The Hard Case

‘No set of legal institutions exists apart from the narratives that locate it and give it meaning’ (889).

‘We are never not in a story.’ (889).

law and fiction offer ways to ‘mediate our engagement in the world with others,’ providing ‘the possibilities and parameters of our self-definition and understanding’ (889).

We are intrigued, I think, by the decisionmaker’s capacity to adjust, modify, or ignore a rule under pressure from countervailing norms, values, or facts (890).

the literary narrative representing a difficult legal choice can more frankly and fully portray the complex and sometimes unsettling ways that moral, emotional, and psychological norms mix with principles and analytic procedures in such judgment (890).

The key to this scene and the depiction of judgment leading to it lies in Huck’s ability to weigh not only the various moral, social, and legal issues at stake in the case but also the reality of his connection with Jim, the concrete particulars of their relationship, until the right result, the right action can come to him: not the kind of unambiguous, absolute knowledge ascribed to God but the tremulous, hedged conviction of a flawed human being who gambles on an ethical hunch according to his best lights (890-91).

Any action Huck takes is going to cost somebody something (891).

in this case just feels like the right thing to do – a conclusion one reaches through an intuitional sense of the entire situation (892).

“unconscionability doctrine”: Wikipedia: Unconscionability (known as unconscionable dealing/conduct in Australia) is a doctrine in contract law that describes terms that are so extremely unjust, or overwhelmingly one-sided in favor of the party who has the superior bargaining power, that they are contrary to good conscience. Typically, an unconscionable contract is held to be unenforceable because no reasonable or informed person would otherwise agree to it. The perpetrator of the conduct is not allowed to benefit, because the consideration offered is lacking, or is so obviously inadequate, that to enforce the contract would be unfair to the party seeking to escape the contract.

the unconscionability doctrine permits the court to defer to its sense of fairness or equity in refusing to enforce an otherwise unambiguous contract (893).

Judges may occasionally acknowledge that their decisions in such cases turn on a non-analytic hunch about the equities involved (893).

playing a hunch [ . . . vs. . . . ] analytic purity and predictability of a mathematical calculation or scientific taxonomy (893).

BILLY BUDD AND JUDGMENT

Melville’s novel does not recommend a form of judgment through a sympathetic depiction of a central character struggling with a difficult decision; instead, it generates a vicarious judgment process in the reader, who is thinking about and reacting to the decision rendered by the story’s judge (893).

scholars with high ‘regard for constituted authority’ in difficult times tend to view Vere ‘as a heroic figure who, with tragic awareness of his responsibilities, sacrifices an innocent for the sake of the state,’ but those suspicious of ‘established power’ see Vere as ‘a despot whose callous commitment to the letter of the law, “however pitilessly” it grinds the innocent, is ultimately no different from Ahab’s doctrinaire will’ (895).

While disagreement may be had as to whether Vere chooses nobly or ignobly, there is no serious critical dispute that he must choose (895).

Melville’s tale ultimately pushes us to reject such either/or choices between competing values when it comes to handling an exceptional moral or legal dilemma (895).

Vere fails morally and legally not because he makes the wrong choice but because he thinks he must make a choice between opposed values when the most difficult and best form of judgment in cases such as Billy’s requires that he balance ostensibly contrary ideals (895).

To choose, as Vere does, is to abbreviate the protracted, uncertain, and often messy and compromised nature of the more arduous forms of judgment (895).

Melville’s narrative keeps his readers, if not Vere, in the middle of a matrix of various competing values, interests, and facts (895).

Melville was intrigued by the suspension of opposed ideas in an unre- solved tension, a dialectic without synthesis . . . . [Melville’s] tautology,’ says Sundquist, ‘asserts the virtual equivalence of potentially different authorities or meanings,’ ‘by bringing two meanings into such approxi- mation as to collapse the distinction between them without literally doing so’ (896-97).

while it’s not hard to see the opposed extremes, it is impossible to mark a clear and absolute barrier between any of the intervening colours, which do enter ‘blendingly’ into each other. The colours are on a gradient (897).

The deliberative process is thus both categorical (good is good; evil is evil) and non-categorical (some things can be, despite logic, one thing and the opposite at the same time) (897).

For James, the authority of intuition appears to be discerned by the subject as deriving in part from its mysterious nature – it astonishes and seems to come from some ‘deeper level’ than mere rationality. In intuiting something, our ‘thought obeys a nexus, but cannot name it’ (899).

in certain difficult cases judicial reasoning has to proceed ‘by feeling’ rather than ‘by calculation.’ (899).

The potential threat of mutiny makes Vere less ‘starry’ and more fearful, less intuitive and more rigidly rationalistic, more likely to seek the comforting security of bright-line rules and either/ or choices because nuanced judgment and ad hoc flexibility require a degree of confidence and security (900).

Vere rejects the balancing of opposed values and the observation of both differentiation and indistinguishability manifest in the two intuitive alter- natives offered by members of the drumhead court (902).

while Vere is capable of a better, more flexible, and intuitive form of judgment, something about the array of factors in this case will drive him inevitably to a decision that will haunt him (903).

As a meditation on judgment, Billy Budd illustrates the necessity of both serving established rules and norms and also attending comprehensively to the particular facts of a given case in light of our broader conceptions of justice (903).

Vere’s mistake is expressly described as a failure of intuition (903).

judgment requires navigation of the uncertain and hazardous ‘space between’ options, the place where opposed concepts blend into each other, and intuition (whether dependable or not) is indispensable to this process (903).