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Laws 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
Laws 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. LawPsychological aspects. 2. InsanityJurisprudence.
I. Sarat, Austin. II. Douglas, Lawrence. III. Umphrey, Martha Merrill.
IV. Series.
k346 .l393 2003
340'.19dc21 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
sign of a kind of mental illness rooted in both the normal and patho-
logical features of adolescent development. Laws task was to know
and act on this inner madness: the madness of youth itself, and the
madness that comes from youths 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 defense
3
in favor of a psychological
4
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 courts 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-
80 Laws Madness
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 Kinkels 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.
Darrows closing argument is one of the most oft-cited pieces of
lawyers 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.
Madness, Youth, and Homicide 81
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
Leopolds release from
prison in the 1950s provided a postWorld 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 Leopolds case kidnapping and in Kinkels 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 Leopolds
sentence, he became eligible for parole within a few years under Illi-
noiss indeterminate sentencing system (although due to the notoriety
of his case he served more than 30 years). Kinkels 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
82 Laws Madness
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 Wrights 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 Chicagos 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, Marys 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 Darrows defense of Leopold and
Madness, Youth, and Homicide 83
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. Darrows 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 Maxs (and one supposes Wrights) own Marxist-Freudian
interpretation of Biggers life.
The most striking difference between the Leopold and Loeb case and
Bigger Thomass 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 societys 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 Thomass 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
84 Laws Madness
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 Roses 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
Loebs defense psy-experts traced their abnormalities to a wide array of
registers from heredity, to fantasies, to endocrine glands. Kip Kinkels
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
Madness, Youth, and Homicide 85
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 Leopolds 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 citys pioneering juvenile court. White was the superintendent of
St. Elizabeths 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-
86 Laws Madness
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
Madness, Youth, and Homicide 87
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 Leopolds 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
girls 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 reports 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 Leopolds 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 egowe 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 Loebs 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
88 Laws Madness
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 governesss 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
Madness, Youth, and Homicide 89
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
Olsons 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-
90 Laws Madness
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
Kinkels 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
Madness, Youth, and Homicide 91
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 Kinkels 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
92 Laws Madness
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 Kinkels 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 Kips statements confirmed that he was telling
the truth about voices and delusions. A final expert, pediatric neurolo-
gist Dr. Richard J. Konkol, testified that Kips 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 Kips extended family.
After eliciting descriptions of Kips 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 Ive already said ear-
lier. I think diagnosing adolescents is difficult. Adolescents symp-
toms change as they develop and get older. What Im clear about is
he has psychotic symptoms. Im clear that he has a mental illness. I
believe that most of his symptoms are consistent with schizophrenia,
paranoid type. Although I cant yet rule out schizoaffective disorder;
I think thats a real possibility. Schizoaffective disorder is a combi-
nation of schizophrenia with depression. . . .
I also cant rule out a bipolar type of affective disorder, because he
has a lot of manic symptoms as well. So its 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 Kinkels actions
were carefully planned and executed.
Madness, Youth, and Homicide 93
They talk about the paranoid type of schizophrenia. And whats a
distinguishing feature of the paranoidand I think this is very
importantis 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 theres 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 youre mixing apples and oranges. Theres 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 wasit 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. Ive read through a lot of different materials. And I cant
findin talking with him, I cant 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 Loebs 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, Kinkels 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.
94 Laws Madness
Q. How do you make us safe?
A. Ms. Tracy, I personally dont think there is any way of curing
this disorder. Theres 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 Ive 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 theyre 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: Were Seeking to Have You Understand
His Conduct
Both Darrow and Kip Kinkels 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 others existence.
1924: Clarence Darrow
Darrows 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.
Madness, Youth, and Homicide 95
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 shouldboys 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
96 Laws Madness
Darrows 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 prosecutions 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 Sabitts decision to take Kinkels case directly
before the judge invoked the progressive tradition of judges as seats of
Madness, Youth, and Homicide 97
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 Darrows.
Were not running a mental defense here. Were not seeking to have
you send him to the state hospital based on mental disease or defect.
Were 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. . . .
Theres 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 societys special obligation to
its children, isnt twenty-five years enough in the way of payback?
45
Moreover, we cant ignore the mental illness. We cant 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 its only one con-
sideration the court should have.
46
Interestingly, the only person to appeal to the future at Kip Kinkels
hearing was his sister. No member of Leopolds or Loebs families tes-
tified or presented written testimony to the judge. Reflecting the grow-
ing importance of nonexperts in producing justice, both Kinkels 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
98 Laws Madness
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 punishevil, deliberation, dangerare little different in
State Attorney Robert Crowes closing argument in the Leopold and
Loeb case and Assistant District Attorney Kent Mortimores 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: States 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 states power
to confine people based on psy-knowledge, Crowe responded aggres-
sively to Darrows guilty plea and attempt to present psy-knowledge in
the sentencing hearing.
Madness, Youth, and Homicide 99
The states attorneys reply to Darrows argument was bitter and sar-
casticit was all nonsense; either the defendants were sane or they
were insane; either they knew the difference between right and
wrong or they didnt; 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 lawyersDarrow 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 states 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 Frankss death. Frankss
father took the stand to provide the very last testimony in the hearing,
not directly to describe his familys loss, but only to offer formal proof
of the charge of kidnapping.
Crowe invoked animal images to describe the danger posed by the
100 Laws Madness
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.
Its puzzling that weve spent so much of the last several days deal-
ing with what really is the defendants mental defense to these
crimes. Its very disingenuous of him to come into court now and say
that he isnt 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 its likely that his lawyers understand better than the
experts that he hired that this defense would not have succeeded at
trial.
52
Notwithstanding the defenses 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
Madness, Youth, and Homicide 101
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. Lets 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 didnt 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. . . .
Thats the essence of Kip Kinkel. And hes 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 hes been incredibly good at manipulating people, par-
ticularly adults. He is so smart, hes close to brilliant in many
areas.
54
102 Laws Madness
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 were 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 whats wrong with him and we can carefully control his
environment and make sure hes taking his medication. . . . Our
community is not willing to take that risk. And our community
shouldnt 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 dont care if youre sick, if youre insane, if youre
crazy. I dont care. I think prison, a lifetime in prison is too good for
you. . . . I dont 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.
Madness, Youth, and Homicide 103
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 mightjust mightkeep 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 sons 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 sons 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 cant kiss it and make it better anymore,
because you killed her. And not just shot her once, but six times
maliciously. Daddy isnt able to bail you out of jail anymore. No one
can hug you and tell you everything will be okay, because it wont.
It wont ever be okay until Mike and Ben can walk and talk with
their families again, it wont be okay until my friends surgeries are
done and the scars have miraculously erased. It wont ever be okay
again until every memory, every fear, and every consequence
becomes non-existent. And that wont happen unless you can go
back in time.
I hope you spend the rest of your life in jail. You cant be cured.
104 Laws Madness
And if a medication was found to sedate you enough, I dont trust
you to take it. You dont deserve to be out of jail. You dont 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. Im tired of being scared. Im tired of letting you have that
much power over me. You shouldnt 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
Madness, Youth, and Homicide 105
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 Caverlys 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.
106 Laws Madness
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 Caverlys 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 Darrows
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.
Madness, Youth, and Homicide 107
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
ones 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
Kinkels 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 ones
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,
108 Laws Madness
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 Caverlys sentence of 111 years that we can understand it for
what it is. It is not the theory that the communitys 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,
Madness, Youth, and Homicide 109
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 prosecutions 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 laws 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 Foucaults 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 states 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.
110 Laws Madness
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), Kinkels 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 Kinkels 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 Roses Powers of Freedom (1999) suggests that we are in the
midst of a transformation in the nature and role of psy-knowledges. In
Madness, Youth, and Homicide 111
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 Kinkels 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
Kips 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 Kips 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 wasnt my contract. It was to address the specific pre-
senting problems the family brought in. . . .
112 Laws Madness
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 dont 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. Hickss
testimony we see contracts operating in two different ways. First, the
contract acts to limit the psy-experts 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. Wrights novel powerfully paints
the image of racial community manifesting itself in the light of Biggers
crime and the states 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
Madness, Youth, and Homicide 113
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.
Killim now!
Lynchim!
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 Mattisons 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
114 Laws Madness
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. Skakels 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
Madness, Youth, and Homicide 115
Chicago, May 21, 1924, Journal of Criminal Law and Criminology 15 (1924):
347508. Kip Kinkels 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 Kinkels
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), xxi.
12. Nikolas Rose, The Powers of Freedom: Reframing Political Thought (Cam-
bridge: Cambridge University Press, 1999), 8993.
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 Levins best-selling
novel Compulsion, made into a film by director Richard Fleischer in 1959 (Orson
Wells played Darrow). A decade earlier Alfred Hitchcocks 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, 36162.
21. Symposium, The Loeb-Leopold Murder, 363.
22. Symposium, The Loeb-Leopold Murder, 365.
116 Laws Madness
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.
Madness, Youth, and Homicide 117
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 judges
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.
118 Laws Madness
The Claims of the Dead:
History, Haunted Property, and
the Law
Cathy Caruth
Balzacs 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, Balzacs 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 Balzacs 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 Balzacs 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
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, Balzacs text seems to ask, for the dead to
speakand 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, Balzacs 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, Balzacs
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 lawyers
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 failurethrough
which the text stages the drama of the legal struggle to come alive
before the lawBalzac 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
120 Laws Madness
same time comes to recognize, and fails fully to comprehend, the legacy
of a traumatic history.
Haunted Property
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 lawyers office notes
the strange appearance of a figure that keeps returning to their door:
Look! Theres that old greatcoat again! . . .
Simonnin, stop playing stupid tricks on people. . . . No matter
how poor a client is, hes still a man, damn it! said the head clerk.
If hes a man, whyd you call him old greatcoat? asked Simonnin.
(12)
1
Appearing only as a ghostly greatcoat, the strangers 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. (24)
2
The lawyers 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:
Frances 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
The Claims of the Dead 121
1
events of 1789 and their consequences during the Napoleonic Empire.
But this moment was in fact, as the lawyers 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 Restorations 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 Balzacs 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.
Isnt that the colonel who died at Eylau? . . .
The same, Monsieur, answered the good man with old-fash-
ioned simplicity. (1011)
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.
122 Laws Madness
If we step back for a moment, we can see how Balzacs 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 Balzacs story inscribes this legal document in
the literary text not only in relation to the Charters use of law to return
aristocratic property, but also and more profoundly, I would suggest,
in the Charters 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 Franois Furets words, put forgetfulness under the laws 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
regimes basic legal principles, the king makes of forgetting itself a legal
function. Appearing against the background of this operation of the
Charter, Chaberts 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 Revolutions own legal legacy.
4
But such a claim is not made in the light of day. It is significant that
Chaberts 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 laws 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, Dervilles 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.
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
Napoleons army who was involved in the famous battle of Eylau and
who was instrumental in Murats chargean actual military event that
has been called the greatest charge of the Napoleonic wars.
5
To the
The Claims of the Dead 123
2
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 Murats 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, Chaberts official historical sta-
tus as a hero of the warsand in particular of its victories and con-
questsis 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 wara 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
couldnt 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 heardthough I cant
swear to itgroans 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. (2122)
124 Laws Madness
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 historians page. Likewise, the triumph he also
achieves in this horrible situationthe victory over death he will
accomplishis 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 Im 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 usI 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. (2223)
Chaberts 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 deathand a survivalfar more
disturbing and far less comprehensible than the deaths and victories
recorded in history. What comes back, thus, through the realism of
Balzacs description of Chaberts 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.
The Claims of the Dead 125
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 Chaberts story, Chabert insists that its import lies
somewhere else.
Monsieur, said the attorney, you are confusing me. I feel like
Ive 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 havent 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 clients
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 wont 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. . . . Ive been buried beneath the
dead, but now Im buried beneath the living; beneath certificates,
factsthe whole society would rather have me buried under-
ground! (2627)
If Derville is first moved by the story of Chaberts physical and mental
sufferingshis remarkable story of being buried alivewhat 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 Chaberts 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
126 Laws Madness
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.
Chaberts 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 colonels 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 Codethe 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 wars 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. Chaberts 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
The Claims of the Dead 127
3
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
From one perspective, the entire narrative of Balzacs novelthe legal
drama that grows out of the encounter between Chabert and Derville
can be understood as revealing the laws 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 propertyas a claim
that is always made in relation to anotherbecomes, in Dervilles 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 storyand the claim
into a recognizable legal and human framework. As it turns out,
Derville is also the lawyer for Chaberts (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 Chaberts 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.
128 Laws Madness
4
While Chaberts claim is a cry for retribution, Dervilles 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 Chaberts claim to survival
comes into direct confrontation with that of his wife. Upon hearing the
news of her husbands 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 Chaberts 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 Chaberts 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 wifes survival,
Mme. Ferraud is horrified that he cannot quite die, that his survival
means likewise a social death for her. Dervilles 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
The Claims of the Dead 129
so that she can avoid the consequences of a lawsuit that would expose
her bigamy to her husband. Chaberts identity as a living Colonel
Chabert (through the annulment of the death certificate) and of the
wifes 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 wifebetween the man who has
as yet no property and the woman who is at risk of losing hersthus
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 propertyin 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 anothers rights.
11
The legal remedy of compromise is also represented, in the story, as an
act of remembering. In effecting Chaberts legal rebirth through the
compromiseby associating and recognizing his life with a legal
formDerville could be said to reenact Chaberts 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 Balzacs 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
130 Laws Madness
5
(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-
tionthe end of the Napoleonic Empire represented by the moment of
Chaberts so-called deathand 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
Yet if, on the one hand, Dervilles 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 Chaberts story is
possessed by him. Mme. Ferrauds 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.
The Claims of the Dead 131
6
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.
Indeed, the story of the settlementwhich is the story of the capacity of
the law to recognize and remember history as the history of the legal
subjectultimately turns into the story of its failureof the reenact-
ment of another aspect of the laws 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
132 Laws Madness
7
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.
Its 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. (7374)
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 Codes legal forms.
This return of death in the wifes refusal also brings back the return
of Chaberts cry for vengeance:
Well, Colonel, [said Derville,] I was right, wasnt 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. (7475)
Rather than remembering (and correcting) the past of Chaberts life, the
law becomes the very site of the reenactment of his death, of the origi-
The Claims of the Dead 133
nal blow to his head that began the incomprehensible story of Chaberts
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 sufferedso 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 laws 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 Balibars 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 claimas a right rec-
ognizable through the very claim to propertythe 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
Chaberts identity but also the denial of the divorce, a legal collapse
134 Laws Madness
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
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 Dervilles
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 Chaberts refusal of his wifes offerand 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 laws
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
wifes corrupt lawyer, Delbecq. The scene is, in fact, a repetition of the
scene of failure in Dervilles office, but in a form that reverses its effects.
The Claims of the Dead 135
8
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. (8990)
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 pastthe Chabert that is no longer fully possiblebut
rather Hyacinthe, Chaberts given name, which emerges in the
promise never to reclaimthat is, to refrain from repeatedly and com-
pulsively returning to claimthe 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-
inass words, to retain a different kind of claim, the claim to judge his-
torythat 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 pasthe continues to speak of
Napoleon and addresses some passing Prussians with disdainbut 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 Chaberts only remaining property, are no longer a property
that could simply be possessed.
136 Laws Madness
It is thus in this peculiar way that Chabert lives on beyond his own
name that his survivaland the traumatic history to which he bears
witnessfirst becomes truly legible. No longer a man, as he says
that is, a subject defined entirely in the laws own termsChabert 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 Dervilles
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 theyve invented can compare to the truth. Youll 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. (100101)
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 laws 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
The Claims of the Dead 137
9
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. Honor de Balzac, Le Colonel Chabert, ed. Pierre Citron (Paris, 1961);
trans. Carol Cosman, under the title Colonel Chabert (New York, 1997), 12. 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, Prface de Pierre
Gascar, dition tablie et annot par Patrick Berthier, deuxime dition revue
(Paris: Gallimard, 1974), 718.
3. See Franois Furet, Revolutionary France, 17701880, 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 mis
jusqu la Restauration sont interdites. Le mme oubli est command aux tri-
bunaux et aux citoyens. See the French version provided in J. P. T. Bury,
France, 18141940 (New York, 1969), 3012. 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, conqutes, dsastres, revers et guerres
civiles des Franais de 1972 1815, par une socit de militaires et de gens de let-
tres, Tome dix-septime (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:
138 Laws Madness
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, 910)
On the profound effect of the outcome of the Battle of Eylau on Napoleon, see
Jean-Paul Kauffman, The Black Room at Longwood: Napoleons 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. Napoleons 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
Mmoire, ed. Pierre Nora, vol. 2, La Nation (Paris, 1986), 293315 and Civil
Code by Joseph Guy in Revolution, ed. Franois Furet and Mona Ozouf (Cam-
bridge: Belknap Press of Cambridge University Press, 1989). Napoleons 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), 16375.
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
The Claims of the Dead 139
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
Halprin, Histoire du droit priv franais depuis 1804 (Paris: Presses Universitaires
de France, 1996); see also Elisabeth Sledziewski, Rvolutions du sujet (Paris:
Mridien Klincksieck, 1989), and Xavier Martin, Nature humaine et Code
Napolon, Droits: Rvue Franaise de thorie juridique 2 (1985): 177228.
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
difficult de penser la proprit (17891793), in Proprit et Rvolution: Actes du
Colloque de Toulouse 1214 1989 ed. Genevieve Koubi, 2742. Genevieve Koubi
analyzes what she calls the ideological breach in the notion of property at the
heart of the Dclaration, 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 larticle 2 larticle 17 de la Dclaration de
1789; la brche dans le discours rvolutionnaire, in Proprit et Rvolution,
6584. Balzacs story indeed appears to center in part around the plurality of
notions of property contained in the legal use of the word. Chaberts 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 ones person and
the right to oneself and ones 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) 20525,
and Margaret Jane Radin, Property and Personhood, Stanford Law Review 34
(May 1982): 9571015.
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 Rvolutions 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, Limpossi-
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, Lide gnrale de proprit dans la philosophie du droit
140 Laws Madness
naturel et la contradiction entre libert politique et libert conomique
17891795, in La Rvolution et lordre juridique priv: rationalit ou scandale?
Actes du Colloque dOrlans 1113 september 1986, Tome I (Paris: Presses Uni-
versitaires de France, 1988) 16171, and Chantal Gaillard, La Rvolution de 1789
et la proprit: la proprit attaque et sacralise, Les travaux de latelier 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 Sledziewskis words, the Dclaration 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 (Rvolutions 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 mmoire see Pierre
Nora, Between Memory and History: Les Lieux de Mmoire, Representations 26
[spring 1989]: 725). 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 198586): 715, 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, 742.
15. Balzac uses the phrase abyss of the Revolution in reference to the
The Claims of the Dead 141
words of Louis XVI, in the course of describing Monsieur Ferrauds 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 Franois 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)
xiiixxii.
16. The restriction of womens rights in the Code, a regression from revolu-
tionary principles, is generally associated with Napoleons own views of
women. It is clear that Mme. Ferrauds manipulation of the inheritance and of
her husbands 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 Chaberts 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 Halprin, Histoire du droit priv franais 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 (Chaberts positive,
Mme. Ferrauds 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):
84656 and Eileen Sivert, Whos Who: Non-Characters in Le Colonel
Chabert, French Forum (May 1988): 21728.
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
lawyers 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, tooor 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, Balzacs 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 Codes 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
Codes implicit representation of its past. It might be appropriate, in this con-
text, to think of Hannah Arendts analysis of the rightlessthose 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
142 Laws Madness
realm of rightswhich 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-Franois Lyotard, The Others 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),
13547.
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. Chaberts repeated deaths in his attempt to come before the law, in par-
ticular the scene in Dervilles 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, Balzacs story could be said to anticipate
Freuds 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 Freuds 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 Balzacs novel, Chabert is compared to the women at the Salptrire; the
Salptrire 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
Chaberts 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), 10110.
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:
The Claims of the Dead 143
Trauma, Silence and Survival, in Cultural Values, special issue on Testimony,
ed. Jackie Stacey (fall 2000), 726, 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 7796.
24. Much of the difficulty with historical movement is played out, in the
novel, on the level of names. Thus Mme. Ferrauds 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;
Chaberts 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, 175247.
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 Chaberts 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, Chaberts act draws on the power
of the speech act constituted by the 1789 Dclaration. On the significance of such
an originary linguistic gesture see Jacques Derrida, Declarations of Indepen-
dence and Thomas Keenan, Fables of Responsibility. Christine Faur also dis-
cusses the centrality of the performative utterance to the Dclaration in her pref-
ace to her edition of Les dclarations des droits de lhomme de 1789 (Paris: ditions
Payot, 1988). Claude Lefort, in Democracy and Political Theory, notes the
enigma that the Dclaration 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. San
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 Chaberts face recalls the earliest scenes of surprisein Balzacs
text, the description of Chaberts face in the first encounter with Derville
involves an extended and lengthy developmentbut with the difference that
144 Laws Madness
Chaberts face is now described as noble, rather than ghastly and ghostly. The
emphasis on Chaberts 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 Balzacs writing see Walter
Benjamin, The Arcades Project, trans. Howard Eiland and Kevin McLaughlin
(Cambridge and London: Belknap Press of Harvard University Press, 1999).
Balzacs inscription of an allusion to the novelist in Dervilles 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.
The Claims of the Dead 145
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
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 Derridas 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 LaCapras subtle and thoughtful commen-
tary on this issue,
3
which evidences his concern that Derridas essay
mayin our obviously violent worldsuccumb 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 LaCapras 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 posturenot only before established legal norms, but also in
the face of the very idea of legal norms, rights, and idealsthat trou-
148 Laws Madness
bles LaCapra. Undoubtedly, Derridas engagement with Walter Ben-
jamins 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 deconstruction
6
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 Derridas 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 Derridas unique engage-
ment with Benjamins text.
Walter Benjamins text has oftenand to my mind mistakenlybeen
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 Gods judgment, there would be no critique of vio-
lence. Of course, there is one interpretation already suggested and pre-
sented by LaCapra that Benjaminand then Derridadoes 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 Benjamins text, to
which Derrida returns us again and again, and which structures the
unfolding of Benjamins own text. To quote Benjamin:
Rethinking Legal Ideals after Deconstruction 149
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
Benjamins 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 Derridas 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 systems process of the self-legitimation of authority as myth,
leaves usthe us here being specifically those who enact and enforce
the lawwith 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 Derridas 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
150 Laws Madness
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 itand so prior to iton 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 righta conclusion explicitly rejected at one point in Derridas
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-
Rethinking Legal Ideals after Deconstruction 151
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 Fishs 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.
Fishs glee is in showing the impotenceand I am using that word
deliberatelyof 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
152 Laws Madness
on the first step. The philosopher desperately tries to check the law
but to no availby 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 judges own values are involved. In this case
Rethinking Legal Ideals after Deconstruction 153
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 Whites 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 Circuits
26
holding that the Georgia statute
violated the respondents 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 Griswold
28
through Roe
29
and
Carey
30
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 Whites 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-
154 Laws Madness
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
casesas being about family, marriage, or procreationcould be
used against him. Can Whites 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 Whites 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 Nations 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
Rethinking Legal Ideals after Deconstruction 155
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 interpretation
36
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
LaCapras concern that Derrida yields to the temptation of violence:
For beyond Benjamins 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
156 Laws Madness
name it) a diffrantielle 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 Whites
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 Constitutions text involves much more
than the imposition of the Justices 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 Nations
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 Holmess remark and Justice Blackmuns
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
Rethinking Legal Ideals after Deconstruction 157
also allows for evolution. But evolution is the only possibility when jus-
tification is identified as the functioning of the system itself. Law, for
Fishin spite of his remarks to the contraryis 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 wordsor in more technical lan-
guage, the readability of the textthat Derrida challenges in the name
of justice. We are now returned to LaCapras concern about the poten-
tially dangerous equalizing force in Derridas own argument. LaCapra
reinterprets what he reads as one of Derridas riskier statements. Let
me first quote Derridas statement: Since the origin of authority, the
foundation or ground, the position of law cant by definition rest on
anything but themselves, they are themselves a violence without
ground.
43
LaCapra reformulates Derridas 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 cant by
definition rest on anything but themselves, the question of their ulti-
mate foundation or ground is literally pointless.
44
My disagreement with LaCapras 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
Benjamins 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
158 Laws Madness
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 Whites
opinion reststhat the law is, and therefore it is justified to be, because
it isis 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. LaCapras reformulation may be riskier than Derridas 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 Whites 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 Derridas 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
Rethinking Legal Ideals after Deconstruction 159
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 respondents 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
160 Laws Madness
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 Whites 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
Rethinking Legal Ideals after Deconstruction 161
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--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 Whites majority opinion
with Justice Blackmuns dissent.
55
Thus, we can respond to LaCapras
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-
162 Laws Madness
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
Whites 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 laws disappearance of the violence of its con-
serving power through an appeal to the reality that it has shaped.
Again, think of Justice Whites opinion and the tautology on which it is
based. Gay men have no rights, because they have no rights. What is
erased in Justice Whites 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 itcynical because it denies the responsibility that inheres
in lawyers and judges perpetuating what concept of right is acceptable
Rethinking Legal Ideals after Deconstruction 163
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 Blackmuns
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 Derridas 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 personand 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 idealfor example, an ideal that seeks to figure sexual
freedom for a Western legal system, such as I hope to do with the imag-
inary domain
58
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
164 Laws Madness
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 Justice
59
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 voil, 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 Rawlss 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. 56 (1990).
3. Dominick LaCapra, Violence, Justice, and the Force of Law, Cardozo
Law Review 11, nos. 56 (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.
Rethinking Legal Ideals after Deconstruction 165
5. Benjamin, The Critique of Violence, 28183.
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, 27779; Derrida, Force of Law,
98385, 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 Derridas 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, 32831.
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 laws 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
166 Laws Madness
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 19294.
26. Hardwick v. Bowers, 760 F.2d 1202 (1985), revd 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 19091.
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.
Rethinking Legal Ideals after Deconstruction 167
34. Bowers v. Hardwick, 478 U.S. 186 (1986) at 19294 (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,
9395.
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 Goldbergs 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, 107778.
47. Derrida, Force of Law, 971.
48. Derrida, Force of Law, 94345.
49. See Hardwick and Bowers, 760 F.2d 1202 (1985) at 121113.
50. See Derrida, Force of Law, 96163.
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).
168 Laws Madness
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
171
Abortion, 164. See also Roe v. Wade
Aldredge, Jennifer, 104
Amsterdam, Anthony, 3940
Anderson decision, 64, 66
Andrews, William, 3536
Anxiety disorders, 93
Arendt, Hannah, 142n. 20
Aristocracy, 122, 129
Aristotle, 3
Arnold, Thurman, 58
Austin, John, 24n. 25
Authority, origins of, 15859
Balibar, Etienne, 134, 141n. 12
Balzac, Honor de, 18, 119, 13031,
137
Bandes, Susan, 3
Bazelon, David, 55, 59, 71
Benjamin, Walter, 14950, 156
Beyond the Pleasure Principle (Freud),
143nn. 21, 23
Bill of Rights, 155, 16061
Billy Budd, Sailor and Other Stories
(Melville), 610, 24n. 23, 25n. 32
Biology, language of, 91, 112
Bipolar disorders, 93
Blackmun, William, 157, 162, 164
Blackstone, William, 97
Body politic, 46
Bolstad, Orin, 93, 95, 109
Bonard, Dick, 102
Booth v. Maryland, 48n. 12
Boston Psychopathic Hospital, 49
Bowers v. Hardwick, 20, 149, 15253,
15859
Brooks, Peter, 1215, 2948
Bruner, Jerome, 40
Burton, Harold, 4142
Busch, Francis X., 100
Campos, Paul, 12
Canguilhem, Georges, 87
Capitalism, 148
Capital punishment, 4041, 82
Carbonnier, Jean, 141n. 14
Cardozo, Benjamin, 3336
Caruth, Cathy, 10, 1719, 11946
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, 1057, 109
Charter of 1814, 12123
Chekov, Anton, 44
Childhood, issue of, 102
Citizenry, as community, 11315
Civil Code, 18, 12223, 127, 13132,
134
Civilization, idea of, 16, 17
Civilization and Its Discontents
(Freud), 11
Civil War, 6, 10
Cole, Harry, 3839
Colonel Chabert (Balzac), 18, 11937
Community, citizenry as, 11315
Compassion, 9, 66
Compromise, legal remedy of, 130,
134
Confessions, 33
Conviction, 44, 46
Cornell, Drucilla, 1721, 14768
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, 99105
Crowe Crime Commission, 99
Crucifixion, fantasies of, 88
Cultural Study of Law, The (Kahn), 29
Cynical realism, 16364
Dailey, Anne, 11
Darrow, Clarence, 16, 8184, 95100,
102, 115
Dead, claims of the, 11946
Death: penalty, 4041, 82; reenact-
ment of, 134
Declaration of the Rights of Man and
Citizen, 122, 130
Deconstruction, 1921, 14748
Democracy, 147
Denial, 37
Depression, 91, 93
Derrida, Jacques, 1920, 149, 150; on
authority, 158; Cornell on, 14851,
15660, 16263; on exacting justice,
163; and Fish, 15960; on performa-
tive language, 160
Dershowitz, Alan, 44
Desire, 3, 11, 45, 114, 127
Determinism, 8691
Deviancy, defining, 11113
Dickens, Charles, 45
Discipline, 110
Douglas, Lawrence, 127
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
Ego, 72
Eighth Amendment, 40, 42
Eisenstadt v. Baird, 167n. 32
English Mutiny Act (Mutiny Act),
79
Epistemology, 51, 53
Equality, 147, 148, 164
Eroticism, 6364, 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, 15253, 15760,
163, 166nn. 22, 24
Fitzpatrick, Peter, 23n. 22
Formalism, 24n. 26, 29
Forrester, John, 53
Foucault, Michel, 8485, 110
Founding fathers, 153
Fourteenth Amendment, 154, 155,
157, 160, 167n. 27
France, 1719, 11924, 130, 147
Francis, Willie, 40
Francis v. Resweber, 13, 4043
Frank, Jerome, 10, 25n. 43, 7172
Frankfurter, Felix, 41
Franks, Bobby, 81, 89, 100
Freedom, 19, 13538, 14748,
164
French Charter of 1814, 18
French Revolution, 1819, 11924,
130, 147
Freud, Sigmund, 10, 63, 72, 84;
Brooks on, 33, 37; Caruth on,
143nn. 21, 23; and Frank, 1011; on
negation, 33
Fugitive Slave Acts, 10
Furet, Franois, 123
172 Index
Gemeinschaft, 17
Genealogies, 147, 164
George III (king), 56
Gerwitz, Paul, 4
Giles et al. v. Maryland, 69
Glueck, Bernard, 86
God, 149
Goldberg, Rube, 35
Goodrich, Peter, 11
Great Depression, 84
Griswold v. Connecticut, 154, 167n. 32
Grotjahn, Martin, 67, 68
Guilty pleas, 9599
Hale, Lord, 60
Healy, Mary, 63
Healy, William, 63, 86
Heredity, 90
Hermeneutics, 112, 152, 158
Hermeticism, of law, 4647
Heroism, 120, 124, 135
Hicks, Jeffrey, 92
History, 1718, 11946
Holloway v. United States, 52
Holmes, Oliver Wendell, 157, 161
Holocaust, 110, 120
Homicide, 79118; and determinism,
8691; and judges, 10510; and the
Kip Kinkel case, 1617, 80103,
10810, 111, 115; and the
Leopold-Loeb case, 1617, 8190,
94100, 102, 107, 112; and
psy-knowledge, 8595
Homosexuality, 20, 15457, 16163
Honore, Tony, 57
Hudspeth, Eunice, 62
Humanity, paradigms of, 147
Hundred Days, 119
Hysteria, 54
Id, 11
Ideals, 14748
Ignorance, veil of, 165
Imperialism, 148
Incest, 66
Innocence, 7
Insanity, and sanity, distinction
between, 52, 58. See also Insanity
defense; Madness
Insanity defense: Douglas, Sarat, and
Umphrey on, 24; and homicide,
1617, 79118; and the legal defini-
tion of insanity, 96, 99100; and
nymphomania, 52, 5455
Insurance, principles of, 151
Iser, Wolfgang, 38
Jackson, Howell Edmunds, 30
Jenkins v. State, 62
Johnny Lynn Old Chief v. United States
(Old Chief ), 13, 2933, 46
Judge Baker Foundation, 86
Judicial activism, 156
Jung, C. G., 72
Jurismania: The Madness of American
Law (Campos), 12
Jurisprudence, 8586
Justice: Caruth on, 1718; Cornell on,
150, 153, 161, 16365; Derrida on,
1920; Douglas, Sarat, and
Umphrey on, 9; proceduralist con-
ception of, 165; progressive stan-
dard of, 84; Simon on, 84, 91
Juvenile court, 79118
Juvenile Psychopathic Institute in
Chicago, 86
Kahn, Paul W., 29
Kant, Immanuel, 45
Kantorowicz, Ernst, 45
Kearns, Thomas, 4041
Kidnapping, 81, 100
King/slave fantasies, 88
Kip Kinkel case, 1617, 80103,
10810, 111, 114
Knowledge, 40. See also Psy-knowl-
edge
Konkol, Richard J., 93
LaCapra, Dominick, 20, 14851,
15659, 162
Laplanche, Jean, 33
Index 173
Laudo v. Laudo, 72
Law and the Modern Mind (Frank),
1011
Leerstellen, 38
Legal cases: Booth v. Maryland, 48n.
12; Bowers v. Hardwick, 20, 149,
15253, 15859; 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, 4043; 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, 2933, 46; Laudo v. Laudo,
72; Michaelson v. United States, 30;
Palsgraf v. Long Island Railroad Com-
pany, 13, 3334; Payne v. Tennessee,
48n. 12; People v. Bastian, 72; People
v. Cowles, 6263; People v. Dawsey,
70; Planned Parenthood v. Casey,
4546; Roe v. Wade, 154, 164, 167n.
32; Rusk v. State, 13, 3739; Skinner
v. Oklahoma, 167n. 32; State v. Rusk,
13, 3739; Washington v. United
States, 52, 55, 59
Legendre, Pierre, 11
Leopold, Nathan, 81. See also
Leopold-Loeb case
Leopold-Loeb case, 1617, 8190,
94100, 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, 6869, 156
Lunbeck, Elizabeth, 3, 1415, 4977
Madness: Douglas, Sarat, and
Umphrey on, 121; Foucault on,
110; and homicide, 79118; and law
as a psychic system, 1021; and the
moral-formal dilemma, 4, 610;
and nymphomania, 4977; vari-
eties of, 24. See also Insanity
defense
Madness of King George (film), 56
Marxism, 84
Mattison, Jack, 17, 1089, 114
Medieval legal doctrine, 5
Melville, Herman, 610, 17
Memory, haunted, 11946
Menninger, Karl, 63
Mental Health Act, 57
Michaelson v. United States, 30
Minding the Law (Amsterdam and
Bruner), 3940
Miranda warnings, 33
MNaghten rule, 2, 22n. 6, 58, 73n. 17
Model Penal Code, 2, 22n. 6
Moral-formal dilemma, 4, 610. See
also Morality
Morality: Cornell on, 147; Derrida on,
20; Douglas, Sarat, and Umphrey
on, 4, 610; Lunbeck on, 57, 5960;
Simon on, 112
Mortimore, Kent, 99, 1013
Municipal Court of Chicago, 90, 99
Murder. See Homicide
Mutiny Act (English Mutiny Act),
79
Naffziger, Joyce, 93
Napoleon Bonaparte, 18, 119, 12124,
127, 131
Napoleonic Wars, 18, 12124. See also
Napoleon Bonaparte
Narrative: Brooks on, 1214, 3132,
3436, 3940, 4346; integrity, 30,
35; and nymphomania, 4977;
Simon on, 8889
Narratology, 31, 4345
Native Son (Wright), 83
Nazis, 113
Negation, 33
Negligence, 35
Nietzsche, Friedrich, 147, 164
Ninth Amendment, 154, 16062
174 Index
Noonan, John, 34
Normality, concept of, 15, 87, 88, 106
Nymphomania, 4977; and the case
of Marion Taylor, 4954; in court,
7072; and Durham v. United States,
52, 55, 59, 71; and evidence, 63; and
Freud, 63, 72; and morality, 57,
5960; and mythomania, 6170;
stereotypes of, 6061; and Washing-
ton v. United States, 52, 55, 59
OConnor, Sandra Day, 30
Oedipal conflict, 65
Old Chief case (Johnny Lynn Old Chief
v. United States), 13, 2933, 46
Olson, Harry, 9091, 99
Ostranenie (making strange), 29
Oswald, Lee Harvey, 118n. 61
Overholser, Winfred, 60
Palsgraf, Helen, 34, 3637, 44
Palsgraf v. Long Island Railroad Com-
pany, 13, 3334
Paranoid schizophrenia, 94. See also
Schizophrenia
Payne v. Tennessee, 48n. 12
People v. Bastian, 72
People v. Cowles, 6263
People v. Dawsey, 70
Personality disorders, 5461. See also
Nymphomania
Pharmacology, 11213
Planned Parenthood v. Casey, 4546
Political Liberalism (Rawls), 165
Pontalis, J. B., 33
Positivism, 7, 8, 149, 15152
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, 1045,
111
Privacy rights, 15455
Property: definition of, 139n. 10;
haunted, 11946; man without, fig-
ure of, 121
Prosser, William L., 48n. 7
Prozac, 92, 112
Psychiatry, 1415, 4977. See also Psy-
choanalysis
Psychic system, law as a, 1021
Psychoanalysis, 1012. See also Psy-
chiatry
Psychological sentencing hearings,
8081
Psychopathic Hospital, 50, 51
Psychopathic personality, 7172
Psychopathology, 51, 5561, 7172
Psychosis, 58
Psy-knowledge, 1617, 8595, 98, 99,
101, 11113
Punishment, 98. See also Capital pun-
ishment
Race, 83, 114, 115
Rape, 3739, 153; law reform, 60; and
nymphomania, 15, 5254, 6062,
6465, 6970; trauma syndrome,
15, 54, 70
Rationality, 3. See also Reason
Rawls, John, 165
Readability, of the Constitution, 155,
158
Realism, 125, 16364
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, 5253
Responsibility, 5859, 15051
Restoration, 1819, 119, 122, 129,
13132, 135
Retribution, 16, 98, 12728, 129
Revenge, 98, 12728
Rights, notion of, 127, 162
Riviere, Pierre, 99, 116n. 11
Roe v. Wade, 154, 164, 167n. 32
Index 175
Rose, Nikolas, 85, 111
Rule of law, 12
Rusk, Edward Salvatore, 3738
Rusk v. State, 13, 3739
Ryker, Jacob, 103
Sabitt, Mark, 16, 95, 9798
Sack, William, 93
Sadism, 65
Sanity, and insanity, distinction
between, 52, 58
Sarat, Austin, 127, 29, 4041
Sartre, Jean-Paul, 44
Schizophrenia, 58, 93, 94
Schlag, Pierre, 12
Sentencing hearings, 8081
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, 1617, 79118
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, 3033, 35,
39, 4546; and the Old Chief case,
13, 3033, 46; and Planned Parent-
hood v. Casey, 4546
Southard, E. E., 50, 51, 5354, 72
Sovereignty, embodied, 46
Soviet Union, 29
Stalinism, 29
State v. Rusk, 13, 3739
Storytelling, 32, 4344, 46. See also
Narrative
Structural linguistics, 43
Sui generis, 57
Superego, 11
Survivors, 110, 134
Syllogism, 3132, 46
Taking Rights Seriously (Dworkin),
164
Tautology, 159
Taylor, Marion, 4954
Theory of Justice, A (Rawls), 165
Thompson, Charles, 38, 39
Transcendence, of the law, 15051
Trauma, 12527
Truth: Brooks on, 37, 39, 40; Caruth
on, 134; Lunbeck on, 52, 53, 54, 70,
71; Simon on, 112
Umphrey, Martha Merrill, 127
Vengeance, 17, 11315
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, 15354, 15657, 159,
16163
White, William Alan, 86
Wigmore, John Henry, 6364, 65
Witnesses, 13135
World War II, 67, 82
Wright, Richard, 83, 115
176 Index