
Resweber offers a particularly egregious example of law’s suspicion of
narrative, its implicit awareness that in certain cases letting narrative
breach the bar of repression would risk a veritable deconstruction of all
the legal argumentation—a massive housewrecking of judicial rhetoric-
as-usual. To the extent that the law does allow narrative a place—as, for
instance, in the victim impact statement—it is as a calculatedly daring
gesture, mostly of a political or ideological import.12 The intense debates
concerning VIS suggest, once again, that unleashing the power of sto-
ries—albeit not overtly recognized as stories—provokes unease, out-
rage, and exclusionary gestures within the law.
I have been arguing the importance of narrative in the law and sug-
gesting that the law generally recognizes this importance only by way
of negating it and by policing the introduction of narrative into its
domain. But one might at this point legitimately ask: Why my insis-
tence on narrative? What insight may be gained trying to breach this
legal repression, and to open legal argument to narrative analysis? I
have tried to suggest that narratives can be analyzed in their form, in
how the narrative discourse shapes and presents the story elements. On
the model of structural linguistics, the analytic study of narrative some-
times called narratology has held that narrative is systematic, that it can
be studied in its formal properties—its units and their combinations,
the internal relations that shape meaning. An attention to narrative
form, as well as content, might indeed benefit those legal actors who,
more than they are willing or able to recognize, are adjudicating on the
basis of narrative constructions.
Law may need a narratology. A legal narratology might be espe-
cially interested in questions of narrative transmission and transaction:
that is, stories in the situation of their telling and listening, asking not
only how these stories are constructed and told, but also how they are
listened to, received, reacted to, how they ask to be acted upon and how
they in fact become operative. What matters most, in the law, is how the
“narratees” or listeners—juries, judges—hear and construct the story. If
44 Law’s Madness

the law may fascinate a literary narratologist, it is in part because peo-

ple go to jail, even to execution, because of the well-formedness and
force of the winning story. “Conviction”—in the legal sense—results
from the conviction created in those who judge the story. So it is that a
greater attention to the narrative forms given to the law might serve to
greater clarity about what it is that achieves conviction.
Yet this plea for formal, analytic attention to narrative in the law
meets an objection that has been flamboyantly presented by Alan Der-
showitz.13 Dershowitz contends that the whole notion of a well-formed
narrative—as exemplified in Chekov’s “rule” that a gun introduced in
act one of the drama must by act three be used to shoot someone—is
misleading in the court of law, since it leads jurors to believe that real-
life stories must obey the same rules of coherence. If we allow into evi-
dence the narrative of spousal abuse, then the eventual murder of for-
mer wife by former husband becomes a logical narrative conclusion to
the story; whereas, Dershowitz wants to argue, who is to say that life
really provides such a narrative logic? Dershowitz offers here his ver-
sion of a theory of narrative advanced by, among others, Jean-Paul
Sartre, in his contention that telling—as opposed to living—really starts
at the end of the story, which is there from the beginning, transforming
events into indicia of their finality, their making sense in terms of their
outcome. This, incidentally, is why Sartre turned against the novel: it
seemed a violation of the indeterminacy of existential freedom.
It is indeed in the logic of narrative to show, by way of the sequence
and enchainment of events, how we got to where we are. As I sug-
gested in discussing Palsgraf, narrative understanding is retrospective.
Dershowitz may be right to protest that life is blinder and more form-
less than that. And yet, his protest may be in vain. For our literary sense
of how stories go together—their beginnings, middles, and ends—may
govern life as well as literature more than he is willing to allow. Our
very definition as human beings is very much bound up with the sto-
ries we tell, about our own lives and the world in which we live. The
imposition of narrative form on life is a necessary human activity; we
could not make sense of the world without it. We seek to understand
actions as intelligible units that combine into goal-oriented plots.
Hence, if Dershowitz utters a significant caveat about putting too much
trust in a preformed sense of how stories “turn out,” it’s not clear that
we could even put together a story, or construe a story as meaningful,
without this competence—acquired very early in life—in narrative con-
Policing Stories 45

struction. If narrative form were to be entirely banished from the jury’s

consideration, there could be no more verdicts.
Legal narratology might be precisely the forum in which to debate
the relevance of our narrative desire: our desire to see the world as
ordered in story, and the kind of suspicion that needs to be directed to
this desire. To the extent that we can understand the formal conse-
quences of our narrative desire, we may be better able to see the cul-
tural work it does in ordering our perceptions of the world, and make
more enlightened judgments about the role of narrative as a kind of
Kantian “category” in our thinking. Once again, the law seems
obscurely to recognize some form of the need for such understanding.
Note that the jury trial is supposed, in criminal cases, to resolve com-
peting stories “beyond a reasonable doubt.” But these cases nonethe-
less can go on to appeals courts, which are not supposed to second-
guess the jury on the story it accepted but to make sure that the rules of
storytelling—including what is permitted to be told—have been prop-
erly followed. Stories at the appellate level become exemplary, they
involve an elucidation of the rules. This is of course especially true at
the level of the Supreme Court, where the individual case must be fit-
ted into the controlling narratives of constitutional interpretation,
made illustrative of the basic principles of the rule of law and the social
order. “It is so ordered,” the Supreme Court opinion typically con-
cludes, by which we may understand that the Court has delivered a
final narrative of order and, more generally, that its narrative orders,
gives events their definitive shape and meaning. “It is so ordered”
sounds like the wrap-up to a Dickens novel, where we learn about the
final punishments and rewards, the marriages and the babies to come.
It’s not the kind of ending that modernist and postmodernist narratives
(and indeed, many premodern narratives as well) tend to furnish us. “It
is so ordered” is definitive, but its closure invites suspicion as well.
Does legal conviction thus defined really derive from a story imposed
by legal actors who claim that story has no place in the “great and shin-
ing truths” they have discovered?
The Supreme Court opinion offers another kind of narrative con-
struction as well: the narrative of constitutional interpretation, where
the Court argues that its present ruling fits seamlessly into a continuing
web of interpretation that reaches back to the text of the Constitution
itself, that it is part of a motivated, well-ordered consecutive plot. As
the authors of the “joint opinion” in Planned Parenthood v. Casey (112 S.
46 Law’s Madness

Ct. 2791 [1992] state): “Our Constitution is a covenant running from the
first generation of Americans to us and then to future generations. It is
a coherent succession” (2833). The “covenant” is a master narrative,
into which each new narrative episode must be fitted. How does this
work? In the joint opinion’s words, “the Court’s legitimacy depends on
making legally principled decisions under circumstances in which their
principled character is sufficiently plausible to be accepted by the
Nation” (2814). The narrative of the covenant relies on precedent and
stare decisis in order that change and innovation appear to be princi-
pled, so that sequences appear not random but as instances of consecu-
tion. The most apt words in this sentence may be “sufficiently plausi-
ble.” What does suffice here? Only that which is rhetorically effective,
that which persuades, that which assures “conviction.” “Sufficiently
plausible” invites assent, but also a degree of awareness of how one is
being worked on by a narrative rhetoric that claims the Court has no
choice but to rule as it does, that outcomes are determined by origins
and prior rulings. The logic of narrative itself may suggest that the
process in fact works in the opposite direction: that the outcome pro-
claimed by a court constructs its sufficiently plausible precedential nar-
rative. If narrative is always retrospective, it will always postulate its
beginnings and middles in relation to its ends.
In conclusion, I want to suggest that attention to the role of narrative
in the law can begin to open to thought the unthought assumptions,
procedures, and language of the law. If, as Souter puts it in Old Chief, a
syllogism is not a story, the law needs to become more conscious of its
storytelling practices, their functions, their shaping force. And here I
believe a critique from outside the law may be not only warranted but
necessary. The law is hermetic; it assumes its terms of legal art and its
reasoning procedures may be refined and improved but not funda-
mentally altered. Only from another tradition of critique and reading
can we summon the law to recognize what it represses. From an
engagement with the law from outside legal business-as-usual, we can
attempt to provoke an awareness that the law’s concepts, language,
and procedures have their place in other domains of culture as well and
thus cannot be wholly insulated and protected purely as legal terms of
art. What has become a loosely defined movement called “law and lit-
erature” represents a conscious breaching of barriers between disci-
plines, maintaining that those barriers are artificial dikes erected
against the inrush of forms of critical thinking the law considers irrele-
Policing Stories 47

vant, an attempt to disturb certain complacencies of legal thinking. Cer-

tainly an attention to narrativity in the law would be part of that
attempt. What is wholly unclear to me at present is whether the law, as
a system, will pay any attention to what is so far merely a skirmish on
its confines. For much of the law’s efficacy and power derive from its
self-enclosure, its capacity to impose an exclusionary rule on attempts
to open up its hermeticism. The law polices its frontiers indefatigably.

NOTES

1. Paul W. Kahn, The Cultural Study of Law: Reconstructing Legal Scholarship

(Chicago: University of Chicago Press, 1999), 1. See also Austin Sarat, “Tradi-
tions and Trajectories in Law and Humanities Scholarship,” Yale Journal of Law
and Humanities 10, no. 2 (1998): 401–7. My own disagreements with some of
Sarat’s recommendations are recorded in the same issue of YJLH, but I now feel
more sympathetic to his project of separating the cultural study of law from
legal education, since I am now convinced that legal education is largely imper-
vious to a study of the law from outside.
2. In victim impact statements used in capital sentencing, material that is
inevitably tragic and inflammatory when developed as a story of irrefutable
pain, suffering, wrong, cannot but persuade the jury to harsher punishment.
Hence opponents of VIS have argued that it gives the wrong story, in the wrong
place, but they have so far lost out to advocates of VIS who fully intend to see
these narratives of irreparable harm produce more death sentences—though
their explicit arguments in favor of VIS avoid making this point and do not
explicitly recognize the unprecedented introduction of an irrebuttable narra-
tive at this sensitive moment of legal proceedings. On VIS, see among many
discussions: Peter Brooks, “Illicit Stories,” diacritics 25, no. 3 (1995): 41–51;
Martha Minow, “Surviving Victim Talk,” UCLA Law Review 40 (1993): 1411–45;
Paul Gewirtz, “Victims and Voyeurs: Two Narrative Problems at the Criminal
Trial,” in Law’s Stories, ed. Peter Brooks and Paul Gewirtz (New Haven: Yale
University Press, 1996), 135–61; Jennifer L. Culbert, “The Sacred Name of Pain:
The Role of Victim Impact Evidence in Death Penalty Sentencing Decisions,” in
Pain, Death, and the Law, ed. Austin Sarat (Ann Arbor: University of Michigan
Press, 2001), 103–35; Austin Sarat, “The Return of Revenge: Hearing the Voice
of the Victim in Capital Trials,” in When the State Kills: Capital Punishment and the
American Condition (Princeton: Princeton University Press, 2001), 33–59.
3. Sigmund Freud, “Negation” [Die Verneinung] in Standard Edition of the
Complete Psychological Writings (London: Hogarth Press, 1961), vol. 19, 235.
4. See Jean Laplanche and J.-B. Pontalis, Le Vocabulaire de la psychanalyse
(Paris: Presses Universitaires de France, 1967), s.v. “(Dé)négation.”
5. John T. Noonan, “The Passengers of Palsgraf,” in Persons and Masks of the
Law (New York: Farrar, Straus and Giroux, 1976), 111–51.
48 Law’s Madness

6. Arthur Conan Doyle, “The Red-Headed League,” in The Adventure of the

Speckled Band and Other Stories of Sherlock Holmes (New York: Signet, 1965), 83.
7. William L. Prosser, reconstructing the case, claims that it was “an ordi-
nary penny scale of the railroad platform type,” which was either knocked over
by the explosion—as Cardozo believed—or else knocked over by people rush-
ing to escape the explosion. William L. Prosser, “Palsgraf Revisited,” Michigan
Law Review 52, no. 1 (1953); cited in Noonan, 118. Prosser later concluded that
the event could not have unfolded as Cardozo reported it: the scales must have
been overturned by the crowd, not by the explosion. See Noonan, 119.
8. Cited by Noonan, 150. Noonan’s essay on Palsgraf is concerned with the
excessive abstraction of legal rules from facts, which parallels my concern with
its excessive policing of the story of what happened.
9. Anthony Amsterdam and Jerome Bruner, Minding the Law (Cambridge:
Harvard University Press, 2000), 111; see also Bruner, “The Narrative Con-
struction of Reality,” Critical Inquiry 18, no. 1 (1991): 1–21.
10. On trial advocacy and narrative, see, e.g., Steven Lubet, Modern Trial
Advocacy (Notre Dame, Ind.: National Institute for Trial Advocacy, 1997), chap.
1, “Case Analysis and Storytelling.”
11. See Austin Sarat and Thomas R. Kearns, “A Journey Through Forget-
ting: Toward a Jurisprudence of Violence,” in Sarat and Kearns, The Fate of Law
(Ann Arbor: University of Michigan Press, 1991), 209–73, esp. 213–18.
12. See, for example, Payne v. Tennessee (501 U.S. 808 [1991]), in which the
Supreme Court reversed its holding in Booth v. Maryland (482 U.S. 496 [1987])
barring VIS during the sentencing phase of a capital case: arguing that VIS
should be permitted, Rehnquist, writing for the Court, introduces his opinion
with a detailed and gory account of the mayhem wreaked by Payne—an
account quite irrelevant to the question at issue, but rhetorically effective in
suggesting that Payne deserved any and all evidence that could be brought to
bear against him. See my discussion of Payne and Booth in “Illicit Stories,” dia-
critics 25, no. 3 (1995): 41–51.
13. Alan Dershowitz, “Life Is Not a Dramatic Narrative,” in Law’s Stories,
ed. Peter Brooks and Paul Gewirtz (New Haven: Yale University Press, 1994),
99–105. On the end orientation of narrative, see Peter Brooks, Reading for the Plot
(1984; rpt. Cambridge: Harvard University Press, 1992), 3–36.
Narrating Nymphomania
between Psychiatry and the Law

Elizabeth Lunbeck

The Case of Marion Taylor, 1916

The setting was a courtroom, the issue was mental competency, the
defendant was Marion Taylor, a twenty-two-year-old single woman
charged by her grandmother—her parents were deceased—with being
a nymphomaniac. Mustering as evidence the fact that she is “infatuated
with a married man with whom it is suspected she has illicit relations”
and, further, that he is apparently trying to “get control of her prop-
erty,” Taylor’s grandmother had successfully petitioned a state police-
man as well as a physician in Hyannis, Massachusetts, where Taylor
had lived for going on a year, for her temporary commitment to the
Boston Psychopathic Hospital for observation and diagnosis, hoping to
have her declared insane, incompetent to manage her quite consider-
able estate.1
Hospital psychiatrists found Taylor “a model patient,” cooperative
and well-mannered, although, in the estimation of one, Anna Welling-
ton, very outspoken and “rather more talkative than the average indi-
vidual.” Taylor was slightly nervous and apprehensive while under
observation (she was subjected to extensive mental, physical, and psy-
chological examinations, including an assessment of her mastery of the
upper ranges of the multiplication tables and a probe into her under-
standing of the workings of mortgages and insurance) but was, in the
end, deemed possessed of a clear head and found free of delusions and
false beliefs—“virtually normal,” another psychiatrist testified, from
the alienist’s point of view. Her arithmetical interest and skills—rele-
vant to the question of her ability to administer her estate—were

49
50 Law’s Madness

judged seriously lacking, “odd for a person having so much money,”

but it was not clear to psychiatrists if her deficiencies were innate or a
matter of inadequate education. More problematic, she was found to be
impulsive as well as gullible and oversuggestible, which, the same psy-
chiatrist explained, meant she “takes suggestions from the first person
that she puts confidence in over-much.”
The main problem with Marion Taylor, however, was that “she has
not very wide interests. Her interests seem chiefly to be sexual.” As the
psychiatrist E. E. Southard, director of the Psychopathic Hospital,
explained to the court, “she has a tendency to succumb to sexual temp-
tation,” adding that, “of course, there is evidence she has succumbed”
or, quickly backtracking, “at least, at any rate, she has the tendency.”
As evidence, he adduced the fact that she had admitted to one instance
of sexual intercourse with an insurance agent in Montrose, Pennsylva-
nia, that she had seriously entertained though apparently not carried
through on “improper proposals” from a young man that they meet
illicitly, and that, “rather as an experiment,” she had drunk beer with
and kissed a certain Mr. Phinney, a close male confidant of hers whose
own reputation was not above reproach. Daringly, Taylor had con-
sulted Phinney concerning how to respond to the other man’s sugges-
tions, feeling she ought to accede to them. Southard made it clear he
quite liked Taylor. He considered her a special case and told the court
she and her difficulties “excited a great deal of human interest.” When
he started in on “it is a pitiable thing she has lived,” however, he was
abruptly cut off by her attorney, a Mr. Morse, who was trying to prove
her competent and sane.
What was it that led Southard to believe Taylor would readily yield
sexually? Asked this by Morse, under cross-examination, Southard
explained that while her conduct while hospitalized was exemplary,
there were “items in the history as we got them,” referring to the great
many stories “for and against her” that had been told “by a variety of
persons on all sides of the case” that formed the basis of his judgment.
These stories about her “previous method of living, her conduct,” were
gathered from informants, written down, and were now part of her
hospital record. What do you do with these stories if they are untrue?
Morse asked, noting correctly that the untrue stories, like the true ones,
were incorporated into the hospital case history. “Do you investigate
the truth of them before taking them into account?” After objecting to
what he considered an unfair charge—“What you are trying to get me
Narrating Nymphomania between Psychiatry and Law 51

to say is that we take stories that are untrue and put them into the his-
tory,” Southard said, “The idea of charging the Psychopathic Hospital
with doing that!”—Southard replied that the hospital had an elaborate
mechanism for investigating the truth of stories, which consisted in
sending out social workers. In this case they had been sent to Hyannis
to investigate Taylor’s “past reputation.” Was there any particular
story they attempted to ascertain the truth of? “I fancy it was the Phin-
ney episode,” Southard replied, following which Morse poked
extended fun at his use of the word “fancy,” stating, soliciting
Southard’s assent, “There is a good deal of fancy about this.” Admitted
Southard: “A little over-imagination on several sides.”
As it turned out, Taylor was found not insane but also not normal;
she was, the two psychiatrists, Wellington and Southard, told the court,
a psychopathic personality. “What is the meaning of the word ‘psycho-
pathic’?” Morse asked Wellington. “I am not a Greek scholar,” she
replied, following which the two sparred over her inability to define
the term, with her unable to say whether it was of Greek or Latin
derivation—“I am not a philologist,” she pleaded at one point—and
finally settling on it referring to “a person of more or less deviation
from the normal.” Morse homed right in on this. “Is there any person
who is not to a greater or less extent more or less of a psychopathic per-
sonality?”—a clever challenge for which she had no answer. Was Tay-
lor not “a bright, capable girl?” Morse asked Southard, who replied it
depended “on the word ‘capable’; it is a thing that has degrees.” Was it
not true that even “a great many people” who were not well versed in
the multiplication table could be considered capable? Answered
Southard, “It surely is, even the monkeys.” Testily, Morse asked in sev-
eral different ways whether the psychiatrist thought it necessary to
make such a remark in a courtroom, and Southard dug in, rather pre-
posterously defending his initial statement, offhandedly made in a
moment of frustration at the lawyer’s apparent inability to comprehend
what seemed so clear to the psychiatrist—that the deficits encompassed
under the rubric psychopathic were not intellectual and, furthermore,
had nothing to do with the determination of sanity or insanity on
which the legal question turned.
This was but the most heated of several such moments that marked
this courtroom clash of legal and psychiatric epistemologies. The ques-
tion of Taylor’s nymphomania brought the differences between these
sharply into view, focused in particular around two issues. The first of
52 Law’s Madness

these was the unfamiliar and, to the lawyers, quite problematic diagno-
sis of psychopathic personality, which confusingly denoted at once
sanity and nonnormality. Psychiatrists at the time were eager to aban-
don the distinction between sanity and insanity that had structured
nineteenth-century psychiatry and to consign it to the realm of the legal
while, at the same time, elaborating a much more complex, and to the
legal mind, incomprehensible, nosological scheme organized around
normality and deviations therefrom. The personality disorders in gen-
eral, and the psychopathic personality in particular, were the categories
around which they effected a reconceptualization of their discipline, a
reconceptualization that resulted in clashes, over the course of the
twentieth century, between a legal system that demanded certainty and
discretely bounded categorical terms and a psychiatric worldview that
was organized around gradations, deviations, assets, and deficits, and
that rejects as meaningless the simple determination of sanity. Indeed,
the landmark “insanity defense” decisions of the past fifty years—Hol-
loway v. United States, Durham v. United States, and Washington v. United
States—all involved one or another of the personality disorders.
The other issue Taylor’s case brings sharply into view is that of
truth—its meaning, its singularity. In the exchange between lawyer
and psychiatrist we can see an exemplary clash between the legal
demand for a singular truth—was or was not Taylor a psychopathic
nymphomaniac and by virtue thereof rendered incapable of managing
her affairs?—and the psychiatric tolerance for, indeed reliance on, a
plethora of stories, the truth status of which was in many respects
immaterial. As Southard knew but recoiled from stating bluntly, even
“untrue” stories were part of the “truth” of a case. That stories, whether
or not strictly “true,” swirled around one was of diagnostic significance
in assessing reputation, which was, in the case of women but not men,
central to the determination of psychopathic personality. From the psy-
chiatric perspective, all stories were thus in some sense true. The con-
trast between this stance and that of a Texas appellate court judge, rul-
ing in 1911 on a case of rape in which the defendant had unsuccessfully
attempted to portray the prosecutrix as a nymphomaniac, could not
have been more stark. The appellant’s lawyer had charged the girl was
a nymphomaniac, arguing in support of this, in a hereditarian vein, that
the reputations of her mother and sister “were bad for chastity.” “Rep-
utation is one thing and the facts another,” the judge declared. “A per-
son may have a reputation for one thing, but that would not establish
Narrating Nymphomania between Psychiatry and Law 53

the existence of a fact.”2 To the psychiatrist, reputation was fact. That

legal and psychiatric facts were not of the same order—that, as one psy-
chiatrist put it, the law assumed that “fact” was “a phenomenon in real-
ity,” while psychiatry made no such assumption, some facts being “not
always realistic in nature”3—is a difficulty that was threaded through
many cases subsequent to Marion Taylor’s.
Yet another problematic dimension of the truth question—the sub-
ject’s capacity for and investment in telling the truth—was touched on
in the Taylor case. Southard told the court that Taylor “had been
charged with untruthfulness by a good many persons” and that while
under observation she made “a variety of statements sometimes incon-
sistent with each other,” though, he added as qualification, “this degree
of inconsistency is perhaps not infrequent among persons that we
meet.” The charge that the nymphomaniac played loose with the truth,
that, as the court put it in a case from 1929, “her mind was so warped
by sexual contemplation and desires so as to lead her to accept the
imagined as real,”4 followed her into the courtroom from the turn of the
century through the 1960s. The nymphomaniac was, in the estimation
of the law, incapable of distinguishing fact from fantasy. The ever-
increasing certainty with which this claim was advanced, in trial after
trial, was premised on both legal and psychiatric foundations. That the
testimony of a woman was enough to convict a man of rape5 was the
lawyer’s concern, intensified by the findings of psychiatrists who
limned the erotic liar’s deep and hidden motives. Yet however much
the two perspectives were merged in the fact of her essential untruth-
fulness, the practical consequences resulting from them differed. In the
court, her lies might mean no man was safe. In the clinic and consulting
room however, her lies were symptoms, part of her neurosis. As such,
they were of diagnostic but not of “real” significance. Indeed, in the
realm of psychoanalysis, which, through the 1960s, was in language
and concepts indistinguishable from much of mainstream dynamic
psychiatry, her lies were even less at issue. As John Forrester has aptly
observed, “the analyst behaves as an epistemological radical, by ignor-
ing the difference between truth and lies, between truth and fiction.”6
The fantasies that the lawyers found so dangerous were the very stuff
of the analytic process; what matters, Forrester observes, is the fact they
are articulated, not whether they are true or not.7 Reflecting, for exam-
ple, on the contemporary commonplace that hysterics were nothing but
exceptionally skilled liars, an analyst—a colleague of Southard’s—
54 Law’s Madness

voiced precisely this stance in his assertion that “all hysterics tell
untruths; some hysterics lie.” Truth, he maintained, consisted in “the
agreement of our ideas with reality,” which was not to be opposed to
unreality but considered as “a matter of immediate experience.” It was
enough for him, he wrote, that “the patient fully believed what she
said.”8
Focusing on the diagnosis of psychopathic personality and, in par-
ticular, on nymphomania, this essay examines differences between
legal and psychiatric understandings of human behavior as they were
highlighted in court. It suggests that, in general, lawyers demanded
clear boundaries and sharp distinctions, while psychiatrists saw every-
thing in shades of gray, a disciplinary cast of mind that was even more
marked in these cases because the diagnoses in question were person-
ality disorders. As well, the essay traces the ways in which psychiatric
and psychoanalytic understandings of nymphomania, over the course
of the twentieth century, reflected deeply embedded cultural narratives
of female sexuality. It shows how remarkably contingent these narra-
tives proved, first imperiled by the sexual revolution of the 1960s and
then swiftly overturned in both the psychiatric and legal arenas when
subjected to second-wave feminist scrutiny. With the delineation of
rape trauma syndrome and its nearly instantaneous judicial accep-
tance, the legal and psychiatric edifice that had sustained three-quar-
ters of a century’s worth of practice crumbled, leaving nymphomania
as a thin and largely outdated category. Through all, the differing sta-
tus of truth in the legal and psychiatric realms remained.
Southard closed his testimony to the court in the case of Marion Tay-
lor saying he’d “rather enjoyed this passage at arms, thank you.” Morse
shot back: “Considering its effect on the life and future of a young girl,
I should think you would,” reminding him, and us, that what had tran-
spired in court was both more and less than a clash between legal and
psychiatric epistemologies.

The Personality Disorders before the Law

The vexing incompatibilities of legal and psychiatric points of view are

perhaps best observed around the personality disorders. This is so in
part because so many of the landmark twentieth-century insanity
defense cases have involved defendants diagnosed as psychopathic or
sociopathic personalities, and in the back and forth between lawyer
Narrating Nymphomania between Psychiatry and Law 55

and psychiatrist the fundamental irreconcilability of their stances was

thoroughly explored and thus, usefully for the historian, highlighted.
But it is also the case because in the personality disorders, as psychia-
trists constituted them, the divide between simple bad behavior and
behavior indicative of mental disease was deliberately stretched so thin
as to appear nonexistent at times.9
It is important to emphasize that this confusion between bad and
mad—or, put differently, between lay and scientific judgments—was
constitutive of the category, located not at the margins but at the core of
the diagnosis. Psychiatrists’ repeated efforts to tidy up the margins in
service of buttressing the validity of the diagnosis were thus destined
to prove futile. Consider the 1976 case of Washington v. United States, a
case marked by Judge David Bazelon’s impassioned abandonment of
the psychiatrist-friendly position he had famously put forth in the 1954
Durham decision: that the psychiatrist’s role as expert witness was “to
inform the jury of the character of the (accused’s) mental disease (or
defect).”10 Bazelon complained bitterly in Washington that the testi-
mony of the several court-appointed psychiatrists was useless, that the
jury had been “subjected to a confusing mass of abstract philosophical
discussion and fruitless disputation” about the meaning of such terms
as “a ‘personality defect,’ a ‘personality problem,’ a ‘personality disor-
der,’ a ‘disease,’ an ‘illness,’ or simply a ‘type of personality.’” He
might have had in mind the following exchanges from the case. Was
the defendant normal?, one psychiatrist, who had used the term “socio-
pathic symptomology” in reference to him, was asked. “Well, a lot
depends, if you mean by ‘normal’ that he has no mental illness, then he
would be normal in my opinion. However, if you mean normal by his
behavior, being socially acceptable, then he would not be normal.” Or
this: Wasn’t the defendant’s behavior “directly caused by this person-
ality problem which is of a sociopathic nature?” No, the psychiatrist
replied, adding, “Look, anything that any of us do is caused by our per-
sonality, by our character. I would not know whether you want to call
this illness or not.”11 All this quibbling over the meaning of the word
normal and refusing certainty on the distinction between personality
and illness constituted, in the eyes of the judge, needless obscurantism.
Yet the offending psychiatrists were not being obstructionist or per-
verse. They were simply voicing the ambiguities inherent in the diag-
nosis.
If these ambiguities were not altogether intentional, they were at the
56 Law’s Madness

very least exceptionally useful. The diagnosis of psychopathic person-

ality was first adumbrated, in the early years of the century, as an alto-
gether new type of category, one that would be, psychiatrists asserted,
especially abhorrent to alienists, specialists who testified in court on
questions of sanity and its lack and who were charged with being
overly wedded to their narrowly legalistic vision. Chafing at what they
argued were the limitations of a specialty organized around insanity,
progressive psychiatrists advanced an ambitious agenda for the reform
of their discipline. By 1915 or so, they had situated psychopathic per-
sonality at the center of their vision and practice. The diagnosis at its
simplest, they explained, referred to the many apparently normal indi-
viduals whom their rapidly evolving science was proving dangerously
defective. Unstable, irritable, and impulsive; eccentric, peculiar, and
odd, these persons had long, and wrongly, been tolerated by a gener-
ous but misguided laity. Psychopaths were iconoclasts incarnate, lack-
ing in common decency and reckless flouters of social convention.
Criminals and delinquents, sex perverts and prostitutes, lazy men and
promiscuous women filled their ranks. Setting the parameters of the
diagnosis broadly, psychiatrists regularly chronicled the exploits of
exemplary psychopaths in support of their contention that what
appeared to the layperson to be social issues were in fact properly psy-
chiatric concerns.
The liabilities of this strategy were twofold. First, psychiatrists
would prove better able to identify psychopaths than to define psy-
chopathy. They never settled on a satisfactory definition of the cate-
gory, vacillating between conceiving of it as, on the one hand, a discrete
disease and, on the other, a diffusely defined abnormality that anyone
might manifest. The earliest of the German psychiatrists who, from the
1880s on, outlined the concept in its modern form conceived of it as
both, splitting over whether it was constitutional or acquired, a weak-
ness of the will or simply bad behavior. They, and the American and
British psychiatrists who adopted and refashioned the concept, were
able to agree only that psychopathy, whatever it was, flourished in the
space that lay between psychic health on the one extreme and mental
disease at the other; this was as close to a consensus as they got. The
second liability, the category’s indeterminacy—its capacity to shelter
such diverse types—meant it was in constant danger of unraveling
altogether. Among themselves, psychiatrists admitted that psycho-
Narrating Nymphomania between Psychiatry and Law 57

pathy was not a well-defined entity and that it could mean little more
than that the individual in question was not normal. Further, that every
psychopath might be sui generis called the very existence of the cate-
gory into question. Psychiatrists chided themselves for employing so
imprecise a term, even as they branded growing numbers of persons
with it.
Both of these liabilities would haunt the category through the course
of the century. Psychiatrists’ inability to define the condition would
spawn protests against its deployment, particularly in the spate of sex-
ual psychopath laws that were passed in the United States from 1937
through 1957 and in Britain in 1959. These laws were uniformly
directed against male sexual offenders and provided for psychiatric
examinations of and indeterminate sentences for sex offenders, even
those not charged with any criminal offenses.12 Commenting on the
terms psychopath and sexual psychopath, which were written into the
Mental Health Act of 1959, the legal scholar Tony Honore asked
whether the terms were descriptive of anything more than the fact that
some people break the society’s rules about sexual behavior. The act
defined psychopathic disorder as “a persistent disorder or disability of
mind which results in abnormally aggressive or seriously irresponsible
conduct on the part of the patient” that required or was susceptible to
medical treatment; simple immoral conduct and promiscuity alone
were specifically excluded. But to what, precisely, did “seriously irre-
sponsible” refer, if not conduct that was in some way immoral? And
how was one to distinguish “between mental disease and ordinary
rule-breaking”?13 American commentators on the sexual psychopath
laws voiced misgivings similar to Honore’s, noting that the laws failed
miserably in their intended task of distinguishing mentally normal
(minor criminals, for example) from mentally abnormal sex offenders.
Under the rubric mentally abnormal were classed emotionally unstable
and impulsive individuals who could not understand the conse-
quences of their acts—traits, one commentator noted, “found in mil-
lions of people.” No objective criteria could reliably identify who man-
ifested these traits in abnormal quantities.14 The category was elusive,
critics charged, even to psychiatrists, a charge to which some psychia-
trists halfheartedly assented, with one prominent figure on the one
hand admitting, in a roundabout way, that the term sexual psychopath
had “no clear psychiatric significance,” referring at bottom to social
58 Law’s Madness

maladjustment, and on the other defending the laws’ necessity, given

that there were persons who fell in the middle ground between sanity
and insanity.15
Critics thus homed in on the conceptual confusions that were consti-
tutive of the category of psychopathy. But psychopathy’s expansive
indeterminacy was also its strength. The signal symptoms of psy-
chopathy were, as critics realized, comparative, slight variations on
traits displayed by everyone: too much of this, too little of that—hon-
esty, reliability, self-control. They were not, that is, discrete and
bounded, like the symptoms indicative of psychosis (the hallucinations
and delusions associated with schizophrenia, for example) but, rather,
quantitative deviations from what was considered normal. The cate-
gory was thus an unstable amalgam of a disease and a metric model; as
such it provided psychiatrists a framework within which to refashion a
new psychiatry, applicable to virtually everyone, from aspects of the
old. Around it, they laid the conceptual groundwork for the personal-
ity disorders that have assumed increasing importance in psychiatry
over the course of the century. And around it, they articulated what
would come to be seen as a characteristically psychiatric perspective on
the relationship between the normal and abnormal, the mentally
healthy and ill—that they were arrayed on a continuum, the abnormal
but a variation on the normal, in degree rather than kind.
It would prove difficult for the law to assimilate this new perspec-
tive. The law was organized around a sharp distinction between sanity
and insanity; as a decision from 1945 put it, “to the psychiatrist mental
cases are a series of imperceptible gradations from the mild psychopath
to the extreme psychotic, whereas the criminal law allows no grada-
tions.”16 The test of criminal responsibility at that time rested on
whether a defendant could tell right from wrong, an inheritance of the
early-nineteenth-century M’Naghten decision, rendered when faculty
psychology—which, simply put, conceived of the mind as a congeries
of separate and separately acting faculties or capabilities—was in
vogue.17 The new psychiatry represented a firm repudiation of this,
instead conceiving of the person as an integrated whole. As Judge
Thurman Arnold put it, modern psychology “does not conceive that
there is a separate little man in the top of one’s head called reason
whose function it is to guide another unruly little man called instinct,
emotion, or impulse in the way he should go.”18 The courts in the 1940s
and 1950s were at first deferential to the new psychiatry. This is espe-
Narrating Nymphomania between Psychiatry and Law 59

cially evident in Bazelon’s decision in Durham, rendered at what was

perhaps the high point of twentieth-century psychiatry’s credibility
and influence. Durham marked the replacement of the traditional test of
criminal responsibility, which rested on the ability to distinguish right
from wrong, with a new standard, holding the accused “not criminally
responsible if his unlawful act was the product of mental disease or
mental defect.”19 In Durham, the notion that man was an integrated per-
sonality, not a collection of separate faculties governed by reason, was
put into law.
Over the course of his life, numerous psychiatrists had diagnosed
Monte Durham as a psychopath. He had been in and out of prisons and
mental hospitals for years, charged with auto theft, passing bad checks,
parole violation, and housebreaking. The second time he was dis-
charged from St. Elizabeth’s, a government hospital for the insane in
Washington, D.C. (to which he was committed a total of three times),
he was given the diagnosis “without mental disorder, psychopathic
personality,” a diagnosis that neatly captures the ambiguities at the
heart of psychopathy.20 These ambiguities—not insane but not nor-
mal—would figure prominently in Bazelon’s opinion, twenty years
later, in Washington, in which he announced that the standard he had
set in Durham had not fulfilled its promise. Bazelon’s hope was that the
psychiatrist in court would portray the “inner man”—his “mental and
emotional makeup”—straightforwardly and factually. Instead, he or
she bandied labels about, confusing juries with their arguments over,
for example, whether a defendant had a sociopathic personality, a
“‘personality disorder,’ or merely ‘personality problems.’” With all
their obfuscating labels, which substituted for the “facts and analysis”
that Bazelon argued it was the psychiatrist’s role to provide, they had
conveyed a misleading and false impression of their discipline’s “sci-
entific exactness.” They had also trailed their personal views into court,
too often acting as thirteenth jurors as they assessed defendants’ blame-
worthiness. As Bazelon saw it, the psychiatrist as expert witness was to
provide “down-to-earth concrete explanation[s],” leaving questions of
morality to juries to decide.21
When psychopathy was at issue, this proved impossible. Morality
and moral judgments were constitutive of the concept; as many com-
mentators both within and beyond psychiatry recognized, the diagno-
sis and its symptoms simply fell apart without a moral referent. Many
psychiatrists thus opposed the sexual psychopath statutes on the
60 Law’s Madness

grounds that they were not themselves sufficiently in accord on the

meaning of the diagnosis. Furthermore, they recognized that the
statutes did not differentiate clearly enough between serious (such as
rape) and not-serious (such as public masturbation without indecent
exposure) sexual misbehavior. The first fourteen defendants found to
be sexual psychopaths in New Jersey, for example, were all guilty of
what were in the eyes of the law minor offenses: a man who felt the
breast of a woman in a department store, a man who had sex with an
“experienced” young woman, and three men who engaged in homo-
sexual relations with younger men.22
The prominent psychiatrist Winfred Overholser raised another
objection to the laws, an objection that goes to the heart of the issue
around nymphomania before the law: that charges such as rape were,
in the three-hundred-year-old and endlessly reiterated words of Lord
Hale, “easily to be made and hard to be proved and harder to be
defended by the party accused, though never so innocent.” Overholser
outlined several cases in which men had been convicted of rape on the
basis of girls’ uncorroborated and, as courts later ruled, false testimony,
which he argued might be motivated by revenge or, more problemati-
cally, result from fantasy or even psychosis. The falsely accusing wit-
ness, he wrote, should be subjected to psychiatric examination, for only
the psychiatrist could reliably discern the personality disturbance that
lay at the root of her lurid, attention-grabbing lies.23
Overholser thus subtly but unequivocally shifted the burden of psy-
chopathy from accused to accuser, and heaped on the tale-telling
woman all the depravity that the laws originally associated with ram-
pant, out-of-control masculinity. The figure of the oversexed woman
who levels damning and altogether fantastic accusations against inno-
cent men runs through the twentieth-century medical and legal litera-
ture on sex and, in particular, on rape and other sex crimes. That her
chastity, not the alleged rapist’s, was at issue, and that it was linked to
her credibility, would become a particular sticking point for feminists
working for rape law reform, which was effected in the 1970s and
1980s. From the early years of the century until such reforms were
implemented, it was widely assumed that complaining witnesses in
rape trials were liars, their fantastic accusations symptoms of their
nymphomania.
Before turning to examine this, it is worth pointing out that the
stereotype of the female sexual psychopath—the hypersexual or
Narrating Nymphomania between Psychiatry and Law 61

nymphomaniac—predates her male counterpart by at least two

decades.24 From the start, the stock psychopath of the psychiatric liter-
ature was a man, but the psychopath who actually came to psychia-
trists’ attention was a young, attractive, and willfully passionate
woman who purportedly could not control her desire for sexual plea-
sure. Psychiatrists confronted her, in the second decade of the century,
in the midst of a widely commented upon revolution in sexual mores;
they blamed her, and her boundless sexual desires, for corrupting and
ruining otherwise innocent men. In professional journals and in books,
they related tales of her forthright approach to sexual fulfillment as
well as of her more general assumption of male prerogative—claiming
the right to earn and spend as she pleased, to live on her own, free of
parental supervision in the nation’s burgeoning cities, and to engage in
a variety of behaviors long deemed fatal to a woman’s reputation, from
drinking publicly in bars to exchanging sexual favors for men’s treats
to money, clothing, and nights on the town. Her gender-inappropriate
independence was as much at issue as her forthright sexuality, but psy-
chiatrists focused almost completely on the latter, in the process mak-
ing it familiar and known. In the 1920s, as the sexual revolution spread
and as behavior that psychiatrists labeled psychopathic became more
prevalent and less easily ascribed to a deviant minority, psychiatrists’
interest in the condition flagged. The sexual psychopath of the late
1920s and beyond was male, and a rapist, child molester, or homosex-
ual; it was this figure the sexual psychopath laws were meant to target.

The Nymphomaniac as “Mythomaniac”

The most salient fact about the nymphomaniac, in the eyes of the law,
was that she was a fabulist or “mythomaniac.”25 Given that most accu-
sations of rape or other sexual crime pitted a woman’s word against a
man’s, and that, in many states, no corroborating evidence was neces-
sary for conviction, near-unanimity reigned on the proposition that her
credibility was especially at issue. The meeting of psychiatry and the
law was often contentious; but around sex crimes it was—in spirit if not
in practice—amiable. Lawyers were happy to defer to psychiatric testi-
mony that whittled away at the reality of rape.26 Indeed, in the estima-
tion of many medico-legal authorities, rape was the rarest of crimes, it
being nearly impossible, they held, for a man to rape a woman of “good
health and vigor.”27
62 Law’s Madness

Jenkins v. State, a case of statutory rape from Texas dating to 1910, is

perhaps the earliest to feature the lying nymphomaniac.28 She was one
Eunice Hudspeth, a thirteen-year-old who told the court she’d had sex
with the defendant of her own will—they’d known each other for three
years, had met at a party and agreed to meet later for sex, which they
did, down in a field in a cottonseed house—and that furthermore she’d
“copulated with a great many persons” and had been doing so since the
age of nine. Jenkins, the twenty-two-year-old defendant, first confessed
to raping Hudspeth, then, later, claimed that she was a nymphomaniac;
such a woman, a physician explained to the court, “would conceive in
her mind a fact, and . . . she would go into court or anywhere and tes-
tify and assert that a certain individual had copulated with her when
such would not be the fact.” The four physicians who offered testimony
in the case suggested no inner motivation for her lying; rather, they
straightforwardly asserted it as simple fact.
Twenty years later, in People v. Cowles, another case of statutory rape,
the nymphomaniac was not only a “pathological falsifier” but also a
“sexual pervert.” Further, it was not only her observed behavior—her
“lascivious conduct”—but also her inner state that was at issue; the for-
mer consisted in her exposing herself to boys at school, the later in the
“sexual contemplation” that warped her mind and resulted in her pur-
portedly fabricating a sexual act.29 In a number of cases from the 1930s
through the 1960s, the roots of the nymphomaniac’s propensity to lie
were located in this taste for abnormal sexual contemplation. The erotic
liar emerged from the interweaving of a legal tradition wary of the
power of women’s words and a psychiatric tradition evolving in an
ever more dynamic direction, focused on the unconscious and inner
drives. This merging of traditions was effected with little dissent. In
Lawrence Cowles’s original trial, the two physicians who had argued
that the complaining young woman was a nymphomaniac and thus a
fabricator of the charge of rape were subjected by the prosecution to
race- and gender-laden invective and ridicule. Addressing the jury, the
prosecutor derided them as “so-called experts” and compared their tes-
timony to a stunt in a vaudeville show. “And I tell you that these two
doctors are worse than the Indian medicine men or Negro voodoos.
How any professional man can so prostitute his profession,” he argued,
“is beyond me.” The appellate judge hearing the case dissented, con-
demning the prosecution’s antics and pronouncing, “the term nympho-
maniac is a standard one in medical practice.” From this point on, it is
Narrating Nymphomania between Psychiatry and Law 63

difficult to find any objections at all to the term and its referents.
Threaded through cases subsequent to Cowles are claims that the
nymphomaniac lies because her mental condition “transforms into
wish a powerful biological urge,”30 that her narration of imaginary sex
events is but the direct expression of her unchaste mentality,31 that her
“psychic complexes” result in tales “of imaginary sex incidents” that
feature the narrator as heroine.32 In cases of incest or with very young
complainants, physicians and prosecutors sometimes accounted for
girls’ lies by locating them in webs of depravity and deceit at the heart
of the family. Thus, a promiscuous girl bristling under the tutelage of
an overly strict father might, in revenge or to distract from her own
lapse from virtue, advance false charges against him,33 or a girl who
was angry at her mother’s “running around with” a man might accuse
him of raping her.34 In most cases, however, it is remarkable how little
such contextualization is featured; revenge and jealousy as motives are
not even hinted at. The focus is almost entirely on the liar’s inner life
and “deep-seated personality disturbances.”35
The locus classicus for this construction of the erotic liar is Wig-
more’s treatise on evidence. Weaving together legal precedent, in
which she was already assuming substance, and psychoanalytically
inflected psychiatric testimony on the connection between female eroti-
cism and lying, Wigmore portrayed her as unchaste and perverted, a
contriver of false charges against men, rendered all the more dangerous
by her otherwise normal mentality.36 Among the authorities he cited at
great length, in presenting what some would later characterize as a
Freudian perspective,37 were William and Mary Healy on pathological
lying, presenting five vignettes of immoral lying girls; a German
authority on hussy types who shamelessly spun falsities; and the psy-
choanalyst Karl Menninger, arguing that “fantasies of being raped are
exceedingly common in women, indeed one may almost say that they
are probably universal.”38 Wigmore’s contention that “no judge should
ever let a sex offense charge go to the jury unless the female com-
plainant’s social history and mental makeup have been examined and
testified to by a qualified physician”39 served to underwrite as standard
practice in sex offense cases the attempt to impeach the credibility of
the female witness.
It is worth noting that the intimate relationship between eroticism
and lying held only in women. Wignore held that in general—that is, in
men—courts rightly considered truthfulness independent of general
64 Law’s Madness

character. He settled the question of whether men’s, or only women’s,

sexual reputations were relevant by reference to case law, ventriloquiz-
ing what was no doubt his own opinion in quoting at length from an
1895 case. Invoking common knowledge, the court had argued that
“the bad character of a man for chastity does not even in the remotest
degree affect his character for truth, when based on that alone, while it
does that of a woman.” Yet, as if aware that common knowledge was
not in itself sufficient to establish this principle, the court buttressed it
with observation and testimony that was hardly “common.” First, it
asserted, many eminent and “otherwise honorable” jurists in both Eng-
land and America openly committed adultery while adhering to their
oaths of office. Then it invoked Dr. Johnson discoursing on the gender
of lewdness, quoting him as having said “that he would not receive
back a daughter because her husband, in the mere wantonness of
appetite, had gone into the servant girl.” Finally it presented Macaulay
who, with respect to Byron’s weakness for sexual pleasure, had written
“that it was an infirmity he shared with many great and noble men—
Lord Somers, Charles James Fox, and others.” Thus, in men, eminence,
probity, and sexual wantonness—perhaps even nobility—were of a
piece.40 Even the ignoble could share in the prerogatives of manhood,
however. In Anderson, for example, the court noted that the fact that the
defendant was a bigamist was of little account, his record showing no
other history reflecting on his character.41 Similarly, James Smallwood
attempted to defend himself against his daughter’s charge of rape by
arguing he’d been having sex with his housekeeper four or five times a
week and was therefore unlikely to have had “any unnatural desires.”
In a singular departure from normative practice, the judge rejected this
argument, interpreting it as evidence of his lack of credibility.42
To the psychoanalyst, the fact that the nymphomaniac, despite her
overt and public sexuality, was more likely than not frigid constituted
a larger offense against the truth than did her lies. It was not that she
told lies but that she lived a lie. If the lawyer focused on observed
behavior in identifying nymphomania, narrating “revolting” tales fea-
turing her lascivious acts,43 the psychoanalyst’s terrain was her trou-
bled inner state, in which anxiety was expressed under the cover of
pleasure, and from which hate emerged in the guise of love. The
nymphomaniac’s rather meager reality was eclipsed by her florid fan-
tasies. Her “sexual madness” consisted in her “relentless drive for sex-
ual activity” in tandem with her inability to obtain satisfaction.44
Narrating Nymphomania between Psychiatry and Law 65

Otto Fenichel’s 1933 portrait of the nymphomaniac highlights her

main features. A woman who gave the impression she possessed
“extremely intense and genuinely strong” sexual instincts, she was
actually not all that easily aroused sexually and did not readily reach
orgasm. She was demanding, even sadistic, in her relations with men,
often filled with an unconscious hate toward her sexual partners,
whom she attempted to coerce into giving her the satisfaction she was
never able to attain. Repeating an infantile Oedipal situation in which,
as a girl, she had avidly desired her unavailable father, as an adult she
vindictively tried to take the penis her father would not yield. “If you
do not give me it of your own accord, I shall take it,” was her uncon-
scious thought. Her passion was driven by the desire to have a child
and by penis-envy, her sexual fantasy organized around “depriving the
man of his penis or biting it off.” What appeared as genitality was thus
a pseudogenital desire to incorporate; in the nymphomaniac, the
vagina was essentially a mouth she used to “fulfill her oral sadistic
wishes.”45 In sum, the nymphomaniac’s sexuality was a lie: compul-
sive, sadistic, and driven by nongenital needs.
Elements of this portrait—particularly its highlighting of hostility—
appear in virtually every subsequent analytic portrayal of the nympho-
maniac.46 Traces of it are also visible in the less rarefied genre of articles
addressed to physicians and lawyers, explaining the new phenomenon
of the nymphomaniac. An inability to see reality clearly, surface ratio-
nalizations covering deeply unconscious motives, and unresolved
Oedipal crises are featured in this literature, enlivened by colorful
sketches of pseudohypersexual—because frigid—nymphomaniacs
indulging their insatiable desire for sex with little regard for their
benighted partners;47 girls, awash in incestuous fantasies, acting out
Oedipal dramas as they accuse innocent fathers of rape;48 and the ever-
increasing numbers of adult women who “simply do not say no” who
used sex improperly, not for pleasure but to secure power over men.49
Psychoanalytic theory and common sense were merged in this pop-
ular construction of the nymphomaniac as the echt deceitful woman,
her lies a matter encompassing body and psyche, overt and covert
behavior. She is Wigmore’s complaining witness, sending untold num-
bers of innocent men to prison. Her psychology is plausible less
because of the cultural authority of a popularized psychoanalytic per-
spective than because she was easily situated within narratives with
which men were already familiar. One physician, upon hearing a pre-
66 Law’s Madness

sentation featuring three cases of men unfairly imprisoned on the basis

of women’s erotically motivated lies, announced he now found it “easy
to understand why a high proportion of sex complaints are rooted in
fantasy.” He found the cases and the explanations given credible, he
said, adding that in order to do so, “one need not be an analyst.” What
he called “more homely explanations” would suffice,50 the distinction
he drew underscoring how little the specifics of the psychoanalytic
account mattered when the story into which it was conscripted already
made cultural sense. Another authority’s warning that nymphomani-
acs, so “adept at stimulating passion,” could not deliver on the “deeply
satisfying sex” they constantly had on offer to men was premised on
the same culturally resonant narrative of women’s sexual duplicity. In
conquering such women, we flatter ourselves they “can not resist our
male prowess and charm” and “we preen ourselves over the passionate
experiences we have enjoyed” with them. His acerbic “let us not kid
ourselves” when dealing with such Messalinas spoke to the frustra-
tions of every man who’d ever felt himself duped by a woman.51
First-person accounts such as these testify to the sexual antagonism
that underwrote the nymphomaniac as hard-bitten and self-willed
exploiter of men. In the courtroom, she was necessary as protection
against the ever-present threat of the jury slipping into an outmoded,
and sentimental, view of the relations between the sexes. The problem
was that in cases of rape or incest, as the court put it in Anderson (1965),
“it is human nature to incline to the story of the female, especially if a
young girl.”52 Incest in particular offended the public’s moral sensibili-
ties—and, the court emphasized, juries were drawn from that public—
and nurtured sympathy for young girls. If the girl was attractive, she
was all the more sympathetic as a witness, men being notoriously sus-
ceptible to the charms of defective but pretty women.53 Literary critics
have suggested that sentimental narratives persuade by forging bonds
of “compassion and identification” between listeners and
victims/heroines.54 That the young girl subjected to the “complete
moral depravity” of her father could elicit such sentimental compas-
sion can be seen in the Supreme Court of Minnesota’s reversal of
Anderson’s conviction on the grounds that the fact that the court clerk
had wept openly in front of the jury had prejudiced them against the
defendant. In such a tear-soaked world, no man was safe. Portraying
women as mentally disturbed nymphomaniacs raised the bar to identi-
fication high enough to safeguard men’s rights.
Narrating Nymphomania between Psychiatry and Law 67

As sexual mores have changed, the nymphomaniac has been for the
most part normalized, her excessive sexual desire no longer a sign of
pathology but of an enviable normality. The psychoanalyst Martin
Grotjahn captured this shift in his observation that, before World War
II, he considered patients who had daily sexual intercourse hypersexu-
als, driven by “feelings of sexual inferiority, doubts about sexual com-
petence, or feelings of general alienation and unrelatedness,” but that
from the vantage point of the 1970s he could consider them normal and
see in them a healthy acceptance of sexual expression. The frigid, psy-
chopathic prostitute of Victorian times (Grotjahn’s history was slightly
off here; she was a product of the early years of the twentieth century)
was modernized in the figure of the businesslike call girl who enjoyed
sex and displayed “a keen eye for business.”55
Grotjahn wondered whether contemporary women were not over-
valuing “the power, the importance, and the joy of sexual activity,”
whether they wouldn’t ultimately seek the meaning, intimacy, and
romance that contemporary mores had drained from sex. He declared
the age one of unisex, but his portrayal of it hinted less at the oblitera-
tion of gender than of its inversion, an age in which sexually apathetic
men were withdrawing, “perhaps to enjoy a rest,” while swinging
women were “in the forefront of sexual discovery.”
Here we have the enduring theme of the hypersexual’s gender-inap-
propriate assumption of male prerogative expressed with a peculiarly
1970s twist. Yet, however much Grotjahn wanted, intellectually, to
approve of the new sexual order, his plangent lament that sex was eas-
ier for women than for men—a woman was “always ready . . . and soon
after fulfillment she can continue,” while not only did a man have “to
face the test of a visible performance,” but he had to go through the
whole cycle of “excitement, fulfillment, quiescence, rest” before he was
ready again—suggests that the whole phenomenon could be puzzling,
disturbing, and even deflating for men.56
Case reports from the 1960s on unwittingly portray the nymphoma-
niac as a gender-offending “andromaniac”—a woman, that is, pos-
sessed of a maniacal desire to be a man.57 Her forthright pursuit of sex-
ual fulfillment is all the more difficult for commentators to comprehend
now that she is no longer uniformly presumed to be frigid. The frigid
nymphomaniac was insatiable by definition. The nymphomaniac who
was insatiable despite her enjoyment of sex was an altogether different
phenomenon that men found both alluring and terrifying. As a “pas-
68 Law’s Madness

sionate, sensuous, highly responsive ‘creature,’” lacking in modesty

and inhibitions, she was the perfect fantasy object.58 Yet she also roused
the fears of men, hinted at by Grotjahn and stimulated by the publica-
tion of the feminist psychiatrist Mary Jane Sherfey’s findings that the
normal woman was insatiable, her capacity for orgasm limited only by
fatigue.
The nymphomaniac of the case literature inhabits a strangely gen-
der-inverted world. Consider Anise, for example, a young, beautiful,
and well-paid newswoman, who, when propositioned by her boss and
other powerful men, “said yes to them all.” Anise happily thought of
herself as a “good-time girl.” Choosy when selecting her “jolly bedfel-
lows,” she slept only with men possessed of both power and prestige;
not only did she exploit them in ways left unexplained, but she used
the fact she’d slept with them to gain an edge in the workplace over
men at her own level. A woman with many partners, who used sex in
the service of pleasure and power, Anise was guilty of nothing more
than of acting “like a man.” As if piqued by seeing this laid out so
clearly, the author of the case report added that Anise’s men “were not
particularly virile,” holding sedentary jobs, “softened up by inertia,
nervousness, ulcers, alcoholism.”59
Women who assume male prerogatives in the sexual sphere are the
stock nymphomaniacs of the case literature. They engage in casual sex,
group sex, and marathon sex. They dream of sex, talk incessantly of
sex, and separate sex from romance and other “higher” needs. They ini-
tiate sex, brag of their sexual conquests, and are proud of their sexual
athleticism, manifest in their ability both to enjoy multiple orgasms and
to wear out their male partners. They treat men like men treat women,
one, for example, picking up a “husky sailor” to display for a roomful
of her decadent friends, “as though he were a prize bull.”60 They were
better educated and more interested in careers than most women. That
their identifications were inappropriately phallic was made pointedly
clear in one girl’s reply when asked what she would like to see changed
about herself. “A cock would come in handy,” she said.61
Cure for these women consists in domesticity and what one thera-
pist called “the blissful, relaxing aftermath balm of marriage.”62 Love
and fidelity tempered the insatiable sex desire of one woman, for exam-
ple, who had been in the habit of leaving her husband after sex—he
could not provide more than fifteen minutes of the “powerful pelvic
thrusting” that enabled her orgasms but left her unsatisfied—to pick up
Narrating Nymphomania between Psychiatry and Law 69

strangers for sex.63 Authorities were nearly unanimous in the opinion

that women’s complete sexual fulfillment was possible only in the con-
text of romance, commitment, and love. Yet they presented enough
conflicting evidence and interpretations as to entirely undermine the
certainty with which they advanced this proposition. Falling in love
might be “the best aphrodisiac,” but divorce was a close second, many
women experiencing surges of eroticism once free.64 Further, what all
students of sex knew but only the realists among them would say was
that marriages were made in heaven, but lived on earth.65 A committed
and loving relationship might be the ideal, but such were “hard to
come by and maintain.”66 One eighteen-year-old’s announcement that
her living with two brothers, both of whom were her lovers—”One is
never enough, but I don’t have to run to find it the way I used to”—con-
stituted her settling down sexually mocked psychiatrists’ frantic efforts
to situate oversexed women in a crumbling domestic framework.67
The psychopathically hypersexual woman has served as enticing but
damnable foil to normative womanhood in the cultural imagination
over the course of the century. She first assumed substance in the midst
of an early-twentieth-century revolution in sexual mores and practices,
only to be accepted in the 1920s as her forthright sexuality became the
norm across class and racial lines. She quickly reemerged, however,
and from 1940 through around 1960 flourished as pathological coun-
terpoint to proper womanhood, sexually fulfilled within the bonds of
marriage. A second sexual revolution marked her cultural demise, and
her once outlandish behavior was again normalized. Psychiatry still
has its nymphomaniacs, but the law has largely disowned her. Con-
sider, for example, the 1967 case of Giles et al. v. Maryland, in which five
weeks after alleging rape, the sixteen-year-old victim had sex with two
men at a party and took an overdose of pills that landed her in a psy-
chiatric ward. The defendants’ story was that she had told them she’d
“had relations with 16 or 17 boys that week and two or three more
wouldn’t make any difference” before undressing and inviting them to
have sex with her. Furthermore, she prevaricated on her story, claiming
two then three then two men had raped her. She was, in short, the stock
erotic liar. Yet the court held that she was not a nymphomaniac and,
further, that even if she were, this would not have made her “incompe-
tent as a witness.”68 The Supreme Court sent the case back to the Mary-
land Court of Appeals on the grounds that evidence of her behavior
had been suppressed. Still, the unlinking of women’s credibility and
70 Law’s Madness

chastity that was attempted here was furthered in subsequent cases. By

1977, the court in People v. Dawsey could argue that skepticism regard-
ing the equation of sexual activity and moral character (and, by exten-
sion, testimonial reliability) was well founded; further, it could do so in
gender-neutral language, extending to women the same sexual latitude
custom and law had granted men for centuries. Invoking a passage res-
onant of Wigmore on men’s mores—“History contains the names of
many highly respected persons whose honor in telling the truth would
not be questioned and yet whose sex life would hardly be the model for
future generations”—the court implicitly granted the nymphomaniac
her andromaniacal desires.69
The delineation of rape trauma syndrome in the 1970s completely
inverted the equation of psychic disturbance and truthfulness that
underwrote the erotic liar. Psychiatric exams were now used to show
that the complainant’s allegations were true, not false. The fear, guilt,
embarrassment, nightmares, and phobias that were the signal symp-
toms of the syndrome were now mobilized in proving the reality, not
the insubstantiality, of the alleged rape. Judicial acceptance of rape
trauma syndrome turned the psychiatric exam of the complaining wit-
ness from a powerful tool for defendants into the prosecution’s trump
card. The erotic liar was dead.70

Nymphomania in Court, 1970

The setting was again a courtroom, this time in San Francisco. The
complainant was a twenty-nine-year-old woman injured in a cable car
accident who claimed to have been rendered a nymphomaniac thereby.
The day of the accident, she’d had sex with a man whose overtures she
had previously rebuffed; soon, she’d slept with no fewer than sixty-
three men. She lost her job on account of her incessant talk about her
affairs, sued the city, and was awarded a disappointing $50,000 dollars
in damages, a tenth of what she’d sought.71
The case was extensively and graphically reported in the local press,
and long excerpts of the plaintiff’s lawyer’s cross-examination of the
defense’s psychiatrist, who cast doubt on her claim that the accident
caused her condition, were published separately.72 In the back and
forth between lawyer and psychiatrist, little concerning her “overabun-
dance of sex” emerged, with the psychiatrist claiming he hadn’t
wanted to probe too deeply on this issue—the very heart of the case—
Narrating Nymphomania between Psychiatry and Law 71

on the grounds that “patients like to remain individuals and not have
everything dug out of their past life.”73 Setting aside the rather strange
claim that locates delving into the individual’s past beyond the psychi-
atrist’s metier, much of the discussion turned on the psychiatrist’s brief
for the patient’s individuality. He repeatedly stressed he could say
nothing regarding a patient without examining him or her, and refused
to answer any hypotheticals. This may have been courtroom posturing.
But it was also a stance deeply rooted in the psychiatric worldview. At
one point, the plaintiff’s lawyer, exasperated at the psychiatrist’s ten-
dency to answer questions with “yes and no”—“I can say that it can be
either yes or no and I can’t break it down until I have seen the patient
to say yes or no”—said, “Forgetting the patient, Doctor—.” The psychi-
atrist replied, “As a physician, I can’t.”74
However much psychiatrists and psychoanalysts participated in the
legal appropriation of their specialty (Menninger had prepared a state-
ment of his position for inclusion in Wigmore’s Evidence), and however
much they shared common ground with lawyers as they constructed the
lying nymphomaniac, they were far more agnostic than lawyers on the
status of truth. To the psychiatrist, truth in the courtroom might be con-
trasted not with untruth but, rather, analyzed in terms of “exaggerations
and distortions” stemming from poor judgment, misapprehensions, and
fears;75 truth was an issue to be plumbed but perhaps not finally settled.
In case after case, psychiatrists, in the role of expert witnesses, proved
unable or unwilling to speak the lawyer’s language of general principles
and of objective, independently verifiable truths. They held fast, when
pressed, to the psychiatric dictum that “mental illness is an individual
affair.” (As the psychiatrist in the cable car case pointed out, “as we said
yesterday, no two people are alike.”)76 Understanding the patient in all
the particularity of her history and symptoms was of more interest and
more importance to the psychiatrist than “general descriptions of clini-
cal syndromes.”77 In Durham, Bazelon cited approvingly one psychia-
trist’s contention that his discipline did not have “universally valid crite-
ria” for making diagnoses, for such involved “clinical skill and
experience which cannot wholly be verbalized.”78
In a case that turned on the question of what the term psychopathic
personality (and its variants) meant at different times and in different
contexts, statutory and medical, Judge Jerome Frank famously warned
lawyers not to embark “on an amateur’s voyage on the fog-enshrouded
sea of psychiatry.” Psychiatric terms—like legal terms—were neither
72 Law’s Madness

clear nor precise nor stable; they could not be mastered by thumbing
through psychiatric textbooks, and lawyers were easily misled by rely-
ing on quotations drawn out of context.79 Leave psychiatry to psychia-
trists, Frank argued.
The judge in the cable car case might have agreed. Asked by the
lawyer whether he disagreed with Freud, the psychiatrist replied, “Yes,
and no,” which led to a long disquisition on some of his classic papers
and ended in a discussion of genital symbolism—”when I was in
Boston at the time of my neurological and psychiatric residence train-
ing it had got to the point where anything that was a post or a pencil or
a pen or if you dreamed about a post or a pencil or a pen or anything it
was symbolic of the penis. If you dreamed about a hole or a gopher hole
or a cavity or a tunnel that was symbolic of the vagina.” Was this Freud
or psychoanalysis, the lawyer wanted to know. Yes, the psychiatrist
said to both questions; “This is Freud. This is psychoanalysis.” The
lawyer: “No, I asked you about Freud.” The judge quickly put an end
to this discussion, saying he’d had enough of this “dissertation on the
beliefs of Freud,” but not before invoking Jung, “his earnest disciple,
who later disagreed with him on basic matters,” establishing thereby
his own competence on the issue. We’ll be here six weeks untangling
this, he said, but of course that was not the end of it, for things quickly
deteriorated to the point where the lawyer could ask, “has anyone ever
seen the ego?” only to have the psychiatrist reply, “you’ll have to ask a
psychoanalyst that. I can’t answer.”80 With this absurdity, we are back
to Southard and his capable monkeys.

NOTES

Many friends and colleagues have offered incisive comments on this essay. I
would like to thank in particular Donna Dennis, John Forrester, Risa Golubuff,
Dirk Hartog, Mark Mazower, and Norton Wise.
1. Testimonies of E. E. Southard and Anna C. Wellington before Hartford
Probate Court, July 17–18, 1916, from the Papers of Elmer Ernest Southard [GA
81, box 5], Harvard Medical Library in the Francis A. Countway Library of
Medicine. In this essay, the patient’s name has been changed). On the Psycho-
pathic Hospital, see Elizabeth Lunbeck, The Psychiatric Persuasion: Knowledge,
Gender, and Power in Modern America (Princeton, 1994).
2. Jenkins v. State, 60 Tex. Crim. 236 (1910).
3. Leo L. Orenstein, “Examination of the Complaining Witness in a Crimi-
nal Court,” American Journal of Psychiatry 107 (1951): 684–88, at 687.
Narrating Nymphomania between Psychiatry and Law 73

4. People v. Cowles, 246 Mich. 429 (1929).

5. Michael Juviler, “Psychiatric Opinions as to Credibility of Witnesses: A
Suggested Approach,” California Law Review 48 (1960): 648–81, at 674.
6. John Forrester, The Seductions of Psychoanalysis: Freud, Lacan, and Derrida
(Cambridge, 1990), 8. In the same volume, see “Rape, Seduction, Psychoanaly-
sis,” 62–89.
7. John Forrester, “Lying on the Couch,” in Dismantling Truth: Reality in the
Post-Modern World, ed. Hilary Lawson and Lisa Appignanesi (London, 1989):
145–65, esp. 159.
8. L. E. Emerson, “A Psychoanalytic Study of a Severe Case of Hysteria,”
Journal of Abnormal Psychology 8 (1913–14): 180–207, at 199; Emerson, “A Philos-
ophy for Psychoanalysts,” Psychoanalytic Review 2 (1915): 422–27, at 427; Emer-
son, “The Case of Miss A.,” Psychoanalytic Review 2 (1915): 41–54, at 42.
9. On the personality disorders, see Lunbeck, Psychiatric Persuasion, esp.
chap. 3.
10. Durham v. United States, 94 U.S. App. D.C. 228 (1954).
11. Washington v. United States, 129 U.S. App. D.C. 29 (1967).
12. On the American laws, see Estelle B. Freedman, “‘Uncontrolled
Desires’: The Response to the Sexual Psychopath,” Journal of American History
83 (1987): 83–106; and Deborah W. Denno, “Symposium: Life before the Mod-
ern Sex Offender Statutes,” Northwestern University Law Review 92 (1998):
1317–1413.
13. Tony Honore, Sex Law (London, 1978), 164–66.
14. Morris Ploscowe, Sex and the Law (New York, 1951), 225–31.
15. Winfred Overholser, The Psychiatrist and the Law (New York, 1953),
47–51.
16. Holloway v. United States, 80 U.S. App. D.C. 3 (1945); opinion of Judge
Thurman Arnold.
17. The M’Naghten test was whether the accused was “laboring under such
a defect of reason, from disease of the mind, as to not know the nature and
quality of what he was doing, or if he did know it, that he did not know he was
doing what was wrong”: cited in Washington v. United States.
18. Washington v. United States.
19. Durham v. United States, opinion of Judge David Bazelon.
20. His case reached the D.C. circuit court because, as Bazelon wrote in his
opinion, the trial court incorrectly rejected his insanity defense and, more gen-
erally, “because existing tests of criminal responsibility are obsolete.”
21. Bazelon’s concern was that in providing “conclusory labels,” psychia-
trists were usurping the role of the jury. The psychiatrist who argued that a
defendant’s actions were not the “product” of mental disease or defect was,
Bazelon argued, making a legal-moral, not purely medical, judgment. “Psychi-
atrists should not speak directly in terms of ‘product,’ or even ‘result’ or
‘cause.’”
22. Ploscowe, Sex and the Law, 227–33.
23. Overholser, The Psychiatrist and the Law, 51–54.
74 Law’s Madness

24. On the female hypersexual, see Lunbeck, Psychiatric Persuasion, chap. 7.

25. John Henry Wigmore, Evidence in Trials at Common Law (Boston, 1970;
orig. pub. 1940), vol. 3a, 743, cites a physician’s testimony in State v. Driver, 88
W. Va. 479, 483–484, 107 S.E. 189, 190–91 (1921), on the “condition known as
‘mythomania,’ which comes from the word ‘myth’ and ‘mania.’ . . . I usually see
nearly all of those cases in the female sex.”
26. “Psychiatric Evaluation of the Mentally Abnormal Witness,” 1337–38,
makes this point, for example, highlighting the personality disorders and
asserting that “judicial appreciation of psychiatry has been most pronounced in
sex offender cases,” sex being “peculiarly within the ken of psychiatrists.” See
also Thomas J. Feeney, “Expert Psychological Testimony on Credibility Issues,”
Military Law Review 115 (1987): 121–77: “Sexual assault cases are a major excep-
tion to the general disapproval of extrinsic psychiatric or psychological evi-
dence” (126).
27. Ploscowe, Sex and the Law, 170.
28. In several rape cases prior to this, courts did not allow testimony regard-
ing the complainant’s chastity. In People v. Mills, 94 Mich. 630 (1893), the court
ruled that “lack of chastity cannot be used to impeach the credibility of a female
witness.” The court ruled similarly in People v. Connelly, 150 Mich. 260 (1909).
On this, see People v. Dawsey.
29. But see also Laudo v. Laudo, 188 A.D. 699 (1919), a divorce case in which
a wife’s nymphomania—she committed adultery with three men in the course
of one night—was seen as coming from within her but without her active par-
ticipation, almost as if against her will. The condition was laid to “the irre-
sistible impulse of that morbid activity of the sexual propensity.” In later cases,
the condition was written about as if the woman was a full and willing partici-
pant. Laudo was decided under the sway of faculty psychology, later cases
within the terms of dynamic psychiatry.
30. Ballard v. Superior Court of San Diego County, 64 Cal. 2d 159 (1966). The
condition is also termed “pseudologia phantastica” in this opinion, “a medical
condition involving a mixture of lies with imagination.”
31. State v. Anderson, 272 Minn. 384 (1965).
32. People v. Smallwood, 306 Mich. 49 (1943).
33. State v. Anderson.
34. People v. Hurlburt, 166 Cal. App. 2d 334 (1958).
35. “Psychiatric Evaluation of the Mentally Abnormal Witness,” Yale Law
Journal 59 (1949–50): 1324–41, at 1324. An exception to this is People v. Bastian,
330 Mich. 457 (1951), in which an attempt is made to impeach the testimony of
the prosecutrix on the grounds that, as a nymphomaniac, she had made
unwanted advances on the defendant, which he had rebuffed; in anger, she had
then leveled the charge of rape. Other cases featuring lying nymphomaniacs
and female psychopaths include State v. Wesler, 137 N.J.L. 311 (1948); People v.
Neely, 228 Cal. App. 2d 16 (1964).
36. Wigmore, Evidence, section 934a.
37. “Note: Checking the Allure of Increased Conviction Rates: The Admis-
Narrating Nymphomania between Psychiatry and Law 75

sibility of Expert Testimony on Rape Trauma Syndrome in Criminal Proceed-

ings,” Virginia Law Review 70 (1984): 1657–1704; at 1661, n. 13.
38. See also Jay Katz, Joseph Goldstein, and Alan M. Dershowitz, Psycho-
analysis, Psychiatry, and Law (New York, 1967), 128 ff., which, after presenting
an excerpt from State v. Anderson that includes the passage from Wigmore in
which Menninger explains that all women have rape fantasies, presents Helene
Deutsch (The Psychology of Women, 1945) on the same topic, asserting that rape
fantasies are but variants of common seduction fantasies.
39. Wigmore, Evidence, 737.
40. Wigmore, Evidence, 735. The dissenting opinion, which held that a man’s
lack of chastity might tend “to prove a disposition to lightly regard the obliga-
tions of his oath,” invoked no such authorities.
41. Anderson v. State.
42. People v. Smallwood.
43. People v. Bastian, for example, the prosecutrix admitted to having sex
with eleven boys during the month of June 1948.
44. Natalie Shainess, “Nyphomania and Don Juanism,” Medical Trial Tech-
nique Quarterly 19 (1972): 1–6, at 1.
45. Otto Fenichel, “Outline of Clinical Psychoanalysis. Chapter VII: Neu-
roses Related to Perversion,” Psychoanalytic Quarterly 2 (1933): 562–91.
46. For more recent instances, see, for example, Robert Stoller, “Hostility
and Mystery in Perversion,” International Journal of Psychoanalysis 55 (1974):
425–34, which highlights the nymphomaniac’s “need to damage, not love,” her
partner (428); and M. Lionells, “A Reevaluation of Hysterical Relatedness,”
Contemporary Psychoanalysis 22 (1986): 570–97, which stresses that the nympho-
maniac is “concerned with exploitation of sexuality rather than with erotic
enjoyment” (574).
47. Nathan Flaxman, “Nymphomania—A Symptom—Part I,” Medical Trial
Technique Quarterly 19 (1972): 183–95.
48. Orenstein, “Complaining Witness,” 685.
49. Marcus S. W. McBroom, “A Clinical Appraisal of Some Sexually Promis-
cuous Females,” Journal of the National Medical Association 55 (1963): 290–94, at
290.
50. Orenstein, “Complaining Witness,” 687. See Laura Hanft Korobkin,
Criminal Conversations: Sentimentality and Nineteenth-Century Legal Stories of
Adultery (New York, 1998), 9, on “the suggestive equality between the stories
people tell in court and the stories their listeners already know.”
51. McBroom, “Some Sexually Promiscuous Females,” 292–94.
52. State v. Anderson, citing State v. Witmer, 174 Neb. 449.
53. “Psychiatric Evaluation of the Mentally Abnormal Witness,” 1331.
54. Korobkin, Criminal Conversations, 78.
55. Martin Grotjahn, “The Changing View of Sexual Pathology,” Contempo-
rary Psychoanalysis 10 (1974): 407–13.
56. Grotjahn, “Changing View.”
57. Jenkins v. State.
76 Law’s Madness

58. Stephen B. Levine, “A Modern Perspective on Nymphomania,” Journal

of Sex and Marital Therapy 8 (1982): 316–24, at 318.
59. McBroom, “Some Sexually Promiscuous Females,” 290–91.
60. The hypersexual woman who seduces the hapless sailor—in every other
context arguably the most promiscuous of men—dates back at least to the early
years of the century.
61. This composite is drawn from McBroom, “Some Sexually Promiscuous
Females”; Flaxman, “Nymphomania—A Symptom—Part I”; Jerome D. Good-
man, “The Behavior of Hypersexual Delinquent Girls,” American Journal of Psy-
chiatry 133 (1976): 662–68, at 665; Stephen B. Levine, “A Modern Perspective on
Nymphomania”; and Robert J. Barth and Bill M. Kinder, “The Mislabeling of
Sexual Impulsivity,” Journal of Sex and Marital Therapy 13 (1987): 15–23.
62. McBroom, “Some Sexually Promiscuous Females,” 292.
63. Levine, “A Modern Perspective on Nymphomania,” 323–24.
64. Levine, “A Modern Perspective on Nymphomania,” 321, 322.
65. Flaxman, “Nymphomania—A Symptom—Part I,” 189.
66. Levine, “A Modern Perspective on Nymphomania,” 323.
67. Goodman, “The Behavior of Hypersexual Delinquent Girls,” 666. I have
deliberately bracketed a number of issues here in order to highlight the marital
script psychiatrists mobilized as frame for the findings of biological psychiatry.
I am not interested here in the issue of causation, which the biological psychia-
try of the past three decades has plumbed, implicating temporal lobe disorders,
drug abuse, psychosis, and virilization to hypersexuality in women. See, for
example, “Female Hypersexuality Treated with Cyproterone Acetate,” Ameri-
can Journal of Psychiatry 145 (1988): 1037; R. Huws, A. P. W. Shubsachs, and P. J.
Taylor, “Hypersexuality, Fetishism and Multiple Sclerosis,” British Journal of
Psychiatry 158 (1991): 280–81 (a case of a male); and Sara. L. Stein et al., “A 25-
Year-Old Woman with Hallucinations, Hypersexuality, Nightmares, and
Rashes,” American Journal of Psychiatry 153 (1996): 545–51. I have also not exam-
ined here the issue of whether women’s purported hypersexuality is experi-
enced as pleasurable or compulsive, or of whether it is increased desire or
promiscuous behavior that psychiatrists argue is at issue.
68. Giles et al. v. Maryland, 366 U.S. 66; 87 S. Ct. 793 (1967). The Supreme
Court sent the case back to the Maryland Court of Appeals for reconsideration.
69. People v. Dawsey, 76 Mich. App. 741 (1977). The passage is from a law
review article on credibility that appeared in 1940; it was undoubtedly written
in reference to men only.
70. This paragraph draws heavily on Feeney, “Expert Psychological Testi-
mony on Credibility Issues,” 125–30. Burgess and Holstrom, “Rape Trauma
Syndrome,” American Journal of Psychiatry 131 (1974): 981–86, was the first to
outline the syndrome.
71. Shainess, “Nymphomania and Don Juanism,” 1–2. The case was exten-
sively reported in the San Francisco Chronicle.
72. “Medical Testimony in a Case of Trauma and Nymphomania (AKA San
Francisco Cable Car Case), Showing the Cross-Examination of the Defendant’s
Narrating Nymphomania between Psychiatry and Law 77

Neuropsychiatrist by the Plaintiff’s Lawyers—Part I,” Medical Trial Techniques

Quarterly 19 (1972): 83–120; Part II, 18 (1973): 205–40; Part III, 19 (1973): 317–60.
73. “Medical Testimony,” Part II, 220.
74. “Medical Testimony,” Part I, 119.
75. People v. Neely, 228 Cal. 2d 16 (1964).
76. “Medical Testimony in a Case of Trauma,” Part III, 341.
77. David Henderson and R. D. Gillespie, A Text-Book of Psychiatry for Stu-
dents and Practitioners, 8th ed. (London, 1956), ix–x.
78. Durham v. United States, n. 34.
79. United States v. Flores-Rodriguez, 237 F. 2d 405 (1956).
80. “Medical Testimony in a Case of Trauma,” Part I, 92, 98.
“A Situation So Unique That It Will
Probably Never Repeat Itself”:
Madness, Youth, and Homicide
in Twentieth-Century
Criminal Jurisprudence

Jonathan Simon

In 2000, a court in Connecticut faced the question of whether to try a

thirty-nine-year-old man named Michael Skakel as a juvenile for a mur-
der he is alleged to have committed in 1975, when he was fifteen years
old.1 Beyond the tabloid sensationalism of another scion of a celebrity
family being accused of murder, the case presented rather dramatically
how much the justice system’s approach to youthful killers has been
transformed in less than a generation. In 1975 Skakel almost certainly
would have been tried as a juvenile. The juvenile court had the discre-
tion to transfer the case to adult court after providing a due process
hearing on the question, but that outcome would have been extremely
unlikely, especially for a young man from a privileged background.
Today, in most states, prosecutors have the power to try a fifteen-year-
old as an adult, at their own election, possibly for first-degree murder.
It is also far less likely that Skakel’s background would prevent adult
prosecution. Elected prosecutors would face withering scrutiny if they
elected not to seek a punitive sanction in a similar case today. In 1975
Skakel would have faced a maximum of six years (in a specialized insti-
tution for juveniles). In contrast, in 2001 a fourteen-year-old in Florida
was sentenced to twenty-eight years for fatally wounding his teacher
with a firearm he brought to school (he could have received life).
In 1975 the legal system would have presumed that the killing was a

79
80 Law’s Madness

sign of a kind of mental illness rooted in both the normal and patho-
logical features of adolescent development. Law’s task was to know
and act on this inner madness: the madness of youth itself, and the
madness that comes from youth’s mistreatment at the hands of parents,
schools, and society itself. In place of the mystery that violent adoles-
cents once posed for society, the current system posits willful evil and
seeks maximum punishment in the name of protecting the community.
The transformation in the response to serious juvenile crime from
individualizing judgment in the service of rehabilitation to uniform
punishment in the name of accountability has been well documented.2
In this essay I take a closer look at a little-used but revealing legal pro-
cedure involving the issues of violent crime, youth, and madness. In
these cases, juveniles or young adults charged with murder waive an
insanity defense3 in favor of a psychological4 presentation to the judge
of the evidence about the mental state of the defendant in mitigation of
sentence. The defendants acknowledge that legally they are guilty of
the crimes but seek the court’s discretionary mercy to mitigate punish-
ment by showing how the crime is rooted in mental illness or abnor-
mality.5 Although rare, these defenses typically take place in celebrated
cases where community outrage over a terrible crime is met with expert
testimony on mental illness. Frequently these cases become national
contests over whether criminal law should reflect the vengeful emotion
of the public or the dispassionate search for the truth behind acts of ter-
rible violence.
A recent example was the case of Kip Kinkel, charged with killing
his parents and two classmates near Portland, Oregon. Kinkel, fifteen
years old at the time, killed his parents after being suspended for hav-
ing brought a gun to school. The next day he came back to school with
a gun and opened fire in a cafeteria full of students, killing two and
wounding at least seven others. Kinkel was charged as an adult under
Oregon law. He faced life without parole, as the maximum sentence
permissible against a person of his youth. Although he was diagnosed
as a severe untreated schizophrenic, his lawyers presented no insanity
defense. Instead Kinkel pled guilty. He presented his mental illness,
complete with testimony by defense experts before the judge, in a sen-
tencing hearing in which the judge was authorized to take mental state
among other factors into consideration in setting punishment.
The major strategic value of this proceeding, which for simplicity I
will refer to as the psychological sentencing hearing, is for the defen-
Madness, Youth, and Homicide 81

dant to enter detailed knowledge about his or her mental condition

while avoiding the jury that would normally be called upon to weigh
that knowledge were it presented in an affirmative defense of insanity
to the charges. As the confessed author of a widely publicized and
reviled crime in a community still much alarmed, Kinkel would have
faced an uphill battle winning mitigation from a jury that might find
the psychiatric discourse of the defense experts cold and distancing. In
this case, however, the judge and the popular audience (as recorded by
the media) found common ground in utterly rejecting not the validity
but the relevance of the detailed testimony of several experts on mental
life including psychologists, psychiatrists, and neurologists.
Kip Kinkel’s case introduced interesting echoes of a murder long con-
sidered one of the “crimes of the twentieth century.” In 1924, attorney
Clarence Darrow successfully used precisely the same maneuver to save
Nathan Leopold and Richard Loeb from hanging for the kidnapping,
murder, and mutilation of a young boy from their own neighborhood.
Seeking to commit what they conceived as the “perfect crime,” Leopold
and Loeb kidnapped Bobby Franks, a much younger boy from the
neighborhood. Following an intricate but absurd plan they killed the
boy and then disposed of the body in swamplands south of the city after
using acid in a failed effort to disguise the identity of the victim. They
then faked a kidnapping plot by telephoning the Franks family and
demanding ten thousand dollars for the safe return of the boy. The plan
fell apart when, the day after the killing, the body was discovered. Near
it was a pair of glasses belonging to Leopold with a unique frame hinge
sold to only a handful of people in the city. Leopold and Loeb, who had
been helping the press cover the story, soon fell under suspicion and
were arrested and charged with capital murder and kidnapping.
Darrow’s closing argument is one of the most oft-cited pieces of
lawyer’s prose from the twentieth century. Indeed the fame of Darrow
and his clients outlasted many other seemingly more notorious crimes
to be among the best remembered of recent times. The outcome, which
spared Leopold and Loeb from the scaffold, was long celebrated as a
landmark on the road to a fully modern and progressive criminal jus-
tice system. Loeb died in a fight with other prisoners in the 1930s, but
Leopold emerged from prison in 1957 having participated in critical
medical experiments, taught other prisoners how to read and write,
and written peer-reviewed articles on criminology, a walking symbol
of the rehabilitative ideal.
82 Law’s Madness

Leopold and Loeb, both over eighteen at the time of the crime, were
not subject to juvenile court jurisdiction and faced the death penalty.
The defense emphasized their youth and the combination of mental ill-
ness and youth in mitigation. When the judge handed down his verdict
sparing their lives, Leopold and Loeb passed into collective memory as
icons of a justice that sought to lay down the bloody tools of the past in
favor of science, humanity, the psychological roots of behavior, and the
capacity of government to know the truth about individuals. The dom-
inant voices of progressive penality struggled over its meaning and
through it to interpret an era that was already waning. As historian
Paula Fass notes regarding the case: “The themes explored in the
repeated re-imaginings of the case were the ones important to twenti-
eth-century culture: childhood, sexuality, the non-rational self, and
psychology as a way to understand these.”6 Leopold’s release from
prison in the 1950s provided a post–World War II generation a tri-
umphant portrait of the killer redeemed from youth and madness by
the healing powers of prison.
Superficially there is much in common between the sentences given
Nathan Leopold in 1924 and Kip Kinkel in 1999. Each faced charges of
murder as well as in Leopold’s case kidnapping and in Kinkel’s case
multiple counts of attempted murder. Leopold faced the death penalty,
and Kinkel most likely would have had he been two years older. Each
was ultimately sentenced to a severe prison sentence, 99 years plus life
for Leopold (as he titled his memoir) and 111 years for Kinkel. Indeed,
because Leopold was in very real danger of being hung, and Kinkel
was constitutionally protected from the death penalty because of his
youth at the time of the crime, we might even observe a moderate
progress in the humanity of criminal sentencing of just the sort that
Clarence Darrow invoked repeatedly in his celebrated closing argu-
ment in the Leopold and Loeb case.
But here the similarities stop. Despite the severe sound of Leopold’s
sentence, he became eligible for parole within a few years under Illi-
nois’s indeterminate sentencing system (although due to the notoriety
of his case he served more than 30 years). Kinkel’s sentence, unless
overturned on appeal or interrupted by an executive pardon, will not
permit release for 111 years, no matter how “rehabilitated” Kinkel
becomes.7
There is perhaps an even greater discontinuity in the meaning of the
proceeding. Darrow, and even many of his critics, expected that the
Madness, Youth, and Homicide 83

psychiatric and psychological expertise introduced in the sentencing

hearing would someday all but replace the judicial and legal proceed-
ing surrounding it. But seventy-five years later, the experts at the hear-
ing of Kip Kinkel were even more marginalized than at the Leopold
and Loeb trial, while judges and prosecutors find themselves striving
to represent the sentiments of the people. The judge sentencing
Leopold and Loeb invoked the progress of humanity in declining to
sentence them to hang. The judge sentencing Kinkel invoked no less
mystifying but quite different ideals of accountability and community
security.
These cases provide handy bookends for the twentieth century,8 but
the trajectory is more complicated than they would suggest. In seeking
to draw some conclusions from this unscientific comparison I want to
reflect, more briefly, on a third example of a judicial sentencing hearing
from that era, the fictional prosecution of Bigger Thomas, the young
Black protagonist of Richard Wright’s masterpiece Native Son (1940).9
While Bigger is fictional, as a Black youth living in segregated poverty
in proximity to great wealth he is far more typical of young killers in
the arms of the law in that century and especially in its last few
decades. Both Leopold and Loeb as well as Kinkel were white youths
from relatively privileged backgrounds.10
Wright clearly had the Leopold and Loeb case in mind when he
wrote the novel. The Daltons lived in precisely the same wealthy liberal
neighborhood as Leopold, Loeb, and their victim. Bigger, a twenty-
year-old Black youth from Chicago’s infamous South Side ghetto, does
kill Mary Dalton, the young daughter of a wealthy white philanthropic
family that had taken Bigger in to work as a chauffeur, albeit in a terri-
ble accident. After a night of unwanted socializing with Mary and her
communist-leaning boyfriend, Bigger carries an intoxicated Mary back
to her room and helps her into bed. Before he can leave, Mary’s blind
mother enters the room. Bigger, attempting to quiet Mary (and avoid
discovery in a highly dangerous position for a Black male), accidentally
smothers her. Trying to cope with a killing he had not intended, Bigger
burns the body in a furnace (which requires mutilation) and then sets
up a phony ransom scheme (as did Leopold and Loeb). Later, in a scene
parallel to the first murder, he deliberately kills his Black girlfriend,
Bessie Meares, in order to prevent her from making sounds that would
attract a police patrol.
Although set only a few years after Darrow’s defense of Leopold and
84 Law’s Madness

Loeb, and in the same city, Wright describes a very different Chicago
moved by the appearance of a horrible crime to a moment of racialized,
racist community. Where the Leopold and Loeb trial held the city fasci-
nated for some weeks in the hot summer, the murder trial of Bigger
Thomas was squeezed into a few days in a fierce Chicago winter, under
a symbolic coat of white snow. Darrow’s analogue, communist labor
attorney Boris Max, pleads Bigger guilty in the certainty that a jury
would be little more than a lynch mob in a city that was setting crosses
afire above the snow-whitened urban landscape. Facing an establish-
ment already made uneasy by the worsening grip of the Great Depres-
sion, and bereft of the resources that the Leopold and Loeb families put
into the defense of their sons, the fictional defense of Bigger has to rest
on attorney Max’s (and one supposes Wright’s) own Marxist-Freudian
interpretation of Bigger’s life.
The most striking difference between the Leopold and Loeb case and
Bigger Thomas’s fictional trial was in the outcomes. Judge John R.
Caverly spared the lives of the young men, finding their youth sufficient
reason to allow the prison system to be society’s “response” to an admit-
tedly horrible killing of a much younger child, one committed in such a
way as to make it the most aggravated kind of murder (planned, carried
out using other serious felonies, and for motives of self aggrandize-
ment). In Bigger Thomas’s case the judge peremptorily affirmed the sen-
timents of the community and ordered that Bigger Thomas be executed.
Wright, whose interests spanned the political and social scientific
thought of the twentieth century, was highlighting the difference that
race makes to the progressive standard of justice articulated in the
Leopold and Loeb verdict. He was also identifying racism as one of
those forces endangering the project of scientifically and therapeutically
shaped reform of criminal justice and of the legal system generally.
As Michel Foucault wrote regarding the records and commentary of
a remarkably similar case:11

All of them speak, or appear to be speaking, of one and the same

thing; . . . But in their totality and their variety they form neither a
composite work nor an exemplary text, but rather a strange contest,
a confrontation, a power relation, a battle among discourses and
through discourses. . . . The reason we decided to publish these doc-
uments was to draw a map, so to speak, of those combats, to recon-
struct these confrontations and battles, to rediscover the interaction
Madness, Youth, and Homicide 85

of those discourses as weapons of attack and defense in the relations

of power and knowledge.

In what follows I want to raise a similar question about these cases.

What does the claim of madness now bring to the judicial act of speak-
ing the truth of punishment (or literally “sentencing”)?

Psy-Knowledge

Nikolas Rose has introduced the term psy-knowledge to describe the

complex of discourses produced by psychologists, psychiatrists, and
many other professionals around the problem of knowing and manag-
ing the individual.12 As Rose’s work shows, psy-knowledge became a
crucial element of liberal governmentality in its various forms and
remains so. Liberal governmentalities, which inevitably rely heavily on
self-management, have been far more enthusiastic consumers of psy-
expertise than authoritarian or totalitarian ones (although the latter
have often been the focus of concerns about the “political” role of psy-
experts).13 One of the most important sites deploying psy-knowledge
from the nineteenth century to the present has been the criminal trial.
While the insanity defense has presented the most famous example of
it, the psychological sentencing hearing, following a plea of guilty, is in
some respects a purer case of the possibilities of psy-knowledge in ren-
dering criminal justice. As mentioned previously, the insanity defense
is typically presented to a jury (sometimes as a matter of law). The psy-
chological sentencing hearing is always before a judge as the exclusive
sentencer. Thus the dialogue between law and its others (both psy-
knowledge and madness) is uninterrupted by the jury and its more
populist determinations.
In reading through the discourses of psy-experts in 1924 and in 1999
a number of observations come to the fore. One is the sheer diversity of
psy-knowledge at both ends of the twentieth century. Leopold and
Loeb’s defense psy-experts traced their abnormalities to a wide array of
registers from heredity, to fantasies, to endocrine glands. Kip Kinkel’s
defense psy-experts examined voices in his head as well as holes in his
brain.
A rigorous archaeology of psy-knowledge in the criminal jurispru-
dence of the twentieth century is beyond the scope of this essay. Still a
number of hypotheses can be generated even from looking at these two
86 Law’s Madness

cases. Perhaps most important is the declining will to explain through

psy-knowledge. The experts in the Leopold and Loeb case viewed
themselves as the advance guard of a determinist revolution that
would sweep away the foundations of criminal justice.14 The experts in
the Kinkel case had a much more circumspect view of their role as sup-
plying not explanations but assessment of the degree of risk posed by
the abnormal offender.

1924: “The Biopsychologic Doctrine of Determinism”

Financed by the combined resources of two wealthy families, the

defense amassed what amounted to a state-of-the-art scientific analysis
of the two defendants as human beings. One part of this focused on the
organic body. The defense employed two physicians who conducted
what amounted to a massive physiological survey of both men in the
form of a report of some eighty thousand words.15

The physical examination of Leopold revealed that there had been a

premature involution of the thymus gland and a premature calcifi-
cation of the pineal gland in the skull; that the pituitary gland was
smaller than normal; that the thyroid was overactive; and that the
adrenal glands did not function normally. One of the doctors gave it
as his opinion that these abnormalities produced an early sex devel-
opment and had a direct relationship to Leopold’s extraordinary
precocity and his mental condition.16

The defense also employed a dream-team of the leading experts on

criminal psychology and psychiatry including William Healy, William
Alan White, and Bernard Glueck. These men were not only eminent
clinicians; they were national advocates making the argument for the
priority of psy-expertise in administering criminal justice. Healy at the
time was the director of the Judge Baker Foundation in Boston, but ear-
lier he had served as the first director of the Juvenile Psychopathic
Institute in Chicago that served as a diagnostic and treatment arm of
that city’s pioneering juvenile court. White was the superintendent of
St. Elizabeth’s Hospital in Washington, D.C., the leading mental hospi-
tal of its day. Bernard Glueck was the former director of the psychiatric
clinic of Sing Sing Prison in New York.17
The dominant theme in the testimony of the psy-experts was abnor-
Madness, Youth, and Homicide 87

mality. As Georges Canguilhem observed, the concept of normal

embodies twin themes of average on the one hand and perfection on
the other.18 The normal student is the average student. The normal liver
is the liver unmarred by any sign of disease or disorder. Leopold and
Loeb both stood out as anything but average students, attending col-
lege while they were in their mid-teens. From a legal perspective this
precocity argued for severity. A great deal of the task of the psy-experts
was to move from this kind of abnormality to the pathological variety.
In the first part of their report on Leopold titled “His Delusionally Dis-
ordered Personality,” the psy-experts painted a picture of unnatural
precocity and obsessive self-interest.

We find that already from five to seven years of age peculiar ten-
dencies were shown quite at variance with the trends of normal
childhood. He was not only precocious in his mental interest, but
these interests assumed a degree of intensity and showed them-
selves in special directions which were in themselves indications of
abnormality.19

At five he showed an intense preoccupation with religion, especially

the rituals of Catholicism. He showed an early and unnatural concep-
tion of his own superiority.

Beginning very early in life with conceptions of his own superiority,

. . . there was a steady growth of delusional tendencies concerning
himself, and to the extent that he definitely conceives of himself as a
superior being, quite apart and not called on to be amenable to the
social regulations or legal restrictions which govern the ordinary
human being. His ego is all important, right or wrong, his desires
and will being the only determinants of his conduct.20

This was driven by the “early recognition of his superior attainments

by his teacher and by his mother” that “made him feel unlike and apart
from others and superior to them.”21
The report diagnosed Leopold as striving to separate his own sense
of self from any emotional attachment to others.

The essence of his abnormality in this clearly perceivable lack in his

emotional life is found, then, in the fact of the constant subordination
88 Law’s Madness

of normal feelings of loyalty and obligation and sympathy to his

intellectual life, and to the demands of his diseased ego. Herein lies
also the explanation of the absence of natural feelings on his part
about the commission of criminal acts.22

The report emphasized the significant abnormality of his fantasy life,

which included fantasies of crucifixion (himself and others) as well as
an elaborate king/slave fantasy in which he as a slave was attached by
a golden chain to a king figure.
In seeking to explain the development of Leopold’s “mental abnor-
mality,” the report emphasized the early asymmetry between an
overdeveloped intellect and an underdeveloped physical body. This
was exacerbated when he was sent for his first two years of school to a
girl’s school. Later a nurse overprotected him, walking him to school
and back until he was eleven years old. After this period of overprotec-
tion, he was sent to college at age fifteen, a juxtaposition that, in the
view of the psy-experts, exacerbated his sense of isolation and unique-
ness.
The report’s conclusion on Leopold summarized these themes but
seemed to stop short of a more thorough scientific diagnosis of him.

We could draw no other conclusions from Leopold’s abnormal

phantasy life, his delusional development of notions about himself,
his defective or deteriorated judgement which has not permitted
him to see the pathological absurdity of mixing up phantasy and real
life; his repression and misplacement of emotional life; his abnormal
urge towards activity and search for the experience of new mental
and physical sensations; his disintegrated personality to the extent
that he has shown an essential and abnormal lack of foresight and
care even for his much beloved ego—we can drawn no other conclu-
sions from the above than that Leopold is and was on the twenty-
first day of May 1924 a thoroughly unbalanced individual in his
mental life.23

The report on Loeb was quite similar although shorter. Their expla-
nation similarly emphasized precocity and overprotection at an early
age. In Loeb’s case a particularly dominating governess controlled his
upbringing from age four to fourteen.24 In the psy-experts’ narrative it
was the governess, rather than the parents,25 who pushed him too far
Madness, Youth, and Homicide 89

and too fast in scholastic achievement. The report also emphasized that
from age ten on he was quite obsessed with detective stories whose
characters came to fill the emptiness left by his governess’s cold man-
date to strive for success.

The opinion is inescapable that in Loeb we have an individual with

a pathological mental life, who is driven in his actions by the com-
pulsive force of his abnormally twisted life of phantasy or imagina-
tion, and at this time expresses itself in his thinking and feeling and
acting as a split personality, a type of condition not uncommonly
met with among the insane.26

In their overall explanation of the murder of Bobby Franks, the psy-

experts saw the interaction of these two independently peculiar adoles-
cents as the real cause.

An unbiased estimate of the facts pertaining to this association

between the two defendants leads us to the conviction that their
criminal activities were the outgrowth of a unique coming-together
of two peculiarly maladjusted adolescents, each of whom brought
into relationship a longstanding background of abnormal mental
life. This has made a situation so unique that it probably will never
repeat itself. There is justification for stressing the uniqueness of this
case if for no other reason than that it has created widespread panic
among parents of young people.27

The state anticipating an insanity defense had immediately hired the

leading elite private psychiatrists in town. Not surprisingly their testi-
mony consisted primarily of negating links between the “abnormality”
of Leopold and Loeb and their crime.

[T]here is not anybody with an active mind that does not have fan-
tasies now and then. . . . It is natural to have fantasies for thirty-min-
utes before going to sleep.28

With reference to judgment or comparison, comparative worth of

conduct or judgment of values, judgment of situations, this man
gave samples of having power of judgment and comparison that in
no wise was interfered with. In placing himself on the front seat of
90 Law’s Madness

the car, in his argument that the natural thing would be for him to
open the front door and for the boy to get in there, he showed that he
was weighing different events and making judgments as to worth or
value. . . . The same faculty of mind makes judgment as to other
things, as moral conditions.29

The defense psy-experts were also criticized from their own parti-
sans for not putting on a more aggressive display of psy-knowledge.
The lines between psy-expertise and law were already jagged and over-
lapping in the 1920s. Harry Olson, chief justice of the Municipal Court
of Chicago criticized the defense psy-experts for not pursuing the
strong hereditary sources of the crime.

For a diagnosis or an understanding of this case one should have the

background afforded by a study of heredity. I believe from this
report that the Leopold-Loeb case is not an environmental calamity,
but a hereditary catastrophe.30

The weakness of the defense in this case lay, in my opinion in a fail-

ure to present the heredity background of the case, if any, and in
their failure to “call a spade a spade.” They evidently did not want
their clients sent to the insane asylum, but preferred to have them
sent to the penitentiary. While they apparently sought to make their
clients out mental defectives, they did not wish to go too far for fear
they would get them in the insane asylum.31

Judge Olson also criticized the defense for avoiding the homosexual
relationship between Leopold and Loeb at least in their public diagnosis.

This case is not so unique from a psychological standpoint that it will

not frequently repeat itself. On the contrary, it is very common in
criminology where one of the parties is homosexual. . . . The part of the
report referring to their contempt for women is interesting because it
suggests homosexuality, to which no direct allusion is made.32

Olson’s critique was a friendly one. The Leopold and Loeb case may
have come down to us as a victory for the cause of a more progressive
and scientific criminal law but to many like Judge Olson it was an
opportunity of which more might have been made. Olson was left wish-
Madness, Youth, and Homicide 91

ing for the decisive public judgment that a jury trial on insanity would
have brought. “Counsel evidently did not dare to take the chance with a
jury in this day of slight public knowledge of psychiatry.”

It is unfortunate for the administration of justice and for modern

psychiatry in this country that the court in his written opinion
apparently ignored the testimony which showed them to be emo-
tional defectives.33

Other critics saw the efforts of the defense experts as a fully adequate
display of the danger of allowing psy-knowledge into the judgment of
crime.

Now all of this is not the language of modern penal law. It is the lan-
guage of biology. It points out that these cruel, ruthless deeds were
simply the result of the parties’ innate characters, as they developed
even amidst the most favorable surroundings. The psychiatrists’
description is just such a description as a botanist might give of a cer-
tain weed, as distinguished from a certain useful plant.34

It is an excellent thing that these scientists have had their day in

court thus publicly, because their theories have been going about in
books and articles and have begun to affect public opinion. It is time
that the issue be squarely faced in the open, before the whole admin-
istration of the penal law is undermined. Let public opinion look
into the literature on this subject, and learn to discard that false sym-
pathy and dangerous weakening that is apt to rise on first accep-
tance of the biopsychologic doctrine of Determinism.35

1999: “God Damn This Voice inside My Head”

Kinkel’s mental defense was dominated by his own description of

voices he has been hearing inside his head since sixth grade. According
to what Kinkel told the psy-experts, three male voices afflicted him.
One put him down relentlessly. One urged him to kill others. A third
commented on the other two and the general situation. The voices
came and went with some tendency to appear more frequently during
periods of high stress or depression. Kinkel suffered from the latter
during the summer and fall before the killings. He was prescribed
92 Law’s Madness

Prozac and met with Dr. Hicks and his mother in an effort to address
the sources of depression and his hostile behavior toward his parents.
Dr. Hicks felt he had improved enough by the beginning of the winter
to take Kip off Prozac and end the counseling.
The only public sign that Kinkel suffered from the voices was an
incident that took place in his English class about a month before the
fatal events. In the midst of the class, Kinkel yelled out “God damn this
voice inside my head.”36 The response of Thurston High was to put
Kinkel through a mini-penal ritual of the sort that is all too common in
our “zero-tolerance” schools today. It was known at Thurston as a
“respect sheet.” Kinkel was required to write out a kind of promissory
note stating “the expected behavior for the situation was . . . ,” which
was “not to say ‘damn’” and stating “in the future, what could you do
differently to prevent the problem?” The answer he wrote was “not to
say damn.” The school made no effort to inquire into the meaning of
the outburst or the “voices” referred to.
The psy-experts also pointed to a series of delusions that Kinkel
reported having (and which friends confirmed that Kinkel had long
manifested). These included fears that the Disney Corporation was tak-
ing over the country and would soon replace the presidents on paper
money with Mickey Mouse; fears that China was getting ready to
invade the United States; and fears that the government or some other
force had placed a computer chip inside his head that was responsible
for the voices.
The state engaged a number of experts to examine Kinkel and write
reports, including one of the leading forensic psychiatrists in the coun-
try. In the end they decided not to put these reports into evidence. It is
not clear whether the prosecution decided the reports were too helpful
to Kinkel, whether in the absence of a full-blown insanity defense they
were considered unnecessary to the prosecution, or whether the prose-
cution believed its greatest advantage to be repudiating psy-expertise
as irrelevant.
Four psy-experts testified for the defense at Kinkel’s sentencing
hearing. Dr. Jeffrey Hicks was a child psychiatrist with whom Kip and
his mother Faith had met approximately nine times in the year before
the fatal incident. Dr. Hicks testified for the defense but his testimony
may have hurt since he claimed to have found no signs of severe psy-
chosis although he acknowledged that he was not looking for them
Madness, Youth, and Homicide 93

either. The defense put three other experts on the stand. Dr. Orin Bol-
stad, a psychologist who works with young killers inside the Oregon
penal system, testified that Kip was severely psychotic. Bolstad
acknowledged that precise diagnosis was difficult in the case of adoles-
cents, but he suggested that Kinkel’s symptoms were compatible with
paranoid schizophrenia and bipolar disorder. Dr. William Sack, a child
psychiatrist, agreed that Kip was severely mentally ill and testified that
his own validation instrument designed to probe the consistency of the
content and emotions of Kip’s statements confirmed that he was telling
the truth about voices and delusions. A final expert, pediatric neurolo-
gist Dr. Richard J. Konkol, testified that Kip’s brain was literally perfo-
rated with holes and that those sectors most associated with emotional
control and decision making experienced reduced blood flow. A pri-
vate investigator, Joyce Naffziger, presented evidence on the frequency
of mental illness in Kip’s extended family.
After eliciting descriptions of Kip’s experience of voices and his
delusions, the defense focused on placing Kip in the context of the Diag-
nostic and Statistical Manual, the authoritative collection of diagnostic
categories.

Q. Did you reach diagnostic conclusions on the DSM axes?

Well, I did with some of the same qualifiers I’ve already said ear-
lier. I think diagnosing adolescents is difficult. Adolescents’ symp-
toms change as they develop and get older. What I’m clear about is
he has psychotic symptoms. I’m clear that he has a mental illness. I
believe that most of his symptoms are consistent with schizophrenia,
paranoid type. Although I can’t yet rule out schizoaffective disorder;
I think that’s a real possibility. Schizoaffective disorder is a combi-
nation of schizophrenia with depression. . . .
I also can’t rule out a bipolar type of affective disorder, because he
has a lot of manic symptoms as well. So it’s still a bit confusing as to
exactly the nature of his diagnosis, but I am confident that he is men-
tally ill. I am confident that he is psychotic. He also has a learning
disorder. He has generalized anxiety disorder, and major depressive
disorder.

The defense also sought to counter the view that Kinkel’s actions
were carefully planned and executed.
94 Law’s Madness

They talk about the paranoid type of schizophrenia. And what’s a

distinguishing feature of the paranoid—and I think this is very
important—is that the paranoid type of schizophrenia is character-
ized by the presence of prominent delusions or hallucinations in the
context of a relative preservation of cognitive functioning and affect.
What that means is you can have these symptoms of hallucinations
and delusions and at the same time have well preserved cognitive
thinking in most other areas of your life. The thing we know about
people with paranoid symptoms is they often do well in school,
adults do well in their businesses, until someone touches a button
that is related to a delusion or until they start hearing voices. But oth-
erwise their behavior can look pretty normal. . . . If he were not a
paranoid schizophrenic, I do not think he would be a killer.
Q. How do you explain when you say that there’s no rational reason for
going to school and killing, the fact that he has verbalized and planned
going to the school and shooting it up or bombing it, and targeting certain
people for quite a period of time?
A. Ms. Tracy, I think you’re mixing apples and oranges. There’s a
distinction between the reason why he kills, okay, and the process by
which he kills. The process by which he killed was, in my opinion,
consistent with paranoia. It was—it was intentional. It was planful.
But the reason why he killed is quite another matter than the process
by which he killed. And I cannot find a rational reason why he
would kill these people at school. I have read through all these med-
ical reports. I’ve read through a lot of different materials. And I can’t
find—in talking with him, I can’t find anywhere in any report that
anyone has proposed a viable explanation for why he killed. And if
there is one, I would like to hear it.

Leopold and Loeb’s psy-experts spend little time addressing the

problem of treatment or curability. It was assumed that long or even
indeterminate sentences to prison combined with the natural progress
of science would resolve the problem in time. In contrast, Kinkel’s psy-
experts were asked about treatment and could point to the existence of
contemporary pharmacological methods. The objective has shifted as
well. Cure has largely disappeared as a goal in favor of a behavioral
management that appears to be a realizable objective, but is also easily
undercut by the question of safety.
Madness, Youth, and Homicide 95

Q. How do you make us safe?

A. Ms. Tracy, I personally don’t think there is any way of curing
this disorder. There’s not a cure for it, okay? I do think he can be
managed. I think the principal way you manage this kind of mental
illness is with psychotropic medicine.
And I am awestruck by how much people change once they are
given appropriate medicine. The gentleman that I’ve been evaluat-
ing at OSH tells me now, six months after his crime, [said to me],
“Dr. Bolstad, I was really delusional, I had crazy thoughts back
then.” And he can say that because he has been on medicine, and the
medicine has helped him a lot. It squared away his thinking.
So I think people are very different when they’re in his condition.
Real frankly, I would not want to see Kip Kinkel out on the streets,
ever, with this condition, okay? Without medicine and without an
awful lot of structure and support services arranged for him.

Defense: “We’re Seeking to Have You Understand

His Conduct”

Both Darrow and Kip Kinkel’s defense lawyer Mark Sabitt shared a
belief that their clients had a better chance obtaining mercy through a
narrative of madness from a judge than if they were forced to present a
full insanity defense to a jury. In doing so both affirmed a picture of the
judge as a crucial interlocutor in the dialogue between law and the
human sciences that has been one of the dominant features of twenti-
eth-century jurisprudence (Rothman 1980; Simon 1995). In this dia-
logue, defense lawyers have long had the difficult task of interpolating
between scientific and legal discourses that in large part fail to recog-
nize each other’s existence.

1924: Clarence Darrow

Darrow’s decision to plead Leopold and Loeb guilty electrified

Chicago. Then as now, the insanity defense provided a narrow scope
for negating culpability by demonstrating mental illness so severe that
the defendants could not distinguish right from wrong. In seeking,
however, to introduce psy-knowledge into the sentencing hearing,
Darrow had to define a broader role for madness.
96 Law’s Madness

We make no claim that the defendants were legally insane, but we

do claim and we will show that there are many mental conditions
which fall short of the legal definition of insanity, and would not
avail us for a moment in the defense of this case. We know that men
and women may be and are seriously mentally ill and yet may know
the difference and be able to choose between right and wrong; but
they are still mentally afflicted, and the Court will take account of
their condition.37

In identifying a space for madness and its narrative in the sentencing

hearing, Darrow emphasized the problem of explaining the crime. In
the absence of a meaningful motive, their madness furnished the mean-
ing of the crime.

Out of that compact and out of these diseased minds grew this terri-
ble crime. Tell me, was this compact the act of normal boys, of boys
who think and feel as boys should—boys who have thoughts and
emotions and physical life that boys should have? There is nothing
in it that corresponds with normal life. There is a weird strange,
unnatural disease in all of it which is responsible for this deed.38

Darrow recognized that youth rather than madness was the more
established ground for mercy at the sentencing stage. A central focus of
his argument was to link the evidence of madness to the condition of
youth itself. In doing so he identified childhood as a kind of madness
all its own.

The law knows and has recognized childhood for many and many a
long year. What do we know about childhood? The brain of the child
is the home of dreams, of castles, of visions, of illusions and of delu-
sions. In fact, there could be no childhood without delusions, for
delusions are always more alluring than facts. Delusions, dreams,
and hallucinations are a part of the warp and woof of childhood.39

There is not an act in all of this horrible tragedy that was not the act
of a child, the act of a child wandering around in the morning of life,
moved by new feelings of a boy, moved by uncontrollable impulses
which his teaching was not strong enough to take care of, moved by
the dreams and hallucinations which haunt the brain of a child.40
Madness, Youth, and Homicide 97

Darrow’s argument multiplied the images of madness, associating it

not simply with the defendants, but with the prosecutor, the commu-
nity, and even himself.

I have never seen a more deliberate effort to turn the human beings
of a community into ravening wolves and take advantage of every-
thing that was offered to create an unreasoned hatred against these
two boys.41

I have become obsessed with this deep feeling of hate and anger that
has swept across this city and this land. I have been fighting it, bat-
tling with it, until it has fairly driven me mad, until I sometimes
wonder whether every religious human emotion has not gone down
in the raging storm.42

Darrow placed himself not only on the side of science but on the side
of the future. While the prosecution’s arguments quoted the eigh-
teenth-century treatise writer Blackstone to assert the right of the court
to demand death, Darrow invoked the future. The powers of the state
to judge and punish the actions of the past were contrasted with its
potential power to facilitate struggle of every individual toward his or
her own future.

Your Honor stands between the past and the future. You may hang
these boys; you may hang them by the neck until they are dead. But
in doing it you will turn your face toward the past. In doing it you
are making it harder for every other boy who, in ignorance and dark-
ness, must grope his way through the mazes which only childhood
knows. In doing it you will make it harder for unborn children. You
may save them and make it easier for every human being with an
aspiration and a vision and a hope and a fate.
I am pleading for the future; I am pleading for a time when hatred
and cruelty will not control the hearts of men, when we can learn by
reason and judgment and understanding and faith that all of life is
worth saving, and that mercy is the highest attribute of man.43
1999: Mark Sabitt
Defense lawyer Mark Sabitt’s decision to take Kinkel’s case directly
before the judge invoked the progressive tradition of judges as seats of
98 Law’s Madness

dispassionate rationality that Darrow had done so much to promote,

but his arguments reflected a downgraded expectation for the role of
scientific explanation in sentencing. Sabitt began with an effort to dis-
tinguish the insanity defense from the role of psy-knowledge in the
sentencing hearing that was remarkably similar to Darrow’s.

We’re not running a mental defense here. We’re not seeking to have
you send him to the state hospital based on mental disease or defect.
We’re seeking to have you understand his conduct and to apply that
understanding to your discretion in this case, based on his youthful-
ness and his mental disease and his neurologic dysfunction.44

Much of the rest of his summary was aimed at attacking the plan-
ning theory of the prosecution. At the end, however, he turned to the
purposes of punishment in terms that express a dramatically different
vision of how psy-knowledge would change justice than that presented
by Darrow.

Retribution is what these victims demand, and justifiably so. . . .

There’s no question these victims have a right to retribution in some fash-
ion, as does society. But given the lesser culpability of children for bad
actions, their capacity for growth, and society’s special obligation to
its children, isn’t twenty-five years enough in the way of payback?45

Moreover, we can’t ignore the mental illness. We can’t ignore the

neurologic defects and the other aspects that are particular to this
case. I would submit to the court, revenge is a consideration the court
should have in measuring its discretion in this case, but it’s only one con-
sideration the court should have.46

Interestingly, the only person to appeal to the future at Kip Kinkel’s

hearing was his sister. No member of Leopold’s or Loeb’s families tes-
tified or presented written testimony to the judge. Reflecting the grow-
ing importance of nonexperts in producing justice, both Kinkel’s vic-
tims and a family member participated.

In twenty-five years, we will be well into the Twenty-first Century.

Our society will be very different. The technology and knowledge
Madness, Youth, and Homicide 99

we will have then is mind boggling. The advances we will have

made in psychological research and medication will amaze us. Kip
will be forty.47

Prosecution: “As Little Entitled to Sympathy and Mercy

as a Couple of Rattlesnakes, Flushed with Venom, and
Ready to Strike”

Of all the professional roles that figure in this narrative, perhaps none
has changed less than that of prosecutor. The basic themes mobilizing
the will to punish—evil, deliberation, danger—are little different in
State Attorney Robert Crowe’s closing argument in the Leopold and
Loeb case and Assistant District Attorney Kent Mortimore’s closing
argument in the Kinkel case. Indeed, these arguments are remarkably
similar to those made even a century earlier by the French prosecutors
in the case of Pierre Riviere.48

1924: State’s Attorney Robert Crowe

Chief Prosecutor Robert Crowe was a significant and complex figure. A

retired judge, Crowe had only recently headed the Crowe Crime Com-
mission, mandated by the Illinois legislature to make recommendations
on whether the state should pursue segregation of “mental defectives.”
Prosecution critic Harry Olson, himself chief justice of the progressive
Municipal Court of Chicago, noted the irony that the Crowe commis-
sion had proffered a broad definition of mental defectives.

A person who has:

(a) a defect of intelligence; or
(b) a defect of affectivity or emotion; or
(c) a defect of will
To such a degree that he has criminal propensities and while at large
is a menace to the life and property of others.49

Despite his support for a considerable expansion of the state’s power

to confine people based on psy-knowledge, Crowe responded aggres-
sively to Darrow’s guilty plea and attempt to present psy-knowledge in
the sentencing hearing.
100 Law’s Madness

The state’s attorney’s reply to Darrow’s argument was bitter and sar-
castic—it was all nonsense; either the defendants were sane or they
were insane; either they knew the difference between right and
wrong or they didn’t; the evidence offered by the state showed a
deliberate, cruel and wanton murder without a single extenuating
circumstance; justice and an outraged public demanded and he
would insist upon the extreme penalty.50

In his role as prosecutor, Crowe subjected the defense psy-experts to

what Paula Fass describes as a “withering populist cross-examination”
(1993, 938). His closing argument took two days. Based on press
reports, trial chronicler Francis X. Busch described his tone as

unrestrained, sarcastic and vituperative. In rapid-fire sequences,

which one press reporter likened to the striking and clawing of a
maddened panther, he assailed and belittled the defense experts, the
defendants and the defendants’ lawyers—Darrow in particular. The
experts, stated Crowe, with their “emotional immaturity,” their
“fantasies and delusions,” their “glandular abnormalities,” and their
“split personalities” were the hired, crooked and gullible tools of a
“million-dollar defense,” prepared to swear to anything, no matter
how fantastic.

The state put on its own experts who, as summarized above, offered
their opinion that Leopold and Loeb were quite normal.
The bulk of the state’s case, however, was given over to presenting
the overwhelming evidence that Leopold and Loeb were guilty of the
crime. This seemed absurd in the face of the plea of guilty, but it served
at least two functions. First, it served to underscore that the defense
was granting the prosecution no favors in pleading guilty, since the evi-
dence of guilt was strong. In the name of this strategy the prosecution
spent days putting on hotel clerks and car rental agents to tie Leopold
and Loeb to the crime. Second, it allowed the state to enunciate the vio-
lence of the crime in considerable detail, bringing the victim into the
testimony by an exacting description of Bobby Franks’s death. Franks’s
father took the stand to provide the very last testimony in the hearing,
not directly to describe his family’s loss, but only to offer formal proof
of the charge of kidnapping.
Crowe invoked animal images to describe the danger posed by the
Madness, Youth, and Homicide 101

defendants and repeatedly attacked the idea that their motives for the
crime were utterly inexplicable.

The defendants, shouted Crowe, were ruthless killers, dangerous to

society, and “as little entitled to sympathy and mercy as a couple of
rattlesnakes, flushed with venom, and ready to strike.” . . . Both
planned the crime. Both executed it. The motive was $10,000 ransom
money.51

1999: Assistant District Attorney Kent Mortimore

Like Crowe, prosecutor Kent Mortimore attacked the legitimacy of pre-

senting evidence of madness outside of the confines of the insanity
defense.

It’s puzzling that we’ve spent so much of the last several days deal-
ing with what really is the defendant’s mental defense to these
crimes. It’s very disingenuous of him to come into court now and say
that he isn’t responsible for what he did. . . . We need to remember
that he specifically disclaimed legal insanity, and I quote: “By entry
of pleas of guilty to these charges, I expressly and knowingly waive
the defenses of mental disease or defect, extreme emotional distur-
bance, or diminished capacity.” That quote is from page four of the
Plea Petition. He initialed that paragraph . . . it was an admission of
guilt. And it’s likely that his lawyers understand better than the
experts that he hired that this defense would not have succeeded at
trial.52

Notwithstanding the defense’s decision not to raise an insanity

defense, the prosecution invariably invoked that as the proper stan-
dard for assessing psy-knowledge even in a discretionary sentencing
situation. Reviewing the steps of the crime, Mortimore found instance
after instance of planning, deliberation, and strategic behavior.

Almost everything that occurred the 20th and 21st of May last year
was calculated, required careful consideration, and required careful
planning on the part of Kip Kinkel. This is very unusual and very
unlikely to be legal insanity. . . .
He shot his father from behind. He snuck up behind him. Another
102 Law’s Madness

volitional act. And then he locked his father in the bathroom after
dragging his body out of view and cleaning the counter to the point
that it took Luminol for the detectives to discover where the crime
scene had been.53

One difference from the prosecution strategy in the Leopold and

Loeb case was in the issue of childhood. Darrow and Crowe fought
over whether or not Leopold and Loeb should be thought of as chil-
dren. This battle ranged from the nature of the psychological discourse
to the terms used to describe Leopold and Loeb in court. Assistant Lane
County District Attorney Kent Mortimore in contrast conceded the cat-
egory of childhood and argued for the natural life sentence notwith-
standing. At fifteen, Kip Kinkel is far closer to popular concepts of
childhood in the twentieth century than were Leopold and Loeb at
nineteen. To Mortimore, however, even at six Kinkel already revealed
a rogue in need of harsh punishment.

Here is the essence of Kip Kinkel. Let’s ignore the labels. From a very
early age, Kip Kinkel was a very nasty, violent, easy-to-frustrate and
easy-to-anger boy. This was his essence long before any so-called
mental illness. . . .
We know from Sherrie Warthen that he nailed kids in the face
with a dodgeball, and we heard a similar rendition of that from
Amber Ramsey this afternoon when she addressed the court as a vic-
tim.
He didn’t understand that it was wrong to cut things in his desk
with a knife. He teased kids he considered losers, particularly fat
people, and made nasty comments like, quote, “If we could just get
the fat people out of the way.”
According to Dick Bonard, he would be aggressive, punched
kids, put them in headlocks and wrestle them to the ground. And if
the court has had an opportunity to read his writings, the court
knows the central theme in his diary: “Hate drives me.” . . .
That’s the essence of Kip Kinkel. And he’s been that way since—
as long as we know. At least since he was about six years old. Long
before any symptoms of so-called mental illness set in. We also
know that he’s been incredibly good at manipulating people, par-
ticularly adults. He is so smart, he’s close to brilliant in many
areas.54
Madness, Youth, and Homicide 103

Like Crowe, prosecutor Mortimore emphasized the potential danger

to the community posed by the existence of any chance for eventual
release of the defendant. But while Crowe expressed this in the lan-
guage of the dangerous individual (“a couple of rattlesnakes, flushed
with venom, and ready to strike”), Mortimore invoked a more complex
construction of risk as a factor of individual dangerousness and institu-
tional weakness.

In essence, what we’re told by all of the doctors is that with a hope
and a prayer, he might be okay, maybe, as long as we can figure out
exactly what’s wrong with him and we can carefully control his
environment and make sure he’s taking his medication. . . . Our
community is not willing to take that risk. And our community
shouldn’t be expected to take that risk.

Under contemporary sentencing practice, Mortimore had a vehicle

unavailable to Crowe: he could put the victims themselves on the stand
to testify as to their loss and to opine freely as to what should happen
to Kinkel. The witnesses included students who had survived gunshot
wounds as well as parents of the wounded and dead children. The tes-
timony, portions of which were excerpted on television and radio
shows, provided a powerful scene of emotions with victims permitted
to speak directly to Kinkel, who kept his head buried in his arms most
of the time.
One of the most disturbing voices was that of Jacob Ryker, both a
victim and a hero whose action in tackling Kinkel while he was reload-
ing his gun undoubtedly saved many lives. Ryker, now serving in the
U.S. Marine Corps, acknowledged that his own capacity to maintain
military discipline was endangered by the passion he felt to hurt or kill
Kinkel. Interestingly, his fantasy acts of violence against Kinkel, which
he freely shared from the stand, included forms of medical treatment
made into punishment (surgery without anesthesia, sutures being
cleaned or removed, etc.).

Jacob Ryker: I don’t care if you’re sick, if you’re insane, if you’re

crazy. I don’t care. I think prison, a lifetime in prison is too good for
you. . . . I don’t think you should go to prison. I think the victims
should get to do to you what you did to them. I think you should
have to suffer in the hospital like they did.
104 Law’s Madness

Mark Walker, the father of one of those killed, initially framed his
remarks in terms of classic deterrence theory, but in the end empha-
sized a kind of retributive exaction of vengeance.

If Mr. Kinkel is sitting in prison without possibility of release for the

rest of his life, it might—just might—keep some other young person
from taking a gun to school. That would be the only positive thing
that could come from this tragedy.
The account of my son’s death as it was related to me indicated
Mr. Kinkel walked past my son in the hall, turned, put his gun to the
back of my son’s head, and killed him. This was cold-blooded mur-
der, not the random act of rage Mr. Kinkel would have us believe.
His actions were callous, calculated, premeditated, and with no
regard for human life. Benjamin was sixteen years old. He lost sixty
to seventy years of his life, as did the Nickolauson boy.
The sentence you are about to render will send a message to
other young people whether they can expect leniency from the law
or that they will be held accountable for their actions. I can only
plead with you to sentence Mr. Kinkel to a term that will keep him
in prison for the rest of his natural life. The law provides for this
length of sentence to be imposed, not only to protect us from Mr.
Kinkel, but also to serve as a deterrent to someone else considering
similar actions.

Jennifer Aldredge invoked for Kinkel the specter of what he had

himself forfeited and the enduring condition of her own wounds.

You killed the two people in your life who loved you uncondition-
ally. Guess what? Mommy can’t kiss it and make it better anymore,
because you killed her. And not just shot her once, but six times
maliciously. Daddy isn’t able to bail you out of jail anymore. No one
can hug you and tell you everything will be okay, because it won’t.
It won’t ever be okay until Mike and Ben can walk and talk with
their families again, it won’t be okay until my friends’ surgeries are
done and the scars have miraculously erased. It won’t ever be okay
again until every memory, every fear, and every consequence
becomes non-existent. And that won’t happen unless you can go
back in time.
I hope you spend the rest of your life in jail. You can’t be cured.
Madness, Youth, and Homicide 105

And if a medication was found to sedate you enough, I don’t trust

you to take it. You don’t deserve to be out of jail. You don’t deserve
to have the same freedoms your victims have. . . . I never want to
worry about you hurting my friends and me ever again. I never want
to send my kids off to school one day and worry if you have been
released. I’m tired of being scared. I’m tired of letting you have that
much power over me. You shouldn’t ever be able to have that power
again.

Judgment

Perhaps no part of this story reveals as much change as the discourse of

judges. There are similarities to be sure. Both judges expressed them-
selves with grave caution. Both kept their remarks brief in comparison
with the psy-experts and lawyers. But between the two sentencing
speeches we can trace a dramatic change in the judges’ sense of the role
and the larger logics informing their sentencing choices.

1924: Judge John R. Caverly: “The Progress of Criminal

Law” and “the Dictates of Enlightened Humanity”

Judge Caverly began by addressing the absent insanity defense and the
absent jury to which it would have been presented.

The testimony has satisfied the Court that case is not one in which it
would have been possible to set up successfully the defense of insan-
ity as insanity is defined and understood by the established law of
this state for the purpose of the administration of criminal justice.55

Judge Caverly acknowledged the force of the psy-knowledge pre-

sented, but explicitly rejected its relevance to the task of sentencing.

The Court, however, feels impelled to dwell briefly on the mass of

data produced as the physical, mental and moral condition of the
two defendants. They have been shown in essential respects to be
abnormal; had they been normal they would not have committed
the crime. It is beyond the province of this court, as it is beyond the
capacity of human science in its present state of development, to
predicate ultimate responsibility for human acts.56
106 Law’s Madness

The Court is set up as parallel to human science. For courts, how-

ever, this is beyond their province, while for the human sciences it is
only “beyond the capacity.”

The Court is willing to recognize that the careful analysis made of

the life history of the defendants and of their present mental, emo-
tional and ethical condition has been of extreme interest and is a
valuable contribution to criminology. And yet the Court feels
strongly that similar analysis made of other persons accused of
crime would probably reveal similar or different abnormalities.57

On Judge Caverly’s account, all criminals are abnormal, so abnor-

mality cannot meaningfully regulate the power to punish. Instead, the
court recognizes as its province the task of “examin[ing] witnesses as to
the aggravation and mitigation of the offense.”

The value of such tests seems to lie in their applicability to crime and
criminals in general. Since they concern the broad questions of
human responsibility and legal punishment, and are in nowise pecu-
liar to these individual defendants, they may be deserving of legisla-
tive but not of judicial consideration. For this reason the Court is sat-
isfied that his judgment in the present case cannot be affected
thereby.58

Psy-knowledge and the discourse of abnormality may ultimately trans-

form criminal justice through the legislature, but they are incapable of
addressing “these individual defendants.” But what can regulate this
act of judgment? Judge Caverly describes himself as alone, not only in
the absence of other judges but in the paucity of norm or policy.

Under the plea of guilty, the duty of determining the punishment

devolves upon the Court, and the law indicates no rule or policy for
guidance of his discretion. . . . In some states the legislature, in its
wisdom, has provided for a bench of three judges to determine the
penalty in cases such as this.59

Having declared the psy-evidence irrelevant, the court grounds the

life decision fully on the age of the defendants.
Madness, Youth, and Homicide 107

In choosing imprisonment instead of death, the Court is moved

chiefly by the consideration of the age of the defendants, boys of 18
and 19 years. It is not for the Court to say that he will not in any case
enforce capital punishment as an alternative, but the Court believes
that it is within his province to decline to impose the sentence of
death on persons who are not of full age.60

Judge Caverly’s repudiation of the psychological evidence and his

insistence that his decision was based only on the “youth” of Leopold
and Loeb ignored the contribution the psy-experts played in Darrow’s
strategy of infantilizing Leopold and Loeb before the court.61 It was the
psychological narrative that located them deeper into the stream of
childhood than otherwise would likely have been the case. They were
already eighteen and nineteen, an age when men of less elite back-
grounds would have been working and raising families.
Judge Caverly anchored his decision in two broad principles as well
as in the practice of Illinois courts.

This determination appears to be in accordance with the progress of

criminal law all over the world and with the dictates of enlightened
humanity. More than that, it seems to be in accordance with the
precedents hitherto observed in this state.62

The two evocative phrases in the first sentence would once have
seemed so banal and expression of common ideology in penal law as to
draw virtually no attention. To the student of contemporary penal law,
however, they might as well be invocations of Greek gods. The former
phrase embodies two distinct ideas: first, that criminal law is an
autonomous body of principles that is capable of its own progress, of
movement toward an ideal defined by its own internal logic; and sec-
ond, that this is a worldwide movement rooted not in the life-world of
particular communities but in general principles of criminal law. The
latter phrase invokes a collective subject humanity, apparently distinct
from the citizenry of Chicago and its newspapers who by all indications
were strongly in favor of executing the two defendants. The judge uses
the adjective enlightened, indicating either the existence of a different,
more enlightened public somewhere else or of a perspective even
Chicago citizens would have if they were enlightened.
108 Law’s Madness

1999: Judge Jack Mattison: “A Price to Be Paid”

If Judge Caverly felt himself sentencing in a dangerous empty space of

discretion, Judge Mattison emphasized constantly the presence of other
authorities, the people through ballot initiatives, the jurors, and the vic-
tims.

Turning to the sentence itself, Article 1 Section 15 of the Oregon Con-

stitution as adopted in 1859 stated: “Laws for the punishment of
crime shall be founded on the principles of reformation, and not of
vindictive justice.” On November 5 of 1996, the people of Oregon
voted to change this section to its present form, which reads: “Laws
for the punishment of crimes shall be founded on these principles:
the protection of society, personal responsibility, accountability for
one’s actions, and reformation.” To me, this was a clear statement
that the protection of society in general was to be of more impor-
tance than the possible reformation or rehabilitation of any individ-
ual defendant.63

Oregon courts had long held that the old language already intended
a balance between reform and the protection of society, which the Ore-
gon Supreme Court held “does not have to be expressed in the consti-
tution as it is the reason for criminal law.”64 The new law continued to
include reform, as well as a notion of personal responsibility to which
Kinkel’s youth might well be considered highly relevant. But as we
shall see, Judge Mattison chose to place the entire weight of his judg-
ment on “the protection of society” and “accountability for one’s
actions.” Note that this latter value, whatever exactly it means, is some-
thing different from personal responsibility (otherwise there would be
no point in listing it separately).
Although the defense had pleaded guilty and put on no insanity
defense, Judge Mattison invoked the jury, the trial that might have
taken place before them, and their sentiments, in determining the pun-
ishment. He then bound himself to this totally imaginary public.

Based upon my experience, I believe it is highly probable that a jury

would have found Mr. Kinkel guilty of multiple counts of aggra-
vated murder and would have sentenced him to life in prison with-
out the possibility of release. Believing that, the question becomes,
Madness, Youth, and Homicide 109

should the court sentence any differently, at least without some good reason
to do so? (emphasis added)65

Where Judge Caverly had invoked the progress of criminal law and
the sentiments of an enlightened society, Judge Mattison invoked com-
munity safety and accountability as the overarching purposes of pun-
ishment. Valuing community safety sounds incredibly reasonable, as if
it was hardly necessary to state it. It is only after we have considered
Judge Caverly’s sentence of 111 years that we can understand it for
what it is. It is not the theory that the community’s safety must be bal-
anced against or even outweigh the reform of the offender, but that any
risk to the community no matter how distant must outweigh any need
of the offender no matter how basic, even the hope for a future itself.

We cannot predict what advances medical science will make in the

treatment of whatever mental illness he has. We cannot guarantee that
he will receive the treatment these doctors believe is necessary while
in prison. And Dr. Bolstad, who knows the system, was not opti-
mistic in that regard. And we cannot guarantee that Mr. Kinkel would
follow up as necessary were he released to a relatively uncontrolled
environment. (emphasis added)66

When it comes to community safety, the only guarantees are mean-

ingful acts of judgment. In part, Judge Mattison was prevented by the
absence of any discretionary parole function in Oregon (and in many
contemporary state penal systems) from leaving open the question of
reform. Having to decide in the present exactly when Kinkel should be
released, Mattison chose to eliminate any likelihood of release. Even
the danger that the seventy-, eighty-, or ninety-year-old Kinkel might
pose to the community was apparently too much.
The only other principle accorded explicit weight by Judge Mattison
was that of accountability. Accountability is often conflated with per-
sonal responsibility, but the fact that both are in the Oregon statute and
Mattison recognized no relevance of either severe mental illness or
youth to making this assessment indicates that accountability is some-
thing else.

It became very apparent yesterday that this sentence needed to

account for each of the wounded, who rightly call themselves survivors,
110 Law’s Madness

and for Mr. Kinkel to know there was a price to be paid for each per-
son hit by his bullets. (emphasis added)67

That something else would appear to be vengeance, notwithstanding

the prosecution’s insistence that it sought justice, not hate. Two phrases
are particularly important. By describing the wounded victims as those
who “rightly call themselves survivors” Judge Mattison invoked the
Holocaust and the peculiar genealogy of survivor as a kind of superciti-
zenship status in contemporary society.
By invoking the “price to be paid” Judge Mattison invoked a quanti-
tative nature to law’s violence, the literal pound of flesh. This found its
realization in the repetition of 7.5-year sentences for each and every
wounded.

Conclusion

In a system of discipline, the child is more individualized than the

adult, the patient more than the healthy man, the madman and the
delinquent more than the normal and the non-delinquent. In each
case, it is towards the first of these pairs that all the individualizing
mechanisms are turned in our civilization; and when one wishes to
individualize the healthy, normal and law abiding adult, it is always
by asking him how much of the child he has in him, what secret
madness lies within him, what fundamental crime he has dreamt of
committing.68

We are today, perhaps more than ever, a society that valorizes the
individual, but are we a society that individualizes? To what extent,
and how, do we bring power and knowledge to the level of the indi-
vidual (the dream of both totalitarian and democratic reformers)?
These are questions that must be answered empirically, strand by
strand. How are we known and acted on? As Foucault’s work sug-
gested, the series youth, madness, crime describes an important strand.
During the twentieth century a partial institutional base was laid to
know and act on part of the American population, mainly its urban
“dangerous classes.” It differentiated between the state’s general
power to punish and special mandates to address crime in the context
of youth, as well as crime in the context not of legal insanity necessar-
ily, but in the face of mental deviance traceable in the terms of positive
psychological sciences.
Madness, Youth, and Homicide 111

While these institutions often produced fatally incomplete frag-

ments of knowledge about the individual,69 they were by no means
merely ideological gestures. Instead a limited and always insufficient
investment was made in knowing Americans through the aberrations
of their children and acting on American society.
For much of the twentieth century it seemed plausible that inevitable
advances in human science, starting with youth, madness, crime,
would rebuild criminal justice generally around the model of a clinical
practice. Prisons were built with spaces labeled diagnostic centers. Cor-
rections departments funded experimental research to prove that
intensive casework substantially altered recidivism rates for released
prisoners. Today these gestures seem naive if not Orwellian.
An important task for sociolegal scholars today is exploring the
pathways created by this investment, with the aim of understanding
both how they failed to achieve their own objectives and ways those
pathways continue to shape how people are governed and seek self-
governance. The archive of the Kip Kinkel case is a portal into the con-
tinued vitality of that root pathway youth, madness, crime (homicide).
Seen against our earlier examples (Leopold and Loeb as well as the fic-
tional trial of Bigger Thomas), Kinkel’s case suggests that the founda-
tions of the psychological sentencing hearing have been rocked. Both
psy-knowledge and the adversary system it serves have altered in their
strategies and aims.

Psy-Knowledge: Defining Deviancy and Science Down

To some legal observers in the early twentieth century it seemed only a

matter of time before the strength of the human sciences would be great
enough to wrest control of criminal justice altogether away from judges
and lawyers.70 The great compromise that placed the problem of guilt
solidly in the hands of lawyers while giving human scientists a large
role in the penal correctional establishment was deemed temporary.
The Kinkel case suggests that the health of the psy-sciences and their
role in the criminal process are now more independent. The psy-knowl-
edges that surface in the Kinkel archive include the claims of scientists
aspiring to explain Kinkel’s course of action. But that archive also
includes a very different picture of psy-knowledge, one governed not
by science as a vocation but by contract.
Nikolas Rose’s Powers of Freedom (1999) suggests that we are in the
midst of a transformation in the nature and role of psy-knowledges. In
112 Law’s Madness

the nineteenth century, according to Rose, the emphasis was on the

individual in relationship to the concept of the normal and the abnor-
mal. Psy-experts turned to both biology and hermeneutics in order to
document deviance from a notion of normality grounded in conven-
tional morality. During the twentieth century the concept of individual
was recast as a problem of social relations. Over the last several decades
psy-knowledge has changed again, this time emphasizing the individ-
ual as a site of risk calculation and control.71
The psy-experts of the 1920s set themselves a high and imperious
task: to explain human behavior and thus to become the singular lan-
guage of judgment. From this perspective the Leopold and Loeb hear-
ing was a failure to many, a missed opportunity to spell out the truth of
crime in a new and compelling language. The demands of courtroom
norms regarding prurience and the potential harm of scandalizing the
public through the media weighed on both the judge and the defense.
Still, they presented the authority of psy-science independent of both
the adversary process and the servicing of individual clients.
The psy-discourse of the 1990s is greatly deflated. It is a service sci-
ence of small adjustments. Even Kinkel’s top defense experts avoided a
specific interpretation of his conduct. Their task was not to explain
Kinkel but to locate him properly within the Diagnostic and Statistical
Manual and predict the degree of control contemporary pharmacology
can provide. Here psy-discourse does not seek to replace the judgment
of criminal law but rather to provide a kind of auxiliary knowledge of
largely custodial relevance. While this new role for psy-experts may
take away much of the imperiousness with which they once laid claim
to govern others, it also highlights the self-imposed limits that psy-
experts now place on their knowledge of their patients.
This is even more the case for Dr. Hicks, who was brought in by
Kip’s mother Faith to address his manifest depression and generally
disturbing behavior. His testimony underlined how partial and tenta-
tive the claims of psy-knowledge are today. When pressed on the fact
that Kip’s violent strains seemed to be increasing during the period
when Dr. Hicks was seeing him and his situation was supposed to be
improving enough to take him off Prozac, Hicks invoked his contract
with the Kinkels.

Q. Did you do anything in the way of a full psychological evaluation?

A. No. That wasn’t my contract. It was to address the specific pre-
senting problems the family brought in. . . .
Madness, Youth, and Homicide 113

Q. How did he tell you he would react when he had a bad day at school?
What would he do to make himself feel better?
A. He would often go to a local quarry and detonate explosives,
and that would help him feel better.
Q. Did you get some sort of a commitment from him, I guess it would be
the following week, with regard to whether or not he would use explosives
anymore?
A. I certainly encouraged him not to. I don’t recall that he con-
tracted with me not to.72

The contract has emerged as both a preferred technology and a cen-

tral metaphor for neo- or advanced liberal governance. In Dr. Hicks’s
testimony we see contracts operating in two different ways. First, the
contract acts to limit the psy-expert’s own responsibility (and, of
course, liability) for the patient. By establishing a narrow definition of
the objective, the therapist can avoid the inflation of expectations that
follows from the assertion of expertise.73 Second, the contract operates
as a tool of behavioral management. The goal is not to produce self-
knowledge but self-control. What emerges from the therapeutic dia-
logue are not truths from the deep, but agreed-upon standards for
assessment of performance. Not surprisingly, contemporary psy-
experts show little desire to claim jurisdiction over the crimes of the
young and the mad. Their success as a profession and their influence in
society is founded much more in the retail services they provide in
addressing specific needs of private clients as well as providing expert
knowledge for psychological sentencing hearings.

Law: Return of Community and Vengeance

In the Kinkel case we see the disappearance of criminal law as an

autonomous system linked to things like science, progress, and human-
ity. Instead we have the simple facticity of collective desire, the need for
a precise equivalence of violence, what the Nazis called the healthy
racial sentiment to exact vengeance. Wright’s novel powerfully paints
the image of racial community manifesting itself in the light of Bigger’s
crime and the state’s prosecution. Crosses are burned as mobs of White
citizens gathered whenever the defendant was brought outside.

Even before the front door was opened, he heard the faint roar of
voices. As far as he could see through the glass panels, up and down
114 Law’s Madness

the street, were white people standing in the cold wind and sun-
shine. They took him through the door and the roar grew louder; as
soon as he was visible the roar reached a deafening pitch and con-
tinued to rise each second. Surrounded by policemen, he was half
dragged and half-lifted along the narrow lane of people, through the
gate, toward the waiting car.
“You black ape!”
“Shoot that bastard!”
He felt hot spittle splashing against his face. Somebody tried to
leap at him, but was caught by the policemen and held back. As he
stumbled along a high bright object caught his eyes; he looked up.
Atop a building across the street, above the heads of the people,
loomed a flaming cross.74

The formation of the citizenry as a community defined by vengeance

continued even into the courtroom.

“It is not often,” [State Attorney] Buckley continued, “that a rep-

resentative of the people finds the masses of the citizens who elected
him to office standing literally at his back, waiting for him to enforce
the law . . .” The room was quiet as a tomb. Buckley strode to the
window and with one motion of his hand hoisted it up. The rum-
bling mutter of the vast mob swept in. The court room stirred.
“Kill’im now!”
“Lynch’im!”75

When the time came to sentence Bigger, the judge made abundantly
clear his duty to express the sentiments of this community.

“In view of the unprecedented disturbance of the public mind, the

duty of the Court is clear,” the judge said and paused . . .
“[T]he sentence of this Court is that you, Bigger Thomas, shall
die . . .”76

As Judge Mattison’s explanation for his sentencing Kip Kinkel to life

in prison makes clear, there is a convergence in the treatment of violent
youths. Wholly committed to representing the fears and angers of the
community, judges and other authority figures today are less likely to
permit individualization of even privileged defendants. Darrow
Madness, Youth, and Homicide 115

argued for a vision of law powerful enough to explain and absorb even
extreme pathology. Richard Wright reminded us that for Blacks like
Bigger Thomas, the mandate to absorb and integrate was replaced by
its opposite. The specialized dialogue that law had with madness,
youth, and murder was eliminated in the name of protection and
vengeance. The Kip Kinkel sentence suggests that at the end of the
twentieth century the treatment of young violent offenders had largely
been leveled. The status once reserved for African Americans in the
arms of the criminal law is now conferred on all who commit crimes.

NOTES

1. Elizabeth Mehren, “Trial of Man in ’75 Slaying Spurs Search for Prece-
dent,” Los Angeles Times, Jan. 25, 2000, <http://www.latimes.com/news
/nation/2000125/t000007958.html>. He is entitled to be tried under the law
that existed at the time of the crime (at least as to those aspects that would
determine the length or character of punishment). The question of whether he
remains entitled to juvenile procedure is a novel one. The more lenient penal-
ties of the juvenile court historically are based on both the theory of more lim-
ited culpability for juveniles and on the theory of a compelling state interest in
the reclamation of juveniles. Skakel’s case nicely splits the two.
2. Simon Singer, Recriminalizing Delinquency: Violent Juvenile Crime and
Juvenile Justice Reform (Cambridge: Cambridge University Press, 1997); Barry
Feld, Bad Kids: Race and the Transformation of the Juvenile Court (New York:
Oxford University Press, 1999).
3. Which would, if accepted by the fact finder, require an acquittal,
although one followed by the strong likelihood of compulsory confinement.
4. I want to invoke a very broad meaning of psychological here, encompass-
ing all of those expert discourses that claim a scientific standing to comprehend
the motivation of individuals.
5. These hearings bear a resemblance to the sentencing phase of contem-
porary capital trials. I will concentrate here on their use outside of the post-
Furman capital context, but our discussion could well include that.
6. Paula Fass, “Making and Remaking an Event: The Leopold and Loeb
Case in American Culture,” Journal of American History 80 (1993): 919, 920.
7. Perversely, due to his age Kinkel will be housed for several years in a
prison designed to aggressively rehabilitate young offenders. Even if that is
successful he will graduate from that prison to an adult prison oriented toward
punishment and incapacitation for the rest of his life.
8. This comparison is facilitated by the existence of an accessible archive of
discourses on both cases. The Leopold and Loeb case was extensively docu-
mented by the editors of the Journal of Criminal Law and Criminology in 1924 just
after the trial. See Symposium, “The Loeb-Leopold Murder of Franks in
116 Law’s Madness

Chicago, May 21, 1924,” Journal of Criminal Law and Criminology 15 (1924):
347–508. Kip Kinkel’s case was the subject of a powerful documentary by
Frontline Videos and shown over the Public Broadcasting Station in January
2000. See Frontline Video, The Killer at Thurston High (2000). Frontline has set up
a web page that contains extensive materials on the case and the public reaction
to it that can be found at <http://www.pbs.org/wgbh/pages/frontline
/shows/kinkel/index.html>.
9. Richard Wright, Native Son (New York: Harper and Brothers, 1940).
10. Leopold and Loeb faced additional marginalization for being Jewish.
They were also from very well-to-do families, as compared to Kip Kinkel’s
solidly middle-class household.
11. That of Pierre Riviere, a young man who killed his mother, sister, and
brother in the village of La Faucterie, France, in 1835. See Michel Foucault, I,
Pierre Riviere, having slaughtered my mother and sister, and my brother . . . : A Case
of Parricide in the Nineteenth Century (Lincoln: University of Nebraska Press,
1975), x–xi.
12. Nikolas Rose, The Powers of Freedom: Reframing Political Thought (Cam-
bridge: Cambridge University Press, 1999), 89–93.
13. The best-known contemporary examples concern the use of psychiatric
confinement against political dissidents in the former Soviet Union.
14. Thomas Green, “Freedom and Responsibility in the Age of Pound: An
Essay on Criminal Justice,” Michigan Law Review 93 (1995): 1915.
15. Fass, “Making and Remaking an Event,” 933.
16. Francis X. Busch, Prisoners at the Bar: An Account of the Trials of the
William Haywood Case; the Sacco-Vanzetti Case; the Loeb-Leopold Case; the Bruno
Hauptmann Case (New York: Bobbs-Merrill, 1952), 165.
17. If there was a “disciplinary society” sometime in the twentieth century,
these were the kind of men who helped shape governance strategies, not sim-
ply in criminal justice, but throughout the burgeoning enterprise of gover-
nance. At the time of the Leopold and Loeb case these psy-experts were at the
peak of their careers, and their cause was nearing its high-water mark for the
first half of the twentieth century at any rate. The Depression and later the war
would distract American society from the problems of delinquency and the
possibilities of psychiatry and psychology as arts of government until the
1950s. Interestingly, popular culture would mark this renewal with a wide-
spread interest in the Leopold and Loeb case including Ira Levin’s best-selling
novel Compulsion, made into a film by director Richard Fleischer in 1959 (Orson
Wells played Darrow). A decade earlier Alfred Hitchcock’s Rope (1948) drew
substantially on the Leopold and Loeb case.
18. Georges Canguilhem, The Normal and the Pathological, trans. Carolyn R.
Fawcett (New York: Zone Books, 1989), 151.
19. Symposium, “The Loeb-Leopold Murder,” 361.
20. Symposium, “The Loeb-Leopold Murder,” 361–62.
21. Symposium, “The Loeb-Leopold Murder,” 363.
22. Symposium, “The Loeb-Leopold Murder,” 365.
Madness, Youth, and Homicide 117

23. Symposium, “The Loeb-Leopold Murder,” 372.

24. Symposium, “The Loeb-Leopold Murder,” 377.
25. Blaming the parents, especially the mother, emerged as a major theme in
explaining aberrational crimes of violence. See Simon, “Ghost in the Discipli-
nary Machine.” In the late twentieth century this theme has subsided some-
what as part of a general decline of interest in the origins of criminal behavior
as a key to controlling it.
26. Symposium, “The Loeb-Leopold Murder,” 379.
27. Symposium, “The Loeb-Leopold Murder,” 371.
28. Symposium, “The Loeb-Leopold Murder,” 381.
29. Symposium, “The Loeb-Leopold Murder,” 389.
30. Symposium, “The Loeb-Leopold Murder,” 395.
31. Symposium, “The Loeb-Leopold Murder,” 396.
32. Symposium, “The Loeb-Leopold Murder,” 395.
33. Symposium, “The Loeb-Leopold Murder,” 397.
34. Symposium, “The Loeb-Leopold Murder,” 403.
35. Symposium, “The Loeb-Leopold Murder,” 405.
36. Although the defense experts agreed this was in response to the experi-
ence of voices, it is also a quote from a Nine-Inch Nails song that Kinkel was
attached to, in large part because he identified with the reference to voices
inside the head.
37. Busch, Prisoners at the Bar, 163.
38. Busch, Prisoners at the Bar, 187.
39. Arthur Weinberg, Attorney for the Damned: Clarence Darrow in the Court-
room (Chicago: University of Chicago Press, 1957), 62.
40. Quoted in Busch, Prisoners at the Bar, 183.
41. Busch, Prisoners at the Bar, 164.
42. Weinberg, Attorney for the Damned, 53.
43. Quoted in Weinberg, Attorney for the Damned, 86.
44. Frontline, Killer at Thurston High, <http://www.pbs.org/wgbh/pages
/frontline/shows/kinkel/trial/defense.htm>.
45. Frontline, Killer at Thurston High.
46. Frontline, Killer at Thurston High.
47. Frontline, Killer at Thurston High.
48. Foucault, I Pierre Riviere.
49. Symposium, “The Loeb-Leopold Murder,” 396.
50. Busch, Prisoners at the Bar, 163.
51. Busch, Prisoners at the Bar, 194.
52. Frontline, Killer at Thurston High, <http://www.pbs.org/wgbh/pages
/frontline/shows/kinkel/trial/state.html>
53. Ibid.
54. Ibid.
55. Symposium, “The Loeb-Leopold Murder,” 392.
56. Symposium, “The Loeb-Leopold Murder,” 392.
57. Symposium, “The Loeb-Leopold Murder,” 392.
118 Law’s Madness

58. Symposium, “The Loeb-Leopold Murder,” 392.

59. Symposium, “The Loeb-Leopold Murder,” 393.
60. Symposium, “The Loeb-Leopold Murder,” 393.
61. Interestingly, most historical commentary has accepted the judge’s
explanation largely at face value.
62. Symposium, “The Loeb-Leopold Murder,” 393, emphasis added.
63. Frontline, Killer at Thurston High, <http://www.pbs.org/wgbh/pages
/frontline/shows/kinkel/trial/judge.html>. The language was originally
enacted by the Oregon legislature and then approved by the voters. In the leg-
islature it was introduced by the Speaker of the House and the Senate President
on behalf of the founders of a victims’ rights organization, Crime Victims
United. See Angela Wilson, “More than Just Words: House Votes to Remove
‘Vindictive Justice’ Language from State Constitution,” Portland Skinner, May
10, 1995 (Westlaw file #1547089).
64. Tuel v. Gladden, 234 Or. 1, 6 (1963).
65. Frontline, Killer at Thurston High, <http://www.pbs.org/wgbh/pages
/frontline/shows/kinkel/trial/judge.html>.
66. Frontline, Killer at Thurston High.
67. Frontline, Killer at Thurston High.
68. Michel Foucault, Discipline and Punish: The Birth of the Prison (New
York: Pantheon, 1977), 193.
69. The most famous example in our time is Lee Harvey Oswald, a likely
assassin of President Kennedy, who was held for a monthlong period of diag-
nosis by the New York juvenile court at the age of fourteen for truancy. See
Jonathan Simon, “Ghost in the Disciplinary Machine: Lee Harvey Oswald, Life-
History, and the Truth of Crime,” Yale Journal of Law and the Humanities, 10
(1997): 75.
70. The phrase “defining deviancy down” comes from an essay by Daniel
Patrick Moynihan in American Scholar (winter 1993).
71. Rose, The Powers of Freedom, 90, 260.
72. Frontline, Killer at Thurston High, <http://www.pbs.org/wgbh/pages
/frontline/shows/kinkel/trial/hicks.html>.
73. The massive ethical and moral hazard issues this creates for the psy-pro-
fessions is beyond the scope of this discussion.
74. Wright, Native Son, 337.
75. Wright, Native Son, 373.
76. Wright, Native Son, 417.
The Claims of the Dead:
History, Haunted Property, and
the Law

Cathy Caruth

Balzac’s novel Colonel Chabert, first published in 1832, opens with a

peculiar scene: a soldier who is know to have died in battle most
improbably and unexpectedly returns to the office of a lawyer to
reclaim his property. Disfigured and unrecognizable, the stranger
insists that he is actually the famous colonel and asks the lawyer to help
him to obtain a form of legal recognition that will restore to him his
lawful identity, his property, and his wife. In this strange reincarnation
of his own dead self, the character appealing to the lawyer hopes to
become legally, and therefore, humanly, alive. Unfolding from this
haunting encounter, Balzac’s story dramatizes the attempt by a man
who is legally dead to come alive before the law and the capacity and
limits of the law to respond to this attempt at legal resuscitation.
Set in postrevolutionary France during the Restoration, this ghostly
return of a Napoleonic soldier clearly echoes the historic repetitions
that were taking place during this period: the return to the prerevolu-
tionary past during the Restoration, itself ruptured by the return of the
Napoleon during the Hundred Days; and the protracted waves of rev-
olutionary socioeconomic shocks to France in the wake of the French
Revolution. What is remarkable in Balzac’s text is the singular percep-
tion that this haunted repetition, this return, takes place not simply in
the realm of history, politics, or war, but rather and specifically on the
site of the law. What is at stake in Balzac’s novel is a legal claim that
turns the law itself into the place par excellence of historical memory.
This appeal to memory and history through law emerges in Balzac,

119
120 Law’s Madness

moreover, not simply through the return of a living revolutionary hero,

but, far more unexpectedly and enigmatically, through a return of the
dead. What does it mean, Balzac’s text seems to ask, for the dead to
speak—and to speak before the law? And what does it mean, more-
over, for the law to listen to this claim coming, as it were, from the
dead? It is through these unsettling questions, I will argue, that Balzac
reflects on the complexity of the relationship that, in the wake of the
French Revolution, emerges as an entanglement and as an indissoluble
bond between the law and history.
It is not by chance, I will suggest, that this literary story takes place
as a scene of haunted memory. In giving center stage to the return of
the dead and to the singular encounter between the survivor and the
law, Balzac’s text grasps the core of a past and of a future legal haunt-
ing and identifies as central to historical development a question of
death and of survival. This question will indeed return to haunt the
twentieth century, not simply in the central role of Holocaust survivors
in the postwar crime trials, but, even more uncannily, in the current
legal claims made by individual survivors for restitution of their past
property, and, more fundamentally, for restitution of their property
rights. Through its strange tale of a ghostly claim to property, Balzac’s
text thus prophetically foretells, I propose, what it means for the law to
grapple with its own traumatic past.
The text of Colonel Chabert is in effect the story of a young lawyer’s
attempt to recognize and respond to this peculiar claim to restitution of
property. Chabert tells the lawyer how he died in war without quite
dying: how he was wounded and buried alive in battle; how he was
mistakenly declared dead; and how he managed to struggle out of the
mass grave, only to find a society that denies his existence and a wife,
now remarried and with children, who refuses to acknowledge his let-
ters. Astonished by the appearance of Chabert but willing to believe his
story, the lawyer Derville suggests a compromise between Chabert and
his wife, a settlement that will provide an equitable compromise on the
property. In the story of the compromise and of its failure—through
which the text stages the drama of the legal struggle to come alive
before the law—Balzac describes, I will suggest, the very struggle of the
survivor of catastrophe to reclaim life: to claim existence and identity.
But it is also, quite precisely, through the peculiar legal struggle over
the claim to property that Balzac shows how the law, in this tale, at the
 The Claims of the Dead 121

same time comes to recognize, and fails fully to comprehend, the legacy
of a traumatic history.

Haunted Property

1 The problem of recognition is indeed central in the opening scene of the

tale. In the very first lines of the story, a clerk at a lawyer’s office notes
the strange appearance of a figure that keeps returning to their door:

“Look! There’s that old greatcoat again!” . . .

“Simonnin, stop playing stupid tricks on people. . . . No matter
how poor a client is, he’s still a man, damn it!” said the head clerk.
“If he’s a man, why’d you call him old greatcoat?” asked Simonnin.
(1–2)1

Appearing only as a ghostly “greatcoat,” the stranger’s first encounter

with the law is marked by a misrecognition, an inability of the law
office to decide whether the figure should be considered fully human.
Haunting the office in his not fully recognizable form, this figure of a
man without property situates the question of property at the very heart
and at the very jurisprudential center of the law.
The scene that the stranger interrupts in fact represents the perfor-
mance of the law at a very specific historical moment, a moment that is
named by the clerk who is improvising a long and “prolix” appeal:

“. . . But in his noble and benevolent wisdom, His Majesty, Louis

the Eighteenth . . . [deemed to] repair the damages caused by the ter-
rible and sorry disasters of our revolutionary times by restoring to
his loyal and numerous adherents . . . all their unsold property. . .
rendered on . . . June 1814.” (2–4)2

The lawyer’s appeal refers, specifically, to the period of the Restoration,

the time of the return of the Bourbon monarchy to the throne after the
abdication of Napoleon and, more precisely, to the Charter of 1814 by
which the new king, Louis XVIII, took power. In its political signifi-
cance, this moment was an attempt at a kind of historical return:
France’s attempt to return to a form of rule that preexisted the Revolu-
tion, and to create a bridge over the rupture constituted by the radical
122 Law’s Madness

events of 1789 and their consequences during the Napoleonic Empire.

But this moment was in fact, as the lawyer’s appeal indicates, a legal
one as well; for the Charter of 1814 was the reiteration and modifica-
tion, in particular, of the legal legacy of the Revolution: of the astound-
ing legal breakthrough of the Declaration of the Rights of Man and Citizen
of 1789 and its codification during the Napoleonic Empire in the Civil
Code. The Restoration’s legal and political attempt to return to the past,
Balzac suggests, thus takes place through the execution and the institu-
tion of another kind of return: the return of property to the aristocrats
from whom it had been taken during the Revolution. The return of
property in the legal act of the Restoration is thus a political attempt to
return to the prerevolutionary past.
The primary interest in Balzac’s text is not, however, found in this
story of restoration per se but in the way in which it becomes bound up
with a far stranger kind of return: the peculiar manner in which the
return of property becomes entangled, strangely, with the insistent and
uncanny return of the dead. The appearance of the stranger at the door
of the office indeed represents not simply a man who is poor, but more
enigmatically, a man who cannot be recognized, precisely, as alive:

“Monsieur,” Boucard said to him, “would you be good enough to

give us your name, so that our Master may know . . . “
“Chabert.”
“Isn’t that the colonel who died at Eylau?” . . .
“The same, Monsieur,” answered the good man with old-fash-
ioned simplicity. (10–11)

It is indeed as a man who is dead that Chabert first introduces himself

into the scene of the law: “My death,” he will later reassert to his
lawyer, “is a matter of historical record.” Coming nonetheless to make
a claim for his property, he appears as a peculiar inversion of the his-
torical attempt to return to the past effected by the Restoration. At the
point that the Restoration would return property to the aristocrats, here
a figure of the Revolution comes to demand that his own property be
returned to him. In the very act of making this claim in the name of a
dead man, however, Chabert also points toward a past that cannot be
spoken in the simple terms of the living. If property here functions,
from within the Restoration, as the place par excellence of return, it is
also, in this story, the uncanny site of a haunting.
 The Claims of the Dead 123

If we step back for a moment, we can see how Balzac’s narrative

about a dead man coming before the law addresses a larger question of
law and historical memory, specifically as they became intertwined
after the French Revolution. For the introduction of the Charter of 1814
in the opening scene of Balzac’s story inscribes this legal document in
the literary text not only in relation to the Charter’s use of law to return
aristocratic property, but also and more profoundly, I would suggest,
in the Charter’s peculiar function as a decree of historical forgetting.
Indeed, quite remarkably, when Louis XVIII proclaimed his kingship
after the abdication of Napoleon he placed in the Charter an article that,
in François Furet’s words, “put forgetfulness under the law’s protec-
tion, as if it were the most precious of national virtues”: “Article II: All
research into opinions and votes issued up to the Restoration is prohib-
ited. Courts and citizens are equally commanded to forget.”3 Decreeing
forgetting within the very Charter that reiterates the Civil Code as the
regime’s basic legal principles, the king makes of forgetting itself a legal
function. Appearing against the background of this operation of the
Charter, Chabert’s return before the law can thus be understood as the
return of memory against the very action of the legal attempt to forget.
The claim to property, in other words, is the site of a memory: the
memory of a revolutionary history paradoxically repressed within the
very extension of the Revolution’s own legal legacy.4
But such a claim is not made in the light of day. It is significant that
Chabert’s story and his claim literally emerge not in the outer offices of
the clerks who work during the day but in the inner office of the “mas-
ter” lawyer, Derville, who works, we are told, “only at night.” Not
available to the law’s consciousness, the story of Chabert is narrated to
the lawyer in the darkness of the night, as the return of an ungrasped
death that insists on legal recognition. Indeed, Derville’s nighttime
labor seems to represent a place of unconscious wakefulness at the very
heart of the law. The claim to property profoundly and symbolically
becomes, thus, the unconscious site on which the law confronts the
nightmare of a historical trauma.

2 The story that Chabert comes to tell is indeed tied up with a crucial
moment in the record of French history: Chabert is a colonel in
Napoleon’s army who was involved in the famous battle of Eylau and
who was instrumental in Murat’s charge—an actual military event that
has been called the “greatest charge of the Napoleonic wars.”5 To the
124 Law’s Madness

extent that his name is recognizable, then, Chabert represents the great-
ness of the Napoleonic period, the spreading of the principles of the
Revolution throughout Europe and the greatness of military glory so
central to French identity. Indeed, it is in setting up Murat’s charge,
apparently, that Chabert is wounded, falls off his horse, and is subse-
quently trampled under the charging soldiers. His recognizable histor-
ical identity, he suggests, is based, then, purely on the mistakes of
medics and more importantly on a mistaken legal declaration.

Those damned medics, who had just seen me trampled beneath the
horses’ hooves of two regiments, no doubt dispensed with checking
my pulse and declared that I was quite dead. My death certificate
was then probably made out in accordance with the rules of military
jurisprudence. (20)

While he is truly a Napoleonic colonel, Chabert’s official historical sta-

tus as a hero of the wars—and in particular of its “victories and con-
quests”—is associated with the finality and tragic romance of his death,
a death that is, as it turns out, a legal fiction. In this error of death, then,
the law of certificates and declarations has paradoxically helped to
write a heroic history that eliminates the reality of war—a reality of
horror, of atrocity, and of confusion in which death is carried on into
life and which Chabert, in contrast, is precisely struggling to articulate
and to narrate.
The reality of which Chabert speaks is indeed a far more gruesome
one than the romantic story of his death, associated with the greatness
of French victory. The death in this tale is of an entirely different order.

When I woke up, Monsieur, I was in a position and a setting which I

couldn’t convey to you if I talked till dawn. The little air I was
breathing was foul. I wanted to move but had no room. Opening my
eyes, I saw nothing . . . I heard, or thought I heard—though I can’t
swear to it—groans coming from the pile of corpses I was lying in.
Even though the memory of these moments is murky, and despite
the fact I must have endured even greater suffering, there are nights
when I still think I hear those muffled moans! But there was some-
thing more awful: a silence that I have never experienced anywhere
else, the perfect silence of the grave. (21–22)
The Claims of the Dead 125

What Chabert truly comes to know is not the glorious death of war and
conquest but the horror of being buried alive under the dead. The story
he has to tell is indeed the story of the dead, the sounds of the dead in
the very act of dying, and the “silence of the grave” itself, a silence far
more horrible, he suggests, than the loud and noisy heroism of the
death named on the historian’s page. Likewise, the triumph he also
achieves in this horrible situation—the victory over death he will
accomplish—is itself not the victory of war as recorded in history but
an underground story horrible in its gruesome detail.

Scrabbling around me at once, for there was no time to lose, I felt a

huge, detached arm. I owe my rescue to that bone. Without it I
would have perished! But with a fury I’m sure you can imagine, I
plowed my way through the corpses separating me from the surface.
A layer of earth had no doubt been thrown over us—I say “us” as if
the others were still alive! I still do not know how I could have dug
through all that flesh. It formed a barrier between me and life. But I
went at it, Monsieur, and here I am. (22–23)

Chabert’s story of his return to life is not a glorious tale of conquest but
the horrid account of tearing human limbs and of climbing on human
bodies in a desperate attempt to save himself and to struggle out of the
grave. Indeed his final emergence from the grave itself conveys a cer-
tain disrespect, a paradoxical act of desecration of the dead rather than
a simple veneration and glorification of them. “I pushed myself up
with my feet standing on the solid backs of dead men. This was no time
to respect the dead.” (23).
In words uncomfortably anticipatory of twentieth-century horrors—
one thinks, for example, of the stories of people in the gas chambers
stepping on each other in an attempt to resist choking and get air—
Chabert describes a kind of struggle for survival that cannot be assimi-
lated to heroic notions of greatness or triumph.6 Not being really dead,
Chabert in fact serves as a witness to a death—and a survival—far more
disturbing and far less comprehensible than the deaths and victories
recorded in history. What comes back, thus, through the “realism” of
Balzac’s description of Chabert’s experience in the mass grave is in this
sense truly a traumatic return: a history of death that insists on return-
ing precisely to the extent that it is not fully understood.
126 Law’s Madness

What the literary text suggests surprisingly, however, is that, if his-

tory is to be understood as a traumatic history, its insistent return
should be located not simply, as one might expect, in the psychic suf-
fering of Chabert but, oddly and problematically, within the very
inscription of this suffering in the realm of the law. Chabert himself
suggests, repeatedly, that it is not his physical suffering that is of inter-
est. Indeed, just as the lawyer Derville gets caught up in the physical
and actual horrors of Chabert’s story, Chabert insists that its import lies
somewhere else.

“Monsieur,” said the attorney, “you are confusing me. I feel like
I’ve been dreaming. Just hold on a moment.”
“You are the only person,” said the Colonel with a sorrowful look,
“who has had the patience to listen to me. I haven’t found a lawyer
willing to advance me ten napoleons to send to Germany for the nec-
essary documents to begin my lawsuit . . .”
“What lawsuit?” said the attorney, who had forgotten his client’s
present painful position while listening to his past sufferings.
“Monsieur, the Countess Ferraud is my wife! She possesses 30,000
pounds a year that belong to me, and she won’t give me a sou. When
I tell these things to lawyers, to men of good sense; when I propose
that I, a beggar, should sue a count and countess; when I, a dead
man, rise up against a death certificate, marriage licenses, and birth
certificates, they show me the door. . . . I’ve been buried beneath the
dead, but now I’m buried beneath the living; beneath certificates,
facts—the whole society would rather have me buried under-
ground! (26–27)

If Derville is first moved by the story of Chabert’s physical and mental

sufferings—his remarkable story of being buried alive—what Chabert
is troubled by is another form of burial, the burial beneath the living. If
the war trauma can be said to repeat itself, indeed, it repeats itself not
in Chabert’s physical or mental suffering but in his suffering before the
law: in his inability, having revived himself physically, to revive him-
self legally. The trauma returns, that is, not in a vision of his remem-
bered near-suffocation in the grave but in his present and repeated suf-
focation by the death certificates and by the legal papers that bury him
alive in a more pernicious and more permanent way. The repetition of
the trauma, therefore, takes the form, not of a physical or mental, but of
 The Claims of the Dead 127

a social and a legal death.7 As such the horror of the traumatic history
is contained, in this story, in the enigmatic and complex problem of a
legal trauma.

3 Chabert’s ghostly reappearance before Derville, indeed, is represented,

not as an anomaly coming to the law from outside it, but as a problem
that haunts it, as it were, from within. The dead colonel’s mistaken bur-
ial had first occurred in a battle that was part of an attempt to spread the
very principles of Revolution in the form of the Civil Code—the law
that, in 1807 (the same year as the battle of Eylau) was named after
Napoleon and was considered by him to be one of his greatest achieve-
ments.8 Chabert returns from this battle, however, not as a conqueror
spreading the law in its glory, but as the war’s victim, as the man muti-
lated and barely recognizable as human precisely because of a war
meant to disseminate the notion of rights. Indeed, if revolutionary law
in a certain sense redefined the human around the notion of rights,
Chabert emerges from among the literally dehumanized, the disarticu-
lated limbs and unrecognizable faces of those upon whom and through
whom these rights were imposed. Chabert’s return thus haunts the law
with an aspect of its own history that remains unrecognizable to it, a fig-
ure of inhumanity that the law cannot contain within its own memory.
Chabert does not return, indeed, precisely as a human being claim-
ing his rights, but as a cry for humanity emanating from someone not
yet recognized as human. Chabert must claim, first, his very existence,
his very recognizability as a living human being who has the right to
claim. Describing to Derville his attempts to contact his wife, Chabert
displays the depth of his dilemma caused by this radical refusal of
recognition:

“Well,” said the Colonel, with a gesture of concentrated rage,

“when I called under an assumed name I was not received, and the
day I used my own I was pushed out the door . . . My gaze would
plunge inside that carriage, which passed by with lightning speed,
and would barely catch a glimpse of the woman who is my wife and
yet no longer mine. Oh, since that day I have lived for vengeance!”

The desire for rebirth before the law, as Chabert first speaks of it,
emerges as a cry of revenge that will force recognition through an act of
retribution: an act of forcefully reclaiming the life that he no longer
 128 Law’s Madness

owns. In claiming his property, then, Chabert does not claim something
to which he has the right but rather that to which he precisely can no
longer rightfully lay claim, a self, a love, and a life of which he has been
radically dispossessed.

A Place of Memory

4 From one perspective, the entire narrative of Balzac’s novel—the legal

drama that grows out of the encounter between Chabert and Derville—
can be understood as revealing the law’s capacity to hear this claim and
to perform the rebirth of the dead man, his legal resuscitation, through
its capability of translating the traumatic story into recognizable legal
terms. Derville could indeed be said to discover in the claim not more
than the negotiation of an already existing link between the legally
unrecognizable figure and the human world Chabert wishes to enter.
The claim to self and to life, made as a claim to property—as a claim
that is always made in relation to another—becomes, in Derville’s cre-
ative manipulation of it, the very possibility for Chabert to achieve a
recognizable identity.
Indeed, if Derville is shown to be a capable listener, this legal listen-
ing is made possible, in part, not because he speaks in the same lan-
guage as Chabert, but because he integrates the story—and the claim—
into a recognizable legal and human framework. As it turns out,
Derville is also the lawyer for Chabert’s (now remarried) wife, and it is
by bringing Chabert into relation to her, by proposing a form of mutual
legal recognition, that Derville first responds to Chabert’s cry.

“This is a serious matter,” [Derville] said at last, somewhat

mechanically. . . . “I need to think about this case with a clear head;
it is quite unusual.”
“Well,” the Colonel answered coldly, raising his head proudly, “if
I lose, I may die, but not alone.” Suddenly the old man disappeared,
and the eyes of a young soldier ignited with the fires of desire and
vengeance.
“We might have to compromise,” said the lawyer.
“Compromise?” repeated Colonel Chabert. “Am I dead or am I
alive?”
“Monsieur,” continued the lawyer, “I hope you will follow my
advice. Your cause is mine.”
The Claims of the Dead 129

While Chabert’s claim is a cry for retribution, Derville’s response trans-

lates this symmetry of destruction into the reciprocal recognition of a
settlement.9 He recognizes in the cry of the claim, that is, the claim for
rights, which thus permits him to afford the unrecognizable figure
before him the recognition of a human being. Explaining calmly to
Chabert that his wife is remarried, has children, and has manipulated
the inheritance in a way that makes it untraceable to Chabert, the
lawyer offers a solution that will not return Chabert to the past he once
lived but will allow some recompense for its loss.
Indeed, as the lawyer makes clear, the need for a negotion of a legal
solution imposes itself precisely because Chabert’s claim to survival
comes into direct confrontation with that of his wife. Upon hearing the
news of her husband’s death on the battlefield, Mme. Chabert had, we
are told, remarried an aristocratic count, the Count Ferraud, whose
name she proceeded to take as her own and with whom she had two
children. Working with her pension from Chabert’s death and with her
inheritance, she had made use of the monetary swings of the early
Restoration to manipulate this sum into a small fortune, thus providing
a place for herself in Restoration society as a wealthy and aristocratic
countess. But her husband, the count, now has ambitions of his own
and, she senses, has been looking for an excuse to divorce her so as to
marry into the royal family and have a chance at becoming a Peer of
France, an excuse that Chabert’s return and her unwitting bigamy
would provide. If Chabert feels he cannot quite come alive, then, if he
suffers a social death through what constitutes his wife’s survival,
Mme. Ferraud is horrified that he cannot quite die, that his survival
means likewise a social death for her. Derville’s offer of compromise
thus mediates between two opposing claims to survival.
The conflict and the compromise, moreover, take place as a negotia-
tion about, and through, property: it is through property (his name,
marriage, and money) that Chabert makes a claim for his identity, and
it is through property (her wealth and marriage) that the wife resists.
But it is also because this property is ultimately negotiable that the
claim can become a settlement and be recognized on both sides.10
Derville thus suggests that Chabert give up his claim to the marriage
(by annulling the marriage contract) if Mme. Ferraud agrees to grant
Chabert his identity (by annulling the death certificate). Derville con-
vinces Chabert to negotiate because he cannot afford a lawsuit and will
ultimately lose his name, while Derville convinces the wife to negotiate
 130 Law’s Madness

so that she can avoid the consequences of a lawsuit that would expose
her bigamy to her husband. Chabert’s identity as a living Colonel
Chabert (through the annulment of the death certificate) and of the
wife’s identity as Mme. Ferraud (through the annulment of the previ-
ous marriage contract to Chabert) are thus established and brought into
relation to each other as reciprocal acts of annulment that treat the
establishment of identity as a kind of exchange of properties. The right
to property, by establishing an analogy between the asymmetrical
needs and claims of Chabert and his wife—between the man who has
as yet no property and the woman who is at risk of losing hers—thus
becomes the mediating term by which the law brings the two parties
together and whose principle governs the very form of the compro-
mise. In this sense the claim to property—in its powers not only to rec-
ognize, but to constitute, a recognizable symmetry of identities—
becomes the epitome of the right to claim that is also the necessity of the
mutual recognition of one another’s rights.11

5 The legal remedy of compromise is also represented, in the story, as an

act of remembering. In effecting Chabert’s legal rebirth through the
compromise—by associating and recognizing his life with a legal
form—Derville could be said to reenact Chabert’s rebirth from the pit
as the memory of an earlier, legal birth, the birth of man as a subject of
rights in the legal act of foundation constituted by the Revolution. The
law, in resuscitating Chabert, thus remembers through him the legal
foundation of the subject created by the Declaration, as a “juridical per-
son” recognizable through his very right to claim, and specifically, the
right to claim his property.12 Against the background of the reduced
notion of property as mere possession, Derville thus resuscitates, with
Chabert, the sense in which the Declaration of the Rights of Man and Citi-
zen, rather than recognizing the human through his property, precisely
constituted the subject as proprietor, as the one who is recognized
through his very right to claim.
This act of resurrecting the original legal meaning of the revolution-
ary subject is thus also represented in Balzac’s text as the possibility of
recreating a smooth succession between past and present and incorpo-
rating the legal history of the Revolution and postrevolutionary peri-
ods (the extended history of the Revolution as the foundation of mod-
ern law) into the continuity of a nontraumatic history. Moving between
Chabert (who is trying to live like a Napoleonic colonel) and his wife
 The Claims of the Dead 131

(who is trying to live the life of a Restoration countess), Derville ulti-

mately convinces both of them to come to his office to negotiate the set-
tlement, which he stages in a highly theatrical gesture by directing
Chabert, dressed in the uniform of the imperial guard, and his wife,
dressed in her most glorious Restoration garb, to sit in separate rooms
while he moves between them, reading the settlement.13 In this scene,
Derville symbolically crosses the gap between Empire and Restora-
tion—the end of the Napoleonic Empire represented by the moment of
Chabert’s so-called death—and turns it into the legal memory of the
Revolution, not as the “endless abyss” that cannot be bridged, but as a
beginning with an end, a moment in the past that gives meaning and
sense to the history that it created. He also, in this sense, restores
Napoleon in history not as the conqueror who spread the Code through
catastrophic wars, but as the ruler responsible for creating a place of
memory in the Code.14 The legal settlement of property, the remedy to
historical trauma proposed by Derville, thus situates the legal Code as
a place of memory, the memory of the Revolution as the beginning of a
continuous and comprehensible history, and the recognition of the
human as, precisely, the reflection and embodiment of the Code.

The Enactment of Witness

6 Yet if, on the one hand, Derville’s listening acts as a kind of legal mem-
ory of the history of the law, it also comes to enact something within
that history that it still fails to comprehend.
This incomprehension occurs, moreover, around the very problem
of property. While Derville seems able to appreciate what it means for
Chabert not to have property, he appears to misunderstand what it
means for his wife to cling so desperately to it. Indeed, while Chabert
tells Derville directly what he refers to as “the secret of my situation,”
that is, of his burial and return from underneath the corpses, the wife
does not fully reveal to Derville what the narrator calls the “secrets of
her conduct [buried] within her heart,” another burial and another
story that is not possessed by the wife any more than Chabert’s story is
possessed by him. Mme. Ferraud’s exchange of husbands and manipu-
lation of her inheritance from Chabert is in fact an attempt, we are told,
to hide her own past life in a brothel, the place from which Chabert had
originally taken her and which she is still trying to forget in her mar-
riage to Count Ferraud and in her attempt to become a “proper lady.”
 132 Law’s Madness

But Count Ferraud is himself trying to escape another past: the history
of his own father, who lost his property during the Terror, a loss of sta-
tus that Count Ferraud himself is desperately attempting to repair in
his ambitions to become a Peer of France. In the negotiation of the set-
tlement, then, the problem of property, even while it brings Chabert
and Mme. Ferraud in relation to each other, also represents an abyss of
history that cannot be fully grasped by the legal Code.15 For them,
indeed, the law represents not what brings them into history but what
keeps them out of it. The relation to one another is determined, thus,
not through their established identities and histories but through what,
in each history, neither can fully possess.
Indeed, Mme. Ferraud is no more a Restoration countess than
Chabert can be said to be, properly speaking, a colonel of the Empire.
Her desperate attempts to hide her past indicate, in fact, the ways in
which she has not quite managed to achieve the period role that she
wishes to portray. And this is linked, moreover, to a way in which the
law has harmed not only Chabert but her as well: for the Civil Code in
fact restricted the rights of women over spousal property in the rules of
inheritance.16 What Chabert and Mme. Ferraud truly share, indeed, is
the way in which neither is quite situated within the period he or she
wishes to represent; Chabert is too late to be, any longer, a colonel of
the Empire, and Mme. Ferraud has not yet achieved the full status of a
countess of the Restoration.17 In this sense, their communication with
each other, in the negotiation, takes place across their secrets, from one
abyss to another, a story that carries on beneath the negotiation Derville
is so valiantly attempting to maneuver.18
Property is, in other words, not only the rational principle by which
the negotiation becomes possible, but also, in the story, the one thing
that escapes all rational principles and hence makes the compromise
ultimately to fail.

7 Indeed, the story of the settlement—which is the story of the capacity of

the law to recognize and remember history as the history of the legal
subject—ultimately turns into the story of its failure—of the reenact-
ment of another aspect of the law’s own history that the language and
memory of the Code do not fully comprehend. It is, moreover, pre-
cisely around the monetary terms of the property settlement that the
failure of the compromise takes place. Sitting in separate rooms as
Derville walks between them and reads the document, Chabert and his
The Claims of the Dead 133

wife listen quietly until the matter of the property settlement is

broached:

“But that is much too much!” said the Countess. . . .

“What do you want, Madame?”
“I want . . . “
“. . . him to remain dead,” Derville broke in quickly. . . .
“Monsieur,” said the Countess, “if it is a matter of 24,000 francs a
year, then we will go to court . . . “
“Yes, we will go to court,” cried the muffled voice of the Colonel,
who opened the door and suddenly appeared before his wife, one
hand in his waistcoat and the other hanging by his side, a gesture
given terrible significance by the memory of his adventure.
“It’s him,” said the countess to herself.
“Too much?” repeated the old soldier. “I gave you nearly a mil-
lion and you are haggling over my misery. We hold our property in
common, our marriage is not dissolved . . . “
“But Monsieur is not Colonel Chabert!” cried the Countess, feign-
ing surprise. (73–74)

Refusing the terms of the property settlement, the countess is suddenly

confronted by the figure of Chabert in person, a direct confrontation
that, rather than producing the recognition arranged by the legal
papers, precisely produces the refusal of recognition that the settlement
was supposed to correct. This encounter and this refusal of recognition
indeed break the theatrical staging of memory that should bring
Chabert to life and reenact, once more, his death: a death that, it
appears, could never quite be grasped within the Code’s legal forms.
This return of death in the wife’s refusal also brings back the return
of Chabert’s cry for vengeance:

“Well, Colonel, [said Derville,] I was right, wasn’t I, to urge you

not to come in? . . . You have lost our suit; your wife knows that you
are unrecognizable.”
“I will shoot her!”
“Madness! You will be caught and executed.” (74–75)

Rather than remembering (and correcting) the past of Chabert’s life, the
law becomes the very site of the reenactment of his death, of the origi-
134 Law’s Madness

nal blow to his head that began the incomprehensible story of Chabert’s
death.

[The poor Colonel] walked slowly down the steps of the dark stair-
case, lost in somber thoughts, perhaps overcome by the blow he had
just suffered—so cruelly and deeply did it penetrate his heart. (75)

In the reenactment of the death, the law becomes the scene, not simply
of the memory of its own revolutionary past, but of a secret buried at
the heart of this history, the inextricability of law and history that con-
stitutes the foundation of the human as the legal subject and that enig-
matically also constitutes history, precisely, as the history of a trauma.
It is then not only in the capacity of the law to remember but in the
failure of memory within the law, Balzac suggests, that another truth of
the revolutionary past begins to emerge. The nonfulfillment of the com-
promise, therefore, does not simply represent a failure of the law to
understand or witness history; rather, it shows history as emerging
(and being borne witness to) precisely through the law’s failures. The
scene of failed settlement thus reproduces the figure of the survivor at
the moment of the intended compromise and recognition (the figure of
the “non-proprietor,” ‘devoid of property,” and “dispossessed” that, in
Etienne Balibar’s words, would be, precisely, a “contradiction in terms”
within the framework of revolutionary law).19 If the Code remembers
the truth of revolutionary history as the right to claim—as a right rec-
ognizable through the very claim to property—the Code also inscribes
within it the haunting figure of the survivor attending upon this very
act, not as the one who speaks his rights but as the unspeakable, the
mute survivor, attending upon and yet not recognized within the
framework of revolutionary law.20 Between the possibility of compro-
mise and its failure, then, the law serves, here, as a double site of wit-
ness: the witness of the human as a claim, and the witness of the one
who cannot be recognized as human. The law is at the same time a wit-
ness to the human grounded in the legal act of speech, and a witness to
the survivor appearing only as a muteness at the heart of the law.
The scene of failure thus also marks a peculiar doubling at the heart
of revolutionary history: an entanglement of two histories founded pre-
cisely in the impossibility of their analogy and their negotiation. The
failure of the compromise, indeed, represents not only the denial of
Chabert’s identity but also the denial of the divorce, a legal collapse
 The Claims of the Dead 135

that, paradoxically, binds the two parties around a gap, and resituates
revolutionary history in the splitting and binding of these two incom-
mensurable pasts.

Another Freedom

8 It might appear that this failure establishes a relation between law and
history in a kind of death drive that condemns the law to participate in
the repetitions of an incomprehensible catastrophe.21 Indeed, many
critics have read the end of the story simply as a confirmation of the
failure of Chabert to attain his identity in a corrupt Restoration soci-
ety.22 In the last section of the tale, Chabert, after leaving Derville’s
office, is seduced by the wife to go to her country estate, where she pro-
duces another theatrical setting, a setting in which she appears with her
children before Chabert and convinces him that her own survival and
the unity of her family depend upon his willingness to sign another
legal paper in which he would give up his name and profess himself a
fraud in exchange for a small pension. In an act of love, Chabert is
about to agree to sign, when he accidentally overhears his wife sug-
gesting that he be locked up in a madhouse. At this moment Chabert
steps before her, refuses to sign the paper, and promises never to
reclaim his name, ultimately going off to live in a beggars’ prison and,
in the final scenes of the novel, in an almshouse.
This hardly makes for a happy ending. But it is in this last part of the
story, in the lingering afterlife of the relationship between Chabert and
his wife and in the persistent survivals of Chabert past his repeated
experiences of failure and death, that the true potential of the compro-
mise, as a beginning of a different form of historical witness, comes to
be articulated. In Chabert’s refusal of his wife’s offer—and in the man-
ner it repeats and reclaims the catastrophe of the first scene of refusal—
the story opens the possibility for Chabert to name himself anew,
through the very failure to achieve his former identity.23 This new act
creates a possibility that is born from, but not contained by, the law’s
previous attempt and failure to turn the past into an identity and a pos-
session.
This possibility will appear in the moment of the second scene of
signing, in which Chabert refuses to sign the contract written up by his
wife’s corrupt lawyer, Delbecq. The scene is, in fact, a repetition of the
scene of failure in Derville’s office, but in a form that reverses its effects.
136 Law’s Madness

In this second scene, Chabert for the first time truly gives up
vengeance, and he does so, moreover, as the making of a promise.

“Madame,” he said after staring at her a moment and forcing her

to blush, “Madame, I do not curse you; I despise you. I thank fate for
severing our ties. I do not even feel a desire for vengeance, I no
longer love you. I want nothing from you. Live peacefully on the
honor of my word. It is worth more than the scribblings of all the
notaries in Paris. I will never lay claim to the name I may have made
illustrious. I am nothing but a poor devil named Hyacinthe, who
asks only for a good spot to sit in the sun. Farewell.” (89–90)

The act of refusal to sign the paper, here, is an act of renunciation. The
giving up of vengeance, indeed, as the refusal to sign the legal agree-
ment, precisely repeats the legal failure of the previous scene, but does
so not in the form of passive repetition but rather as a new kind of
action: as a promise not to reclaim the name that was refused him in
the first scene of signing. The self that emerges, here, is indeed not the
self of the past—the “Chabert” that is no longer fully possible—but
rather “Hyacinthe,” Chabert’s given name, which emerges in the
promise never to reclaim—that is, to refrain from repeatedly and com-
pulsively returning to claim—the name Chabert.24 This is not a tri-
umphant reassertion of identity but, instead, the peculiar capacity to
name, precisely, his very survival in the form of an ultimate loss: “Not
Chabert! Not Chabert!” he says when he is addressed by his old name.
“My name is Hyacinthe. I am no longer a man, I am number 164, room
7” (98).
We could say, then, that in the act of renunciation and promise,
Chabert reclaims the failure of the law as the very condition of his free-
dom.25 In giving up the claim, Chabert could perhaps be said, in Lev-
inas’s words, to retain a different kind of claim, the “claim to judge his-
tory—that is to say, to remain free with regard to events, whatever the
internal logic binding them.”26 Chabert will retain, in the final scenes,
an ongoing link to his military past—he continues to speak of
Napoleon and addresses some passing Prussians with disdain—but he
no longer appears to consider this past as a matter of his own posses-
sion. It constitutes, rather, a memory and a relation to history that, if
they are Chabert’s only remaining property, are no longer a property
that could simply be possessed.
 The Claims of the Dead 137

9 It is thus in this peculiar way that Chabert lives on beyond his own
name that his survival—and the traumatic history to which he bears
witness—first becomes truly legible. No longer “a man,” as he says—
that is, a subject defined entirely in the law’s own terms—Chabert is
nonetheless still recognizable as he appears again before the eyes of the
lawyer. Precisely because he has failed, because he has survived
beyond the name Chabert, can this figure and his history emerge to be
read and witnessed in another way. In this act, indeed, Chabert is once
again seen by the law, no longer recognized through the compromise
but encountered in a scene of witnessing that also appears as Derville’s
own form of giving up.27
In the final lines of the story, thus, Derville, with the young lawyer
Godeschal whom he has mentored, happen to pass Chabert as they are
on the way to a town outside Paris. Chabert, covered in poor clothing
and sitting outside an almshouse, is not recognizable to Godeschal but
is immediately recognized by Derville. Standing in front of the man
who now names himself by a number, Derville remarks on the fate of
Chabert and ends with an impassioned speech to the young lawyer
who was once his student:

“I have learned so much practicing my profession! I have seen

wills burned. I have seen mothers rob their children . . . I cannot tell
you everything I have seen because I have seen crimes that justice is
powerless to rectify. In the end, none of the horrors that novelists
believe they’ve invented can compare to the truth. You’ll soon
become acquainted with such charming things yourself; as for me, I
am moving to the country with my wife. I am sick of Paris.”
“I have seen plenty already,” Godeschal replied. (100–101)

This scene, I would propose, is an ultimate scene of legal witnessing:

not as the memory Derville had hoped to accomplish with the compro-
mise, but as the seeing of something he cannot completely tell: “I can-
not tell you everything I have seen,” he says, “because I have seen
crimes that justice is powerless to rectify.” In this scene, then, the
lawyer appears, peculiarly, as witness to what cannot be told simply in
legal terms. Seeing Chabert before him, the lawyer Derville comes to
recognize, and to articulate, the law’s own limits. In the face of his own
failure, he speaks in a language that, like the novelist he invokes, can
only approach but never fully capture the sight of the figure before
138 Law’s Madness

him. The law bears witness, in this way, to what remains outside it. As
such, this witness is not so much offered as a reflection on the past, but
as a scene of teaching, as the words passed on to a student, and to a
reader, who will learn from them only in the future.28

NOTES

I would like to thank Brian McGrath for his excellent research assistance.
Unless otherwise noted, translations are my own.
1. Honoré de Balzac, Le Colonel Chabert, ed. Pierre Citron (Paris, 1961);
trans. Carol Cosman, under the title Colonel Chabert (New York, 1997), 1–2. The
text of Colonel Chabert underwent a number of revisions and appeared over the
course of its writing under several different titles.
2. Pierre Gascar notes in his preface to his critical edition of the novel that
the date of the decree that returns property to the aristocrats is somewhat later
(December 1814) than the date of the Charter (June 1814). Balzac had given the
proper date for the decree in another text; it is possible that he wished, here, to
emphasize the link between the spirit of the Charter and the later decree con-
cerning property. See Le Colonel Chabert suivi de trios nouvelles, Préface de Pierre
Gascar, Édition établie et annoté par Patrick Berthier, deuxième édition revue
(Paris: Gallimard, 1974), 7–18.
3. See François Furet, Revolutionary France, 1770–1880, trans. Antonia
Nevill (Oxford and Malden, Mass.: Blackwell, 1995 [1992]), 271. Article II of the
Charter reads in French, “Toutes les recherches des opinions et votes émis
jusqu’à la Restauration sont interdites. Le même oubli est commandé aux tri-
bunaux et aux citoyens.” See the French version provided in J. P. T. Bury,
France, 1814–1940 (New York, 1969), 301–2. The importance of forgetting is
emphasized in the opening scene of the novel by the fact that the clerk, paro-
died in this scene, is repeatedly unable to remember the date of the Charter.
4. The legal legacy of the Revolution is understood to include, here, both
the explicit attempts at codification of the law and the formalization of govern-
mental and political organization contained in constitutions and charters; both
of these dimensions of legal history were an ongoing and central concern in the
postrevolutionary decades.
5. The battle of Eylau was considered to have lost more officers than any
other Napoleonic battle. The text Chabert refers to is an actual document that
records the battle in detail. See Victoires, conquêtes, désastres, revers et guerres
civiles des Français de 1972 à 1815, par une société de militaires et de gens de let-
tres, Tome dix-septième (Paris: C.L.F. Panckoucke, ed., 1820). The name Chabert
does not appear to refer to an actual Chabert involved in this battle but may be
based on a number of different figures from this period. See the critical editions
of Citron and Gascard for speculation concerning the possible sources of this
name.
6. Pierre Gascar presents this view clearly in his preface to the novel:
The Claims of the Dead 139

The realism with which the war is presented here, a realism unprecedented
in the history of literature, does not result simply from the sensibility of the
writer who paints a picture of it. It is imposed on him by the novel aspect of
armed confrontations. With Napoleon, that is to say with the utilization,
thanks to conscription, of veritable human masses, with the progress of
armaments . . . battles turn easily into carnage. Ten thousand Frenchmen fall
at the battle of Eylau, in which Colonel Chabert takes part, and which led
Napoleon to say, with crocodile tears, “This spectacle is made to inspire in
princes the love of peace and the horror of war.” (my translation; Gascar,
Preface, 9–10)

On the profound effect of the outcome of the Battle of Eylau on Napoleon, see
Jean-Paul Kauffman, The Black Room at Longwood: Napoleon’s Exile on Saint
Helena, trans. Patrick Clancy (New York and London: Four Walls Eight Win-
dows, 1999).
7. On the notion of social death see Orlando Patterson, Slavery and Social
Death: A Comparative Study (Cambridge, Mass., and London: Harvard Univer-
sity Press, 1982). One of the fundamental concerns in the novel is the relation
between the social and the legal spheres as they became intertwined after the
Revolution; property appears to be a point of linkage between the two realms
and for this reason also links the formalities of the law to a realm not controlled
by it. I am grateful to Michal Shaked for her insights into the legal significance
of the right of property.
8. Napoleon’s name was officially and legally attached to the Code in 1807
and removed twice later by the Charters of 1814 and 1830; in 1852 it was finally
reinstated “to pay homage to historical truth” (Carbonnier, 296). On the devel-
opment of the Code see Jean Carbonnier, “Le Code civil,” in Les lieux de
Mémoire, ed. Pierre Nora, vol. 2, La Nation (Paris, 1986), 293–315 and “Civil
Code” by Joseph Guy in Revolution, ed. François Furet and Mona Ozouf (Cam-
bridge: Belknap Press of Cambridge University Press, 1989). Napoleon’s own
sense of identification with the Code is expressed clearly in his proud words, “I
have sown liberty lavishly wherever I have implanted my Civil Code” (quoted
in Carbonnier, 2:299), and in his moving comment from St. Helena, “My true
glory is not to have won forty battles; Waterloo will efface the memory of any
number of victories. What nothing will efface, what will live eternally, is my
Civil Code” (quoted in Guy, 442). The history of war during the Napoleonic
period is thus inextricable from the history of law, a perplexing entanglement
of law and violent conquest that Napoleon himself attempts to idealize in his
monumentalization of the Code after his political exile.
9. On the exemplary status of compromise as a legal principle, see Martin
Shapiro, “Compromise and Litigation,” in Compromise in Ethics, Law, and Poli-
tics, ed. J. Roland Pennock and John W. Chapman (New York: New York Uni-
versity Press, 1979), 163–75.
10. The definition of property in the Code would appear to determine this
negotiability in terms of the possessibility of property. The full definition reads:
“Property is the right of enjoying and disposing of things in the most absolute
140 Law’s Madness

manner, provided they are not used in a way prohibited by the laws or
statutes.” The Code Napoleon; or, The French Civil Code. Literally Translated from the
Original and Official Edition, Published in Paris, in 1804. By a Barrister of the Inner
Temple [New York: Halsted and Voorhies, 1841]). See, for example, Jean-Louis
Halpérin, Histoire du droit privé français depuis 1804 (Paris: Presses Universitaires
de France, 1996); see also Elisabeth Sledziewski, Révolutions du sujet (Paris:
Méridien Klincksieck, 1989), and Xavier Martin, “Nature humaine et Code
Napoléon,” Droits: Révue Française de théorie juridique 2 (1985): 177–228.
However, the Code is also interpreted by some scholars as a compromise
between competing notions of property that inscribes in it a history of the com-
plexity and enigma of this notion. See, for example, Jacques Poumerade, “De la
difficulté de penser la propriété (1789–1793),” in Propriété et Révolution: Actes du
Colloque de Toulouse 12–14 1989 ed. Genevieve Koubi, 27–42. Genevieve Koubi
analyzes what she calls the “ideological breach” in the notion of property at the
heart of the Déclaration, a breach signaled by the use of the singular term prop-
erty and the plural term properties in articles 2 and 17, respectively. These two
terms are associated, in her analysis, with notions of liberty, on the one hand,
and power on the other. See her “De l’article 2 à l’article 17 de la Déclaration de
1789; la brèche dans le discours révolutionnaire,” in Propriété et Révolution,
65–84. Balzac’s story indeed appears to center in part around the plurality of
notions of property contained in the legal use of the word. Chabert’s apparent
identification of selfhood and property might perhaps be seen in terms of what
Etienne Balibar calls the “juridical” (as opposed to economic) notion of prop-
erty, the right to property that is very closely tied to a right to one’s person and
the right to oneself and one’s labor, or what Margaret Jane Radin refers to as
nonfungible property. See Etienne Balibar, “What Is a Politics of the Rights of
Man?” In Masses, Classes, Ideas: Studies on Politics and Philosophy Before and After
Marx, trans. James Swenson, (New York and London: Routledge, 1993) 205–25,
and Margaret Jane Radin, “Property and Personhood,” Stanford Law Review 34
(May 1982): 957–1015.
For an analysis of the movement from earlier to later meanings of property
in postrevolutionary law, see Elisabeth Sledziewski, who provides a remark-
able analysis of what she calls the “slippage” in the notion of property from the
Declaration to the Civil Code, which also accounts for the more reduced eco-
nomic model in the Code. See her Révolutions du sujet. In her analysis, the slip-
page occurs because of the inherent tension between the subject as giver and
receiver of the law arising in the self-declaration of 1789; this played itself out,
historically, in the varying interpretations of property in the 1790s during the
repeated formulation of declarations and constitutions up until the Civil Code
(and passed on, then, presumably, to the Restoration). On the complexity of the
problem of codification in this period, see also Jean-Louis Halperin, L’impossi-
ble code civil (Paris: Presses Universitaires de France, 1992). Several critics ana-
lyze the problem of property in terms of debates concerning Lockean and
Rousseauist interpretations as they played themselves out over time. See Flor-
ence Gauthier, “L’idée générale de propriété dans la philosophie du droit
The Claims of the Dead 141

naturel et la contradiction entre liberté politique et liberté économique

1789–1795,” in La Révolution et l’ordre juridique privé: rationalité ou scandale?”
Actes du Colloque d’Orléans 11–13 september 1986, Tome I (Paris: Presses Uni-
versitaires de France, 1988) 161–71, and Chantal Gaillard, La Révolution de 1789
et la propriété: la propriété attaquée et sacralisée, Les travaux de l’atelier Proudhon,
nr. 10 (Paris: Atelier Proudon, 1991.)
11. The relation between the two characters that Derville attempts to estab-
lish, when he treats them as if they were two equal human beings before the
law, thus harbors within it another kind of nonsymmetrical relation, between
someone not yet a person (Chabert) and someone already established as
human (Mme. Ferraud). It is the difficulty of articulating the latter asymmetry
with the need of the law for the symmetrical recognition between two parties
that could be said to determine, in part, the development of the plot as it pro-
ceeds from this point.
12. In Sledziewski’s words, the Déclaration founds the “citizen-man” as “a
juridical figure of individuality”: “The individual as the locus of right, that is to
say, as the place where the law founds itself in right, and where subjective aspi-
ration becomes right, requires the law; that is indeed the invention of the Rev-
olution” (Révolutions du sujet, 27). Etienne Balibar further notes that this is asso-
ciated specifically with the “imprescriptible right” to property, which thus
defines this subject “in its essential characteristics” and thus constitutes it pre-
cisely as proprietor (Masses, Classes, Ideas, 99. 217). On the mutual “witnessing”
permitted by the “auto-declaration” of rights see Claude Lefort, Democracy and
Political Theory, trans. David Macey (Minneapolis: University of Minnesota
Press, 1988).
13. Balzac would appear, in this scene, to put on stage not only the two
characters but precisely the highly theatrical language used by historians of the
period to describe the Revolution; it is not only the artifice of the literary text
but the language of historians that Derville thus imitates.
14. Jean Carbonnier writes beautifully of the Code as a place of memory in
“Le Code Civil.” (For a broader discussion of “Ilieux de mémoire” see Pierre
Nora, “Between Memory and History: Les Lieux de Mémoire,” Representations 26
[spring 1989]: 7–25). On the relation between the founding act of declaration
and the difficulties for a codified system to reflect the performative dimension
of such an act, see Keith Michael Baker “Fixing the French Revolution,” chap.
11 of Inventing the French Revolution: Essays on French Political Culture in the Eigh-
teenth Century (New York: Cambridge University Press, 1990), 253 ff., who
writes illuminatingly on the double notion of constitution as both “institution”
and “order” that operated in postrevolutionary discussions. See also Jacques
Derrida, “Declarations of Independence,” trans. Tom Keenan and Tom Pepper,
New Political Science 14 (winter 1985–86): 7–15, and Thomas Keenan, Febles of
Responsibility: Aberrations and Predicaments in Ethics and Politics (Stanford: Stan-
ford University Press, 1997), esp. chap. 1, “Left to Our Own Devices: On the
Impossibility of Justice,” 7–42.
15. Balzac uses the phrase “abyss of the Revolution” in reference to the
142 Law’s Madness

words of Louis XVI, in the course of describing Monsieur Ferraud’s personal

history and his own relation to the revolutionary past. It is notable that the lan-
guage describing the Revolution in French historiography will also at times
describe the Revolution as an “enigma” or rupture or as an event not in time;
see for example the preface by François Furet and Mona Ozouf to their A Criti-
cal Dictionary of the French Revolution (Cambridge: Belknap Press of Cambridge
University Press, 1989), and Claude Lefort, A Critical Dictionary of the French
Revolution (Cambridge: Belknap Press of Cambridge University Press, 1989)
xiii–xxii.
16. The restriction of women’s rights in the Code, a regression from revolu-
tionary principles, is generally associated with Napoleon’s own views of
women. It is clear that Mme. Ferraud’s manipulation of the inheritance and of
her husband’s holdings is not only a matter of greed but an exercise of rights
that had in fact been limited by imperial law; in this sense she too, like Chabert,
is attempting to create herself and survive as a subject. Interestingly, Napoleon
also said there was no place for “bastards” in society and restricted their inher-
itance rights; given Chabert’s orphaned status, this places him, as well as Mme.
Ferraud, in a marginal position in the world of the Civil Code. On these matters
see Jean-Louis Halpérin, Histoire du droit privé français depuis 1804.
17. Colonel Chabert and Mme. Ferraud are frequently read in the critical lit-
erature as allegorical figures representing the Empire and the Restoration,
respectively, and are likewise subjected to value judgments (Chabert’s positive,
Mme. Ferraud’s negative). Th peculiar in-between status of these characters,
and the way in which history, in this text, appears to take place in the interstices
between actual periods is not recognized. See, for example, Graham Good, “Le
Colonel Chabert: A Masquerade with Documents,” French Review (May 1969):
846–56 and Eileen Sivert, “Who’s Who: Non-Characters in Le Colonel
Chabert,” French Forum (May 1988): 217–28.
18. Indeed, in the scene in which Derville first convinces Mme. Ferraud to
agree to a compromise, she asks if Chabert still loves her. This question, the
narrator tells us, appears to indicate the seeds of a plan to use the meeting at the
lawyer’s office to manipulate Chabert. In this sense the theatrical gesture of
Derville is already overtaken by the theatrical gesture of Mme. Ferraud. But
behind this theatrical gesture, too—or under the costume that she wears—
Mme. Ferraud, like Chabert, operates from an abyssal past.
19. Balibar, “What Is a Politics of the Rights of Man?” in Masses, Classes,
Ideas, 217.
20. In this sense, Balzac’s text appears to suggest a way in which the history
of the Code remains in excess to the Code: it is an aspect of the Code’s own
foundation and unfolding that is not available to it in its civil function as a form
of memory. This is not a history, in other words, that could be captured by the
Code’s implicit representation of its past. It might be appropriate, in this con-
text, to think of Hannah Arendt’s analysis of the “rightless”—those who
emerge, after the institution of civil law, not simply as individuals whose rights
have not been adequately respected, but as a group who lie entirely outside the
The Claims of the Dead 143

realm of rights—which is a phenomenon that only emerges, she says, in a

world dominated by civil government. See The Origins of Totalitarianism (New
York: Harcourt, Brace, 1951). On the muteness of those excluded from the law
as a place of speech, see Jean-François Lyotard, “The Other’s Rights,” trans.
Chris Miller and Robert Smith, in On Human Rights: The Oxford Amnesty lectures
1993, ed. Stephen Shute and Susan Hurley (New York: Basic Books, 1994),
135–47.
21. The story in many ways appears to anticipate the structure of repetition
(or more precisely, repetition compulsion) as Freud formulated it in Beyond the
Pleasure Principle, 100 years after these events and after another catastrophic
war. Chabert’s repeated “deaths” in his attempt to come before the law, in par-
ticular the scene in Derville’s office, could be understood as the repetition of an
ungrasped historical event much like the repeated event of a missed death
described by Freud. In many ways, Balzac’s story could be said to anticipate
Freud’s work, not so much in its psychological as in its historical dimensions;
Beyond the Pleasure Principle would indeed be rethought in historical terms in
Moses and Monothesim, but one might also read Freud’s postwar work, in light
of this French literary history, as a larger cultural reflection on a revolutionary
history still reverberating throughout Europe. Interestingly, shortly before the
end of Balzac’s novel, Chabert is compared to the women at the Salpêtrière; the
Salpêtrière was, of course, the French hospital in which Freud first encountered
and engaged in the study of hysterical women and then proceeded, in the fol-
lowing years, to develop his early theory of trauma.
22. An exception to the readings in which Chabert is associated with the
good old days of the Empire is the fine analysis by Peter Brooks, who reads the
encounter between Chabert and Derville on the model of a psychoanalytic
encounter; in this interpretation the function of Derville is to allow Chabert to
work through his loss of the past in order to enter and move forward in the
present. This reading has the virtue of recognizing the impossibility of
Chabert’s claim, an impossibility connected with the absoluteness and irre-
versibility of events. However, Brooks proceeds, on the basis of this interpreta-
tion of the story, to read the final part of the novel as a kind of failure, which he
associates with the dangers of narrative; he does not consider the legal and
philosophical (or human) significance of the structural position of the final
scenes of the book and of the final verbal acts of Chabert. See Peter Brooks,
“Narrative Transaction and Transference (Unburying Le Colonel Chabert),”
Novel 15, no. 2 (winter 1982), 101–10.
23. Insofar as this scene repeats the earlier scene of failure, which is itself a
repetition of earlier “deaths,” one might understand it as anticipating the kind
of movement that, in Beyond the Pleasure Principle, occurs between the repetition
compulsion of the death drive, and the peculiar, originary and originating
repetion that emerges from it. While we would not want to make too close an
analogy between the structure in Balzac and the structure of repetitions in
Freud, there is nonetheless a principle of opening that is shared by both and is
crucial, I believe, to their historical significance. See my “Parting Words:
144 Law’s Madness

Trauma, Silence and Survival,” in Cultural Values, special issue on Testimony,

ed. Jackie Stacey (fall 2000), 7–26, reprinted in Between the Psyche and the Polis:
Refiguring History in Literature and Theory, ed. Michael Rossington and Anne
Whitehead, (Aldershot, UK: Ashgate Winter, 2001), pp 77–96.
24. Much of the difficulty with historical movement is played out, in the
novel, on the level of names. Thus Mme. Ferraud’s peculiar temporal position
is reflected in the split between her two names, Mme. Chabert and Mme. Fer-
raud; Colonel Chabert emerges as Hyacinthe; and, as noted previously, the
Civil Code itself reflected a split between its legal and historical dimensions in
its being referred to as both the Civil Code and the Napoleonic Code. The rela-
tion between names and property would be important to examine in this light;
Chabert’s act of renaming himself as Hyacinthe is no longer associated, as was
his attempt to reclaim the name Chabert, with the claiming of possessions.
25. On the act of renunciation (and promise) see Hannah Arendt, The
Human Condition, 2d ed. (Chicago and London: University of Chicago Press,
1958) (1998 Intro. by Margaret Canovan), section 5, “Action,” 175–247.
Although one would not want to give too much contextual weight to the
promise in the scene, it does, perhaps, allow for a link between Chabert’s new
act and the old legal one he is, in a sense, giving up. In addition to recalling the
centrality of the promise in the Social Contract, generally considered to be one of
the philosophical sources of the Revolution, Chabert’s act draws on the power
of the speech act constituted by the 1789 Déclaration. On the significance of such
an originary linguistic gesture see Jacques Derrida, “Declarations of Indepen-
dence” and Thomas Keenan, Fables of Responsibility. Christine Fauré also dis-
cusses the centrality of the performative utterance to the Déclaration in her pref-
ace to her edition of Les déclarations des droits de l’homme de 1789 (Paris: Éditions
Payot, 1988). Claude Lefort, in Democracy and Political Theory, notes the
“enigma” that the Déclaration makes of “both humanity and right” by reducing
the source of right to an utterance of right (37).
26. Emmanuel Levinas, Difficult Freedom: Essays on Judaism, trans. Séan
Hand (Baltimore: Johns Hopkins University Press, 1990), “Between Two
Worlds (The Way of Franz Rosenzweig),” 199. What Levinas describes here
and what Chabert appears to enact might be thought of as a relation to history
that is not subject to what Balibar calls “the principle of total possession,” the
assumption according to which all property, he argues, has previously been
understood. See his Democracy and Political Theory, “What Is a Politics of the
Rights of Man?” 219.
27. Chabert is first seen by Derville in a beggars’ prison, then once again,
accidentally, on the road, as he is passing by the almshouse, and finally when
Derville returns to the almshouse with Godeschal (all of which sightings occur,
interestingly, after the novel states, “Chabert, in fact, disappeared”: a sentence
that would have to be read in terms of the name “Chabert”). The surprising
recognition of Chabert’s face recalls the earliest scenes of surprise—in Balzac’s
text, the description of Chabert’s face in the first encounter with Derville
involves an extended and lengthy development—but with the difference that
The Claims of the Dead 145

Chabert’s face is now described as noble, rather than ghastly and ghostly. The
emphasis on Chabert’s disfigured face, in this story, has intriguing implications
for the relations among property, identity, and the body as well as for the ethi-
cal dimension implicit in the address of the unrecognizable other.
28. On the future-oriented, prophetic element of Balzac’s writing see Walter
Benjamin, The Arcades Project, trans. Howard Eiland and Kevin McLaughlin
(Cambridge and London: Belknap Press of Harvard University Press, 1999).
Balzac’s inscription of an allusion to the novelist in Derville’s final comments,
in this scene of teaching, may also reflect on his own passage from his training
as law clerk to that of literary writer, and what was passed on in the movement
from one mode of writing to the other.
Rethinking Legal Ideals
after Deconstruction

Drucilla Cornell

In this essay I seek to challenge a reading of “deconstruction,” and

postmodernism more generally, that has been proposed by its friends
and its foes in legal circles. Deconstruction and postmodern genealo-
gies inspired by Nietzsche are often read to expose the nakedness of
power struggles and indeed of violence masquerading as the rule of
law. With this exposure, the jurisprudential intervention of these philo-
sophical positions supposedly comes to an end.1 The enemies of decon-
struction challenge this exposure as itself an act of ethical irresponsibil-
ity that leaves in its stead only the “right” of force, which, as a result,
levels the moral differences between legal systems and blurs the all-
too-real distinctions between different kinds of violent acts within legal
systems. But I will also argue that even friends of deconstruction or
postmodernism reach mistaken conclusions about what kinds of pro-
grams of legal, political, and ethical reform can still be philosophically
defended. Most significant, I defend the philosophical and ethical sig-
nificance of ideals in legal, moral, and political philosophy. By ideals I
mean the way in which individuals and movements make vivid the
challenges to their oppression and their aspirations to a transformed
society. We all know the great ideals associated with the democratic
revolutions in the West, beginning with the French Revolution: the
ideals of equality, freedom, and democracy. By now, the critiques of
feminists, critical race theorists, and postcolonial thinkers of how these
ideals were modeled on the white middle-class, heterosexual, Euro-
pean male as the paradigm of humanity have been widely circulated
along with those labeled deconstructivist and postmodernist.
I defend ideals in the broad sense that social and political move-

147
148 Law’s Madness

ments need to imagine and represent the conditions of a changed world

for which they are fighting. To defend ideals at the millennium is a
risky undertaking precisely because of the convincing nature of the cri-
tiques. But it is also a necessary undertaking in the face of the paralysis
and cynicism that have followed in the wake of the proclaimed victory
of liberal capitalism with the defeat of its purported challenger, social-
ism. History has supposedly truly come to an end now. Or so the ideo-
logues of advanced capitalism insist again and again. Of course, there
are lessons to be learned from the attempts to institutionalize socialism
at the levels of state, government, and economic organization. But the
lesson is not that history has ended or can end, nor that capitalism has
won. One lesson for me is that the we/them mentality implied in the
proclamation of the final victory is itself part of the imperialist heritage
that is now being challenged throughout the world. In the United
States, the increasing challenge to dominant, Eurocentric models of
modernization has been implicated in the fierce debates over multicul-
turalism. The role that ideals such as freedom, equality, and justice can
continue to play has to be reexamined in the light of the dramatic polit-
ical events that have shaken the world.
At first glance, the title of Jacques Derrida’s essay, “Force of Law:
The ‘Mystical Foundations of Authority,’”2 seems to confirm the inter-
pretation that deconstruction debunks the possibility of configuring
ethical, moral, or legal ideals. This interpretation of deconstruction, for
example, informs Dominick LaCapra’s subtle and thoughtful commen-
tary on this issue,3 which evidences his concern that Derrida’s essay
may—in our obviously violent world—succumb to the lure of violence,
rather than help us to demystify its seductive power through an appeal
to ideals in a given legal system. I refer to LaCapra’s text because it so
succinctly summarizes the political and ethical concern that decon-
struction is necessarily “on strike” against established legal norms as
part of its refusal to positively describe justice as a set of established
moral principles.
To answer that concern we need to examine more closely the implicit
position of the critics on the significance of right as established, legal
norms that “deconstruction” is accused of “going on strike” against.
This becomes extremely important because it is precisely the “on
strike” posture—not only before established legal norms, but also in
the face of the very idea of legal norms, rights, and ideals—that trou-
Rethinking Legal Ideals after Deconstruction 149

bles LaCapra. Undoubtedly, Derrida’s engagement with Walter Ben-

jamin’s text “The Critique of Violence”4 has been interpreted as further
evidence of the inherent danger in upholding the position that law, and
legal and moral ideals, are always deconstructible. It is this position
that makes possible the “on strike” posture toward any legal system.5
But it is a strike that supposedly never ends. This worry is a specific
form of the criticism that deconstruction6 can only give us the politics of
suspicion. I, on the other hand, have continually argued that decon-
struction, understood as the philosophy of the limit, gives us the poli-
tics of utopian possibility. The philosophy of the limit, and more specif-
ically the deconstruction of the privileging of the present, protects the
possibility of radical legal transformation, which is distinguished from
mere evolution of the existing system. But we still need to reexamine
the stance on violence, which inheres in Derrida’s exposure of the mys-
tical foundations of authority if we are to answer his critics satisfacto-
rily. To do so I will turn to the ethical, political, and juridical signifi-
cance of his critique of positivism. The case I will examine here is
Bowers v. Hardwick.7 But let me turn first to Derrida’s unique engage-
ment with Benjamin’s text.
Walter Benjamin’s text has often—and to my mind mistakenly—been
interpreted as erasing human responsibility for violence, because the
distinction between mythic violence (the violence that founds or consti-
tutes law, or right) and the divine violence that is its “antithesis” (since
it destroys rather than founds, expiates rather than upholds) is ulti-
mately undecidable for Benjamin. The difference between acceptable
and unacceptable violence as well as between divine and mythic vio-
lence is ultimately not cognitively accessible in advance (we return to
why this is the case later in this essay). Lawmaking or founding violence
is then distinguished, at least in a preliminary manner, from law-pre-
serving or conserving force. We will see the significance of this further
distinction shortly. If this undecidability were the end of the matter, if
we simply turned to God’s judgment, there would be no critique of vio-
lence. Of course, there is one interpretation already suggested and pre-
sented by LaCapra that Benjamin—and then Derrida—does erase the
very basis on which the critique of violence proceeds.8 But this interpre-
tation fails to take notice of the opening reminder of Benjamin’s text, to
which Derrida returns us again and again, and which structures the
unfolding of Benjamin’s own text. To quote Benjamin:
150 Law’s Madness

The task of critique of violence can be summarized as that of

expounding its relation to law and justice. For a cause, however
effective, becomes violent, in the precise sense of the word, only
when it bears on moral issues. The sphere of these issues is defined
by the concepts of law and justice.9

Critique, in this sense, is hardly the simple glorification of violence per

se, since Benjamin carefully distinguishes between different kinds of vio-
lence.10 Indeed, both Benjamin and Derrida question the traditional pos-
itivist and naturalist justifications for violence as legitimate enforcement
for the maintenance of an established legal system or as a necessary
means to achieve a just end. In other words, both thinkers are concerned
with rationalizations of bloodless bureaucratic violence that LaCapra
rightly associates with some of the horrors of the twentieth century.11
Benjamin’s own text speaks more to the analysis of different kinds of vio-
lence, and more specifically to law as law conserving violence, than it
does to justice. But Derrida explicitly begins his text, “The Force of Law,”
with the “Possibility of Justice.”12 His text proceeds precisely through the
configuration of the concepts of justice and law in which the critique of
violence, understood as “judgment, evaluation, examination that pro-
vides itself with the means to judge violence,”13 must take place.
As I have shown throughout The Philosophy of the Limit,14 it is only
once we accept the uncrossable divide between law and justice that
deconstruction both exposes and protects in the very deconstruction of the
identification of law as justice that we can apprehend the full practical sig-
nificance of Derrida’s statement that “deconstruction is justice.”15 What
is missed in the interpretation I have described and attributed to
LaCapra is that the undecidability, which can be used to expose any
legal system’s process of the self-legitimation of authority as myth,
leaves us—the “us” here being specifically those who enact and enforce
the law—with an inescapable responsibility for violence, precisely
because violence cannot be fully rationalized and therefore justified in
advance. The “feigning [of] presence”16 inherent in the founding vio-
lence of the state, using Derrida’s phrase, disguises the retrospective act
of justification and thus seemingly, but only seemingly, erases responsi-
bility by justification. To quote Derrida:

Here we “touch” without touching this extraordinary paradox: the

inaccessible transcendence of the law before which and prior to
Rethinking Legal Ideals after Deconstruction 151

which “man” stands fast only appears infinitely transcendent and

thus theological to the extent that, so near him, it depends only on
him, on the performative act by which he institutes it: the law is tran-
scendent, violent and non-violent, because it depends only on who is
before it—and so prior to it—on who produces it, founds it, autho-
rizes it in an absolute performative whose presence always escapes
him. The law is transcendent and theological, and so always to come,
always promised, because it is immanent, finite and so already past.
Only the yet-to-come (avenir) will produce intelligibility or inter-
pretability of the law.17

Law, in other words, never can catch up with its projected justifica-
tion. Therefore, there can be no insurance of a metalanguage in relation
to the “performativity of institutional language or its dominant inter-
pretation.”18 For LaCapra this lack of insurance means that we cannot
in any way whatsoever justify legal principles of insurance. If we can-
not justify legal principles and ideals in this strong sense, then, for
LaCapra, we will necessarily be left with an appeal to force as the only
basis for justification. To quote LaCapra:

A second movement at least seems to identify the undecidable with

force or even violence and to give to violence the power to generate or
create justice and law. Justice and law, which of course cannot be con-
flated, nonetheless seem to originate in force or violence. The extreme
misreading of this movement would be the conclusion that might
makes right—a conclusion explicitly rejected at one point in Derrida’s
essay but perhaps insufficiently guarded against at others.19

For LaCapra, in spite of his clear recognition that Derrida explicitly

rejects the idea that might makes right, there is still the danger that
undecidability will lead to this conception of law and the role of legal
argument and justification within legal interpretation. But, indeed, the
opposite position is implied. Might can never justify right, precisely
because the establishment of right can never be fully rationalized. It
also does not lead to the replacement of legal argument through an
appeal to principle or ideals with violence, as LaCapra seems to fear it
might, if taken to its logical conclusion.
To emphasize once again why deconstruction does not reduce itself
to the most recent and sophisticated brand of legal positivism devel-
152 Law’s Madness

oped in America, which, of course, asserts that might does indeed make
right, it is useful to again contrast “deconstruction” as the force of jus-
tice against law with Stanley Fish’s insistent identification of law with
justice.20 Fish understands that as a philosophical matter law can never
catch up with its justifications, but that as a practical reality its func-
tional machinery renders its philosophical inadequacy before some of
its own claims irrelevant. Indeed, the system sets the limit of relevance.
The legal machine, in other words, functions to erase the mystical foun-
dations of its own authority. My critical disagreement with Fish, a dis-
agreement to the support of which I am bringing the force of “decon-
struction,” is that the legal machine that he celebrates as a marvel, I
abhor as a monster.
In the case of law, there is a reason to be afraid of ghosts. But to see
why I think the practical erasure of the mystical foundations of author-
ity by the legal system must be told as a horror story, let me turn to an
actual case that embodies the two myths of legality and legal culture to
which Fish consistently returns us. For Fish, contemporary American
legal interpretation, both in constitutional law and in other areas, func-
tions primarily through two myths of justification for decision.21 The
first is “the intent of the founding fathers,” or some other conception of
an original foundation. The second is “the plain meaning of the
words,” whether of the relevant statutes or precedent, or of the Consti-
tution itself. In terms of “deconstruction,” even understood as a prac-
tice of reading, the second can be interpreted as the myth of full read-
ability. These myths, as Fish well recognizes, conserve law as a
self-legitimating machine by returning legal interpretation to a sup-
posed origin that repeats itself as a self-enclosed hermeneutic circle.
This, in turn, allows the identification of justice with law and with the
perpetuation of the “current” legal system.22
To “see” the violence inherent in being before the law in the many
senses of that phrase which Derrida plays on in his text, let us imagine
the scene in Georgia that sets the stage for Bowers v. Hardwick.23 Two
men are peacefully making love, little knowing that they were before the
law and soon to be proclaimed guilty of sodomy as a criminal offense.
Fish’s glee is in showing the impotence—and I am using that word
deliberately—of the philosophical challenge or political critique of the
legal system. The law just keeps coming. Remember the childhood
ghost story “Bloody Bones” to help you envision the scene. The law is
Rethinking Legal Ideals after Deconstruction 153

on the first step. The philosopher desperately tries to check the law—
but to no avail—by appealing to “outside” norms of justice. The law is
on the second step. Now the feminist critic tries to dismantle the law
machine, which is operating against her. Again, the law simply wipes
off the criticism of its masquerade, and here, heterosexual bias is irrele-
vant. The law defines what is relevant. The law is on the third step. It
draws closer to its victims. Fish admires precisely this force of law, the
so-called potency, to keep coming in spite of its critics and its philo-
sophical bankruptcy, a bankruptcy not only acknowledged, but contin-
ually exposed by Fish himself. Once it is wound up, there is no stop-
ping the law, and what winds it up is its own functions as elaborated in
the myths of legal culture. Thus, although law may be a human con-
struct insofar as we are all captured by its mandates, there are no “con-
sequences” of its constructibility and therefore its potential decon-
structibility.24
In Bowers we do indeed see the force of law as it makes itself felt, in
spite of the criticisms of “the philosophers” of the opinion. Justice
White concludes and upholds as a matter of law that the state of Geor-
gia has the right to make homosexual sodomy a criminal offense.25
Some commentators, defending the opinion, have relied precisely on
the myth of the intent of the founding fathers. The argument is that
there is no evidence that the intent of the founding fathers was to pro-
vide a right of privacy or any other kind of right for homosexuals.
The arguments against the philosophical justification of this position
repeated by Fish are obvious. The concept of intent is problematic even
when speaking of living writers, for all the reasons discussed in writing
on legal interpretation. But in the case of interpreting dead writers who
have been silent on the issue, the subtle complexities of interpreting
through intent are no longer subtle, but are manifestly ludicrous. The
process of interpreting intent always involves construction once there is
a written text that supposedly introduces the intent. But here, there is
only silence, an absence of voice, simply because the founding fathers
never addressed homosexuality. That this silence means that there is no
right of homosexuality, that the founding fathers thought it so self-evi-
dent as never to speak of it, is clearly only one interpretation and one
that can never be clarified except in the infinite progress of construc-
tion. Since the process involved in interpreting from silence clearly
entails construction, the judge’s own values are involved. In this case
154 Law’s Madness

we do not even need to go further into the complexities of readability

and unreadability of a text, because we are literally left with silence, no
word on homosexuality.
But in Justice White’s opinion we are, indeed, returned to the prob-
lem of the readability or the unreadability of the text of the Constitution
and of the precedent that supposedly just “states” its meaning. Justice
White rejects the Eleventh Circuit’s26 holding that the Georgia statute
violated the respondent’s fundamental right “because his homosexual
right is a private and intimate association that is beyond the reach of
state regulation by reason of the Ninth Amendment and the Due
Process Clause of the Fourteenth Amendment.”27 The Eleventh Circuit
relied on the line of precedent from Griswold28 through Roe29 and
Carey30 to read the right of privacy to include “homosexual activity.”
Justice White rejects this reading. He does so, as we will see, by nar-
rowly construing the right supposedly implicated in this case and then,
by reading the language of the holding of each case in a “literalist”
manner, implicitly relying on “the plain meaning of the words.” Do we
find any language in these cases about homosexuality? Justice White
cannot find any such language. Since he cannot find any such language,
Justice White concludes that “the plain meaning of the words” did not
mandate this extension of the right of privacy to “homosexual activity.”
To quote Justice White:

Accepting the decisions in these cases and the above description of

them, we think it evident that none of the rights announced in those
cases bears any resemblance to the claimed constitutional right of
homosexuals to engage in acts of sodomy that is asserted in this case.
No connection between family, marriage, or procreation on the one
hand and homosexual activity on the other has been demonstrated,
either by the Court of Appeals or by respondent.31

We do not need to develop a sophisticated philosophical critique to

point to the flaw in Justice White’s “literalist” interpretation of the
cases. We can simply rely on one of the oldest and most established
“principles” of constitutional interpretation: the principle that in cases
associated with the establishment of the “right of privacy,”32 the reason
none of these cases “spoke” to homosexuality was that the question of
homosexuality was not before them. Judges under this principle are to
decide cases, not advance norms or speculate about all possible exten-
Rethinking Legal Ideals after Deconstruction 155

sions of the right. When and how the right is to be extended is depen-
dent on the concrete facts of each case. In spite of what he says he is
doing, Justice White is interpreting from a silence, a silence that inheres
in the principle that constitutional cases in particular should be con-
strued narrowly. Need I add that if one is a homosexual, the right to
engage in homosexual activity might have everything to do with “fam-
ily, marriage, or procreation,”33 even though Justice White argues the
contrary position? As a result, his very interpretation of the “privacy”
cases—as being about “family, marriage, or procreation”—could be
used against him. Can White’s blindness to this obvious reality be sep-
arated from his own acceptance of an implied heterosexuality as legiti-
mate and, indeed, the only right way to live?
Justice White’s opinion does not simply rest on his reading of the
cases, but also rests on an implicit conception of the readibility of the
Constitution. For White, the Constitution is fully readable. Once again,
he does not find anything in the Constitution itself that mentions the
right to homosexuality. Therefore, he interprets the Eleventh Circuit as
creating such a right out of thin air, rather than based on a reading of
the Constitution and of precedent that understands what is fundamental
and necessary to privacy as a right “established” by the Constitution.
For Justice White, to simply create a “new” fundamental right would
be the most dangerous kind of activism, particularly in the case of
homosexuality. And why is this true for Justice White? As he explains:

Proscriptions against that conduct have ancient roots. Sodomy was a

criminal offense at common law and was forbidden by the laws of
the original 13 states when they ratified the Bill of Rights. In 1868,
when the Fourteenth Amendment was ratified, all but 5 of the 37
States in the Union had criminal sodomy laws. In fact, until 1961, all
50 States outlawed sodomy, and today, 24 States and the District of
Columbia continue to provide criminal penalties for sodomy per-
formed in private and between consenting adults. Against this back-
ground, to claim that a right to engage in such conduct is “deeply
rooted in this Nation’s history and tradition” or “implicit in the con-
cept of ordered liberty” is, at best, facetious.34

For White, not only is the danger of activism always to be guarded

against, but it must be specifically forsaken in a case such as this one.
Again, the justification for his position turns on his implicit conception
156 Law’s Madness

of the readibility of the Constitution. To quote Justice White, “the Court

is most vulnerable and comes nearest to illegitimacy when it deals with
judge-made constitutional law having little or no cognizable roots in
the language or design of the Constitution.”35
I have critiqued the charge of judicial activism elsewhere as a funda-
mental misunderstanding of the inevitable role of normative construc-
tion in legal interpretation36 once we understand that interpretation is
also evaluation.37 Fish has his own version of this critique. The point I
want to make here is that for Fish, the power of law to enforce its own
premises as the truth of the system erases the significance of its philo-
sophical interlocutors, rendering their protest impotent. The concrete
result in this case is that criminal sanctions against gay men are given
constitutional legitimation in that it is now proclaimed to be legally
acceptable for states to outlaw homosexual love and sexual engagement.
Is this a classic example of the conserving violence of law? The
answer, I believe, is unquestionably yes. But more important, given the
analysis of Justice White, it demonstrates a profound point about the
relationship, emphasized by Derrida, between conserving violence and
the violence of foundation. To quote Derrida, and I quote in full,
because I believe this quotation is crucial to my own response to
LaCapra’s concern that Derrida yields to the temptation of violence:

For beyond Benjamin’s explicit purpose, I shall propose the inter-

pretation according to which the very violence of the foundation or
position of law (Rechtsetzende Gewalt) must envelop the violence of
conservation (Rechtserhaltende Gewalt) and cannot break with it. It
belongs to the structure of fundamental violence that it calls for the
repetition of itself and founds what ought to be conserved, conserv-
able, promised to heritage and tradition, to be shared. A foundation
is a promise. Every position (Setzung) permits and promises (permet
et pro-met), it positions en mettant et en promettant. And even if a
promise is not kept in fact, iterability inscribes the promise as the
guard in the most irruptive instant of foundation. Thus it inscribes
the possibility of repetition at the heart of the originary. . . . Position
is already iterability, a call for self-conserving repetition. Conserva-
tion in its turn refounds, so that it can conserve what it claims to
found. Thus there can be no rigorous opposition between position-
ing and conservation, only what I will call (and Benjamin does not
Rethinking Legal Ideals after Deconstruction 157

name it) a différantielle contamination between the two, with all the
paradoxes that this may lead to.38

The call for self-conserving repetition is the basis for Justice White’s
opinion and, more specifically, for his rejection of “reading into” the
Constitution, in spite of an interpretation of precedent, a fundamental lib-
erty to engage in “homosexual sodomy.” As White further explains:

Striving to assure itself and the public that announcing rights not
readily identifiable in the Constitution’s text involves much more
than the imposition of the Justice’s own choice of values on the States
and the Federal Government, the court has sought to identify the
nature of the rights qualifying for heightened judicial protection.39

To summarize again, the result for White is that “fundamental liber-

ties” should be limited to those that are “deeply rooted in the Nation’s
history and tradition.”40 For Justice White, as we have also seen, the
evidence that the right to engage “in homosexual sodomy” is not a fun-
damental liberty is the “fact” that at the time the Fourteenth Amend-
ment was passed, all but five of the thirty-seven states in the Union had
criminal sodomy laws, and that many states continue to have such
laws. In his dissent, Blackmun vehemently rejects the appeal to the fact
of the existence of antisodomy criminal statutes as a basis for the con-
tinuing prohibition of the denial of a right, characterized by Blackmun
not as the right to engage in homosexual sodomy but as “the right to be
let alone.”41

It is revolting to have no better reason for a rule of law than that so it

was laid down in the time of Henry IV. It is still more revolting if the
grounds upon which it was laid down have vanished long since, and
the rule simply persists from blind imitation of the past.42

Derrida gives us insight into how the traditional positivist concep-

tion of law, in spite of Justice Holmes’s remark and Justice Blackmun’s
concern, consists precisely in this self-conserving repetition. For Fish,
as we have seen, it is the practical power of the legal system to preserve
itself through the conflation of repetition with justification that makes a
legal system. Of course, Fish recognizes that repetition as iterability
158 Law’s Madness

also allows for evolution. But evolution is the only possibility when jus-
tification is identified as the functioning of the system itself. Law, for
Fish—in spite of his remarks to the contrary—is not deconstructible
and, therefore, is also not radically transformable. As a system it
becomes its own “positive” social reality in which the status of its own
myths cannot be challenged.
It is, however, precisely the status as the myth of its originary foun-
dation and the “plain meaning of the words”—or in more technical lan-
guage, the readability of the text—that Derrida challenges in the name
of justice. We are now returned to LaCapra’s concern about the poten-
tially dangerous equalizing force in Derrida’s own argument. LaCapra
reinterprets what he reads as one of Derrida’s riskier statements. Let
me first quote Derrida’s statement: “Since the origin of authority, the
foundation or ground, the position of law can’t by definition rest on
anything but themselves, they are themselves a violence without
ground.”43 LaCapra reformulates Derrida’s statement in the hope of
making it less subject to abuse. To quote LaCapra: “Since the origin of
authority, the foundation or ground, the position of the law can’t by
definition rest on anything but themselves, the question of their ulti-
mate foundation or ground is literally pointless.44
My disagreement with LaCapra’s restatement is as follows: it is not
that the question of the ultimate ground or foundation of law is point-
less for Derrida; instead, it is the question of the ultimate ground, or
correctly stated, lack of such, that must be asked, if we are to heed the
call of justice. That no justificatory discourse can or should ensure the
role of a metalanguage in relation to its dominant interpretation means
that the conserving promise of law can never be fully actualized in a
hermeneutic circle that successfully turns back in on itself and therefore
grounds itself.
Of course, there are, at least at first glance, two kinds of violence at
issue here: the violence of the foundation or the establishment of a legal
system and then the law-conserving or jurispathetic violence of an
actual legal system. But Derrida demonstrates in his engagement with
Benjamin’s text just how these two kinds of violence are contaminated.
To concretize the significance of this contamination, we again return to
Bowers. The erasure of the status of the intent of the founding fathers
and the plain meaning of the words as legal myths is the basis for the
justification of the jurispathetic or law-conserving violence of the deci-
sion. The exposure of the mystical foundations of authority, which is
Rethinking Legal Ideals after Deconstruction 159

another way of writing that the performativity of institutive language

cannot be fully corporated by the system once it is established and thus
cannot become fully self-justifying, does show that the establishment of
law is violence in the sense of an imposition without a present justifica-
tion. But this exposure should not be understood as succumbing to the
lure of violence. Instead, the tautology upon which Justice White’s
opinion rests—that the law is, and therefore it is justified to be, because
it is—is exposed as tautology rather than justification. The point in
questioning the origin of authority is precisely to undermine the con-
flation of justification with an appeal to the origin, a conflation made
possible because of the erasure of the mystical foundations of author-
ity. LaCapra’s reformulation may be “riskier” than Derrida’s own,
because it can potentially turn us away from the operational force of the
legal myths that seemingly create a self-justifying system. The result, as
we have seen, is the violence of Justice White’s opinion in which
description is identified as prescription, criminal persecution of homo-
sexuals defended as the necessity of the rule of law.
But does the deconstructionist intervention lead to the conclusion
that LaCapra fears it might: that all legal systems, because they are
based on a mystical foundation of authority, have “something rotten”45
at the core and are therefore “equal”?46 In one sense, LaCapra is right to
worry about the equalizing force of Derrida’s essay. The equality
between legal systems is indeed that all such systems are decon-
structible. But it is precisely this equality that allows for legal transfor-
mation, including legal transformation in the name of the traditional
emancipatory ideals. Derrida reminds us that there is “nothing . . . less
outdated”47 than those ideals. As I have shown elsewhere, in Bowers
achieving them remains an aspiration, but an aspiration that is not just
impotent idealism against the ever-functioning, non-deconstructible
machine.
Derrida is in disagreement with Fish about the deconstructibility of
law. For Fish, since law, or any other social context, defines the para-
meters of discourse, the transformative challenges to the system are
rendered impotent because they can only challenge the system from
within the constraints that will effectively undermine the challenge.
There is no other “place” for them to be but within the system that
denies them validity or redefines them so as to manage the full range of
the complaint. But for Derrida “there is” no system that can catch up
with itself and therefore establish itself as the only reality. To think that
160 Law’s Madness

any social system, legal or otherwise, can “fill” social reality is just
another myth, a myth of full presence. In Fish, it is practically insignifi-
cant that law is a social construct, because, social construct or not, we
cannot deconstruct the machine. Derridean deconstruction reaches the
opposite conclusion. As Derrida explains, turning to the excess of the
performative language that establishes a legal system:

Even if the success of the performatives that found law or right (for
example, and this is more than an example, of a state as guarantor of
a right) presupposes earlier conditions and conventions (for exam-
ple in the national or international arena), the same “mystical” limit
will reappear at the supposed origin of their dominant interpreta-
tion.
The structure I am describing here is a structure in which law
(droit) is essentially deconstructible, whether because it is founded,
constructed on interpretable and transformable textual strata, (and
that is the history of law (droit), its possible and necessary transfor-
mation, sometimes its amelioration), or because its ultimate founda-
tion is by definition unfounded. The fact that law is deconstructible
is not bad news. We may even see in this a stroke of luck for politics,
for all historical progress.48

But the deconstructibility of law, then, as Derrida understands it, is

a theoretical conception that does have practical consequences; the prac-
tical consequences are precisely that law cannot inevitably shut out its
challenges and prevent transformation, at least not on the basis that the
law itself demands that it do so. It should not come as a surprise, then,
that the Eleventh Circuit, the court that held that the Georgia statute
violated the respondent’s fundamental rights, rested on the Ninth
Amendment as well as on the Fourteenth Amendment of the Constitu-
tion. The Ninth Amendment can and, to my mind, should be interpreted
to allow for historical change in the name of justice. The Ninth Amend-
ment can also be understood from within the problematic of what con-
stitutes the intent of “the founding fathers.” The intent of the Constitu-
tion can only be to be just, if it is to meet its aspiration to democratic
justification. This intent need not appeal to “external” legal norms but
to “internal” legal ideals embodied in the interpretation of the Bill of
Rights itself. The Bill of Rights clearly attempts to spell out the condi-
tions of justice as they were understood at the time of the passage of the
Rethinking Legal Ideals after Deconstruction 161

Constitution. But the Ninth Amendment also recognizes the limit of

any description of the conditions of justice, including those embodied in
the Bill of Rights. An obvious example is the call of homosexuals for
justice, for their “fundamental liberty.” The Ninth Amendment should
be, and indeed was, used by the Eleventh Circuit to guard against the
tautology upon which Justice White’s opinion rests.49 Silence, in other
words, is to be constructed as the “not yet thought,” rather than the
“self-evident that need not be spoken.”
But does this interpretation of the Ninth Amendment mean that
there is no legitimacy to the conservation of law? Can a legal system
completely escape the promise of conservation that inheres in its myth
of origin? Certainly Derrida does not think so. Indeed, for Derrida, a
legal system could not aspire to justice if it did not make this promise of
conservation of principle and the rule of law. But it would also not
aspire to justice unless it understood this promise as a promise to jus-
tice. Again we are returned to the recognition, at least in my interpreta-
tion of the Ninth Amendment, of this paradox.
It is precisely this paradox, which, for Derrida, is inescapable, that
makes justice an aporia.50 To try to describe exactly what justice is
would once again collapse prescription into description, and fail to
heed the humility before justice inherent in my interpretation of the
Ninth Amendment. Such an attempt shuts off the call of justice, rather
than heeding it, and leads to the travesty of justice so eloquently
described by Justice Holmes.51 But, of course, a legal system, if it is to be
just, must also promise universality, the fair application of the rules,
and so on. This aporia stems from the responsibility of the judge not
only to state the law, but to judge it.

In short, for a decision to be just and responsible, it must, in its

proper moment if there is one, be both regulated and without regu-
lation: it must conserve the law and also destroy it or suspend it
enough to have to reinvent it in each case, rejustify it, at least rein-
vent it in the reaffirmation and the new and free confirmation of its
principle.52

Justice White failed to meet his responsibility precisely because he

replaced description with judgment, and indeed, a description of state
laws a hundred years past, and in very different social and political cir-
cumstances.53
162 Law’s Madness

But if no philosophical description of current conditions for justice

can be identified as Justice, does that mean that all legal systems are
equal in their embodiment of the emancipatory ideals? Is that what the
“equality” that all legal systems are deconstructible boils down to?
Worse yet, if that is the conclusion, does that not mean that we have an
excuse to skirt our responsibility as political and ethical participants in
our legal future? As I have argued elsewhere, Derrida explicitly dis-
agrees with that conclusion: “That justice exceeds law and calculation,
that the unpresentable exceeds the determinable cannot and should not
serve as an alibi for staying out of juridico-political battles, within an
institution or a state or between one institution or state or others.”54
But let me state this positioning vis-à-vis the deconstructibility of
law even more strongly. The deconstructibility of law is exactly what
allows for the possibility of transformation, not just the evolution of the
legal system. This very openness to transformation, which, in the inter-
pretation of the Ninth Amendment, should be understood as institu-
tional humility before the call of justice, as the “beyond” to any system,
can itself be translated as a standard by which to judge “competing”
legal systems. It can also be translated into a standard by which we can
judge the justices themselves as to how they have exercised their
responsibility. Compare, for example, Justice White’s majority opinion
with Justice Blackmun’s dissent.55 Thus, we can respond to LaCapra’s
concern that all legal systems not be conceived as equally “rotten.” All
judges are not equal in the exercise of their responsibility to justice,
even if justice cannot be determined once and for all as a set of estab-
lished norms.
It must be stated, however, that the idea of right and the concrete,
practical importance of rights and legal ideals are not denied. Instead,
the basis of rights is reinterpreted so as to be consistent with the ethical
insistence on the divide between law and justice. This ethical insistence
protects the possibility of radical transformation within an existing
legal system, including the new definition of right. But the refusal of
the idea that only current concepts of right can be identified with justice
is precisely what leads to the practical value of rights. Emmanuel Lev-
inas once indicated that we need rights because we cannot have Justice.
Rights, in other words, protect us against the hubris that any current
conception of justice or right is the last word.
Unfortunately, in another sense of the word, Justice White is “right”
about our legal tradition. Homosexuals have been systematically per-
Rethinking Legal Ideals after Deconstruction 163

secuted, legally and otherwise, in the United States. Interestingly

enough, the reading of deconstruction I have offered allows us to
defend rights as an expression of the suspicion of the consolidation of
the boundaries, legal and otherwise, of community. These boundaries
foreclose the possibility of transformation, including the transforma-
tion of our current conceptions of “normal” sexuality, as these norms
have been reflected in law and used as the basis for the denial of rights
to homosexuals. What is “rotten” in a legal system is precisely the era-
sure of its own mystical foundation of authority so that the system can
dress itself up as justice. Thus, Derrida can rightfully argue that decon-
struction

hyperbolically raises the stakes of exacting justice; it is sensitivity to

a sort of essential disproportion that must inscribe excess and inade-
quation in itself and that strives to denounce not only theoretical
limits but also concrete injustices, with the most palpable effects, in
the good conscience that dogmatically stops before any inherited
determination of justice.56

It is this “rottenness” in our own legal system as evidenced in Justice

White’s opinion that causes me to refer to the legal system, as Fish
describes it, as a monster.
What is the “madness of law” that I have been asked to write about?
The madness of law is law’s disappearance of the violence of its con-
serving power through an appeal to the reality that it has shaped.
Again, think of Justice White’s opinion and the tautology on which it is
based. Gay men have no rights, because they have no rights. What is
erased in Justice White’s opinion is that gay men continue to have no
rights, because Justice White has judged that they should have no
rights. Should is the crucial word here.
Derrida puts deconstruction to work to relentlessly expose the should
behind any appeal to a legal reality that is just there. Once the should is
exposed, the responsibility of the judge is also inevitable in legal judg-
ment. The madness inherent in the masquerade that dresses up law as
a positive reality that can be known but not judged is relentlessly
exposed to be just that: madness. Thinking like a lawyer unfortunately
is all too often the training in this madness, and the cynical realism that
underlines it—cynical because it denies the responsibility that inheres
in lawyers and judges perpetuating what concept of right is acceptable
164 Law’s Madness

or unacceptable in the legal system. The idea of being locked in to a

legal system is that this defines what is relevant to itself, and that a
lawyer or judge has nothing to do about it.
What is relevant to a legal system, however, is itself a matter of legal
definition, particularly when it comes to competing conceptions of
right and other legal ideals. Think for example, of Justice Blackmun’s
most daring opinion, Roe v. Wade. He was “out there” in that decision,
and he dared to be “out there” because he clearly believed that justice
gave him no other choice but to grant women the right to abortion. As
I argued earlier, rights are established legal ideals and can actually be
defended as one weapon we can legally deploy against legal posi-
tivism. It was Ronald Dworkin who forcefully defended rights as this
kind of legal weapon in his book Taking Rights Seriously.57 Certainly it is
correct that Derrida’s work undoes the legitimacy of certain kinds of
philosophical claims for principles of justice and other ideals often
referred to in law, such as freedom and equality. We certainly have to
ask ourselves the question, Can we defend ideals after deconstruction?
In all of my recent work, I have argued that we can defend ideals as
long as we understand ideals such as equality, freedom, and most
recently, the dignity of the person—and yes, justice itself as an aesthetic
idea. An aesthetic idea is a configuration of an idea of reason that can-
not be directly presented or cognitively accessed, but that can be sig-
naled in its significance in symbols. What is left after deconstruction is
the defense of legal ideals as aesthetic ideas. This is where I perhaps
part ways with Derrida, because to date, Derrida has not explicitly
addressed whether or not he would agree that after deconstruction it is
still possible to defend ideals as aesthetic ideas. But I would argue that
such a defense is consistent with deconstruction and, indeed, with
Nietzsche-inspired genealogies.
The reason that I believe that we still have this possibility has to do
with what can now constitute a justification for a legal ideal. Justifica-
tion would have to appeal explicitly to ethical and aesthetic standards.
These standards would be ethical in the sense that any particular con-
figuration of an ideal—for example, an ideal that seeks to figure sexual
freedom for a Western legal system, such as I hope to do with the imag-
inary domain58—can only defend itself through a call to judge the ideal
as it is figured against other figurations of that same ideal. This kind of
circularity is not scary; nor does it mean that all configurations of the
legal ideal of sexual freedom, for example, are equal. It just means that
Rethinking Legal Ideals after Deconstruction 165

their defense can only be within the parameters of an ethical debate

about whether or not a particular configuration is a more adequate rep-
resentation of what the ideal seeks to protect. There is no outside point
to which we can turn, including in a proceduralist conception of justice,
that can give us one determinate set of principles that absolutely define
ideals such as justice. John Rawls in A Theory of Justice59 is often read as
seeking to defend a proceduralist conception of justice that could
directly generate principles of justice; put yourself behind the veil of
ignorance and voilà, the two principles of justice, the principle of liberty
and the difference principle, along with their order of priority are
recovered as the principles that are rationally acceptable as justice.
But I have argued that this is only one way of reading Rawls. The
“veil of ignorance” is a metaphor, and more precisely what I have
called an aesthetic idea. In Political Liberalism,60 Rawls himself clearly
understands the “veil of ignorance” as a representational device. A rep-
resentational device cannot be conflated with a fully rational theory of
rules of presentation for legal ideals. In Rawls’s case, at least in certain
of his own interpretations of his own work, the “veil of ignorance”
attempts to represent what cannot be represented, the suprasensible
world of the noumenal. Under such an interpretation there is always a
gap between what is represented and the suprasensible. Thus for me it
is no coincidence that, in Political Liberalism, Rawls argues that we
should seek tolerance at the level of philosophy itself.
This tolerance is obviously crucial in a world such as ours, in which
Western philosophy has only too often been deployed to defend its
own superior position over other general and competing comprehen-
sive worldviews. If ideals are to be defended as aesthetic ideas then one
configuration of them could never be the last word.

NOTES

1. Seyla Benhabib, “Deconstruction, Justice and the Ethical Relationship,”

Cardozo Law Review 13 (1991).
2. Jacques Derrida, “Force of Law: The ‘Mystical Foundations of Author-
ity,’” Cardozo Law Review 11, nos. 5–6 (1990).
3. Dominick LaCapra, “Violence, Justice, and the Force of Law,” Cardozo
Law Review 11, nos. 5–6 (1990).
4. Walter Benjamin, “The Critique of Violence,” in Reflections: Essays, Apho-
risms, Autobiographical Writings, ed. Peter Dementz, trans. Edmund Jephcott
(New York: Harcourt Brace Jovanovich, 1978), 277.
166 Law’s Madness

5. Benjamin, “The Critique of Violence,” 281–83.

6. See Drucilla Cornell, The Philosophy of the Limit (New York and London:
Routledge, 1992).
7. Bowers v. Hardwick, 478 U.S. 186 (1986).
8. Benjamin, “The Critique of Violence,” 277–79; Derrida, “Force of Law,”
983–85, 989.
9. Benjamin, “The Critique of Violence,” 277.
10. Benhabib, “Deconstruction, Justice and the Ethical Relationship.” Seyla
Benhabib misunderstands Benjamin here.
11. LaCapra, “Violence, Justice, and the Force of Law,” 1077.
12. Derrida, “Force of Law,” 919. I want to note here that this is also a refer-
ence to the title of the conference, “Deconstruction and the Possibility of Jus-
tice,” held at the Benjamin N. Cardozo School of Law in October 1989. “Force of
Law” was the basis of Jacques Derrida’s keynote address at the conference.
13. Derrida, “Force of Law,” 983.
14. See generally Drucilla Cornell, The Philosophy of the Limit.
15. Derrida, “Force of Law,” 945.
16. Derrida, “Force of Law,” 991.
17. Derrida, “Force of Law,” 993.
18. Derrida, “Force of Law,” 943.
19. LaCapra, “Violence, Justice, and the Force of Law,” 1067.
20. Stanley Fish, Doing What Comes Naturally: Change, Rhetoric, and the Prac-
tice of Theory in Literary and Legal Studies (Durham: Duke University Press,
1989).
21. Fish, Doing What Comes Naturally, 328–31.
22. In his essay “Working on the Chain Gang,” Fish notes:

Paradoxically, one can be faithful to legal history only by revising it, by

redescribing it in such a way as to accommodate and render manageable the
issues raised by the present. This is a function of the law’s conservatism,
which will not allow a case to remain unrelated to the past, and so assures
that the past, in the form of the history of decisions, will be continually
rewritten. In fact, it is the duty of a judge to rewrite it (which is to say no
more than that it is the duty of a judge to decide), and therefore there can be
no simply “found” history in relation to which some other history could be
said to be “invented.”

Fish, Doing What Comes Naturally, 395 (footnote omitted).

23. Bowers v. Hardwick, 478 U.S. 186 (1986).
24. In “Dennis Martinez and the Uses of Theory,” Fish responds to Mark
Kelman, quoting:

“It is illuminating and disquieting to see that we are nonrationally con-

structing the legal world over and over again. . . .” In fact, it is neither. It is
not illuminating because it does not throw any light on any act of construc-
tion that is currently in force, for although your theory will tell you that
Rethinking Legal Ideals after Deconstruction 167

there is always one (or more) under your feet, it cannot tell you which one it
is or how to identify it. It is not disquieting because in the absence to any
alternative to interpretive construction, the fact that we are always doing it
is neither here nor there. It just tells us that our determinations of right and
wrong will always occur within a set of assumptions that could not be sub-
ject to our scrutiny; but since everyone else is in the same boat, the point is
without consequence and leaves us exactly where we always were, commit-
ted to whatever facts and certainties our interpretive constructions make
available.

Fish, Doing What Comes Naturally, 395 (footnote omitted).

25. Bowers v. Hardwick, 478 U.S. 186 (1986) at 192–94.
26. Hardwick v. Bowers, 760 F.2d 1202 (1985), rev’d 478 U.S. 186 (1986).
27. Bowers v. Hardwick, 478 U.S. 186 (1986) at 189. The Ninth Amendment
reads:

The enumeration in the Constitution, of certain rights, shall not be construed

to deny or disparage others retained by the people. (U.S. Const. amend. IX)

The Due Process Clause of the Fourteenth Amendment provides:

No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of law. (U.S. Const.
amend. XIV, cl. 1)

28. Griswold v. Connecticut, 381 U.S. 479 (1965).

29. Roe v. Wade, 410 U.S. 113 (1973).
30. Carey v. Population Services International, 431 U.S. 678 (1977).
31. Bowers v. Hardwick, 478 U.S. 186 (1986) at 190–91.
32. The cases in this line include Skinner v. Oklahoma, 16 U.S. 535 (1942),
which struck down a law requiring sterilization of those thrice convicted of cer-
tain felonies involving “moral turpitude,” on grounds that included that the
punishment interfered with the individuals’ rights in procreation; Loving v. Vir-
ginia, 388 U.S. 1 (1967), in which the Supreme Court overturned a miscegena-
tion law, in part because it interfered with the right to marry; Griswold v. Con-
necticut, which affirmed the rights of married persons to receive information on
the use of contraceptives as part of their rights to conduct their family life free
from state interference; Eisenstadt v. Baird, 405 U.S. 438 (1972), which addressed
the right of a person, regardless of marital status, to make decisions as to her
own procreative choices; Roe v. Wade, providing for the right of a woman to
have an abortion; and Carey v. Population Services International, 431 U.S. 678
(1977), in which the Court disallowed a law prohibiting distribution of nonpre-
scription contraceptives by any pharmacists or distribution to minors under the
age of sixteen.
33. Bowers v. Hardwick, 478 U.S. 186 (1986) at 191.
168 Law’s Madness

34. Bowers v. Hardwick, 478 U.S. 186 (1986) at 192–94 (footnotes and citation
omitted).
35. Bowers v. Hardwick, 478 U.S. 186 (1986) at 194.
36. See Drucilla Cornell, “Institutionalization of Meaning, Recollective
Imagination and the Potential for Transformative Legal Interpretation,” Uni-
versity of Pennsylvania Law Review 136, no. 4 (1988); and chapter 5, “The Rele-
vance of Time to the Relationship between the Philosophy of the Limit and Sys-
tems Theory: The Call to Judicial Responsibility,” in The Philosophy of the Limit
(New York and London: Routledge, 1992).
37. See Fish, “Working on the Chain Gang,” in Doing What Comes Naturally,
93–95.
38. Derrida, “Force of Law,” 997.
39. Bowers v. Hardwick, 478 U.S. 186 (1986) at 191.
40. Bowers v. Hardwick, 478 U.S. (making reference to Justice Goldberg’s con-
currence in Griswold v. Connecticut, 381 U.S.).
41. Bowers v. Hardwick, 478 U.S. 186 (1986) at 199 (Blackmun, J. dissenting);
quoting Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).
42. Blackmun is quoting Oliver Wendell Holmes, “Path of the Law,” Har-
vard Law Review 10, no. 8 (1897): 469.
43. Derrida, “Force of Law,” 943.
44. LaCapra, “Violence, Justice, and the Force of Law,” 1069.
45. Benjamin, “The Critique of Violence,” 286.
46. See LaCapra, “Violence, Justice, and the Force of Law,” 1071, 1077–78.
47. Derrida, “Force of Law,” 971.
48. Derrida, “Force of Law,” 943–45.
49. See Hardwick and Bowers, 760 F.2d 1202 (1985) at 1211–13.
50. See Derrida, “Force of Law,” 961–63.
51. Oliver W. Holmes, “The Path of the Law,” Harvard Law Review 10, no. 8
(1897).
52. Derrida, “Force of Law,” 961.
53. For a more thorough exploration of the appeal to natural and unnatural
conceptions of sexuality, see Drucilla Cornell, “Gender, Sex and Equivalent
Rights,” in Feminists Theorize the Political, ed. Judith Butler and Joan Scott (New
York: Routledge, Chapman, and Hall, 1991).
54. Derrida, “Force of Law,” 971.
55. Bowers v. Hardwick, 478 U.S. at 186, 187, 199 (1986).
56. Derrida, “Force of Law,” 971.
57. Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard Univer-
sity Press, 1977).
58. Drucilla Cornell, The Imaginary Domain: Abortion, Pornography and Sexual
Harassment (New York: Routledge, 1995), and At the Heart of Freedom (Princeton:
Princeton University Press, 1988).
59. John Rawls, A Theory of Justice (Cambridge: Harvard University Press,
1999).
60. John Rawls, Political Liberalism (New York: Columbia University Press,
1993).
Contributors

Peter Brooks is Tripp Professor of the Humanities at Yale University.

Cathy Caruth is Winship Distinguished Research Professor of Com-
parative Literature and English at Emory University.
Drucilla Cornell is Professor of Political Science at Rutgers University.
Lawrence Douglas is Associate Professor of Law, Jurisprudence, and
Social Thought at Amherst College.
Elizabeth Lunbeck is Associate Professor of History at Princeton Uni-
versity.
Austin Sarat is the William Nelson Cromwell Professor of Jurispru-
dence and Political Science and Professor of Law, Jurisprudence,
and Social Thought at Amherst College.
Jonathan Simon is Professor of Law at the University of California,
Berkeley.
Martha Merrill Umphrey is Associate Professor of Law, Jurisprudence,
and Social Thought at Amherst College.

169
Index
Abortion, 164. See also Roe v. Wade
Aldredge, Jennifer, 104
Amsterdam, Anthony, 39–40
Anderson decision, 64, 66
Andrews, William, 35–36
Anxiety disorders, 93
Arendt, Hannah, 142n. 20
Aristocracy, 122, 129
Aristotle, 3
Arnold, Thurman, 58
Austin, John, 24n. 25
Authority, origins of, 158–59
Balibar, Etienne, 134, 141n. 12
Balzac, Honoré de, 18, 119, 130–31,
137
Bandes, Susan, 3
Bazelon, David, 55, 59, 71
Benjamin, Walter, 149–50, 156
Beyond the Pleasure Principle (Freud),
143nn. 21, 23
Bill of Rights, 155, 160–61
Billy Budd, Sailor and Other Stories
(Melville), 6–10, 24n. 23, 25n. 32
Biology, language of, 91, 112
Bipolar disorders, 93
Blackmun, William, 157, 162, 164
Blackstone, William, 97
Body politic, 4–6
Bolstad, Orin, 93, 95, 109
Bonard, Dick, 102
Booth v. Maryland, 48n. 12
Boston Psychopathic Hospital, 49
Bowers v. Hardwick, 20, 149, 152–53,
158–59
171
Brooks, Peter, 12–15, 29–48
Bruner, Jerome, 40
Burton, Harold, 41–42
Busch, Francis X., 100
Campos, Paul, 12
Canguilhem, Georges, 87
Capitalism, 148
Capital punishment, 40–41, 82
Carbonnier, Jean, 141n. 14
Cardozo, Benjamin, 33–36
Caruth, Cathy, 10, 17–19, 119–46
Carey v. Population Services Interna-
tional, 154, 167n. 32
Cases. See Legal cases
Catholicism, 87
Caudill, David, 11
Cause and effect, 35
Caverly, John R., 7, 84, 105–7, 109
Charter of 1814, 121–23
Chekov, Anton, 44
Childhood, issue of, 102
Citizenry, as community, 113–15
Civil Code, 18, 122–23, 127, 131–32,
134
Civilization, idea of, 16, 17
Civilization and Its Discontents
(Freud), 11
Civil War, 6, 10
Cole, Harry, 38–39
Colonel Chabert (Balzac), 18, 119–37
Community, citizenry as, 113–15
Compassion, 9, 66
Compromise, legal remedy of, 130,
134
172
Confessions, 33
Conviction, 44, 46
Cornell, Drucilla, 17–21, 147–68
Covenants, 46
Cover, Robert, 4, 10
Cowles, Lawrence, 62. See also People
v. Cowles
Critical race theory, 147
“Critique of Violence, The” (Ben-
jamin), 149
Crowe, Robert, 99–105
Crowe Crime Commission, 99
Crucifixion, fantasies of, 88
Cultural Study of Law, The (Kahn), 29
Cynical realism, 163–64
Dailey, Anne, 11
Darrow, Clarence, 16, 81–84, 95–100,
102, 115
Dead, claims of the, 119–46
Death: penalty, 40–41, 82; reenact-
ment of, 134
Declaration of the Rights of Man and
Citizen, 122, 130
Deconstruction, 19–21, 147–48
Democracy, 147
Denial, 37
Depression, 91, 93
Derrida, Jacques, 19–20, 149, 150; on
authority, 158; Cornell on, 148–51,
156–60, 162–63; on exacting justice,
163; and Fish, 159–60; on performa-
tive language, 160
Dershowitz, Alan, 44
Desire, 3, 11, 45, 114, 127
Determinism, 86–91
Deviancy, defining, 111–13
Dickens, Charles, 45
Discipline, 110
Douglas, Lawrence, 1–27
DSM (Diagnostic and Statistical Man-
ual), 93, 112
Due Process Clause, 154, 167n. 27
Durham, Monte, 59
Durham v. United States, 52, 55, 59, 71
Dworkin, Ronald, 164
Index
Ego, 72
Eighth Amendment, 40, 42
Eisenstadt v. Baird, 167n. 32
English Mutiny Act (Mutiny Act),
7–9
Epistemology, 51, 53
Equality, 147, 148, 164
Eroticism, 63–64, 66
Erotic liar, notion of, 63
Ethics, 164, 165. See also Morality
Evidence, 33, 63
Exclusionary rule, 33
Experimentalism, 29
Eylau, battle of, 123, 138n. 5
Fantasy, 63, 88, 89
Fass, Paula, 82, 100
Feminism, 54, 60, 147, 153
Fenichel, Otto, 65
Fifth Amendment, 40
Fish, Stanley, 24n. 26, 152–53, 157–60,
163, 166nn. 22, 24
Fitzpatrick, Peter, 23n. 22
Formalism, 24n. 26, 29
Forrester, John, 53
Foucault, Michel, 84–85, 110
Founding fathers, 153
Fourteenth Amendment, 154, 155,
157, 160, 167n. 27
France, 17–19, 119–24, 130, 147
Francis, Willie, 40
Francis v. Resweber, 13, 40–43
Frank, Jerome, 10, 25n. 43, 71–72
Frankfurter, Felix, 41
Franks, Bobby, 81, 89, 100
Freedom, 19, 135–38, 147–48,
164
French Charter of 1814, 18
French Revolution, 18–19, 119–24,
130, 147
Freud, Sigmund, 10, 63, 72, 84;
Brooks on, 33, 37; Caruth on,
143nn. 21, 23; and Frank, 10–11; on
negation, 33
Fugitive Slave Acts, 10
Furet, François, 123
Index 173

Gemeinschaft, 17 Insanity, and sanity, distinction

Genealogies, 147, 164 between, 52, 58. See also Insanity
George III (king), 5–6 defense; Madness
Gerwitz, Paul, 4 Insanity defense: Douglas, Sarat, and
Giles et al. v. Maryland, 69 Umphrey on, 2–4; and homicide,
Glueck, Bernard, 86 16–17, 79–118; and the legal defini-
God, 149 tion of insanity, 96, 99–100; and
Goldberg, Rube, 35 nymphomania, 52, 54–55
Goodrich, Peter, 11 Insurance, principles of, 151
Great Depression, 84 Iser, Wolfgang, 38
Griswold v. Connecticut, 154, 167n. 32
Grotjahn, Martin, 67, 68 Jackson, Howell Edmunds, 30
Guilty pleas, 95–99 Jenkins v. State, 62
Johnny Lynn Old Chief v. United States
Hale, Lord, 60 (Old Chief ), 13, 29–33, 46
Healy, Mary, 63 Judge Baker Foundation, 86
Healy, William, 63, 86 Judicial activism, 156
Heredity, 90 Jung, C. G., 72
Hermeneutics, 112, 152, 158 Jurismania: The Madness of American
Hermeticism, of law, 46–47 Law (Campos), 12
Heroism, 120, 124, 135 Jurisprudence, 85–86
Hicks, Jeffrey, 92 Justice: Caruth on, 17–18; Cornell on,
History, 17–18, 119–46 150, 153, 161, 163–65; Derrida on,
Holloway v. United States, 52 19–20; Douglas, Sarat, and
Holmes, Oliver Wendell, 157, 161 Umphrey on, 9; proceduralist con-
Holocaust, 110, 120 ception of, 165; progressive stan-
Homicide, 79–118; and determinism, dard of, 84; Simon on, 84, 91
86–91; and judges, 105–10; and the Juvenile court, 79–118
Kip Kinkel case, 16–17, 80–103, Juvenile Psychopathic Institute in
108–10, 111, 115; and the Chicago, 86
Leopold-Loeb case, 16–17, 81–90,
94–100, 102, 107, 112; and Kahn, Paul W., 29
psy-knowledge, 85–95 Kant, Immanuel, 45
Homosexuality, 20, 154–57, 161–63 Kantorowicz, Ernst, 4–5
Honore, Tony, 57 Kearns, Thomas, 40–41
Hudspeth, Eunice, 62 Kidnapping, 81, 100
Humanity, paradigms of, 147 King/slave fantasies, 88
Hundred Days, 119 Kip Kinkel case, 16–17, 80–103,
Hysteria, 54 108–10, 111, 114
Knowledge, 40. See also Psy-knowl-
Id, 11 edge
Ideals, 147–48 Konkol, Richard J., 93
Ignorance, veil of, 165
Imperialism, 148 LaCapra, Dominick, 20, 148–51,
Incest, 66 156–59, 162
Innocence, 7 Laplanche, Jean, 33
174
Laudo v. Laudo, 72
Law and the Modern Mind (Frank),
10–11
Leerstellen, 38
Legal cases: Booth v. Maryland, 48n.
12; Bowers v. Hardwick, 20, 149,
152–53, 158–59; Carey v. Population
Services International, 154, 167n. 32;
Durham v. United States, 52, 55, 59,
71; Eisenstadt v. Baird, 167n. 32;
Francis v. Resweber, 13, 40–43; Giles
et al. v. Maryland, 69; Griswold v.
Connecticut, 154, 167n. 32; Holloway
v. United States, 52; Jenkins v. State,
62; Johnny Lynn Old Chief v. United
States, 13, 29–33, 46; Laudo v. Laudo,
72; Michaelson v. United States, 30;
Palsgraf v. Long Island Railroad Com-
pany, 13, 33–34; Payne v. Tennessee,
48n. 12; People v. Bastian, 72; People
v. Cowles, 62–63; People v. Dawsey,
70; Planned Parenthood v. Casey,
45–46; Roe v. Wade, 154, 164, 167n.
32; Rusk v. State, 13, 37–39; Skinner
v. Oklahoma, 167n. 32; State v. Rusk,
13, 37–39; Washington v. United
States, 52, 55, 59
Legendre, Pierre, 11
Leopold, Nathan, 81. See also
Leopold-Loeb case
Leopold-Loeb case, 16–17, 81–90,
94–100, 102, 107, 112
Levinas, Emmanuel, 162
Linguistics, structural, 43
Literalism, 154
Loeb, Richard, 81. See also
Leopold-Loeb case
Louis XVIII (king), 18, 121, 123
Louisiana Criminal Code, 41
Love, 10, 64, 68–69, 156
Lunbeck, Elizabeth, 3, 14–15, 49–77
Madness: Douglas, Sarat, and
Umphrey on, 1–21; Foucault on,
110; and homicide, 79–118; and law
as a psychic system, 10–21; and the
Index
moral-formal dilemma, 4, 6–10;
and nymphomania, 49–77; vari-
eties of, 2–4. See also Insanity
defense
Madness of King George (film), 5–6
Marxism, 84
Mattison, Jack, 17, 108–9, 114
Medieval legal doctrine, 5
Melville, Herman, 6–10, 17
Memory, haunted, 119–46
Menninger, Karl, 63
Mental Health Act, 57
Michaelson v. United States, 30
Minding the Law (Amsterdam and
Bruner), 39–40
Miranda warnings, 33
M’Naghten rule, 2, 22n. 6, 58, 73n. 17
Model Penal Code, 2, 22n. 6
Moral-formal dilemma, 4, 6–10. See
also Morality
Morality: Cornell on, 147; Derrida on,
20; Douglas, Sarat, and Umphrey
on, 4, 6–10; Lunbeck on, 57, 59–60;
Simon on, 112
Mortimore, Kent, 99, 101–3
Municipal Court of Chicago, 90, 99
Murder. See Homicide
Mutiny Act (English Mutiny Act),
7–9
Naffziger, Joyce, 93
Napoleon Bonaparte, 18, 119, 121–24,
127, 131
Napoleonic Wars, 18, 121–24. See also
Napoleon Bonaparte
Narrative: Brooks on, 12–14, 31–32,
34–36, 39–40, 43–46; integrity, 30,
35; and nymphomania, 49–77;
Simon on, 88–89
Narratology, 31, 43–45
Native Son (Wright), 83
Nazis, 113
Negation, 33
Negligence, 35
Nietzsche, Friedrich, 147, 164
Ninth Amendment, 154, 160–62
Index
Noonan, John, 34
Normality, concept of, 15, 87, 88, 106
Nymphomania, 49–77; and the case
of Marion Taylor, 49–54; in court,
70–72; and Durham v. United States,
52, 55, 59, 71; and evidence, 63; and
Freud, 63, 72; and morality, 57,
59–60; and “mythomania,” 61–70;
stereotypes of, 60–61; and Washing-
ton v. United States, 52, 55, 59
O’Connor, Sandra Day, 30
Oedipal conflict, 65
Old Chief case (Johnny Lynn Old Chief
v. United States), 13, 29–33, 46
Olson, Harry, 90–91, 99
Ostranenie (“making strange”), 29
Oswald, Lee Harvey, 118n. 61
Overholser, Winfred, 60
Palsgraf, Helen, 34, 36–37, 44
Palsgraf v. Long Island Railroad Com-
pany, 13, 33–34
Paranoid schizophrenia, 94. See also
Schizophrenia
Payne v. Tennessee, 48n. 12
People v. Bastian, 72
People v. Cowles, 62–63
People v. Dawsey, 70
Personality disorders, 54–61. See also
Nymphomania
Pharmacology, 112–13
Planned Parenthood v. Casey, 45–46
Political Liberalism (Rawls), 165
Pontalis, J. B., 33
Positivism, 7, 8, 149, 151–52
Postcolonial thinkers, 147
Postmodernism, 147
Potency, of law, 153
Pottage, Alain, 11
Powers of Freedom (Rose), 111
Presence, feigning of, 150
Prison systems, 81, 84, 86, 90, 104–5,
111
Privacy rights, 154–55
Property: definition of, 139n. 10;
175
haunted, 119–46; man without, fig-
ure of, 121
Prosser, William L., 48n. 7
Prozac, 92, 112
Psychiatry, 14–15, 49–77. See also Psy-
choanalysis
Psychic system, law as a, 10–21
Psychoanalysis, 10–12. See also Psy-
chiatry
Psychological sentencing hearings,
80–81
Psychopathic Hospital, 50, 51
Psychopathic personality, 71–72
Psychopathology, 51, 55–61, 71–72
Psychosis, 58
Psy-knowledge, 16–17, 85–95, 98, 99,
101, 111–13
Punishment, 98. See also Capital pun-
ishment
Race, 83, 114, 115
Rape, 37–39, 153; law reform, 60; and
nymphomania, 15, 52–54, 60–62,
64–65, 69–70; trauma syndrome,
15, 54, 70
Rationality, 3. See also Reason
Rawls, John, 165
Readability, of the Constitution, 155,
158
Realism, 125, 163–64
Reason, 3, 12, 13, 32
Recognition: problem of, 121; recip-
rocal, 128, 129; refusal of, 133
Reed, Stanley, 41
Rehabilitation, 81, 82
Religion, 87
Repression, 5, 11, 17, 37
Reputation, 52–53
Responsibility, 58–59, 150–51
Restoration, 18–19, 119, 122, 129,
131–32, 135
Retribution, 16, 98, 127–28, 129
Revenge, 98, 127–28
Rights, notion of, 127, 162
Riviere, Pierre, 99, 116n. 11
Roe v. Wade, 154, 164, 167n. 32
176
Rose, Nikolas, 85, 111
Rule of law, 12
Rusk, Edward Salvatore, 37–38
Rusk v. State, 13, 37–39
Ryker, Jacob, 103
Sabitt, Mark, 16, 95, 97–98
Sack, William, 93
Sadism, 65
Sanity, and insanity, distinction
between, 52, 58
Sarat, Austin, 1–27, 29, 40–41
Sartre, Jean-Paul, 44
Schizophrenia, 58, 93, 94
Schlag, Pierre, 12
Sentencing hearings, 80–81
Sex offenders. See Nymphomania
Sexual difference, 37
Sexuality, 11, 82. See also Nympho-
mania; Rape; Sexual difference;
Sexual revolutions
Sexual revolutions, 54, 69
Shaw, Lemuel, 10
Sherfey, Mary Jane, 68
Sherlock Holmes stories, 36
Sherwin, Richard, 23n. 15
Silence, 20, 155
Simon, Jonathan, 3, 16–17, 79–118
Simpson, Nicole, 32
Sing Sing Prison, 86
Skakel, Michael, 79
Skinner v. Oklahoma, 167n. 32
Sledziewski, Elisabeth, 140n. 10,
141n. 12
Smallwood, James, 64
Socialism, 148
Sodomy, 153, 157. See also Rape
Souter, David: Brooks on, 30–33, 35,
39, 45–46; and the Old Chief case,
13, 30–33, 46; and Planned Parent-
hood v. Casey, 45–46
Southard, E. E., 50, 51, 53–54, 72
Index
Sovereignty, embodied, 4–6
Soviet Union, 29
Stalinism, 29
State v. Rusk, 13, 37–39
Storytelling, 32, 43–44, 46. See also
Narrative
Structural linguistics, 43
Sui generis, 57
Superego, 11
Survivors, 110, 134
Syllogism, 31–32, 46
Taking Rights Seriously (Dworkin),
164
Tautology, 159
Taylor, Marion, 49–54
Theory of Justice, A (Rawls), 165
Thompson, Charles, 38, 39
Transcendence, of the law, 150–51
Trauma, 125–27
Truth: Brooks on, 37, 39, 40; Caruth
on, 134; Lunbeck on, 52, 53, 54, 70,
71; Simon on, 112
Umphrey, Martha Merrill, 1–27
Vengeance, 17, 113–15
Victim impact statements, 4
Victorian era, 67
Walker, Mark, 104
War crimes trials, 120
Warthen, Sherrie, 102
Washington v. United States, 52, 55, 59
Wellington, Anna, 49, 51
White, Byron, 20, 153–54, 156–57, 159,
161–63
White, William Alan, 86
Wigmore, John Henry, 63–64, 65
Witnesses, 131–35
World War II, 67, 82
Wright, Richard, 83, 115