While I was completing my undergraduate thesis on Herman Melville’s posthumously published novella, Billy Budd, Sailor, a certain memory, lodged deep within my mind, constantly perturbed my thinking.
It was summer and I was eleven years old. My brother and I were playing on the street with the other neighbourhood kids, and the group of us decided to have a water balloon fight. As it tends to happen with such expressly conflictual games, one boy, a year or two younger than I, felt he had been unfairly struck with a balloon (or perhaps he simply did not appreciate being at the receiving end of the carnage he had himself been dealing). The offender was a little girl, younger than the both of us. This boy, before anyone noticed, took a handful of gravel, ran after the girl, and threw it at her. She came to the rest of us who were on her team, in tears. She told us what had happened. I was furious, utterly consumed by the injustice of it, the flagrant violation of the terms of the game. I knew in some instinctual, primal way, that the boy had to be punished.
I saw him lurking, guiltily, observing the damage he had done. I took a balloon. I made eye contact with him. I shouted at him and gave chase. I was older, bigger, faster. I caught him by the shoulder, stopped him, told him to run. I gave him three seconds, took aim, and then let loose with all the strength and anger I could muster. The balloon made contact with his back between his shoulder blades. The boy yelped and fell to the ground. I left him there, hurting and petrified. We all returned to our houses. The game was over.
I am not proud of this story. As I have aged I have often thought back on that summer day and considered my actions. The memory makes me uneasy, sometimes even nauseous. I know the boy was in the wrong, but I feel no better about my response.
So, in writing my thesis, Melville’s narrative of justice gone wrong resonated powerfully with that persistent childhood memory. Billy Budd, a naïve young sailor, is impressed into the navy, only to be wrongly accused of mutiny and ultimately be executed for the accidental killing of his accuser, a superior officer. In both cases, in Billy Budd and the water balloon fight incident, though the details differ greatly, the essential issue remains the same. There is a gap between rightness and justice, between the particularity of the case and the universality of the ideal, a gap with which I am still reckoning.
We see this gap continuously represented and reiterated in the media—the steady stream of police killings in the USA; the wrongful accusations that drive the first series of the podcast Serial and the Netflix Original show Making a Murderer; and the retributive, violent justice of Marvel’s Daredevil (especially its second season). In each, something about the justice with which we are presented provokes discomfort. In each, the rightness of the verdict is but an aside to the necessity of vengeance. We hear, over and over again, that someone must pay.
In the work of literary critic and philosopher René Girard, the necessity and demand of payment is mediated by the “scapegoat mechanism.” Throughout history and literature, Girard draws our attention to the singling out of the “scapegoat” who is made to pay for the “evils” of society. Such justice, Girard demonstrates, is nothing but a myth that authorizes the bloodshed of vengeance. Justice is not about justice at all, but about social cohesion, about order, about the expulsion of difference and otherness.
But the greatest innovation of Girard’s thought is in recognizing the essential sameness that undergirds the scapegoat mechanism. This sameness produces “mimetic desire,” a desire that draws us to the other, and that, left unchecked, causes us to desire to possess and rule over the other. The scapegoat mechanism allows us to sever the connection of sameness, to render the other entirely different, a threat, an enemy, and so make it possible for us to dispossess and subjugate him without qualm and even, should he resist, to kill him. The scapegoat mechanism permits us to take what we want and, in the process, justify ourselves by reframing the mechanism in terms of just payment.
Billy Budd was made to pay. The boy on the street all those years ago was made to pay. The scapegoat mechanism does not care if it is right that these specific persons pay, or how they are made to do so, only that the payment occurs. And we all implicitly acquiesce, so long as we are paid more than we must pay. But I cannot accept these terms. I cannot embrace such justice as right.
Fortunately, this is not the only path before us. In the seminal essay of the late legal theorist Robert Cover, “Nomos and Narrative,” we read of the “radical dichotomy between the social organization of law as power and the organization of law as meaning.” Law as power is law as we know it, law that creates scapegoats and demands payment. Law as meaning, on the contrary, is a quite different matter. There is always a “multiplicity of meaning” that threatens the fixed positions of power, a multiplicity which is the rather obvious product of the multiplicity of selves that constitutes any social organization, whether a club, a company, or a nation. What is more, Cover argues that the presence of the other is an “objective reality” that must be acknowledged and accounted for by any and all social organizations. It is the multiplicity of meanings and others that necessitates law in the first place. Indeed, from this perspective, law is a given. The practice of it, though, is not.
Cover presents us with a choice. We can continue to seek power, order, fixity. Or we can embrace an alternative, affective ground of the law, a predication of it on “attachment” through the desire for that which is the same in the different, and the different in the same. With this second of Cover’s choices, multiplicity is preserved, and possession and power are exchanged for interaction and relation. The dialectic of sameness and difference is allowed to continue, to move, to flourish. Such a law is not concerned with justice and payment, but with transformation. Vengeance accomplishes nothing but the assurance of future bloodshed; transformation rejects bloodshed and seeks redemption. For Cover, this is law as meaning, what he refers to as “redemptive constitutionalism,” which is, at bottom, concerned with “saving or freeing persons.” Such a law is one I can believe in, one I can work for, one I can try to practice in my everyday interactions with all those persons whom I meet.
Such a law is not easy, however. It cannot be accomplished quickly or without conflict. But Cover’s redemptive constitutionalism does not attempt to do away with conflict, but rather to approach it differently, to allow for difference and to engage with it, to enter into conversation with those others with whom we might disagree, with those others who might even wish to harm us, and to acknowledge and welcome them into relation and dialogue. Such a law requires risk and uncertainty. But it is a law, a vision, a dream, that gives me hope.