The University of Texas at Austin

Law in Popular Culture collection

ALSA Forum
Volume 5, Number 3 (1981)
reprinted by permission Legal Studies Forum

LAW AT THE BAR OF LITERATURE:
SOME ASPECTS OF DOSTOYEVSKY AND BRECHT

SAUL TOUSTER
Legal Studies Program, Brandeis University

     What I should like to do, in the short compass of this essay,
is consider works by two writers--Dostoyevsky and Brecht--and
show how, in parallel ways, they teach us the limits of the law
and recover for us a vision of more important, higher values
which the modern law and its establishment secularism encroaches upon. I have
chosen these two writers since they represent both very different periods and very
different "higher values." In Dostoyevsky's last great work, The Brothers Karamazov,
the law is dwarfed by Religion, and justice by salvation. In Brecht's last great
work, The Caucasian Chalk Circle, he presents us with a vision of the law not
merely in tension with justice but as the very antithesis of it. For each of them,
in these works as in their lives, the 1aw is seen as a source of the corruption
of the human spirit--it is liberal, secular, bourgeois, adversarial, individualistic,
sentimental, rationalizing, and its truth is equivocal, committed to expediency
rather than to a more primary or absolute faith.
     In Dostoyevsky, the alternative faith is, of course, the religious one,
specifically a Christian one, leading to salvation. In Brecht it is hard to
characterize. Marxist? Partly but not essentially. No clear answer comes to mind
when we ask what it is that Brecht, that skeptical spirit, would have us put our
faith in--unless it were the people, the folk, the community left alone, the
rationality of the natural, in short, the qualities and aspects that Grusha, the
heroine of The Caucasian Chalk Circle represents. Still, in the face of the anarchic
energy of Azdak, Brecht's other hero, one must pause. It may be that Brecht's radical
spirit provides us with alternative models--Grusha's peasant virtues and Azdak's
Dionysian antics--against which the law pales. But whether from Right or Left,

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Dostoyevsky and Brecht each attack the presumptions of the middle-class order that
the law sustains, not by suggesting better laws or ways of reorganizing the legal
system, but by representing a wholly different way of looking at the world so that
the law is seen in its natural smallness.
     Let me illustrate Dostoyevsky's vision by a brief passage, a moment, at the
end of The Brothers Karamazov. Dmitri, you will recall, goes on trial for the mur-
der of his father. Although in fact innocent of the murder, compelling circum-
stantial. evidence and the evidence of his wayward life--violent and dissolute--
conspire to lead to his conviction after a trial which is, in the over-all, quite
reasonable and fair. Dostoyevsky does not satirize the legal system. He is too
great an artist to set up a straw-man. Indeed, in this final section of the book,
entitled "A Judicial Error," he presents a strong case for the law in order to
demonstrate that its tendency toward error resides not in those little ways in which
the system does not work--ways which might he reformed--but in the presumption
by which it tries to do the work of the spiritual realm. Of course, Dostoyevsky's
artistic gifts and psychological insight lead him to render the trial and those
participating in it with the same probing and biting vigor that he applies to all
he touches--even the Church and those pursuing a religious vocation. Thus he may
be ironic, or even satiric, in rendering the spectacle of a trial that has all
Russia agog. "All," he tells us, "were interested in the trial, and the majority
of men were certainly hoping for the conviction of the criminal, except perhaps
the lawyers, who were more interested in the legal, than in the moral, aspect of
the case."1 Some hundred pages later, after the great display of legal talent and
the majesty of the law, and just before the verdict, one of the audience is over-
heard saying, "What sharp lawyers there are nowadays. Is there any justice to be
had in Russia?"2  But, as I have said, despite this ironic framing, Dostoyevsky
places before us an honorable and rational system.
     Let me now turn to that brief passage I mentioned. Dmitri, the evidence over-
whelmingly against him, right down to a confessed threat to kill his father, is

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urged by his lawyer to plead insanity--and, of course, there is plenty of evidence
that Dmitri is "disturbed" or "crazy." Dmitri refuses, but despite this the lawyer
does introduce medical evidence and does argue a lack of criminal responsibility.
Dmitri's last words to the jury before they withdraw to their deliberations are
these:
I thank my lawyer... I cried listening to him; but it's not true that
I killed my father, and he should not have assumed it. And don't
believe the doctors. I am perfectly sane, only my heart is heavy.
If you spare me, if you let me go, I will pray for you. I will be a
better man. I give you my word before God I will! And if you con-
demn me, I'll break my sword over my head myself and kiss the pieces.
But spare me, do not rob me of my God! I know myself, I shall rebel!
My heart is heavy, gentlemen... spare me!3
     "Don't believe the doctors. I am perfectly sane, only my heart is heavy."
In this remark we can, I think, discover the key to Dostoyevsky's deeper intention
in using the trial. For Dmitri to enter a plea of insanity would, in the context
of his life, violate the humanity he had just achieved through struggle and love,
a humanity which was fragile at best and which is to be tried at the trial at
almost every stage, calling on him for love, forgiveness, understanding, faith,
and devotion to the truth. Having lived wildly and destructively--inhumanly--
for so long, but having just gained his humanity through a deeper honor and a cap-
acity for love, he could not lie to himself or others at this moment and plead
"insanity." For, it might be said, he feels for the first time in his life
really "sane," in touch with himself and the truth. To equivocate at this moment,
even though in the good cause of his own welfare, if not his life, would be to act
as he had acted before, return to the very vices that had led to his ruin. Was he
to lose the thread of this new life by denying the truth, even if only for now?
It is, he knows, always the "only-for-now" by which men continue to damn themselves.
To plead insanity would be to admit a crime he is innocent of and so would violate
his honor--not his old soldier's honor, which was a form of hubris, but his new
commitment to himself in truth. And the crime he would be admitting is parricide,
a crime which would cut him off from the humanity his recent transformation has,
for the first time, made him a living part of.

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      And then there is another, perhaps more important matter. Having wished and
planned his father's death, having openly threatened his murder and on one occasion
viciously assaulted him, what had stopped Dmitri when he stood over his father with
pestle raised on the night of the murder with everything inside of him crying out
for blood? Whatever it was that stayed his hand was obviously the most important
thing within him. To plead insanity and thereby admit the crime was to deny this
very thing he had come to recognize as holy. As he said:
Whether it was someone's tears, or my mother prayed to God, or a good
angel kissed me at that instant,' I don't know. But the devil was con-
quered. I rushed from the window and ran to the fence.4
Could a man who had survived such a dark night of the soul and faced down the devil
end by saying, "I'll pretend I did the murder and was mad"? Could a man who acted
out the Oedipal drama so completely and stopped himself short of the actual par-
ricide and so become human, could such a hero, who has lived it for the rest of us,
say in the end, "I'll cop a plea?"
     It might be argued, along Freudian lines, that Dmitri wanted to punish himself
for his wish to kill his father and so, even if he did not do the dark deed, he
put his life at stake for the deed itself. Very possibly--but it should not be
inferred thereby that Dmitri wanted to be punished for a crime he did not commit.
What he wanted--and this is the quality that, at the time of the trial, makes him
heroic--was to be punished for the crimes he did commit, and they were many and
serious. And to the extent that wishing a father's death is a crime--or a sin, if
you like--Dmitri was quite willing to accept punishment for that. What Dostoyevsky
is suggesting, I think, is that the punishment for the wish and the sinful life is
a wager against being falsely found guilty of the parricide itself. Dmitri may lose
the legal wager by what Dostoyevsky calls a "judicial error," but he is nonetheless
saved as a human being by the fact that he has freely made the wager in the first
place.
     Dostoyevsky's perception is not dependent upon the fact that Dmitri is not
guilty of the murder of his father, or is the victim of a "judicial error." At the

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center of the perception is the idea of truth and the way in which faith is wedded
to truth. Something of this may be seen in a stunning moment during the trial of
David Berkowitz, alias "Son of Sam," the .44 caliber killer who terrorized New
York a few years ago. In a scene of Dostoyevskian tones, the confessed murderer
of six, standing before three judges, against the advice of his lawyers, pleaded
guilty. Like Dmitri, Berkowitz seemed to have grasped, however tenuously, a
precious thread of truth and would not let it go. Witness his scrupulous answers
to the questions put to him by the judges who were testing whether he knew what
he was doing in making his plea. When asked about two shootings in which the
victims survived--"Did you intend to cause serious injury to them?--Berkowitz
replied, "0h, no, sir." "You didn't?" asked the judge. "No, sir, I wanted to
kill them." Dostoyevsky would understand this--that by holding to the fragile
thread of truth he had come to, and pleading guilty, Berkowitz carried the hope
of redeeming the life he had led and the life he still had to lead, even under a
twenty-five year sentence. Three times his lawyer reminded the court: "This plea
of his is of his own choosing." And who is to say that his choice was not pre-
ferable, a better beginning, than embarking on the factitious ground of the law
as an insane person accounted not responsible for his acts, nor even free to
choose? From this perspective the law is, indeed, dwarfed and the faith to make
the wager, whether described as religious and redemptive, or existential and
human, is, as Dostoyevsky teaches us, everything.
     There is a parallel moment to Dmitri's trial and the staking of a life for
truth's sake in The Caucasian Chalk Circle, and the latter work will serve as a
comparable prism to decompose Brecht's vision of law. If Dostoyevsky sees the law
as occupying a necessary realm in human affairs, although one that is lower than
the spiritual realm, Brecht goes farther and sees the law as an anti-realm. For
Brecht, the law's very existence serves to corrupt truth and assure the triumph
of injustice. The trial scene of The Caucasian Chalk Circle casts Grusha, the
peasant girl who has saved, nurtured and loved the infant heir of great estates,

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against the infant's aristocratic mother, the Governor's wife, who has abandoned
the child to save herself (and her dresses) during a time of revolutionary turmoil.
Grusha, who put her life at risk to save the child, is one kind of mother, a nur-
turing one; the Governor's wife, another kind, a biological one. Which is the true
mother? Which is the "natural" mother? Sitting in judgment is Azdak, the craven,
drunken, licentious village recorder who had been set upon the judge's bench by
drunken soldiers during the revolution as an act which might be comically read as
representing the independence of the judiciary. And Azdak performs true to form.
He is independent not only from the old regime but also from the new--and more. He
is independent of legal knowledge (he uses the statute books to sit on to suggest
his respect), independent of ethics (he openly takes bribes from all), and inde-
pendent of morals (he takes the sexy complainant in a rape case back to the stables
"to inspect the scene of the crime"). And despite this--or, as Brecht marvelously
demonstrates, because of this--Azdak does justice as judges learned in the law and
full of rectitude never do. As the Chorus reminds us at the end of the play, the
people remember "The period of Azdak's judging as a brief golden age, Almost an
age of justice." 5  But Grusha at the trial, faced with the apparent venality of
Azdak, is outraged, and just as she had risked her life to save the child, she now
risks her case. She overcomes her natural timidity and deference to authority and
speaks out for justice. She attacks Azdak in open court as "a drunken onion":
Aren't you ashamed of yourself when you see how I tremble before you?
You've made yourself their servant so no one will take their houses from
them--houses they had stolen! Since when have houses belonged to the
bedbugs? But you're on the watch, or they couldn't drag our men into
their wars! You bribetaker! I've no respect for you. No more than
for a thief or a bandit with a knife! You can do what you want. You
can take the child away from me, a hundred against one, but I will tell
you one thing: only extortioners should be chosen for a profession
like yours, and men who rape children! As punishment! Yes, let them
sit in judgement on their fellow creatures. It is worse than to hang
from the gallows.6
Azdak, the "good bad judge," holds her in contempt of court but underneath is
apparently delighted with both her audacity (sign of courage in saving the child)
and how she unmasks the facade of justice (sign that true mothering will be found
in nurturing love).

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      The thing to note about Grusha's speech that is most revolutionary is not
so much the reviling of judges as "extortioners ... men who rape children" but
how she would punish them. "Yes," she says, conjuring up, out of her deepest
sense of disgust at the unnatural, some adequate punishment, "Let them sit
in judgement on their fellow creatures. It is worse than to hang from the
gallows." This is not a reformulation of the Christian caution, "Judge not,
that ye not be judged," although it echoes with it. It is rather the full-blown
cry from some primitive knowledge that all law violates nature and that for one
human being to stand in judgement over another is the worst violation of all.
     Here, then, is Brecht's final view of law as a corrupt and corrupting realm,
antithetical to nature and justice. Indeed, nature and justice are merged in
the lesson Brecht would have us draw from the story of the Chalk Circle:
That what there is shall go to those who are good for it,
Children to the motherly, that they prosper,
Carts to good drivers, that they be driven well,
The valley to the waterers, that it yield fruit. 7
     If Dostoyevsky viewed law as a lower, if necessary, realm (with inherent
tendency toward "error"), functioning below the higher realm of Christian love--
and the faith, truth and justice such love creates--he still viewed that lower
realm as achieving some important social values. Brecht did not. Indeed, it is
here that Brecht's position can be seen to be distrustful, if not contemptuous,
of all "forms," all the rational modes by which we attempt to secure justice in
the world. For Brecht, in whom there is to be no trace of transcendent or redemp-
tive values, justice through legal means or due process is an illusion, the
hypocrisy of power. For Brecht, the results alone matter. The only means that
are good are those that bring good results--even if the means used are conven-
tionally viewed as bad. Throughout the play legal forms are rendered ridiculous,
to be used or abused in the interests of the ruling class (or the wily ends of
the anarchic Azdak); justice can be determined only be reference to the results.
The marvel of the Chalk Circle as a judicial mode is that it is, in reference to

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legal norms, basically irrational, like the trial by battle, and yet it works.
What modern judge could dare test for the true mother, as the Chinese Emperor,
Solomon-like did, by asking the competing mothers to try to pull the child from
the circle? If there is a method to such madness, it is the method of common sense
in the service of a good result--"children to the motherly, that they prosper."
It is also consistent with nature and avoids that most egregious violation of all--
people standing in judgment over others. As Brecht's epigraph quoting the Chinese
Chalk Circle suggests, it is not the judge's wisdom that renders the judgement a
good one but "the power of the Chalk Circle" itself. For Brecht, it is the result
alone that matters and no deference to legal forms, to due process of law, is
justified unless it can be used to get a particular result.
     Brecht's view of means and ends can be illuminated by turning to a rather
vivid story that came up during a seminar I ran for trial judges recently in which
Billy Budd and The Caucasian Chalk Circle were under discussion. In treating
Captain Vere's decision condemning Billy as related to the practical need--or,
rather, to his perception of a need--to forestall a mutinous spirit among the crew,
the point was made that though Vere may have been wrong, it "worked." There was
no mutiny. Most of the judges could not accept his view as morally justified; but
still, overcome by feelings of hopelessness about how ineffectual most criminal
sanctions were, they worried over what could, indeed, "work." One judge told the
following story. He was a young recruit during World War II and his barracks were
beset by a series of thefts of personal belongings. After several weeks, during
which the military police were (not unexpectedly) useless, several men came to the
captain and said, "We know who did it, who's been ripping us off." They did not,
however, have any evidence that could convict the culprit, so the captain said,
"Break his arm, but don't let me know about it." They did just that and the thefts
stopped. The judges were deeply troubled by this story and its compelling logic.
When asked if they might not, to stop a series of serious crimes, engage in some
such practical wisdom, they responded, fairly unanimously, No. Why? Was it more

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important to them to observe the forms of the law, the facade of justice, than to
get the needed result, use something that "worked"? Brecht, I think, would be
skeptical as he listened to the more or less persuasive arguments about justice-
in-the-long-run, the likelihood of miscarriage of justice, the dangers of kangaroo
courts, and so forth. Unimpressed, he would laugh and tell the judges they were
more concerned with themselves, with keeping themselves pure (so as to reinforce
the illusion of impartiality), than with the results--of stopping the crimes, the
victims of which are usually those who cannot take care of things themselves. It
is this fastidiousness of the law, this constant washing of hands, that Brecht
identifies as a kind of amour propre which prevents judges from doing justice.
Azdak can do justice because he breaks the rules:
And he broke the rules to save them.
Broken law like bread he gave them,
Brought them to shore upon his crooked back.
At long last the poor and the lowly
Had someone who was not too holy
To be bribed by empty hands: Azdak. 8
In this sense, while Brecht's Azdak might well advocate a "broken arm"
solution, Brecht's Grusha would protest. If Brecht the author dismisses all
forms as mere rationalizations, on behalf of a ruling class, Grusha is wiser. We
should remember that what offended Grusha and aroused her anger was Azdak's
bribe-taking, his apparent dishonoring of justice. (If he dishonors justice,
how will he honor mothering?) Just as Grusha understands how law violates nature,
she also reflects another kind of folk knowledge: that the absence of form and the
constraint of law leaves people (the poor, the peasants) at the personal mercy
of their rulers and judges.
     At the end of The Brothers Karamazov plans are being prepared to rescue
Dmitri on his way to Siberia and to spirit him to America. For Dostoyevsky, and
for Dmitri, there is no particular merit in complying with the erroneous judgement
of a secular court. Brecht, however, might have suborned the legal process earlier
by advising Dmitri to "cop a plea" of insanity--thus compromising both realms, the

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legal and the spiritual. And yet, if we take Grusha's wisdom as Brecht's, we
will recognize that Brecht shares a common vision with Dostoyevsky as they look at
the law. It is a vision which, as I suggested at the outset, tears down the moral
presumption of the law, although in different ways. What they have in common is
that vivid feeling for the deep wisdom of the common people, a wisdom that recog-
nizes that there are deeper violations of the human condition than those of legal rules,
violations suggested by the intonation any one of us might use in speaking the
phrase that titles one of Strindberg's plays--'There are Crimes and Crimes ...."

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ENDNOTES

1. Fedor Dostoyevsky, The Brothers Karamazov, trans. Constance Garnett 
(New York,  1971), p. 596.

2. Ibid., p. 682.

3. Ibid., p. 680.

4. Ibid., p. 432.

5. Bertolt Brecht, The Caucasian Chalk Circle, trans. Eric Bentley (New York,
1966), p. 128.

6. Ibid., p. 123.

7. Ibid., p. 128.

8. Ibid., p. 107.