The Legal Fictions of Herman Melville and Lemuel Shaw

Critical Inquiry 11 (1):24-51 (1984)
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I have three aims in this essay. I want to offer an example of an interdisciplinary historical inquiry combining literary criticism with the relatively new field of critical legal studies. I intend to use this historical inquiry to argue that the ambiguity of literary texts might better be understood in terms of an era’s social contradictions rather than in terms of the inherent qualities of literary language or rhetoric and, conversely, that a text’s ambiguity can help us expose the contradictions masked by an era’s dominant ideology. I try to prove my assertion by applying my method to Herman Melville’s three most famous short works—“Benito Cereno,” “Bartleby, the Scrivener,” and Bill Budd, Sailor—works dealing with the law and lawyers and widely acknowledged as ambiguous.1 I will base my critical inquiry into these stories on Melville’s relationship with his father-in-law, Lemuel Shaw, who, while sitting as the chief justice of the Supreme Judicial Court of Massachusetts from 1830 to 1860, wrote some of the most important opinions in what Roscoe Pound has called “the formative era of American law.”2Before I get started, I should clarify what this study does not entail. By using Shaw and his legal decisions in conjunction with Melville’s fiction, I am not conducting a positivistic influence study. My method will not depend on the positivist assumption that Shaw’s legal opinions can be used to illuminate Melville’s texts only when his direct knowledge of Shaw’s opinions can be proved. Nor will I limit myself to a traditional psychoanalytic reading: my emphasis is on political and social issues, and too often these issues are deflected by translating them into psychological ones. At the same time, I recognize that critics concerned with political and social issues too often neglect questions raised by a writer’s individual situation. I compare Shaw to Melville not to reduce Melville’s politics to psychology but to prevent a political study from neglecting the political implications of psychology, to remind us—as the title of Fredric Jameson’s book The Political Unconscious reminds us—that psychological questions always have political implications. 1. See Herman Melville, “Benito Cereno,” “Bartleby,” and Billy Budd, Sailor, “Billy Budd, Sailor” and Other Stories, ed. Harold Beaver ; all further references to these works will be included in the text.2. See Roscoe Pound, The Formative Era of American Law . For discussions of Melville and Lemuel Shaw, see Charles Roberts Anderson, Melville in the South Seas, Columbia University Studies in English and Comparative Literature, no. 138 , pp. 432-33; Charles H. Foster, “Something in Emblems: A Reinterpretation of Moby-Dick,” New England Quarterly 34 : 3-35; Robert L. Gale, “Bartleby—Melville’s Father-in-Law,” Annali sezione Germanica, Istituto Universitario Orientale di Napoli 5 : 57-72; Keith Huntress, “ ‘Guinea” of White-Jacket and Chief Justice Shaw,” American Literature 43 : 639-41; Carolyn L. Karcher, Shadow over the Promised Land: Slavery, Race and Violence in Melville’s America , pp. 9-11 and 40; John Stark, “Melville, Lemuel Shaw, and ‘Bartleby,’ “ in Bartleby, the Inscrutable: A Collection of Comentary on Herman Melville’s Tale “Bartleby the Scrivener,” ed. M. Thomas Inge , all further references to this work, abbreviated JA, will be included in the text. Brook Thomas teaches English and American literature at the University of Hawaii, Manoa. He is the author of James Joyce’s “Ulysses”: A Book of Many Happy Returns and is at work on a study of the relations between law and literature in antebellum America



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