Chapter 1
Introduction

I

Legal historians often refer to the late nineteenth century in the United States as the Age of Contract; literary historians as the Age of Realism. Period labels can deceive. Contract was not all that was at stake in the law; not all works written were realistic. Nonetheless, these labels have proved useful because they signal trends. Even revisionists in law and literature relate alternative explanations of the period to contract or realism. In this book I bring contract and realism themselves in relation to one another in the hope of learning something about both, as well as about late nineteenth-century culture and society in the United States.

I use the term contract in the general sense of a mutually agreed upon exchange of obligations that, as the word's roots imply, draws people together. In Anglo-Saxon law a contract is enforceable only when some formal sign of the agreed upon exchange, known as consideration, is available. What fascinated ordinary people of the late nineteenth century, however, was not the legal doctrine of consideration but the idea of contract as a mode of social organization in which people freely bound themselves to others by binding themselves to the fulfillment of obligations.

At this point symmetry demands that I define my use of the term realism as well. But because my contribution to an understanding of American literary realism depends on my definition of contract's promise, I ask the reader's indulgence as I defer my discussion of this vexed

term for the moment. Suffice it to say that recently neither contract nor realism has fared well in some scholarly circles. The predominance of contract in law continues to be condemned for legitimating the inequities of laissez-faire, or, as others will have it, proprietary, capitalism. Literary realism, once seen as posing challenges to those inequities, is now seen in complicity with them because it aided and abetted in the production of disciplined, middle-class subjects. My study supports the contention that the law of contract legitimated social and economic inequities. It also establishes a connection between works of realism and such legitimation, not because they faithfully represented the intricacies of contract law, but because they were produced within the framework of contractarian thought that Owen Fiss has shown dominated law at the time.^[1] But even though realism and contract are related, their connection complicates recent assessments of both. It does so, I argue, because selected works of realism both evoke what my title calls the promise of contract and dramatize its failure to be sustained.

What I mean by the promise of contract can be clarified by Sir Henry Maine's famous 1861 proclamation that "the movement of the progressive societies has hitherto been a movement from Status to Contract ."^[2] For Maine, traditional societies determined people's duties and obligations according to status. For instance, in medieval society both peasant and lord were assigned clear-cut, if different, duties and obligations according to the hierarchical social class into which each was born. In contrast, contractual societies undermine those hierarchies by determining duties and obligations through negotiations among contracting parties.

Maine's statement had special meaning for the United States in the late nineteenth century. Convinced that the United States was the most progressive of progressive societies, William Graham Sumner in 1883 boasted, "In our modern state, and in the United States more than anywhere else, the social structure is based on contract, and status is of the least importance."^[3]

Contract's promise is twofold. First, a society ruled by contract promises to be dynamic rather than static. Not bound by inherited status, individuals are free, on their own initiative, to negotiate the terms of their relations with others. Contract does not promise equality of conditions, but it does promise equality of opportunity. As Sumner puts it, "A society based on contract is a society of free and independent men, who form ties without favor or obligation, and co-operate without cringing or intrigue. A society based on contract, therefore, gives the

utmost room and chance for individual development, and for all the self-reliance and dignity of a free man. That a society of free men, co-operating under contract, is by far the strongest society which has ever yet developed the full measure of strength of which it is capable; and that the only social improvements which are now conceivable lie in the direction of more complete realization of a society of free men united by contract, are points which cannot be controverted."^[4] By promising individuals equal chance to develop, contract claims to produce an equitable social harmony that has been achieved through a network of immanent and self-regulating exchanges rather than a social order imposed artificially from above. The smooth functioning of such a network depends on the second sort of promise alluded to by my title.

The second meaning of the promise of contract involves the sanctity of promising itself. To put one's signature on a contract seems to entail the making of a promise, with all of the connotations of trust involved. The association between promising and contract gives a contractual society a moral foundation that results not from preconceived notions of status but from the duties and obligations that individuals impose on themselves in their dealings with other members of society. Radically conceived, therefore, contract promises an immanent, rather than a transcendental, ordering of society.

Sumner and other conservative defenders of contract did not, I hasten to add, adhere to this promise. Instead, they invoke a transcendental, natural standard to limit the contractual liability of the primary beneficiaries of a changing economy. That standard also legitimated the persistence of status in a world claiming to be ruled by contract. Maine might have stressed the transformation from status to contract, but in fact the transformation was never complete. Sumner himself implicitly admitted status's persistence when he noted that "in a state based on contract sentiment is out of place in any public or common affairs. It is relegated to the sphere of private and personal relations, where it depends not at all on class types but on personal acquaintance and personal estimates."^[5] Writing on What Social Classes Owe to Each Other, Sumner was at pains to argue that any residue of inherited status had nothing to do with class. But in relegating sentiment to the private sphere he implied that status persisted in gender relations. It also persisted in another area that remains of great concern to us in late twentieth-century America: race. Furthermore, despite Sumner's objections, status also affected class relations, although here the question of inherited status is indeed complicated.

Sumner did not deny the existence of classes. For him the competition fostered by contract led to a division between people. But because all were given equal opportunity, that division was natural, not based on caste. In a contractual society, Sumner might argue, economic success dictated a man's social status rather than social status dictating his economic position. But as Karl Polanyi points out, it is a mistake to think of class only in terms of economic interest. "Purely economic matters such as affect want-satisfaction are incomparably less relevant to class behavior than questions of social recognition.... The interests of a class most directly refer to standing and rank, to status and security; that is, they are primarily not economic but social."^[6]

As The Rise of Silas Lapham indicates, wealth alone is not the final measure of social status. Even so, the genteel elite, represented by the Coreys in this novel by William Dean Howells, still felt threatened by the revaluation of status brought about by the period's realignment of economic power. The elite's anxiety was shared by workers who, even when granted more earning power, faced the threat of becoming dependent wage earners rather than relatively independent craftsmen. William Forbath has shown that the period's labor movement was not simply about wages and hours of work. It was also animated by principles of classical republican virtue associated with an artisanal economy where workers owned their means of production.^[7] As late as 1883 the majority of workers in industry were skilled craftsmen employed in shops of twenty to thirty workers. For instance, the workers that Henry James highlights in The Princess Casamassima are a bookbinder and a pharmacist.^[8] The realists themselves shared workers' worries. Along with other professional writers, they were bound to publishing firms by contractual agreements.^[9] Furthermore, the "status rebellion" described by Richard Hofstadter was felt most markedly when the rise of corporations threatened to make members of the middle class salaried workers.^[10] Indeed, what Alan Trachtenberg calls the "incorporation of America" is another reason why contract failed to live up to its promise.^[11] Corporate forms of organization, in which individual members submit their legal identities to the corporate whole, are quite different from contractual ones, in which people form associations while retaining their legal identities. Contract might have reigned in the law during this period, but it reigned over an economy that was turning into a corporate rather than contractual one, or, to be more accurate, one of "corporate liberalism" that worked out a complicated alliance between corporate and contractual capitalism.^[12] That alliance did not eliminate

the status of class, but it did transform it. For instance, since a corporation is a legal person, a labor contract between Standard Oil and a worker trying to avoid unemployment would be dealt with as one negotiated between equal bargaining partners.

If contract promises free and equal exchange among all individuals and thus equality of opportunity, the increase in corporate influence and the persistence of status in race, class, and gender—even if manifested in different ways—made delivery on that promise impossible. Instead, contract's promise could be evoked ideologically to create the illusion of equitable social relations when in fact they retained a residue of inherited and realigned hierarchy.^[13] In latter chapters I elaborate on reasons for contract's failure. For now, however, I need to indicate how works of literary realism can evoke contract's promise.

Two poignant examples occur in works that establish both Mark Twain and James as realists. Both works derive much of their force from scenes that hold out the promise of replacing relationships of status with more equitable, "contractual" ones. One such scene occurs in Adventures of Huckleberry Finn after Huck tricks Jim into believing that the difficulties they experienced on the raft while traveling through a dense fog resulted from a dream. Realizing that his trick has betrayed Jim's trust, Huck apologizes, even though doing so means humbling himself to "a nigger." Until this scene Huck and Jim's relationship was governed by their socially assigned status: Jim's as a slave; Huck's as a free white. With Huck's apology, their relationship promises to be one of free and equal individuals bound together by mutual benefit and trust, so long as they remain on the raft, uncontaminated by the hierarchical order of the shore world.

A similar moment of promise occurs in James's The American . James's hero, Christopher Newman, the self-made man who has conquered the world of American business, seeks the hand of the beautiful daughter of an aristocratic French family, the Bellegardes. Looked down on by his lover's mother and elder brother, Newman elicits from them a promise that they will not interfere with his courtship. Told nonetheless that the mother will not enjoy having her daughter marry him, Newman is unconcerned. " 'If you stick to your own side of the contract we shall not quarrel; that is all I ask of you,' said Newman. 'Keep your hands off, and give me an open field. I am very much in earnest, and there is not the slightest danger of my getting discouraged or backing out. You will have me constantly before your eyes; if you don't like it, I am sorry for you. I will do for your daughter, if she will

accept me, everything that a man can do for a woman. I am happy to tell you that, as a promise—a pledge. I consider that on your side you make me an equal pledge. You will not back out, eh?'"^[14]

There is no better symptom of Newman's innocence than his belief in "the contract" that he has entered into with the Bellegarde family, which does nothing more than remove status as a consideration in determining whether he is worthy of marrying the woman he loves and who loves him. Part of that innocence grows out of Newman's past success in an economic sphere in which the social status of contracting parties was supposedly irrelevant. Though in The American James demonstrates that in Europe, at least, that ideal does not extend to the business of marriage, in subsequent works he suggests that status affects even business affairs.

If these two scenes evoke contract's promise, the works in which they occur fail to sustain it. That failure has important implications for our contemporary situation. Contract may be in disrepute in some academic circles, but not all, as evidenced by its sophisticated defense by Charles Fried, Ronald Reagan's former solicitor general, in Contract as Promise, as well as by the influence of the law-and-economics movement with its model of rational (that is, market-based) decision making.^[15] Furthermore, as the 1994 electoral success of the "Contract with America" demonstrated, the idea of contract remains popular with many voters. The Republicans' "Contract" appealed to both aspects of the promise of contract. First, the metaphor of a contract capitalized on voters' discontent with broken promises in past campaigns. The symbolic act of signing something called a contract signaled its supporters' intention to keep their word. Second, a contractual relation between politicians and voters implied that they were on equal footing, that there was no hierarchical relation between the governed and those governing. Indeed, the popularity of the "Contract" with white males indicated the extent to which its provisions appealed to those worried that, by determining one's worth on the basis of status, not merit, programs such as affirmative action undermine the promise of equal opportunity for all citizens. Although they may not welcome the lesson, supporters of the "Contract" certainly have much to learn from the realists' dramatization of why contract failed to live up to its promise.^[16]

But they are not the only ones with something to learn. As works of realism explore the possibility of presenting a world in which people are bound together contractually, they bring us to its limits. Those opposed to contract might want to call these presentations immanent critiques

that expose the contradictions of contractual thought by working within its premises. But whereas works of realism enable such criticism, they do more than pose a challenge to contract's defenders. They also challenge those who dismiss contract as discredited and inherently corrupt. Evoking the promise of contract, the works of realism that I examine are not written in opposition to contract. Indeed, insofar as they link contract's failed promise to the persistence of status, they leave open the possibility that status is more of a problem than is contract. To be sure, strong historical evidence suggests that to initiate a reign of contract in a world in which status persists is to perpetuate social and economic hierarchies. Nonetheless, contract's promise persists as something to be reckoned with.

One of my goals in writing this book is, therefore, to invite contract's advocates and detractors to experience how works of realism, in presenting both the promise and failure of contract, suggest ways in which it can be reimagined. In the end such readers might reconfirm their beliefs that contractual thought is inherently superior or inherently flawed. But if so, I hope that reading this book will help contract's advocates avoid the causes of its past failures, and help contract's detractors better address the aspirations of the many in our culture who still sense its promise.

II

That lofty goal expressed, I am brought back to reality by the need to define how I designate a work in this period realistic. In 1889 Albion W. Tourgée the lawyer/novelist who would represent Homer Plessy before the Supreme Court, argued, "On every novelist rests alike the same obligation of truth-telling. 'Realist,' 'Naturalist,' 'idealist,' 'romanticist,' only that and nothing more, can be demanded of them—that they paint life as they see it, feel it, believe it to be." His quarrel with the realists, he declared, focuses on their claim to possess the only view of truth.^[17] Tourgée's point is well taken. Many artists try to present realistic visions of the world. Any judgment of whether or not a work is realistic depends on the sense of reality in which one operates. Since a sense of reality can change from author to author and critic to critic, why give some works the privileged label of realism?

One way of responding to the insight that realism is a convention as much as any other presentation of reality is to describe the particular sense of reality that self-proclaimed realists perceive.^[18] In the nineteenth century it was frequently defined in terms of empirical facts. For instance, writing on the visual arts, Linda Nochlin claims that prior to the nineteenth century, artists concerned with verisimilitude "were looking through eyes, feeling and thinking with hearts and brains, and painting with brushes, steeped in a context of belief in the reality of something other and beyond that of the mere external, tangible facts they held before them." In the nineteenth century, however, artists lived in a world that came "to equate belief in the facts with the total content of belief itself."^[19]

David Shi has drawn on this belief to provide an inclusive definition that allows him to make an interdisciplinary case for the coherence of an Age of Realism.^[20] Concerned with differences as much as with coherence, my approach is quite different from Shi's. If Shi brings diverse figures and movements under the label of realism on the basis of commonalities, I emphasize distinctions between works that share common themes and even close attention to social detail. Those distinctions result in an exclusive definition that tries to account for what we experience in reading some works that we do not experience while reading others written at the same time. That difference, I argue—and in doing so make my contribution to discussions of American literary realism—is linked to how works of literary realism evoke the promise of contract.

Contract's promise to generate an immanent, rather than transcendental, ordering of society suggests that how "facts" are ordered is more important than simple attention to them. What distinguishes works of realism in the period is their horizontal rather than vertical ordering of the facts of social life. Not positing a governing moral order to the world, they evoke the promise of achieving a just social balance by experimenting with exchanges and negotiations among contracting parties. My claim is not that the realists self-consciously set out to embody that promise in their work. It is simply that, working within the framework of contractarian thought, they evoke it in their attempts to write the truest stories possible. In turn, an understanding of that promise enhances our appreciation of the contribution made by realists working in the American context.

One of the most important effects of ordering a work horizontally rather than vertically is that it alters the relation between reader and text, what some critics call the readerly contract.^[21] The terms of the realists'

implied contract are noteworthy. Winfried Fluck has argued that realists abandon the use of paternal guidelines for their readers. For them, the ideal role for the literary work is no longer that of a "guardian figure" but a "conversational partner."^[22] Rather than prescribe a code of behavior, such a work includes readers in a dialogue in which judgments of actions are constructed through a process of negotiation and exchange. As Edith Wharton puts it, the "literary artist," unlike the "professed moralist," allows the reader to "draw his own conclusions from the facts presented."^[23]

The issue is not just about didacticism or readerly participation, since many works are not didactic and readers participate in all works of literature. It is about how the reader is positioned within the world of the text. As Erich Auerbach has shown while writing about nineteenth-century realism in general, a horizontal ordering principle levels the hierarchy of styles present in other works, thus making available "the unprejudiced, precise, interior and exterior representations of the random lives of different people."^[24] Readers who enter such a world participate in a moral economy in which people potentially stand on an equal footing with one another.

That world is generated by certain literary techniques developed by the realists. An obvious one is James's emphasis on showing rather than telling. James's abandonment of an omniscient perspective for a limited point of view can be—and has been—seen as a challenge to the transcendental view of the world.^[25] Drawing on Ross Posnock's important distinction between a technique of central consciousness and belief in a centered consciousness, we can see why James's innovation is not, as Fredric Jameson charges, a bourgeois "strategy of containment."^[26] James develops this technique to explore what Tony Tanner identifies as a typical situation in his works: "a person confronting new facts with an old vision, or set of values or system of belief, and experiencing a convulsion of values because the old 'vision' will not adequately account for the newly perceived facts."^[27] Making readers undergo a similar experience, the Jamesian point of view forces them to negotiate their way through a world without clear-cut moral signposts.

As different as Twain is from James, he too presents us with worlds in which the moral guideposts of an outdated paternalism are challenged. For an example, we can compare Twain's Huckleberry Finn with Thomas Bailey Aldrich's The Story of a Bad Boy . Howells praised Aldrich's book for showing "what a boy's life is ... with so little purpose of teaching what it should be."^[28] Nonetheless, unlike Twain, Aldrich

does not tell his story from the boy's perspective. The narrator is an adult looking back on his youth. We know from the start that the boy has become the respectable adult whose measured voice mediates an earlier experience. Our travels with Huck take place without that paternal guidance.

To be sure, the leveling process dramatized in their works worried the realists, who feared that it was producing a society lacking discrimination. Nonetheless, in their best works they refused to react to it by falling back on a preexisting moral order, which is not to say that they were equally successful in all areas of experience. For instance, works by James are generally more effective than works by Twain in challenging a natural moral order in terms of gender. In contrast, Twain's works, more than James's, challenge received notions about the status of race. But these differences do not undercut my approach; they instead highlight the need to differentiate, even among the realists themselves. They had different visions, and whereas Howells tends to unite the three, James and Twain often seem at odds. To respect their differences is to enable critical comparisons.

In making possible these critical comparisons, my definition of realism trusts the tale, not the teller. That trust leads to a number of paradoxes. For instance, although most of the works in the period that formally embody contract's promise and failure are written by acknowledged realists, not all works written by them do so with equal force. Some of their lesser works do not do so at all. Thus, according to my definition, not all works written by "the realists" embody the full potential of realism. At the same time, Kate Chopin's The Awakening, often called naturalistic, to a greater extent does embody it.

Since these paradoxes are bound to cause confusion, it might seem wise to find a label other than realism. I do not for two reasons. First, a new term is likely to create confusion of its own. Second, the realists deserve credit for developing the technical innovations that allow us to evoke what I am calling the promise of contract. Acknowledging those innovations, my definition has the payoff of enabling needed discrimination.^[29]

For instance, it allows us to distinguish works of realism from those of sentimental fiction. Recently some critics have argued that the sentimentalists' detailed portrayal of everyday, domestic life qualifies them as realists. Rich in verisimilitude, their descriptions, nonetheless, continue to be ordered by their authors' faith in a transcendental, usually religious, moral order. The realists' technical innovations helped to free

their presentations from subordination to such an order.^[30] My point is not that we should stop reading works of sentiment. As should become clear, I have read my share. But, as we read them, we should acknowledge the ordering principle of the world that we are invited to enter.

Attention to how details are ordered also leads us to recognize a weakness in Richard Chase's argument that American naturalism is simply realism with a "necessitarian ideology" and George J. Becker's definition of naturalism as "no more than an emphatic and explicit philosophical position taken by some realists."^[31] As realistic as the details of naturalism may be, those details are subordinated to a governing ordering principle. For instance, in an excellent reading of Dreiser's styles, Sandy Petrey argues that Sister Carrie has two linguistic registers. On the one hand, there is the "dominant style" identified by "what Auerbach calls a paratactic structure" and "the prevalence of lexical choices from the vocabulary of everyday life." On the other, Dreiser provides "hypotactic passages of moral speculation which periodically interrupt [the language of realism]."^[32] Dismissing the hypotactic passages as the language of false consciousness, Petrey attempts to salvage Dreiser's novel by claiming that it points out the irreconcilability between the styles. But even though the two may be irreconcilable for Petrey, they were not for Dreiser, who continued to structure the real according to a moral order.

Defining realism in terms of the promise of contract also points to its difference from what we can call the fiction of republican virtue. Such fiction extends an eighteenth-century tradition that used literature ethically, politically, and aesthetically to fashion citizens for a virtuous republic.^[33]The Bread-Winners by John Hay, Democracy by Henry Adams, and novels of the "plantation school" by Thomas Nelson Page are examples. To be sure, Hay and Adams shared ethical and political beliefs with writers who produced works of realism. Nonetheless, their aesthetic presentation of fictional worlds continues to imply the existence of a moral order that should govern the republic, even if, as in the case of Democracy, it is embodied in a woman and a gentleman lawyer from Virginia excluded by their moral principles from political power in Washington. Works of realism challenge the tradition of republican virtue, not by abandoning the quest for a just social order, but by trying to imagine it horizontally rather than vertically. In works of realism there is no "right reason" governing the world.

The distinction between horizontal and vertical balancing helps to differentiate realistic works in this period from works of romance. An

example is Melville's Billy Budd . Composed during the period of realism, Melville's novella has the trappings of romance. As Michael Rogin puts it, "As is true for romance, the mundane world left to itself cannot provide meaning."^[34] In a romance, as in Billy Budd, meaning of the everyday, no matter how realistically rendered, must be sought in a transcendent world. Granted, the narrator warns us that Billy Budd is no romance, and Melville's plot suggests that the higher world to which it appeals has itself been emptied of meaning. Thus, Billy Budd anticipates those works of modernism, which Georg Lukàcs, drawing on Walter Benjamin's notion of allegory, describes as presenting a concrete sense of everyday life devoid of significance.^[35] To be sure, Twain and James each in his own way served as a model for various modernist writers, Twain through his use of the vernacular, James through his mastery of psychological realism. Nonetheless, my point is that a vertical appeal to meaning is, for the most part, underplayed in the works of realism that I examine.

Of course, it is not totally absent, and critics lodged within Chase's romance thesis have been intent on arguing that in fact the repressed soul of American realism remains the romance.^[36] Works of realism, so the argument runs, demystify imaginative visions of romance by positing a more realistic world. Nonetheless, because the realistic world that they posit is itself an imaginative construct, realists are ultimately forced to acknowledge the reality of romance as the foundation of their works. The project of realism, it seems, is condemned to fail.

Like so many others, works of realism do participate in a process of demystification. For instance, Huckleberry Finn challenges Tom Sawyer's bookish interpretation of the world.^[37] Likewise, Silas Lapham mocks sentimental fiction, while in James's works characters undergo an education in illusion. But to define realistic works in terms of demystification is ultimately to leave us with no way to distinguish them from others. Once we start to demystify, most works of literature can be shown to repeat the same process of seeking to represent reality only to acknowledge consciously or unconsciously their failure to do so.

Critics lock themselves into an undifferentiated reading of realism by focusing on a vertical axis of analysis. Continuing to seek a work's supposed foundational first principle only to undermine it, they confirm over and over again what they claim to know from the start: foundations are constructed.^[38]

The fixation on exposing the constructed nature of foundations may lead to an undifferentiated view of realism, but it forces me to clarify my

claims about the readerly contract. After all, if no work can successfully re-present reality, even the vertical ordering principles of nonrealist works can be exposed as constructs, leaving all readers in the position of fashioning a world without solid foundations. If so, there seems to be nothing unique about the readerly contract with works of realism.

But there is. Works like Moby-Dick and The Scarlet Letter question transcendental guarantees, but the space that they create for readerly participation is a space of indeterminancy generated by metaphysical or epistemological uncertainty. It results, in other words, from a hermeneutics of suspicion that questions the vertical order that the works seem to posit. In contrast, in works of realism as I have defined them participation results from readers binding themselves to a work's horizontal axis, one that tries to imagine the creation of an equitable social order through interpersonal exchanges. It results, in other words, not from having a work's fictional foundations exposed, but from readers exposing themselves to a world of social relations without foundational principles of order.

To argue that works of realism lack foundational principles of order flies in the face of the commonplace assumption that realists found their works on the claim that they represent reality itself. But it is a mistake to assume that all share the "fantasy," in Jean-François Lyotard's words, "to seize reality."^[39] In philosophy Hilary Putnam takes pride in calling himself a realist, even though he does not subscribe to a correspondence theory of truth.^[40] But in literary criticism too many critics continue to assume that realists try to find language that corresponds to a preexisting reality.^[41] Far from assuming the existence of a self-contained reality that can be seized, the realists that I treat present reality as a process-in-the-making. They share what Laurence B. Holland calls James's "determination to forge or shape a changing world, to create a society, to take his place in a community-in-the-making by joining in the process of making it."^[42] A theory of representation adequate to these writers can draw on the German Darstellung, which means representation, a presentation, and a theatrical performance. Not trying to seize reality, they present or perform it.^[43]

By focusing on the realists' efforts to forge a social and aesthetic balance horizontally, I move away from readings that demonstrate why works of realism inevitably fail to re-present reality. Instead, I emphasize the sense of reality that realists do present.^[44] To be sure, their works continue to demystify assumptions about fixed foundations. They also present a sense of failure. But the failure that I focus on is not the failure

to present a Cartesian foundation of certainty. It is instead the failure to sustain the promise that an equitable social order can be constructed on the basis of interpersonal exchanges lacking the regulation of transcendental principles.

The realists' reticence to adopt a transcendental position of judgment has opened them to charges of complicity with the status quo. A common early complaint was that they did not offer model characters.^[45] A generation later Van Wyck Brooks argued that Twain was simply a humorist, not a full-fledged satirist, because he lacked a clear-cut alternative to the world that he mocked.^[46]

If earlier critics faulted realists for failing to resist the breakdown of a moral social order, recent critics complain that they participate in subtle forms of ideological control that enforce the status quo. This view has been influenced, on the one hand, by Roland Barthes's claim that realism castrates desire by privileging a bourgeois sense of what is possible and, on the other, by Michel Foucault's fascination with discourse as a modern technology of control.^[47] For instance, Nancy Armstrong and Leonard Tennenhouse argue that "the violence of an earlier political order maintained by overt social control gives way to a more subtle kind of power that ... works through the printed word upon mind and emotions rather than body and soul."^[48] Secret agents of the police, realists turn out to enact fantasies of surveillance enforcing normative behavior. Intent on measuring the "cultural work" done by literature, Philip Fisher concludes that "in its rituals every state is a police state."^[49] Even when a writer self-consciously demystifies the "realist policing of the real," as James does in The Princess Casamassima, he doesn't get off the hook. "This police work," according to Mark Seltzer, "is finally remystified, recuperated as the 'innocent' work of the imagination."^[50]

The problem with this police academy approach to realism is highlighted in Seltzer's characterization of James's work. When someone claims that James sees his works as "innocent," I have to wonder who is involved in mystification. The answer to such charges is not to claim that the realists were innocents either at home or abroad. In any work implying a vision of the polis, some form of policing goes on. What the critics of counterespionage fail to acknowledge, however, is that their criticism of novelistic surveillance has no power unless it assumes the ideal of a utopian world of free and equal exchange unconstrained by regulatory forces—a vision, in other words, that comes very close to what I have called the promise of contract. Indeed, these critics' distrust

of regulation is even stronger than that of most laissez-faire thinkers who fully acknowledged the need for some—if limited—police powers for the state. Given the utopian vision enabling their demystifications, such critics might learn from the way works of realism relate to contract's promise.

My point is not that works of realism are somehow outside of ideology. On the contrary, by engaging readers in a world of conflicting views, none of which is adequate, they can be said to generate citizens for life in a liberal democracy. Nonetheless, even if readers are subjected to the structure of these works, that subjection is different in kind from the experience of works that try to teach readers a moral lesson or, through more subtle forms of policing, make them conform to a unitary "logic" of an age.

To be sure, to expose unacknowledged forms of policing and literature's complicity with them is to do valuable work. But its limits are indicated by the types of questions that such work leaves unasked. Unless we are prepared to advocate a return to an "earlier political order" that maintained control through overt violence because it was somehow more "honest" in its display of power, our present situation forces us to ask: of the various social visions presented, which are the most equitable and on what basis do we judge their equity? By interrelating a discussion of works of American literary realism with the promise of contract, this book raises such necessary, if ultimately unanswerable, questions. A summary of my argument follows.

III

The next chapter introduces the paradox that contract, radically conceived, promises a more equitable society by abandoning transcendental guarantees for equity. In order to explain this paradox I discuss contract's link with promising, which is thought of as a dynamic, interpersonal creation of duties and obligations rather than as an activity receiving its sanctity from God's witness. Evoked by the horizontal ordering principle of works of literary realism, this radical promise is betrayed by legal thought of the period. One reason for that betrayal is the transcendental moral sanction granted to contract as a result of the battle over slavery in the Civil War. That moral sanctity is linked to the period's notorious legal formalism. Using three 14th Amendment cases,

I show how the formalists claimed to use science to discover foundational principles rooted in the nature of things. An important component of such formalism was the establishment of distinct boundaries among different spheres of social activity, with contract having "natural" reign in only the economic and political spheres, not, for instance, in the domestic sphere where status still ruled. Such boundaries established clearly delineated limits to human responsibility for social and economic inequalities, limits that the realists' evocation of contract's intersubjective promise call into question.

Chapters 3 through 8 present close readings of various literary texts. A separate chapter is devoted to each of the three most prominent realists: James, Howells, and Twain. The other three examine and compare novels concerned with contractual relations written by nonrealists. These three chapters are important to my argument, since they highlight the distinctive nature of realist texts, which is not simply thematic treatment of contract, but formal embodiment of its promise and failure.

The chapter on James juxtaposes The Bostonians and The Aspern Papers as a way of exploring complications posed to contractual thought by the marriage contract, a special sort of contract that at the time constructed a relation of status between husband and wife. This chapter takes as its point of departure reflections on the relationship between the domestic sphere created by the marriage contract and the right to privacy that was first articulated in American law shortly after the publication of James's two works. It concludes by distinguishing what is mistakenly called James's belief in a work of art's autonomy from his defense of a work's privacy. Chapter 4 compares two works that offer very different portrayals of both labor unrest and marriage: John Hay's The Bread-Winners and Elizabeth Stuart Phelps's The Silent Partner . As different as the two are, both present worlds governed by a transcendental principle of moral order: in The Bread-Winners, a classical republican sense of right reason, in The Silent Partner, an evangelical sense of God's higher justice.

These two works differ, not only from James's novels, but from Howells's The Rise of Silas Lapham, which is the topic of the fifth chapter. As it interrelates plots concerning the worlds of business and romance, Howells's novel challenges a formalism that tries to establish clear-cut boundaries between the two. It also defies critics who try to account for its action by positing a unified, governing logic. Instead, by adopting a form that tries to remain true to a world of temporality that renders all formal solutions subject to revision, this novel explores the

difficulty and necessity of assessing individual responsibility in an economy of the unaccountable.

The first three chapters of literary analysis examine the role of contract in the domestic and economic spheres. The next two introduce the complications of race. The first of these two contrasts Howells's presentation of an interracial marriage in An Imperative Duty with two novels by Charles Chesnutt, one about an interracial love affair—The House Behind the Cedars —and one about the effect of race on the economy of the New South—The Colonel's Dream . Chesnutt shrewdly analyzes how racial status undermines contract's promise of equal economic opportunity, and a number of his literary techniques match the realists at their best. But ultimately his works are governed by a transcendental sense of right reason that provides him and his implied readers with a position from which to judge questions of racial justice. It is precisely such a position that the dramatic action of Twain's Pudd'nhead Wilson, discussed in chapter 7, denies us. This chapter compares the dramatic action of Twain's novel with the logic of Plessy v. Ferguson (1896), the case declaring "separate but equal laws" constitutional. It also contrasts Twain's work with Pactolus Prime, a novel written by Tourgée, Plessy's attorney and a critic of realism. More progressive on racial politics than any of the realists, Tourgée offers us an ideal opportunity to explore the question of whether or not our judgment of realistic texts should rest solely on the political point of view that they present.

Chapter 8 turns to a topic that did not captivate the primary interest of the realists: the threat posed to contract-based relations by the rise of corporations. Concerned with the perceived loss of individual independence, the chapter looks at two neglected novels: David Graham Phillips's The Cost and Francis Lynde's The Grafters . Both evoke traditional values of autonomy while actually constructing a new version of the autonomous self that contributes to a "politics of character."

This chapter helps to clarify the realists' relation to "progressive" political thought. In an excellent book Amy Kaplan argues that realism was a way of "imagining and managing the threat of social change."^[51] As fitting as this description is, there is a tendency to read it as evidence of the realists' conservatism and their fear of progressive reform. But unless we assume a teleological view of history, not all social change is positive, not all progressivism that liberating. Insofar as one of the most important changes occurring during the end of the nineteenth century was the ascendancy of corporate capitalism, for the realists to imagine a

sense of individual agency and responsibility that resists incorporation might not be so reactionary. To be sure, it has become increasingly popular to accuse the realists of clinging to a nostalgic belief in the autonomous subject. In contrast, literary naturalists are said to respond to the new consumer-oriented economy. Although a detailed analysis of the complexity of literary naturalism is beyond the scope of this study, I argue—in opposition to critics such as Walter Benn Michaels and James Livingston—that the realists, unlike the naturalists and writers such as Phillips and Lynde, present works that allow us to imagine a sense of individual agency without assuming the existence of an autonomous self.^[52]

In my final chapter I lend support to the argument that social and economic changes in the late nineteenth century helped to generate new forms of subjectivity. But I challenge accounts based on simple oppositions between two types of subjectivity, whether they oppose the subjectivities of producer and consumer economies; a cult of sincerity and one of performance, character and personality; modern and post-modern selves; or individual autonomy and corporate interdependence. The point is not that such distinctions lack importance but that turning them into binary oppositions generates narratives of transformation that are far too simple. History is much messier. Comparing a sense of agency implied by works of realism with many others available at the time, I link it, with the aid of Hannah Arendt, to the interpersonal activity of promising that is so important to the utopian possibilities of contract. The primary literary text for the final chapter is Kate Chopin's The Awakening . But The Awakening also poses a challenge to even a reimagined sense of contract: can it deal with the labor involved in the delivery of children into the world? Or, to rephrase the question, how can what seems to be an essentially synchronic mode of contract deal with the problematics of inheritance and the responsibility of providing future generations with the promise of a better life?

IV

This summary indicates that, although I am clearly interested in the relation between literature and history, my argument does not conform to a traditional sense of what constitutes historical criticism. To begin with, rather than attempt to use realism as the writers of

the time used the term, I develop my own definition in an effort to explain how the works that I treat maintain their power to engage readers today. Interested in the persistence of that power, I do not trace the rise and fall of realism as a movement. Furthermore, my focus is not on the trajectory of individual authors' careers. While recognizing the importance of an author's development, I look primarily for textual moments in which the failed promise of contract is most poignantly dramatized. It is these moments that allow me to make connections between works of literature and the Age of Contract in the law. But even they are organized only loosely chronologically.

These aspects do not mean that my study lacks an implied diachronic narrative. Like many cultural critics writing today, I link important shifts in subjectivity to a transformation from proprietary capitalism and its focus on production to corporate capitalism and its focus on consumption. I do, however, challenge the clear-cut breaks that too many of those writing about that transformation imply. The shift from production to consumption is no more absolute than was the shift from status to contract. Furthermore, I challenge many interpretations of the transformation's significance, just as in the next chapter I challenge progressivism's interpretation of the significance of important 14th Amendment cases. My challenge is based in part on a strategy of concentrating most of my analysis on three historical moments.

The first is the mid-1880s. Indeed, the 1885 Century Magazine contains a number of the works that I look at: it serialized The Rise of Silas Lapham and The Bostonians and published George Washington Cable's "The Freedman's Case in Equity," Henry Grady's response, and an excerpt from Adventures of Huckleberry Finn . This moment also saw much of the Civil Rights Act of 1875 struck down by the Supreme Court in 1883; the election in 1884 of the first Democratic president after the Civil War; a heated debate over divorce; the Haymarket affair; the formation of the American Federation of Labor in 1886; Sumner's articulation of his laissez-faire doctrine in 1883, which I have been citing; and the publication of Christopher Tiedeman's A Treatise on the Limitations of Police Powers in the United States in 1886. And it saw the Supreme Court guarantee corporations 14th Amendment protections and thus, in the name of contract, help to undermine contract's domination just as it reached the height of its power. I cluster another group of texts around Plessy v. Ferguson (1896). Finally, my corporate chapter examines two texts written in 1904, while my study is framed by Lochner v. New York (1905).

If my concentration on these three moments illustrates various transformations, it also enables a synchronic analysis whose details do not always fit into forward-moving diachronic narratives. Although I selected the works that I did because they help to advance my narrative, their complexity poses a challenge to diachronic narratives, including my own. Indeed, the failure of stories about historical transformations to account for all details of history and literature is part of the story I want to tell, since it reminds us of aspects of the past that, in resisting translation into the present, persist as a challenge to our present constructions of reality.

To be sure, some readers will object that my selection of works leaves too many out. If, for instance, I had chosen Iola Leroy rather than A House Behind the Cedars, or Edith Wharton rather than Henry James, I would have been forced to tell a somewhat different story. My response is twofold. First, the story that I tell is not the only story to be told. Unlike others, I do not claim to discover a logic that accounts for every text produced in the age. At the same time, I think that my story is an important one, one that would remain untold if contract in the law and realism in literature were not put in relation to one another. Readers will have to decide if they agree that it is a story worth telling.

Second, selecting other works would not have substantially altered my claims about either the failed promise of contract or a potential within realistic texts that distinguishes them from other texts written at the time. As I have already explained, I chose the realistic works that I did, not because they are representative of a career, but because they dramatize that potential, a potential not found in even all works written by the realists. I chose the nonrealist works in part because of the pressure they put on my thesis. For instance, it was not at all clear to me when I began whether Chesnutt's texts relied on a transcendental ordering principle or not. On that issue Iola Leroy does not present the same problem of judgment.

The pressure that works of realism continue to place on our assumptions brings me to the possible objection that my emphasis on these works' readerly contract is ahistorical. At stake is the role literary texts play within historical criticism. For many, the historical criticism of literature means bringing historical evidence to bear on the reading of texts and the use of literary texts as historical evidence. Historical evidence gives readings a context lacking in pure formalism, which in turn allows works of literature to illustrate historical transformations or the felt life of a period.

Such criticism is important and is crucial to my project. Nonetheless, it raises the nagging question of why works of fiction are given the status of historical evidence. It would seem that those intent on an accurate understanding of the past would be better advised to rely on the evidence of nonfictional texts. To be sure, an important part of understanding the past is to understand the stories that people tell one another about the world they inhabit. For this task works of fiction do provide important evidence. But they also have the capacity to contribute to a redefinition of what we mean by historical criticism.

The sense of historicity that we get from studying literature can be more than an understanding of the past or of how the past led to the present. It can also generate a sense of the present itself as a moment of history, one that future generations will judge on the basis of the possibilities it created. To think of a sense of historicity as an attitude toward the present as much as toward the past suggests that literary texts can do more than provide historical evidence. By involving readers in the construction of their worlds, they allow them to experience how judgments and actions of the past, conducted without certain knowledge of their consequences, help to determine the shape of the future.

If literary texts have the capacity to invite readers to participate in the responsibilities of historical judgment, we still need to ask why some texts written in the past raise questions that continue to engage us, while others remain of interest mostly as period pieces. One answer lies in their way of confronting crucial anthropological questions. For instance, as much as the meaning of death might change from culture to culture and historical period to historical period, death remains a fact of life that everyone must face. Other questions, however, are more specifically historical, since they involve issues that a particular culture has not yet resolved.

The works of realism that I examine retain the power to engage us today in part, I argue, because for our culture the promise of contract that they evoke is still open. To be sure, it is not the only issue treated by texts in the past that is still open. But it is one worth careful attention. One result is that the contract that a work of realism creates with its readers is similar to what in law is called an aleatory contract, one open to chance. As historical contingencies lead us to renegotiate our relation to the work, we are confronted with the historicity of the present and the responsibilities entailed in imagining a more equitable social order in a world presented to us without fixed moral guidelines.

It should go without saying that our contract with the work is never completely successful, that we will never produce perfectly balanced readings. Nonetheless, our failure to sustain contract's promise in our readings of realistic works opens us to the insight that they do not simply present us with a self-contained logic that we can then judge. Instead, in reading them we are transported to a much more uncertain mental territory, one with the capacity to force reconsideration of our presuppositions about how social relations are constructed.

Linking works of literary realism to contractual thought does more than expose contradictions in the period's boundary ideology. It also indicates what is lost in the failure to realize contract's promise. Much would be gained if contemporary critics would acknowledge that loss. Not to do so is to abandon a way of measuring social justice that relies on standards created by interpersonal agreement, not transcendental principles. For instance, the book most responsible in the period for calling attention to the injustices perpetuated against Native Americans, Helen Hunt Jackson's A Century of Dishonor, draws its moral force from broken promises made in treaties. Similarly, a recent work of history condemns American slavery with its title: Without Consent or Contract .^[53] When Martin Luther King Jr. proclaimed that the architects of the Declaration of Independence and the Constitution signed a "promissory note" that has not yet been paid to all Americans, he also evoked contract's promise.^[54]

To be sure, earlier in the century Roscoe Pound correctly noted that "wealth in a commercial age is made up largely of promises. An important part of everyone's substance consists of advantages which others have promised to provide for or to render to him; of demands to have the advantages promised which he may assert not against the world at large but against particular individuals."^[55] But the pervasiveness of contract in the economic realm should not lead to the error that plagues even the best recent criticism. That error surfaces in Hugh Collins's claim that contract law assumed the "justice of an order of wealth and power established through exchange relations. This faith stems from the belief that the market order establishes equality in the place of social hierarchy and reciprocity instead of exploitation."^[56] Almost imperceptibly, Collins identifies all human exchanges with market exchanges. Critics linking literature to the market make the same mistake. To be sure, the rise of the market influenced all areas of human life. But it did not completely determine them. We should remember, as

Hannah Arendt reminds us, that not all exchanges are strictly market exchanges.^[57]

In the late nineteenth century contract failed to deliver on its promise, in part because legal theorists did not consider the effect of exchanges between the market and other spheres of action that continued to be governed by status. The resulting exploitation should not, however, cause us to subsume all exchanges under market exchanges. Nor should it lead us too hastily to abandon the sense of responsible individual agency linked to the exchange of promises. The realists' retention of this "promise" of contract has particular poignancy today because it points to one of the most important failures in contemporary criticisms of contract. Conflating contractual human agency with the human agency assumed by a laissez-faire system of governance, critics influenced by poststructuralism too often allow cultural conservatives to monopolize discussions of an individual's duties and obligations, of individual responsibility and blame. Indeed, despite important differences, there are affinities between various poststructuralist accounts of the cultural-constructedness of the self and the notion of selfhood that serves the corporate liberalism that helped to displace the ascendancy of contractual liberalism in American social thought. Literary realists offer a much more complicated notion of selfhood and human agency than they are often given credit for.

One of the ironies of an almost exclusive concern with the cultural constructedness of the self is that it risks returning us to a situation in which a person's worth is determined by social status. Unless we want to abandon ourselves to a world in which identity is inevitably determined by one's race, class, or gender, we need some alternative vision of measuring a person's worth. Recognizing the role that status plays in political and economic as well as social exchanges, the realists, nonetheless, continue to present in their works the promise of what Howells calls "that republic of letters where all men are free and equal."^[58]

My point is not that the realists are radical social egalitarians. They are not. Their sense of free and equal is closer to Justice Sandra Day O'Connor's when she argues that the constitutional guarantee of freedom of religion means that people's religious beliefs should not affect their political standing.^[59] Rarely explicitly political in their works, the realists are most interested in the possibilities of freedom within civil society, which Michael Walzer defines as the "space of uncoerced human association and also the set of relational networks—formed for the sake of

family, faith, interest, and ideology—that fill this space."^[60] Presenting the relations in that space, the realists remain intrigued by the promise of contract. To be sure, their works dramatize the failure of that promise; nonetheless, it has not been completely laid to rest. It persists as a force to be reckoned with in contemporary negotiations about how our society should be more equitably ordered. Its persistence helps account for challenges that works of realism continue to pose to us. The next chapter begins by exploring one of the most important challenges, how to determine an equitable order when deprived of equity's traditional appeal to higher law.