“Argue all we like about textual determinacy or indeterminacy, the social function of the law demands that it render judgements, inevitably errant or not” (50).
That there is an “untold story of the law […] implies that there is, after all, an official story to the law […] that excludes other possible stories” (50-51).
“the persuasiveness of a decision depends upon an implied narrative that makes its reasoning seem logical” (51). That is to say, “cultural narratives […] grant the law its authority” (51).
“the really difficult story to tell about the law, the one most likely to be untold, is the one that defines the legal system” (51).
I.
In Billy Budd, the “formal demands of the legal system inevitably exclude some important aspect of human existence” (51).
“Billy Budd dramatizes the limitations of posing question of justice the way we do […] that the space bounded by its symmetrical conflicts is not the only space in which questions of justice can be posed” (52).
We cannot “uncritically accept the [legal] framework [Billy Budd] offers” (55).
Looking historically at Billy Budd, “Do we focus on its moment of representation […] or on its moment of production” (55).
“the transformation of a synchronic conflict into a diachronic narrative does not withstand close scrutiny” (11).
II.
“The middle class appealed to rule by law to protect its individual rights and property against the arbitrary power of the King” (58).
But, “By the late eighteenth century, the setting for Billy Budd, […] rule by law and the King are aligned in a struggle against those who would violate established manmade law in the name of the natural rights of man” (58).
By this point, “the King’s power had been subordinated to rule by law” and so “an appeal to artificial manmade laws no longer signalled a progressive defines against the monarchy, but a conservative defines against the appeal of the French revolution” (58).
“Vere does not subscribe to natural rights doctrine”; he “believes that rights emerge only after freedom has been defined through an individual’s entrance into an ordered society” (59). That is to say, Vere is a Burkean.
“Natural rights advocates side with the individual. Vere sides with manmade law” because “individual rights can be protected from arbitrary violations by the state only through maintaining rule by law” (59).
Vere decision is so uncomfortable because Americans see “the value of having a system ruled by laws not men” but also “the authority of nature to combat a system of laws that threatens the rights of individuals” (59).
But: “the very terms of the debate are determined by a shared narrative about how individuals relate to society” and “engaging in [such] an unresolvable debate about the origin of individual rights limits our consideration of social justice” (60).
III.
This narrative “is that of the social contract […] a pre social state of nature inhabited by autonomous individuals who then join together in a contractual agreement to form society” (60).
Justice is complicated by social contract theory, however, because 1) “the very way in which individuals are said to relate to society makes a potential conflict between the natural individual and society inevitable” and 2) there is “an irreconcilable conflict over the origin of natural rights”: do they exist “prior to” or “after” the social contract? and 3) social contract theory conflates “individual rights” with “natural rights” since “nature is inhabited by individuals” and therefore “an individual is the only entity capable of being endowed with natural rights” (60).
Antigone suggests an alternative: “natural law” is not “an appeal for individual rights.” Thought “Antigone defies manmade law” she does so “not in the name of individual freedom, but in the name of the social group—the family.” Antigone “still has a concept of nature and natural law [but] the natural state for her is […] not prior to society, but already social, inhabited by social groups, like the family. It is these natural groups, not individuals, who have natural rights” (61).
“our modern version of the conflict between the individual and society would be unthinkable without the rise of the Greek concept of a society comprised of individuals equal in the eyes of the state, a concept of society compatible with the social contract model” (61).
In Roman law there were “two distinct types of group associations”: the “societies was a form of partnership” and the “universitas corresponds to a corporation . . . a group that has an identity of its own more than the sum of its individual members.” “As a result, our models of “human society” and “civil society” were established from the model of the partnership [societas]—a group of contracting individuals” (62).
IV.
“natural rights are themselves a social construction” (63).
“Rights do not originate in a pre social state of nature, nor do they derive from the authority of the state. Indeed, they are inherent in membership in social groups, which are themselves a natural mode of human existence” (66).
“a legal system that does not recognize the reality of intermediary social groups between the individual and society-at-large is extremely limited” (67).
“the challenge that Billy Budd poses to its critics concerned about justice is not to stay confined within the framework of the story that Melville presents but to follow its ragged edges in search of a narrative that neither Melville nor his culture could yet articulate” (68).