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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 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, 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 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"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. 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 goodCould 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 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, 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?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). 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,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 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 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.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 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 ...." (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. |
