Perspectives Patrick O. Gudridge's* Response
I begin with Herman Melville and Thomas Bernhard.
Legal writing is often and rightly enough an ant-like exercise, an effort to
take up the work of others and extend or alter it, in the process passing the project on to the next in line. It is therefore important, I think, to seize outsize treatment of law wherever we find it, to try to appreciate whatever the particular effort shows us about the structure and possibilities of our ordinary work that might not be so visible in familiar, close at hand forms. To this end, I look closely at two Melville stories — The Paradise of Bachelors and The Tartarus of Maids is perhaps not widely read, but Bartleby, the Scrivener is of course famous. I also extract passages from Bernhard’s novel Correction. Both writers are preoccupied
by paper, by its ubiquity and proliferation and legal concomitants, significant notwithstanding utter ordinariness. A largely excluded possibility within contemporary jurisprudence emerges, I want to suggest. Roughly the last half of this essay elaborates on this opportunity, propagating terms like “documentary substrate,” “paper tectonics,” and “legal seismics.” Readers run risks, therefore.
I. Melville, Paper, Law
There is nothing new, of course, in the suggestion that works of Herman Melville might offer readers provocative ideas or images of law. Sometimes, we know, legal process is an immediately evident and obviously integral part of the story (in Billy Budd, for example.)1 In any case, we ought not to be surprised if Melville sometimes wrote about legal matters given his father-in-law, the famous Massachusetts Chief Justice Lemuel Shaw.2 I am not interested here, however, in straightforward, foreground resorts. Rather, I look at law in the background, call attention to a maybe distinctively Melvillean stress, evident even if treated as given in Tartarus and Bartleby.3
Herman Melville’s story The Paradise of Bachelors and The Tartarus of Maids, first published in 1855,4 brings together two accounts — about a dinner a narrator attends in London, and a visit the same narrator makes to a paper mill somewhere in New England. Melville sets up an explicit equation at the end of his account of the paper mill: “Then, shooting through the pass, all alone with inscrutable nature, I exclaimed — Oh! Paradise of Bachelors! and oh! Tartarus of Maids!”5 Perhaps this is “only an obligatory apostrophe.”6 The narrator, however, repeatedly refers to his London experience while visiting the mill. We are, as readers, invited — indeed, pressed — to solve the puzzle of his juxtaposition. The last sentence sets out two obvious points of departure. It is the bachelors and the maids who are to be contrasted or equated. Or, read literally, it is the Paradise and the Tartarus — the dining room and the factory. Taking this second tack supposes, before the process of comparison itself, some additional description. It is easier, I think, to begin with the paper mill.
The women workers are machine tenders. “Machinery — that vaunted slave of humanity — here stood menially served by human beings, who served mutely and cringingly as the slave serves the Sultan. The girls did not so much seem accessory wheels to the general machinery as mere cogs to the wheels.”7 The machinery as such, at one level, is what is remarkable about the factory. “‘Yours is a most wonderful factory. Your great machine is a miracle of inscrutable intricacy.”8 But Melville’s narrator more often finds the most striking aspect of the paper-making machines is their combination of biology and mechanism. The paper itself is so obviously organic at the outset: “a white, wet, woolly-looking stuff, not unlike the albuminous part of an egg, soft-boiled.”9 Even at the end it is “piles of moist, warm sheets” attended by a woman who was “a nurse formerly.”10 The workers themselves are transformed perilously by the mechanical process, which literally enters into their lives.
To and fro, across, across the sharp edge, the girls forever dragged long strips of rags, washed white, picked from baskets at one side; thus ripping asunder every seam, and converting the tatters almost into lint. The air swam with the fie, poisonous particles, which from all sides darted, subtilely, as motes in sunbeams, into the lungs.
. . . .
“What makes these girls so sheet-white, my lad?”
“Why ... I suppose the handling of such white bits of sheets all the time makes them so sheety.”11
The machinery itself seems to be at the same time mechanical and alive — monstrous.
Something of awe now stole over me, as I gazed upon this inflexible iron animal. Always, more or less, machinery of this ponderous, elaborate sort strikes, in some moods, strange dread into the human heart, as some living, panting Behemoth might. But what made the thing I saw so specially terrible to me was the metallic necessity, the unbudging fatality which governed it. Though, here and there, I could not follow the thin, gauzy vail of pulp in the course of its more mysterious or entirely invisible advance, yet it was indubitable that, at those points where it eluded me, it still marched on in unvarying docility to the autocratic cunning of the machine.12
The paper ultimately produced is potentially of many kinds and thus uses. But in practice, the narrator learns, it is mostly foolscap. “All sorts of writings would be writ on those now vacant things -- sermons, lawyers’ briefs, physicians’ prescriptions, love-letters, marriage certificates, bills of divorce, registers of births, death-warrants, and so on, without end.” 13 “All sorts of writings” perhaps, but we quickly grasp that most of the items on the list are legal documents of one kind or another.14 It is this fact, I think, that is the pivot, the fold that brings together the two stories that Melville’s narrator tells. The Tartarus is a factory; but the paradise, the dinner scene, is set specifically in London’s Temple precincts, formerly the domain of the Knights Templar, who were supplanted (after their banishment) by the Inns of Court, combination legal offices and lawyers’ housing. The “bachelors” -- Melville emphasizes -- are lawyers, at home at work just like the paper mill “maids.”
Does this mean we should somehow equate the situations of the lawyers and the factory workers? The lawyers, at their dinner, have a wonderful time, eat and drink and talk exuberantly (albeit civilly). The workers, by contrast, are slowly dying, victims of the machinery they serve. Or -- more complexly -- should we understand the lawyers to be in some sense like the factory machinery? Melville’s two accounts incorporate cues suggestive of this assimilation. For example, the paper-making machinery is powered by the “red waters” of “Blood River”; the feasting lawyers “[a]ll the time, in flowing wine, . . . most earnestly expressed their sincerest wishes” (“the decanters galloped round”).15 In the mill, each woman who processes the rags which become the raw material for paper stands before a “vertically thrust up . . . long, glittering scythe . . . . The curve of the scythe, and its having no snath to it, made it look exactly like a sword.”16 (It is these scythes which chop up the rags, thus creating the particles the women inhale.) The sexual imagery here is obvious.17 But Melville’s narrator draws a conspicuously legal analogy:
Yes, murmured I to myself; I see it now; turned outward, and each erected sword is so borne, edge-outward, before each girl. If my reading fails me not, just so, of old, condemned state-prisoners went from the hall of judgment to their doom: an officer before, bearing a sword, its edge turned outward, in significance of their fatal sentence. So, through consumptive pallors of this blank, raggy life, go these white girls to death.18
The narrator’s description of his dinner with the lawyers starts with its location (“not far from Temple-Bar”19), evokes the Knights Templar and their ambiguous history, plays with the conceit of the Templars alive in contemporary London, and finally identifies their successors (not just in tenancy):
But the iron heel is changed to a boot of patent-leather; the long two-handed sword to a one-handed quill; the monk-giver of gratuitous ghostly counsel now counsels for a fee; the defender of the sarcophagus (if in good practice with his weapon) now has more than one case to defend; the vowed opener and clearer of all highways leading to the Holy Sepulchre, now has it in particular charge to check, to clog, to hinder, and embarrass all the courts and avenues of the Law; the knight-combatant of the Saracen, breasting spear-points at Acre, now fights law-points in Westminster Hall. The helmet is a wig. Struck by Time’s enchanter’s Wand, the Templar is to-day a Lawyer.20
First, the factory machinery is associated with swords; second, swords are associated with legality; and third, legality is associated with (is the successor to) swords. Shouldn’t we also associate – in some sense equate – factory machinery and law and lawyers?
What happens, what are we led to notice, if we take seriously an analogy of the lawyers in Paradise and the Tartarus machines? The lawyers are machine-like, presumably, in their work; insofar as their dealings with each other are patterned or repetitive, and insofar as the result is some product -- obviously law, or legal documents of various types. Perhaps the dinner is a kind of allegory of legal process. If so, it is easy to explain the otherwise somewhat curious prominence of the waiter who organizes, administers, presides over the feast -- “a surprising old field-marshall . . . with snowy hair and napkin, and a head like Socrates”21 -- and who is responsible for the decorum of the event: the waiter is either judge or judge’s bailiff. That the dinner’s entertainment is not conversation but “all sort of pleasant stories” now matters: anecdote is, perhaps, a model for common law (“a sort of pell-mell, indiscriminate affair, quite baffling to detail in all particulars”); indeed, one among the anecdotes (presented as of a piece with the others) is “a funny case in law.”22 That the dinner is set in London is also now telling -- again, common law.
If it is thus the common law that is (or we may suppose to be) Melville’s subject, then the characterizations of the paper mill machinery become jurisprudential criticism. “[I]nscrutable intricacy” -- but also, we readily note, “metallic necessity,” “unbudging fatality,” “autocratic cunning.” “It must go.”23 In all of this there is also the theme of heartlessness. It is this which is the source of the paradox, the essential monstrousness as it were, of the identification of the machinery with “some living, panting Behemoth”; it is this which Cupid, the factory tour guide, in effect the machinery’s spokesman, exemplifies: “More tragical and more inscrutably mysterious than any mystic sight, human or machine, throughout the factory, was the strange innocence of cruel-heartedness in this usage-hardened boy.”24 “[S]trange innocence,” “cruel-heartedness,” “usage-hardened”: this too is the monstrousness of lawyers, of the common law. Seemingly “a city by itself,” the lawyer-templars, preoccupied by their rituals of self-entertainment, ignore the results: “marriage certificates, bills of divorce, registers of births, death-warrants, and so on, without end.” “So, through consumptive pallors of this blank, raggy life, go these white girls to death.” The lawyers do not care25 -- Melville’s narrator is perhaps not so much appreciative or envious as outraged:
The thing called pain, the bugbear styled trouble -- those two legends seemed preposterous to their bachelor imaginations. How could men of liberal sense, ripe scholarship in the world, and capacious philosophical and convivial understandings -- how could they suffer themselves to be imposed upon by such monkish fables? Pain! Trouble! As well talk of Catholic miracles. No such thing. -- Pass the sherry, Sir. -- Pooh, pooh! Can’t be! -- The port, Sir, if you please. Nonsense; don’t tell me so. -- The decanter stops with you, Sir, I believe.26
“Systematic gaiety,” Michael Rogin observed.27 His characterization of the fate of the paper workers, we can see, implicates the lawyers as well. “Mechanical production does not replace human labor; it takes it over.”28
Bartleby, the Scrivener appeared in print in 1853, two years before Tartarus.
Bartleby – solitary, stubborn, uncooperative – captures the reader’s attention. He seems to personify something important, to stand as critique of something basic in economic or other social arrangements. As every reader knows, Melville supplies remarkably little to work with, makes Bartleby so much a “man without qualities,” makes this absence of personal history so central to the story, that it is this absence -- this ultimate opacity – that sticks in memory, making Barlteby, the Scrivener a provocative, moving riddle.
It is always a surprise, therefore, to remember that as written Bartleby, the Scrivener is not first and foremost Bartleby’s story – but rather, his unnamed employer’s. “I AM a rather elderly man.”29 The narrator is a lawyer, involved in a transactional practice recently supplemented by work as a chancery master (taking testimony, etc.). It is because of the new business that Bartleby comes on the scene:
Now my original business – that of a conveyancer and title hunter, and drawer-up of recondite documents of all sorts – was considerably increased by receiving the master’s office. There was now great work for scriveners. Not only must I push the clerks already with me, but I must have additional help. In answer to my advertisement, a motionless young man one morning, stood upon my office threshold, the door being open, for it was summer. I can see that figure now – pallidly neat, pitiably respectable, incurably forlorn! It was Bartleby.30
By this point in the story, about a quarter of the way through, readers have had the chance to become well too acquainted with the narrator: he is, as Melville sets things up, speaking directly, full (too full) of good humor, self-satisfaction, and a certain cluelessness. The other employees – and their barnyard nicknames (Turkey, Nippers, Ginger Nut) – are already characterized at length, and the day to day, ordinary skirmishing that is part of the business of managing scriveners has become clear. It is something like the politics of organizing the efforts of temperamental working animals (we find it easy to suppose that this is how the narrator conceives of it).
From this point, Melville presents the famous account of Bartleby’s oddly limited work routines (“I would prefer not to”), his use of the office as living quarters, and his employer’s difficulty in devising a successful way to remove him from the premises. The narrator sketches his several strategies. He asserts hierarchy: “Bartleby, quick, I am waiting.”31 He gives reasons for his requirements (or requests): “These are your own copies we are about to examine. It is labor saving to you. . . . It is common usage.”32
He treats Bartleby as an equal, as a gentleman: “I am pained, Bartleby. I had thought better of you. I had imagined you of such a gentlemanly organization, that in any delicate dilemma slight hint would suffice.”33
But in the end the narrator succeeds by treating Bartleby as a legal problem – as a problem to be solved transactionally, through means commonplace in the narrator’s own practice. We witness the narrator thinking like a lawyer:
What! surely you will not have him collared by a constable, and commit his innocent pallor to the common jail? And upon what ground could you procure such a thing to be done? – a vagrant, is he? What! he a vagrant, a wanderer, who refuses to budge? It is because he will not be a vagrant then, that you seek to count him as a vagrant. That is too absurd. No visible means of support: there I have him. Wrong again: for indubitably he does support himself, and this is the only unanswerable proof that any man can show of his possessing the means so to do. No more then. Since he will not quit me, I must quit him. I will change my offices; I will move elsewhere; and give him fair notice, that if I find him on my new premises I will then proceed against him as a common trespasser.34
Bartleby, of course, does not leave the old office. The narrator now finds himself legally positioned to deny any obligation in the face of protests by the landlord and the new tenant. “[B]ut, really, the man you allude to is nothing to me – he is no relation or apprentice of mine, that you should hold me responsible for him.”35 And thus, when the landlord summoned the police, who arrested Bartleby and incarcerated him in the prison within which he would shortly die, the narrator acquiesced:
When again I entered my office, lo, a note from the landlord lay upon the desk. . . . It informed me that the writer had sent to the police, and had Bartleby removed to the Tombs as a vagrant. . . . At first I was indignant; but at last almost approved. The landlord’s energetic, summary disposition had led him to adopt a procedure which I do not think I would have decided upon myself; and yet as a last resort, under such peculiar circumstances, it seemed the only plan.36
Ordinary legal transactions, altogether unremarkable, possess dramatic power. The narrator, having hired Bartleby to produce legal documents, realizes that he can rid himself of Bartleby (who refuses to leave after termination of employment), through execution of one or two such documents – a notice to terminate a lease, and a new lease in a new building. Or so we may assume reading Bartleby the story within the point of view of its narrator – he barely alludes to the details of the transaction in fact, censors reference to the pertinence of his own expertise (not surprisingly, given his commitment to denying responsibility for Bartleby’s fate). With the narrator now legally irrelevant, Bartleby becomes a trespasser and is removed to jail at the behest of the landlord.
What ought we to conclude?
(a) It is more important to be a subject of -- to figure in -- legal documents than to be a maker of such documents. This is what the narrator finally realizes. He gives up asserting his law office authority -- his own status within the office -- and becomes instead his own client. Law is applied reflexively to regulate the process of its own production. People become paper. Bartleby – the story – thus conjoins or overlaps the two stories juxtaposed in Melville’s Tartarus.
(b) Or rather: in Tartarus the workers become physically like paper in a process of manufacture which seems at the same time oddly biological (indeed sexual); paper also becomes like people. In Bartleby people matter only insofar as they are acknowledged on paper -- become marks on paper. There is no need to depict this process as remarkable, as in Tartarus -- it’s just writing, so matter of fact as to disappear into the background within the story – become its documentary substrate, as it were -- and not its decisive action.37
(c) In Tartarus, in both parts, there is an intense sense of presence. Melville seems to mean to convey a feeling of what it’s like for the narrator to be there, a feeling of both place and people. This feeling is not an impression of particular persons as distinct individuals; rather, it is a depiction of the narrator’s perceptions -- point of view is pronounced. From the standpoint of the narrator, the principal impression is supersaturation: what’s perceived is too vivid, too evocative, over-wrought -- too much. Bartleby is very different. The narrator initially evokes a similar sense of heightened local color in describing his office and its occupants. But Bartleby refuses to act in a way which can be brought within this thick description. He possesses no detail. And in the end, the narrator must deal with Bartleby by abstracting -- by reducing the office to its bare legal identity as property subject to transfer.
(d) The narrator realizes that the office is -- or may at any time be treated as -- nothing more than what it is on paper. If so, then the office -- and its occupants -- are subject to the manipulations paper makes possible. Specifically, paper tends to plurality -- it’s “sheety” (the vivid term in Tartarus): one document leads to another, becomes subject to the logic of documentary relationships (addition, modification, substitution, etc.).38
(e) The movement of the story is also a progression from hierarchy (the narrator’s relationship with his long-time employees -- rustic squire-archy) through equality (the narrator’s effort to deal with Bartleby as an individual subject to persuasion -- and Bartleby’s seizure of the opportunity to refuse consent) to formality. The politics of paper is not necessarily either hierarchical or egalitarian although it might be either. It both supports and undercuts both usual status arrangements.
*Patrick O. Gudridge is Vice Dean and Professor of Law at the University of Miami School of Law.In other work, I initially sketched somewhat different versions of parts of the approach that I develop in the latter sections of this essay. See Patrick O. Gudridge, Title VII Arbitration, 16 BERKELEY J. EMP. & LAB. L. 209, 263-65 (1995); Gudridge, Mit Schlag (Repetitions), 57 U. MIAMI L. REV. 607, 625-28 (2003); Gudridge, An Anti-Authoritarian Constitution? Four Notes, 91 MINN. L. REV. 1473, 1487-90 (2007).
2See Brook Thomas, The Legal Fictions of Herman Melville and Lemuel Shaw, 11 Critical Inquiry 24 (1984).
3Brook Thomas discusses Bartleby at length in his magisterial essay and briefly juxtaposes it with Tartarus. See Thomas, supra note 2, at 34-39. Professor Thomas, working out the implications of his juxtaposition of Melville and Chief Justice Shaw, is more interested in how Melville’s preoccupations overlap the substance of American judge-made common law as Shaw (and others) were working it out at the time. In this respect, Thomas’s essay foreshadows his later important book: Brook Thomas, American Literary Realism and the Failed Promise of Contract (1997). For other recent, interesting discussions of Bartleby from legal academic perspectives, see, e.g., George Dargo, Bartleby, the Scrivener: “A House Like Me,” 44 New Eng. L. Rev. 819 (2010); Alfred S. Konefsky, The Accidental Legal Historian: Herman Melville and the History of American Law, 52 Buff. L. Rev. 1179, 1219-45 (2004) (also briefly discusses Tartarus).
4I will cite to a readily available recent republication. See Herman Melville, The Paradise of Bachelors and The Tartarus of Maids, 1 The Norton Anthology of American Literature 2277 (4th ed. 1994) [hereinafter Tartarus]. The reading of this story that I develop here is, as far as I can tell, considerably different from other recent glosses that, for reasons that will become obvious even within my account, emphasize notions of gender, sexuality, class, and knowledge. Thus, for example, Wai Chee Dimock treats this story in Residues of Justice as one illustration among many others of the tropes of disproportion and incompleteness, one confirmation of the ubiquity of the theme of “misfit justice” in nineteenth century American literature. She calls attention to what readers today (at least) might regard, somewhat uncomfortably, as Melville’s altogether over the top depiction of the London diners -- all men, it turns out. Melville’s emphasis on their bachelor status and (what Dimock reads as) their effeminacy tends toward (what she thinks we would today regard as) homophobia. See Wai Chee Dimock, Residues of Justice: Literature, Law, Philosophy 84 (1996). The workers in the paper mill, in contrast, are all (except for supervisors) unmarried women, all wan servants of the machinery, all victims. “Melville offers . . . a contrasting tableau of privilege and oppression, rendered in the idiom of class as well as the idiom of gender.” Id. Dimock emphasizes Melville’s failure to recognize commonality, the possibility of commensurable lives. Women workers of the time, we know, and Melville might have recognized too, were sometimes anyway not at all as he portrayed them. Free of family bonds, empowered by the financial rewards of factory work, sustained by new friendships with co-workers: women workers (some of them, anyway) may well have considered themselves genuinely better off. Id. 87-88. For extended consideration of the question, juxtaposing Tartarus with other, contemporary depictions, see David S. Reynolds, Beneath the American Renaissance 351-57 (1988). For other recent discussions, see, e.g., Michael Paul Rogin,Subversive Genealogy 201-08 (1979); Elizabeth Rodrigues, Melville’s The Paradise of Bachelors and The Tartarus of Maids, 66 The Explicator 164 (2008); Sarah Wilson, Melville and the Architecture of Antebellum Masculinity, 76 Am. Literature 59, 71-72 (2004); David Hurley Serlin, The Dialogue of Gender in Melville’s The Paradise of Bachelors and the Tartarus of Maids, 25 Modern Language Stud. (No. 2), p. 80 (1995); Karen A. Weyler, Melville’s “The Paradise of Bachelors and the Tartarus of Maids”: A Dialogue about Experience, Understanding, and Truth, 31 Stud. Short Fiction 461 (1994); Philip Young, The Machine in Tartarus: Melville’s Inferno, 63 Am. Literature 208 (1991); Robyn Wiegman, Melville’s Geography of Gender, 1 Am. Literary History 735 (1989).
5Tartarus, supra note 4, at 2293.
6Dimock, supra note 4, at 86.
7Tartarus, supra note 4, at 2287.
8Id. at 2292.
9Id. at 2289.
10Id. at 2291.
11Id. at 2288, 2289.
12Id. at 2291-92.
13Id. at 2291.
14See Weyler, supra note 4, at 466.
15Tartarus, supra note 4, at 2288, 2281, 2282.
16Id. at 2288.
17Dimock, supra note 4, at 85.
18Tartarus, supra note 4, at 2289.
19Id. at 2277.
20Id. at 2278.
21Id. at 2281.
22Id. at 2282, 2281, 2282.
23Id. at 2291, 2292.
24Id. at 2291, 2289.
25See Weyler, supra note 4, at 463. Robyn Wiegman calls attention to “the bachelors’ intellectual and moral bankruptcy,” Wiegman, supra note 4, at 736.
26Tartarus, supra note 4, at 2282-83.
27Rogin, supra note 4, at 201.
28Id. at 204.
29Herman Melville, Bartleby, the Scrivener, 1 The Norton Anthology of American Literature 2234 (4th ed. 1994).
30Id. at 2238.
31Id. at 2240.; For a brilliant, provocative discussion stressing Bartleby himself, identifying him with both the work and the implicit jurisprudence of his employer’s chancery business, see CORNELIA VISSMAN, FILES 29-38 (2008).
33Id. at 2250.
34Id. at 2253.
35Id. at 2254.
36Id. at 2256.
37People in Bartleby are often depicted enclosed -- in the office, in the carriage, in prison. It’s something akin to existing only within the four corners of the document.
38This paperly abstraction seems somehow of a piece (as it were) with the beautiful abstract patterns which show up in Bartleby in the descriptions of the office -- the black and white opposition -- and the prison -- the arrangement of brown and green.
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