1. Aristophanes, The Frogs , in The Complete Plays of Aristophanes , trans. R. H. Webb, ed. Moses Hadas (New York: Bantam, 1962),394.

2. Ibid., 412.

3. Aristotle, Nicomachean Ethics , trans. David Ross (New York: Oxford University Press, 1980), Book 5, 1131a27 (p. 113).

4. Ibid., 1131a6-1133b20 (pp. 112-121). Aristotle's position on commensurability is of course a matter of much dispute, a dispute sharpened, perhaps, by many inconsistencies on his part. While his arguments here would seem to suggest that he is not entirely opposed to the idea of commensurability, his statements elsewhere (for example, in Politics 1282b15-1283a15) would seem to suggest otherwise. Martha Nussbaum and David Wiggins have both emphasized this latter aspect of Aristotle. See Nussbaum, The Fragility of Goodness: Luck and Ethics in Greek Tragedy and Philosophy (New York: Cambridge University Press, 1986), esp. chapter 10, "Non-scientific Deliberation," 290-317; Wiggins, "Weakness of Will, Commensurability, and the Objects of Deliberation and Desire," in Essays on Aristotle's Ethics , ed. Amelie Oksenberg Rorty (Berkeley: University of California Press, 1980), 241-266.

5. Nicomachean Ethics , Book 5, 1129b13-1130b6 (pp. 108-109).

6. Ibid., 1130b26-1131a6 (pp. 110-111), italics in original.

7. Aristotle thus speaks of "particular" justice and "particular" injustice, which he distinguishes from justice and injustice "in the wide sense,'' his ethics dealing only with the former, not with the latter. See especially Nicomachean Ethics , 1130a6-1131a6 (pp. 109-111).

8. In that ascendancy, St. Thomas Aquinas might be said already to mark a departure from Aristotle. Pondering the question whether "justice as a general virtue [was] essentially the same as every virtue," Aquinas suggested, on the one hand, that "legal justice, if general by power, is a special virtue in essence," and, on the other hand, that "legal justice is one in essence with all virtue though notionally distinct." He concluded, "Hence the need for one sovereign moral virtue, essentially distinct from the rest of the moral virtues, which order them to the common good: this is legal justice." See "Justice," question 58, article 6 (2a2æ. 57-62) in volume XXXVII of the Summa Theologiae , trans. Thomas Gilby (London: Blackfriars, 1975), 37.

9. John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), 3, 12, 4, 11. I should point out that more recently, in response to his critics, Rawls has offered a much more delimited conception of justice, locat-

ing it strictly within the political sphere. As the rest of my book will make clear, this movement away from Kant (toward a conception of justice closer to Aristotle's) is one I entirely agree with. See Rawls, Political Liberalism (New York: Columbia University Press, 1993).

10. One notable exception is Judith Shklar, and here I can do no better than to quote her on the celebrated case of Bardell v. Pickwick :

Indeed, can any court do justice to Mrs. Bardell's grievances? She was humiliated in front of a lot of people and nothing can make Pickwick marry her. At most he can be made to pay a sum to the lawyers. Dodson and Fogg no doubt played on Mrs. Bardell's natural desire for revenge, but judicial proceedings cannot satisfy that urge fully. Had Mrs. Bardell been the heroine of a Gothic romance, she would have put a stiletto through Pickwick's heart and gone mad. And if the story had been set in Corsica, the male members of her clan would have been obliged to avenge her honor by killing Pickwick and his friends who witnessed her disgrace.

See Shklar, The Faces of Injustice (New Haven: Yale University Press, 1990), 11. See also her suggestive discussion of justice in Legalism: Law, Morals, and Political Trials (Cambridge: Harvard University Press, 1986), 113-123.

11. John Stuart Mill, Utilitarianism , in Essential Works of John Stuart Mill , ed. Max Lerner (New York: Bantam, 1961), 227.

12. Ibid., 227.

13. As Aristotle says: "justice exists only between men whose mutual relations are governed by law" ( Nicomachean Ethics , 1134a12-32 [p. 122]). The description of justice as the "most legal of the virtues" is from H. L. A. Hart, The Conception of Law (Oxford: Clarendon Press, 1961), 7.

14. Mill, Utilitarianism , 232.

15. Ibid., 241, 245.

16. See, for example, Isaiah Berlin, "Empirical Propositions and Hypothetical Statements" and "Logical Translation," both in his Concepts and Categories: Philosophical Essays , ed. Henry Hardy (New York: Penguin, 1981), 32-55, 56-80; Bernard Williams, "Conflict of Values," in his Moral Luck (New York: Cambridge University Press, 1981), 71-82.

17. Michael J. Sandel, Liberalism and the Limits of Justice (New York: Cambridge University Press, 1982), quotation from 1.

18. Carol Gilligan, In a Different Voice: Psychological Theory and Women's Development (Cambridge: Harvard University Press, 1982), 73, 74, 160, 172. For an important extension and qualification of Gilligan, see Robin West, "Jurisprudence and Gender," University of Chicago Law Review 55 (1988): 1-72.

19. For an exemplary study highlighting the phenomenon of unevenness, see Mary Poovey, Uneven Developments: The Ideological Work of Gender in Mid-Victorian England (Chicago: University of Chicago Press, 1988).

20. John Burt has made this point eloquently. "We think of reason as settling disagreements," he writes. "But reason is itself a rich source of disagreement, since it raises new questions in the process of settling old ones, unsettles old answers as it puzzles out their implications, introduces new distinctions

which divide those who thought themselves to be in agreement with each other, or discovers inner unities which put previously distinct views in each other's company." See Burt, "John Rawls and the Moral Vocation of Liberalism," Raritan 14 (Summer 1994): 136. For an important argument about the nonsingular relation between justice and reason, see Alasdair MacIntyre, Whose Justice? Which Rationality? (Notre Dame: University of Notre Dame Press, 1988).

1. Immanuel Kant, The Philosophy of Law , trans. W. Hastie (Edinburgh: T. and T. Clark, 1887), 196-198, italics in original text. This is the Edinburgh edition of Kant's Metaphysische Anfangsgrunde der Rechslehre (1796). The Hastie translation is more complete than the 1965 Ladd translation, which appeared under the title of The Metaphysical Elements of Justice .

2. Ibid., 197.

3. It is the transcendent end of the death penalty—an end uncontaminated by any thought of social utility—that makes Kant insist, "Even if a Civil Society resolved to dissolve itself with the consent of all its members—as might be supposed in the case of a People inhabiting an island resolving to separate and scatter themselves throughout the whole world—the last Murderer lying in the prison ought to be executed before the resolution was carried out" ( The Philosophy of Law , 198).

4. John Rawls, for example, has stated emphatically that "to think of distributive and retributive justice as converses of one another is completely misleading." See A Theory of Justice (Cambridge: Harvard University Press, 1971), 315. Michael Sandel has seized upon this as a point of inconsistency in Rawls. See Liberalism and the Limits of Justice (New York: Cambridge University Press, 1982), 89-92.

5. Friedrich Nietzsche, The Genealogy of Morals , in The Birth of Tragedy and The Genealogy of Morals , trans. Francis Golffing (Garden City, N.Y.: Double-day Anchor Books, 1956), 197, 202, 203, 202.

6. Ibid., 195.

7. Peter Gay, The Enlightenment: The Science of Freedom (New York: Norton, 1977), 437-447, quotation from 438.

8. On Beccaria's immense popularity, see Coleman Phillipson, Three Criminal Law Reformers (London: J. M. Dent and Sons, 1923), 83-106.

9. See, for example, Book 6, chapters 1 and 18 of Commentaries on the Laws of England: A Facsimile of the First Edition of 1765-1769 (Chicago: University of Chicago Press, 1979). Beccaria is mentioned by name in chapter 17 (p. 237). Blackstone's own view of criminal justice clearly echoes Beccaria's: " preventive justice is upon every principle, of reason, of humanity, and of sound policy, preferable in all respects to punishing justice" (p. 237), italics in original text. Bentham's reference to Beccaria is cited in Elie Halévy, The Growth of Philosophical Radicalism (London: Faber and Gwyer, 1928), 21.

10. John Adams, The Works of John Adams (Boston: Little, Brown, 1856),

2:238, quoted in Henry Paolucci, "Translator's Introduction" to Cesare Beccaria, On Crimes and Punishments (Indianapolis: Bobbs-Merrill, 1963), xxi.

11. Garry Wills, Inventing America: Jefferson's Declaration of Independence (New York: Vintage, 1978), 152.

12. Beccaria, On Crimes and Punishments , 45, 65, 47-48.

13. Ibid., 47.

14. Ibid., 47.

15. Ibid., 48.

16. Kant, The Philosophy of Law , 202, 201.

17. Marcello Maestro, Cesare Beccaria and the Origins of Penal Reform (Philadelphia: Temple University Press, 1973); Leon Radzinowicz, Ideology and Crime (New York: Columbia University Press, 1966), 1-28.

18. David Rothman, The Discovery of the Asylum: Social Order and Disorder in the New Republic (Boston: Little, Brown, 1971); Michael Ignatieff, A Just Measure of Pain: The Penitentiary in the Industrial Revolution, 1750-1850 (New York: Pantheon, 1978). See also an important critique of Foucault, Rothman, and Ignatieff, by Ignatieff himself, "State, Civil Society, and Total Institutions: A Critique of Recent Social Histories of Punishment," in Crime and Justice: An Annual Review of Research , ed. Michael Tonry and Norval Morris (Chicago: University of Chicago Press, 1981), 3:153-192.

19. Beccaria, On Crimes and Punishments , 64.

20. Ibid., 62-64.

21. This position is most influentially argued in James Willard Hurst, Law and the Conditions of Freedom in the Nineteenth-Century United States (Madison: University of Wisconsin Press, 1956), and Morton Horwitz, The Transformation of American Law, 1780-1860 (Cambridge: Harvard University Press, 1977).

22. Lawrence Friedman, "Notes Toward a History of American Justice," Buffalo Law Reviw 24 (1974): 111-125, quotation from 125.

23. Court Records of Kent County, Delaware, 1680-1705 , ed. Leon deValinger, Jr. (Washington, D.C.: American Historical Association, 1959), 234-235, 270-271, recounted in Friedman, "Notes Toward a History of American Justice," 111.

24. Lawrence H. Gipson, Crime and Its Punishment in Provincial Pennsylvania (Bethlehem, Pa.: Lehigh University Press, 1935), 7.

25. The Laws and Liberties of Massachusetts, 1641-1691 , ed. John D. Cushing (Wilmington, Del.: Scholarly Resources, 1976), 1:12.

26. The Colonial Laws of New York from the Year 1664 to the Revolution (Albany: J. B. Lyon, 1894), 1:21. Cited in David H. Flaherty, "Law and the Enforcement of Morals in Early America," Perspectives in American History 5 (1971): 213.

27. Flaherty, "Law and the Enforcement of Morals," 203-253.

28. William E. Nelson, The Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760-1830 (Cambridge: Harvard University Press, 1975), 37. For a discussion of Nelson (along with Morton Horwitz and J.P. Reed) in the context of the new legal history, see Hendrik Hartog, "Distancing Oneself from the Eighteenth Century: A Commentary

on Changing Pictures of American Legal History," in Law in the American Revolution and the Revolution in the Law , ed. Hendrik Hartog (New York: New York University Press, 1981), 229-257.

29. For findings that support Flaherty's and Nelson's, see Michael S. Hindus, Prison and Plantation: Crime, Justice, and Authority in Massachusetts and South Carolina, 1767-1878 (Chapel Hill: University of North Carolina Press, 1980), 48-51; George Dargo, Law in the New Republic (New York: Knopf, 1983), 25-27.

30. Christopher Hill, Society and Puritanism in Pre-Revolutionary England (New York: Penguin, 1964), 343.

31. Douglas Hay has argued, for example, that a margin of discretion in eighteenth-century English law enabled the ruling classes to demonstrate magnanimity and to exact deference from the lower orders. See his "Property, Authority, and the Criminal Law," in Albion's Fatal Tree: Crime and Society in Eighteenth-Century England , ed. Douglas Hay et al. (New York: Pantheon, 1975), 17-54. But see also John H. Langbein's critique of such a concept, in " Albion's Fatal Flaw," Past and Present 98 (1983): 96-120. For the uses of discretion in the late nineteenth and early twentieth centuries, see Lawrence Friedman, "History, Social Policy, and Criminal Justice," in Social History and Social Policy , ed. David Rothman and Stanton Wheeler (New York: Academic Press, 1981), 204-215.

32. The Colonial Laws of Massachusetts, reprinted from the edition of 1672 , ed. William H. Whitmore (Boston: City Council, 1887), 54-55. Quoted in Flaherty, "Law and the Enforcement of Morals," 209.

33. Patrick Lord Devlin, The Enforcement of Morals (London: Oxford University Press, 1959), 2. This was originally delivered as the Maccabaean Lecture in Jurisprudence at the British Academy.

34. The Wolfenden Report; Report of the Committee on Homosexual Offenses and Prostitution (New York: Stein and Day, 1963), quoted in Devlin, Enforcement , 3.

35. Devlin, Enforcement , 3, 5.

36. H. L. A. Hart, Law, Liberty, and Morality (Stanford: Stanford University Press, 1963), 16-19, 28-70; for a weaker claim, see Ronald Dworkin, "Lord Devlin and the Enforcement of Morals," Yale Law Journal 75 (1966): 986-1005. The relation between law and morality is important not just for criminal law but also for constitutional law. See "Symposium: Law, Community, and Moral Reasoning," California Law Review 77 (1989): 475-594, for a discussion occasioned by Bowers v. Hardwick , 478 U.S. 186 (1986) (i.e., the constitutional right of privacy not extended to homosexual practices).

37. John Austin, The Province of Jurisprudence Determined, and The Uses of the Study of Jurisprudence , ed. H. L. A. Hart (1832; rpt. New York: Weidenfeld and Nicolson, 1954), 371. For a twentieth-century elaboration of Bentham's and Austin's position, see H. L. A. Hart, "Positivism and the Separation of Law and Morals," Harvard Law Review 71 (1958): 593-629; for a response to Hart, see Lon Fuller, "Positivism and Fidelity to Law—A Reply to Professor Hart," Harvard Law Review 71 (1958): 630-672. For a Kantian (as opposed to

utilitarian) argument for the separation of law and morals, see George P. Fletcher, "Law and Morality: A Kantian Perspective," Columbia Law Review 87 (1987): 533-558.

38. Oliver Wendell Holmes, "The Path of the Law," Harvard Law Review 10 (1897): 459, 464, 460.

39. Nelson, Americanization of the Common Law , 110.

40. Lawrence Friedman, A History of American Law , 2nd ed. (New York: Simon and Schuster, 1985), 291.

41. Holmes, "The Path of the Law," 459.

42. D. A. Miller, "The Novel and the Police," Glyph 8 (1981): 127-147, and The Novel and the Police (Berkeley: University of California Press, 1987); John Bender, Imagining the Penitentiary (Chicago: University of Chicago Press, 1987); Richard Brodhead, "Sparing the Rod: Discipline and Fiction in Antebellum America," Representations , no. 21 (1988): 67-96.

43. William Hazlitt, Lectures on the English Comic Writers (1819; rpt. New York: Wiley and Putnam, 1845), 138; Charles Lamb, letter to Walter Wilson, December 16, 1822, in the latter's Memoirs of the Life and Times of Daniel Defoe (London: Hurst, Chance, 1830), 3:428. Both quoted in Ian Watt, The Rise of the Novel (Berkeley: University of California Press, 1957), 34.

44. Friedman, A History of American Law , 291.

45. For an extended argument along those lines, see chapters 2 and 4.

46. Nancy Armstrong, Desire and Domestic Fiction: A Political History of the Novel (New York: Oxford University Press, 1987).

47. James Fenimore Cooper, The Deerslayer (1841; rpt. New York: Signet Books, 1963), 534. All subsequent citations to this edition will appear in the text.

48. See, for example, Jay Fliegelman, Prodigals and Pilgrims: The American Revolution against Patriarchal Authority, 1750-1800 (New York: Cambridge University Press, 1982); Jan Lewis, The Pursuit of Happiness: Family and Values in Jefferson's Virginia (New York: Cambridge University Press, 1983),169-187; Gordon Wood, The Radicalness of the American Revolution (New York: Vintage, 1991).

49. Eve Kosofsky Sedgwick, Between Men: English Literature and Male Homosocial Desire (New York: Columbia University Press, 1985), 11.

50. Eva Kittay, Metaphor: Its Cognitive Force and Linguistic Structure (New York: Oxford University Press, 1987).

51. Emile Durkheim, The Division of Labor in Society , trans. George Simpson (New York: Free Press, 1964), 101.

52. Ibid., 85, 88, 100.

53. For more recent discussions of the punitive and the symbolic, see Joel Feinberg, "The Expressive Function of Punishment," The Monist 49 (1965): 397-408; Joseph Gusfield, "Moral Passage: The Symbolic Process in Public Designation of Deviance," Social Problems 15 (1968): 175-188. For an interesting argument in favor of "blaming" as a mode of communal signification, see James Boyd White, ''Criminal Law as a System of Meaning," in Heracles' Bow:

Essays on the Rhetoric and Poetry of Law (Madison: University of Wisconsin Press, 1985), 192-214.

54. Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (1789; rpt. Oxford: Clarendon Press, 1907), 178.

55. Ibid., 171, 194, italics in original text.

56. Ibid., 194-195.

57. For the relation between Holmes and Bentham, see H. L. Pohlman, Justice Oliver Wendell Holmes and Utilitarian Jurisprudence (Cambridge: Harvard University Press, 1984).

58. Mark Kelman, "Interpretive Construction in the Substantive Criminal Law," Stanford Law Review 33 (1981): 591-673. Kelman's essay is part of a larger effort, associated with Critical Legal Studies, to deconstruct the putative neutrality of legal reasoning. His argument has implications outside the criminal law as well. See, for example, the responses to him in the "Symposium on Causation in the Law of Torts," Chicago-Kent Law Review 63 (1987): 397-680.

59. Stanley Fish, for example, has objected to Kelman on the grounds that "what Kelman is really complaining about is that there is a criminal law at all." But that seems to me to be precisely Kelman's point. See Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (Durham, N.C.: Duke University Press, 1989), 392-398. For a more sustained, if implicit, response to Kelman, see Michael S. Moore, "The Moral and Metaphysical Sources of the Criminal Law," in Criminal Justice , vol. 27 of Nomos: Yearbook of the American Society for Political and Legal Philosophy , ed. J. Roland Pennock and John W. Chapman (New York: New York University Press, 1985), 11-51.

60. E. P. Thompson, "The Crime of Anonymity," in Albion's Fatal Tree , 255-308, quotations from 272.

61. Jan Lewis, "The Republican Wife: Virtue and Seduction in the Early Republic," William and Mary Quarterly , 3rd ser., 44 (1987): 689-721, esp. 707-713.

62. Rosemarie Zagarri, "Morals, Manners, and the Republican Mother," American Quarterly 44 (1992): 192-216, quotation from 207.

63. John Witherspoon, "On Conjugal Affection," Ladies Magazine (Philadelphia), September 1792, 176, quoted in Lewis, "Republican Wife," 710 n. 79.

64. For a discussion of marriage in the context of race, see Philip Fisher, Hard Facts (New York: Oxford University Press, 1987), 22-86.

65. James Fenimore Cooper, The American Democrat: Or, Hints on the Social and Civic Relations of the United States of America (1838; rpt., New York: Knopf, 1931), 110.

66. Victor Turner, "Betwixt and Between: The Liminal Period in Rites de Passage ," in The Forest of Symbols (Ithaca: Cornell University Press, 1967), 93-111, quotations from 96-97. Turner draws on Arnold van Gennep, The Rites of Passage (Chicago: University of Chicago Press, 1960).

67. Turner, "Betwixt and Between," 110.

68. Turner himself has suggested that, in contrast to the localized and terminal liminality of tribal society, liminality in modern societies might be universal and permanent: "What appears to have happened is that with the increasing specialization of society and culture, with progressive complexity in the social division of labor, what was in tribal society principally a set of transitional qualities . . . has become itself an institutionalized state." See The Ritual Process: Structure and Anti-Structure (Ithaca: Cornell University Press, 1969), 107.

69. Karen Halttunen uses the word "liminality" specifically and extensively. See her Confidence Men and Painted Women: A Study of Middle-Class Culture of America, 1830-1870 (New Haven: Yale University Press, 1982), 1-32. See also Jean-Christophe Agnew, Worlds Apart: The Market and the Theater in Anglo-American Thought, 1550-1750 (New York: Cambridge University Press, 1986), 195-203.

70. Gordon Wood, The Creation of the American Republic, 1776-1787 (Chapel Hill: University of North Carolina Press, 1969), 606-607.

71. J. G. A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton: Princeton University Press, 1975), 516.

72. Pocock, Machiavellian Moment , 469; Pocock, "Virtues, Rights, and Manners: A Model for Historians of Political Thought," Political Theory 9 (1981): 353-368, reprinted in his Virtue , Commerce , and History (New York: Cambridge University Press, 1985), 37-50, quotation from 42-43.

73. J. R. Pole, The Pursuit of Equality in American History (Berkeley: University of California Press, 1978), 13.

74. James Madison, The Federalist Papers , ed. Clinton Rossiter (New York: New American Library, 1961), no. 10 (79, 81).

75. Alexander Hamilton, The Federalist Papers , no.6, (56, 59).

76. Ibid., 56, 59.

77. Madison to Jefferson, April 23, 1787, quoted in Wood, Creation of the American Republic , 413.

78. Theodore Sedgwick to Governor Bowdoin, April 8, 1787, quoted in Wood, Creation of the American Republic , 467.

79. Some historians take Shays's Rebellion to be the cause (or at least the pretext) of the 1787 Constitutional Convention in Philadelphia. For more qualified views, see Robert A. Feer, "Shays's Rebellion and the Constitution: A Study in Causation," New England Quarterly 42 (1969): 388-410; Gordon Wood, "Interests and Disinterestedness in the Making of the Constitution," in Beyond Confederation: Origins of the Constitution and American National Identity , ed. Richard Beeman et al. (Chapel Hill: University of North Carolina Press, 1987), 69-109.

80. For a meditation on the political institutions of republicanism now lost to us, see Hannah Arendt, On Revolution (New York: Viking, 1965).

81. Aside from already cited works by Wood and Pocock, see Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge: Harvard

University Press, 1967), and The Origins of American Politics (New York: Knopf, 1968). Bailyn, Wood, and Pocock all argue, implicitly or explicitly, against the "liberal tradition" posited by Louis Hartz, The Liberal Tradition in America (New York: Harcourt Brace Jovanovich, 1955). For summaries of the debate, see Robert Shalhope, "Toward a Republican Synthesis: The Emergence of an Understanding of Republicanism in Early American Historiography," William and Mary Quarterly , 3rd ser., 29 (1972):49-80; Dorothy Ross, "The Liberal Tradition Revisited and the Republican Tradition Addressed," in New Directions in American Intellectual History , ed. John Higham and Paul K. Conkin (Baltimore: Johns Hopkins University Press, 1979), 116-131; Isaac Kramnick, "Republican Revisionism Revisited,'' American Historical Review 87 (1982): 629-664; Lance Banning, "Jeffersonian Ideology Revisited: Liberal and Classical Ideas in the American Republic," William and Mary Quarterly , 3rd ser., 43 (1986):3-19; Joyce Appleby, Liberalism and Republicanism in the Historical Imagination (Cambridge: Harvard University Press, 1992). Appleby and Kramnick, I should point out, continue to argue for the centrality of liberalism in American political thought. For a debate about the contemporary usefulness of classical republicanism, see "Symposium: The Republican Civic Tradition," Yale Law Journal 97 (1988): 1493-1723.

82. Rawls, A Theory of Justice , 29.

83. See, for example, Bernard Williams, "The Idea of Equality," in Problems of the Self (Cambridge: Cambridge University Press, 1973), 230-249.

84. Samuel Williams, The Natural and Civil History of Vermont (Walpole, N.H.: Isaiah Thomas and David Carlisle, 1794), 330, quoted in Wood, Creation , 607.

85. Lance Banning, "Jeffersonian Ideology Revisited," 12. In this context, we must also entertain the possibility that liberalism and republicanism had always been a hybrid formation. See, for example, Thomas Pangle's discussion of Montesquieu's "liberal republicanism."

86. Cooper, The American Democrat , 41.

87. Ibid., 41.

88. For the centrality of consensus to American culture, see Sacvan Bercovitch, The American Jeremiad (Madison: University of Wisconsin Press, 1978), and The Office of "The Scarlet Letter" (Baltimore: Johns Hopkins University Press, 1991).

89. Indeed, as Michael McKeon points out, the emergence of the very category of "class" already signaled a destabilized traditional order. See his The Origins of the English Novel, 1600-1740 (Baltimore: Johns Hopkins University Press, 1987), 162-167, 255-265.

90. Raymond Williams, Marxism and Literature (Oxford: Oxford University Press, 1977), 121-127.

91. Mary Douglas, Purity and Danger (Harmondsworth: Penguin, 1970), 137-195.

92. See especially Linda K. Kerber, Women of the Republic: Intellect and Ideology in Revolutionary America (Chapel Hill: University of North Carolina Press, 1980), and Mary Beth Norton, Liberty's Daughters: The Revolutionary

Experience of American Women, 1750-1800 (Boston: Little, Brown, 1980). Important exceptions are Cathy Davidson and Carroll Smith-Rosenberg, both of whom have written on the rhetoricity of gender in the early republic. See, for example, Davidson, Revolution and the Word (New York: Oxford University Press, 1986); Smith-Rosenberg, "Dis-covering the Subject of the 'Great Constitutional Discussion,' 1786-1789," Journal of American History 79 (1992): 841-873.

93. Hanna Fenichel Pitkin, Fortune Is a Woman: Gender and Politics in the Thought of Niccolò Machiavelli (Berkeley: University of California Press, 1984), 25, 144.

94. Montesquieu, The Spirit of the Laws , trans. Anne Cohler, Basia Miller, and Harold Stone (New York: Cambridge University Press, 1989), 104.

95. Gordon Wood and J. G. A. Pocock have done much to elevate "virtue" into the key term of Revolutionary thinking. See Wood, Creation of the American Republic , 65-70; Pocock, Machiavellian Moment , 462-552. Numerous other accounts have followed. See especially John T. Agresto, "Liberty, Virtue, and Republicanism, 1776-1787," Review of Politics 39 (1977):473-504; John P. Diggins, The Lost Soul of American Politics: Virtue, Self-Interest, and the Foundations of Liberalism (Chicago: University of Chicago Press, 1984); James T. Kloppenberg, "The Virtues of Liberalism: Christianity, Republicanism, and Ethics in Early American Political Discourse," Journal of American History 74 (1987): 9-33; Lance Banning, "Some Second Thoughts on Virtue and the Course of Revolutionary Thinking,'' in Conceptual Change and the Constitution , ed. Terence Ball and J. G. A. Pocock (Lawrence: University Press of Kansas, 1988), 194-212.

96. The Debates in the Several State Conventions , ed. Jonathan Elliot (Washington, D.C.: Taylor and Maury, 1854), 3:536-537, quoted in Banning, "Second Thoughts on Virtue," 194.

97. Watt, The Rise of the Novel , 157.

98. Ruth Bloch, "The Gendered Meanings of Virtue in Revolutionary America," Signs 13 (1987): 37-58; Carroll Smith-Rosenberg, "Domesticating 'Virtue': Coquettes and Revolutionaries in Young America," in Literature and the Body , ed. Elaine Scarry (Baltimore: Johns Hopkins University Press, 1988), 160-183. This is also Ann Douglas's more general point in The Feminization of American Culture (New York: Avon, 1977). But see also Jan Lewis, who argues that the emphasis on chastity was already pervasive in classical republicanism ("Republican Wife," 716-721), and Nancy Cott, who sees chastity as an ideal consciously advocated by women as a means of empowerment. See her "Passionlessness: An Interpretation of Victorian Sexual Ideology, 1790-1850," Signs 4 (1978): 219-236.

99. For the emergence of political parties and partisan maneuverings as a feature of modern liberalism, see Lee Benson, The Concept of Jacksonian Democracy (Princeton: Princeton University Press, 1961); and Joel Silbey, The Partisan Imperative: The Dynamics of American Politics Before the Civil War (New York: Oxford University Press, 1985). For the separation of spheres, see Al-

asdair MacIntyre, After Virtue (Notre Dame: University of Notre Dame Press, 1981), 38-39.

100. See, for example, John P. McWilliams, Political Justice in a Republic: James Fenimore Cooper's America (Berkeley: University of California Press, 1972), 237-297. In The Pioneers Natty is put on trial for violating the civil law.

101. Prominently featured in The Pathfinder is Lieutenant Muir, the quartermaster, whose unseemly desire for Mabel Duncan and treacherous alliance with the French make him doubly objectionable.

102. Gordon Wood, "Conspiracy and the Paranoid Style: Causality and Deceit in the Eighteenth Century," William and Mary Quarterly , 3rd ser., 39 (1982): 402-441, quotations from 409, 430, 411, 409.

103. For a history of the changing status of promises (especially in relation to contractual obligations), see P. S. Atiyah, The Rise and Fall of Freedom of Contract (Oxford: Clarendon Press, 1979), 139-218, 652-659. For a contemporary statement, see Charles Fried, Contract as Promise: A Theory of Contractual Obligation (Cambridge: Harvard University Press, 1981). For one of the most eloquent defences of promise keeping, see Hannah Arendt, The Human Condition (Chicago: University of Chicago Press, 1958), 243-247.

104. David Hume, A Treatise of Human Nature , ed. Ernest C. Mossner (London: Penguin, 1984), 568, 574, 571, 568, italics in original.

105. Ibid., 530-531.

1. Michael Walzer, The Spheres of Justice (New York: Basic Books, 1983), 3, 5, 3.

2. Plato, The Republic , trans. Benjamin Jowett (New York: Vintage, 1991), Book 4 (129).

3. In recent years, a lively debate has sprung up on just this point. The most influential position to date, the Tucker-Wood thesis (proposed by Richard Tucker and Allen Wood), maintains that in Marx's critique of capitalism, injustice is not adduced as the ground of critique. This view has been further refined and elaborated by Richard Miller and Allen Buchanan, both of whom emphasize Marx's critique of justice. See R. C. Tucker, The Marxian Revolutionary Idea (New York: Norton, 1969), 37-53; Allen Wood, "The Marxian Critique of Justice," Philosophy and Public Affairs , 1 (1972): 244-282; Allen Buchanan, Marx and Justice: The Radical Critique of Liberalism (Totowa, N.J.: Rowman and Littlefield, 1982); Richard Miller, Analyzing Marx (Princeton: Princeton University Press, 1984).

4. Emerson, "The American Scholar," in Selections from Ralph Waldo Emerson , ed. Stephen E. Whicher (Boston: Houghton Mifflin, 1957), 64.

5. Henry David Thoreau, Walden and Other Writings , ed. Brooks Atkinson (New York: Modern Library, 1950), 41.

6. Chapters 1-3 of Adam Smith's Wealth of Nations (1776) bear the respective titles, "Of the Division of Labour," "Of the Principle which gives occa-

sion to the Division of Labour," and "That the Division of Labour is limited by the Extent of the Market." See An Inquiry into the Nature and Causes of the Wealth of Nations , ed. R. H. Campbell and A. S. Skinner (Oxford: Clarendon Press, 1976). Smith was not the first one to hit upon the concept. Sir William Petty, in Political Arithmetic (1690), and Bernard Mandeville, in The Fable of the Bees (1714), also wrote approvingly of the division of labor.

7. Smith, Wealth of Nations , 1:15.

8. Ralph Waldo Emerson, "Doctrine of the Hands," lecture given on December 13, 1837, at the Masonic Temple, Boston, reprinted in Early Lectures of Ralph Waldo Emerson , ed. Stephen E. Whicher, Robert E. Spiller, and Wallace E. Williams (Cambridge: Belknap, 1964), 2:230.

9. John Ruskin, The Stones of Venice , vol. 10 of The Complete Works of John Ruskin , ed. E. T. Cook and Alexander Wedderburn (London: George Allen, 1904), 196.

10. Karl Marx, Capital , trans. Samuel Moore and Edward Aveling (New York: International Publishers, 1967), 1:339, 345.

11. Ibid., 360.

12. Jakobson sees metonymy as a principle of contiguity and contrasts it with metaphor as a principle of equivalence. He associates the former with Realist narrative and the latter with Romantic poetry. See his "Linguistics and Poetics," in The Structuralists: From Marx to Lévi-Strauss , ed. Richard T. DeGeorge and Fernande M. DeGeorge (Garden City, N.Y.: Doubleday, 1972), 85-122. See also Roman Jakobson and Morris Halle, Fundamentals of Language (The Hague: Mouton, 1956).

13. Kenneth Burke, A Grammar of Motives (Berkeley: University of California Press, 1969), 503-511. I should point out that Burke distinguishes between metonymy and synecdoche, associating the former with reduction and the latter with relations between part and whole. However, as he readily allows, the tropes "do shade into one another," and "metonymy may be treated as a special application of synecdoche." In short, even though Burke's "metonymy'' is narrower than Lakoff's, the former can nonetheless be assimilated to the latter.

14. For instance, as Lakoff points out, the subcategory working mother is actually defined against a silent normative category, housewife-mother , comprising those who presumably do not "work." For Lakoff's interesting "culturization" of metonymy, see his Women, Fire, and Dangerous Things: What Categories Reveal about the Mind (Chicago: University of Chicago Press, 1987), 77-90.

15. Hayden White, Metahistory: The Historical Imagination in Nineteenth-Century Europe (Baltimore: Johns Hopkins University Press, 1973), 281-330.

16. Charles Taylor, Sources of the Self: The Making of the Modern Identity (Cambridge: Harvard University Press, 1989), 159-207, quotations from 176, 177.

17. Karl Marx, A Contribution to the Critique of Political Economy , ed. Maurice Dodd (New York: International Publishers, 1970), 20.

18. Sandel, for example, has critiqued Rawls for assuming that "the

bounds of the subject unproblematically correspond to the bodily bounds between human beings." See Michael Sandel, Liberalism and the Limits of Justice (New York: Cambridge University Press, 1982), 80.

19. Aristotle, Nicomachean Ethics , trans. Martin Ostwald (Indianapolis: Bobbs-Merrill, 1962), 125-127.

20. Charles Taylor, Sources of the Self , 186-192. Actually, in his respect for the concrete particular, Aristotle is much less committed to ontic logos than Plato is, a point noted by Taylor and Martha Nussbaum, among others. So, in citing Aristotle, we are already encountering the lowest common denominator of the tradition of ontic logos.

21. Adelmannus of Brescia, Epistle to Berengar; Sentences of Florian , 66; Alger of Liege, On the Sacraments , I.17; William of Saint-Thierry, On the Sacrament of the Altar , 12. All quoted in Jaroslav Pelikan, The Growth of Medieval Theology (600-1300) , vol. 3 of The Christian Tradition (Chicago: University of Chicago Press, 1978), 191.

22. 1 Corinthians 10:16-17.

23. Augustine, Exposition of the Gospel of John , 26.15, quoted in Pelikan, The Growth of Medieval Theology , 191.

24. Hugh of Breteuil, On the Body and Blood of Christ , quoted in Pelikan, The Growth of Medieval Theology , 199.

25. Berengar of Tours, On the Holy Supper , quoted in Pelikan, The Growth of Medieval Theology , 192, 194.

26. Guitmond of Aversa, On the Reality of the Body and Blood of Christ in the Eucharist , quoted in Pelikan, The Growth of Medieval Theology , 197.

27. Berengar of Tours, Fragments , quoted in Pelikan, The Growth of Medieval Theology , 198.

28. Ibid., 203.

29. In the Thomistic formula, the effects of the Fall chiefly involved the disordering of the faculties and the rebellion of the senses against reason. See Barbara Kiefer Lewalski, Protestant Poetics and the Seventeenth-Century Religious Lyric (Princeton: Princeton University Press, 1979), 15.

30. Galileo, Dialogue Concerning the Two Chief World Systems (1632), quoted in Ian Hacking, The Emergence of Probability (Cambridge: Cambridge University Press, 1975), 26.

31. Pelikan, The Growth of Medieval Theology , 185, 201.

32. Kantorowicz, of course, sees this as an instance of "political theology": the transposition of a religious faith into an ideology of the state. Ernest H. Kantorowicz, The King's Two Bodies: A Study in Medieval Political Theology (Princeton: Princeton University Press, 1957).

33. Edmund Plowden, Commentaries or Reports , quoted in Kantorowicz, The King's Two Bodies , 9.

34. Bacon, Post-nati , 651, quoted in Kantorowicz, The King's Two Bodies , 448.

35. Frederic W. Maitland, "The Crown as Corporation" (1901), in Collected Papers , ed. H. A. C. Fisher (Cambridge: Cambridge University Press, 1911), 3:249.

36. See Christopher Lawrence, "The Nervous System and Society in the Scottish Enlightenment," and Steven Shapin, "Homo Phrenologicus," both in Natural Order: Historical Studies of Scientific Culture , ed. Barry Barnes and Steven Shapin (Beverly Hills: Sage, 1979), 19-40, 41-71; Simon Schaffer, "States of Mind: Enlightenment and Natural Philosophy,'' in Languages of Psyche: Mind and Body in Enlightenment Thought , ed. G. S. Rousseau (Berkeley: University of California Press, 1990), 233-290; John W. Yolton, Thinking Matter: Materialism in Eighteenth-Century Britain (Oxford: Basil Blackwell, 1984).

37. See especially the chapter on "The Evidence of the Senses: Secularization and Epistemological Crisis," in Michael McKeon, The Origins of the English Novel, 1600-1740 (Baltimore: Johns Hopkins University Press, 1987), 65-89.

38. On this point, see Alasdair MacIntyre, After Virtue (Notre Dame: University of Notre Dame Press, 1981), esp. 79-108.

39. Indeed, from a certain perspective, materialism and dualism might turn out to be the same thing. For this stunning point, see Richard Rorty, Philosophy and the Mirror of Nature (Princeton: Princeton University Press, 1979).

40. This "Enlightenment" Marx is currently embraced by some Marxists. See especially, Sebastiano Timpanaro, On Materialism , trans. Lawrence Garner (London: Verso, 1980).

41. Michel Foucault, The Order of Things: An Archaeology of the Human Sciences (New York: Vintage, 1973), 251.

42. Karl Marx and Frederic Engels, The Holy Family (Moscow: Foreign Languages Publishing House, 1956), 172. This particular chapter was written by Marx.

43. Ibid., 173.

44. Karl Marx, The Economic and Philosophic Manuscripts of 1844 , ed. Dirk J. Struik (New York: International Publishers, 1964), 180, italics in original. This "corporeal" aspect of materialism has been largely overlooked. For a notable exception, see Elaine Scarry's brilliant reading of materialism as corporealism in The Body in Pain: The Making and Unmaking of the World (New York: Oxford University Press, 1985), 242-277.

45. Marx and Engels, The Holy Family , 173, italics in original.

46. MacIntyre, After Virtue , x.

47. Karl Marx, Grundrisse: Introduction to the Critique of Political Economy , trans. Martin Nicolaus (New York: Vintage, 1973), 83.

48. Marx, Grundrisse , 472-473, italics in original.

49. Ibid., 474, 483, italics in original.

50. Raymond Williams, "Problems of Materialism," New Left Review 109 (1978): 3-17, quotation from 3-4.

51. The critique of Bruno Bauer is developed in The Holy Family (1844), the critique of Ludwig Feuerbach in The German Ideology (1845) and in "Theses on Feuerbach," where Marx observes that Feuerbach reduces all historical process to the "abstract individual," an "inward dumb generality which naturally unites the many individuals." Against this view, Marx argues that "the

essence of man is no abstraction inherent in each separate individual. In its reality it is the ensemble (aggregate) of social relations." See "Theses on Feuerbach," appendix to The German Ideology , ed. R. Pascal (New York: International Publishers, 1947), 198-199.

52. Marx and Engels, The Holy Family 52-53, italics in original.

53. In the last chapter of Capital , Marx seemed to be moving away from his longstanding conception of an "objective" class identity. He wrote, "What constitutes a class?—and the reply to this follows naturally from the reply to another question, namely: What makes wage-labourers, capitalists, and landlords, constitute the three great social classes?" And he went on to say, " At first glance —the identity of revenues and sources of revenue," which would seem to suggest that he was about to change his mind (or at least to offer an amendment). However, since the manuscript broke off at just this point, the amendment was never developed. See Capital 3:886, italics mine.

54. Marx and Engels, The Holy Family , 52, 53.

55. Marx further clarifies this point in his preface to A Contribution to the Critique of Political Economy (1859), where he suggests that "the bourgeois mode of production is the last antagonistic form of the social process of production, . . . but the productive forces developing within bourgeois society create also the material conditions for a solution of this antagonism" (21, italics mine).

56. Karl Marx, Critique of the Gotha Programme (New York: International Publishers, 1966), 10.

57. Louis Althusser, For Marx , trans. Ben Brewster (New York: Vintage, 1970), 127, 197.

58. See, for example, Althusser's "Contradiction and Overdetermination," and "On the Materialist Dialectic," in For Marx , 87-128, 161-218; see also Louis Althusser and Etienne Balibar, "Marxism Is Not a Historicism," in Reading Capital , trans. Ben Brewster (London: NLB, 1975), 119-144.

59. Althusser, For Marx , 203, italics in original.

60. For example, in all his writings, and especially in "On the Materialist Dialectic," Althusser refers routinely to a "pre-given complex structured whole."

61. For an illuminating discussion, along the axis of gender, of this individualist deployment of difference in the service of identity, see Mary Poovey, Uneven Developments: The Ideological Work of Gender in Mid-Victorian England (Chicago: University of Chicago Press, 1988).

62. Marx, Capital , 1:354, 351, 356, 351.

63. In this sense, Marx's position in Capital actually represents a retreat from (and a simplifying of) his earlier position, articulated for example in The German Ideology , where he concedes the involuntary character of the social division of labor and at least entertains the possibility of a parallel between it and the industrial division of labor. See The German Ideology , 22.

64. Emile Durkheim, The Division of Labor in Society , trans. George Simpson (New York: Free Press, 1964), 41.

65. Marx's economism is qualified, of course, by his observation, in his

unfinished 1857 "Introduction" to the Critique (subsequently published as the "Introduction" to the Grundrisse ), about the "uneven development of material production relative to e.g. artistic development" and (he further adds) "legal relations" ( Grundrisse , 109). The phrase "uneven development'' has been a major inspiration for political theorists and literary critics, though it remains asserted rather than elaborated in Marx. And, in any case, since the 1857 "Introduction" was not published until 1903 in Die Neue Zeit , and the Grundrisse not published until 1939 in Moscow, Durkheim certainly would not have known about it when he published The Division of Labor in Society in 1893.

66. Anthony Giddens has since revised Durkheim into an impressive nonfunctionalist theory of structuration. See, for example, his Central Problems in Social Theory (Berkeley: University of California Press, 1979).

67. This is Durkheim's central argument in The Division of Labor in Society . See especially 70-173, 256-282, 329-352.

68. Ernesto Laclau and Chantal Mouffe, Hegemony and Socialist Strategy: Towards a Radical Democratic Politics (London: Verso, 1985), esp. 93-148; quotation from 95.

69. Charles Taylor, Sources of the Self , 186.

70. The scholarship on this point is voluminous. For a standard account, see Anthony Kenny, Descartes (New York: Random House, 1968), 96-125.

71. My previous book, Empire for Liberty: Melville and the Poetics of Individualism (Princeton: Princeton University Press, 1989) was certainly one example of this practice. But then, that book was among distinguished company.

72. Herman Melville, "The Paradise of Bachelors and the Tartarus of Maids," in The Piazza Tales and Other Prose Pieces , ed. Harrison Hayford et al. (Evanston and Chicago: Northwestern University Press and the Newberry Library, 1987), 316. All subsequent citations to this edition will appear in the text.

73. Eve Kosofsky Sedgwick, Between Men: English Literature and Male Homosocial Desire (New York: Columbia University Press, 1985), esp. 83-96.

74. Francis J. Grund, The Americans in Their Moral, Social, and Political Relations (London: Longman, Rees, Orme, Brown, Green, and Longman, 1837), 2:1-2, italics in original.

75. Henry Ward Beecher, Lectures to Young Men (1844; rpt. New York: J. C. Derby, 1856), 35-36.

76. Henry Ward Beecher, Norwood: or, Village Life in New England (New York: Charles Scribner, 1868), 23, 24.

77. Henry Ward Beecher, "Dream-Culture," in Star Papers: Experiences of Art and Nature (New York: J. C. Derby, 1855), 263, 268, 263, 269.

78. Nor was this the only occasion he was known to do so. William C. McLoughlin, for example, has compared Beecher's "massive inconsistency" to Whitman's. See The Meaning of Henry Ward Beecher: An Essay on the Shifting Values of Mid-Victorian America, 1840-1870 (New York: Knopf, 1970), 30.

79. This was true not just of America, but also of industrial England. See, for example, E. P. Thompson's seminal essay, "Time, Work-Discipline, and Industrial Capitalism," Past and Present 38 (December 1967): 56-97.

80. James Leonard Corning, The Christian Law of Amusement (Buffalo: Phinney and Co., 1859), 7.

81. The historian Daniel T. Rodgers, puzzling over these seeming contradictions, has come up with what seems to be a crucial organizing principle: "The sermons explicitly directed at the young, the poor, or the working class tended also to be those in which the gospel of work was most prominent; in thinking of the prosperous, overtaxed businessmen in his congregation he often chose the counsel of leisure." See Rodgers, The Work Ethic in Industrial America, 1850-1920 (Chicago: University of Chicago Press, 1978), 98.

82. Beecher, Norwood , 16. The idea that leisure is properly enjoyed only by those entitled to it is not unique to Beecher, of course. Joseph Addison, for example, in The Spectator 411 (June 21, 1712), had long ago suggested that "there are, indeed, but very few who know how to be idle and innocent, or have a relish of any pleasures that are not criminal." I am indebted to John Buck for bringing this citation to my attention.

83. Henry Ward Beecher, "Popular Amusements," in Lectures to Young Men , 215-251, quotations from 249, 250, 251. As Lawrence Levine has persuasively demonstrated, the theater was popular entertainment in the nineteenth century, quite different from the exclusive pastime it has become today. See "William Shakespeare in America," in his Highbrow/Lowbrow: The Emergence of Cultural Hierarchy in America (Cambridge: Harvard University Press, 1988), 11-82.

84. Beecher, preface to Star Papers .

85. See Richard H. Brodhead, Culture of Letters (Chicago: University of Chicago Press, 1993).

86. The allure of such a world as found in "The Paradise of Bachelors" was personally experienced by Melville himself during his visit to London in December 1849, when he was wined and dined by the literary and legal community.

87. Robert K. Martin has argued for an affirmative view of male friendship in Melville. See his Hero, Captain, and Stranger: Male Friendship, Social Critique, and Literary Form in the Sea Novels of Herman Melville (Chapel Hill: University of North Carolina Press, 1986). For a contrary account (emphasizing Melville's complex relation to homophobia), see Eve Kosofsky Sedgwick, Epistemology of the Closet (Berkeley: University of California Press, 1990), 91-130.

88. Judith A. McGaw, Most Wonderful Machine: Mechanization and Social Change in Berkshire Paper Making, 1801-1885 (Princeton: Princeton University Press, 1987), 335.

89. Joan Wallach Scott, "'L'ouvrière! Mot impie, sordide . . . ': Women Workers in the Discourse of French Political Economy," in her Gender and the Politics of History (New York: Columbia University Press, 1988), 139-163, quotations from 158, 155.

90. The pioneering and still useful account of the doctrine is Barbara Welter, "The Cult of True Womanhood, 1820-1860," American Quarterly 18 (1966): 151-174. Since then, a vast body of scholarship has sprung up on the subject.

For a good summary of the now diverse positions, see Linda Kerber, "Separate Spheres, Female Worlds, Woman's Place: The Rhetoric of Women's History," Journal of American History 75 (1988): 9-39.

91. "Scribbling women" is Hawthorne's phrase, not Melville's. For Melville's anxieties about authorship, see Michael Newbury, "Figurations of Authorship in Antebellum America" (Ph.D. diss., Yale University, 1992). See also Michael T. Gilmore, American Romanticism and the Marketplace (Chicago: University of Chicago Press, 1985).

92. For extensive discussions of this point, see Thomas Bender, Toward an Urban Vision: Ideas and Institutions in Nineteenth Century America (Baltimore: Johns Hopkins University Press, 1975), 21-93; John F. Kasson, Civilizing the Machine: Technology and Republican Values in America, 1776-1900 (New York: Penguin, 1977), 53-106.

93. Charles Dickens, American Notes (1842; rpt. New York: St. Martin's Press, 1985), 60-61.

94. William Scoresby, American Factories and Their Female Operatives (1845; rpt. New York: Burt Franklin, 1968), 54, 55, 69, 82, 88, 51.

95. Christine Stansell, for example, has emphasized the benefits of factory work, as opposed to the take-home "outwork," which not only paid less but also "bolstered up older forms of partriarchal supervision and curtailed the ways in which single women could turn manufacturing work to the uses of independence." See her City of Women: Sex and Class in New York, 1789-1860 (Urbana: University of Illinois Press, 1987). The upbeat conclusions of Stansell (and Thomas Dublin, discussed below) need to be supplemented, however, by the work of other historians, who call attention to the persistent low pay, the job segregation, and the failure of women workers to break free from traditional families. See, for example, Mary Blewett, Men, Women, and Work: A Study of Class, Gender, and Protest in the Nineteenth-Century Shoe Industry (Urbana: University of Illinois Press, 1988), and McGaw, Most Wonderful Machine . For critiques of mainstream labor history as insufficiently attentive to questions of gender, see Sally Alexander, Anna Davin, and Eve Hostettler, "Labouring Women: A Reply to Eric Hobsbawm," History Workshop 8 (Autumn 1979): 174-182; Joan Wallach Scott, "Women in The Making of the English Working Class ," in her Gender and the Politics of History , 68-92; Susan Levine, "Class and Gender: Herbert Gutman and the Women of 'Shoe City,''' Labor History 29 (1988): 344-355; Alice Kessler-Harris, "Gender Ideology in Historical Reconstruction," Gender and History 1 (1989): 31-49, esp. 31-37. For a useful survey of the vast scholarship on this subject, see Ava Baron, "Gender and Labor History," in Work Engendered , ed. Ava Baron (Ithaca: Cornell University Press, 1991), 1-46. For a more general discussion of the methodological entanglements between Marxism and feminism, see Heidi Hartmann, "The Unhappy Marriage of Marxism and Feminism: Towards a More Progressive Union," in Women and Revolution: A Discussion of the Unhappy Marriage of Marxism and Feminism , ed. Lydia Sargent (Boston: South End Press, 1981), 1-42.

96. Thomas Dublin, Women at Work: The Transformation of Work and Community in Lowell, Massachusetts, 1826-1860 (New York: Columbia University Press, 1979), quotation from 89. I should point out that in his recent work, Dublin has somewhat qualified this enthusiastic account. See his Transformation of Women's Work: New England Lives in the Industrial Revolution (Ithaca: Cornell University Press, 1994).

97. This is, in fact, something of a convention in their writings. Harriet Hanson Robinson insists, for example, "When I look back into the factory life of fifty or sixty years ago, I do not see what is called 'a class' of young men and women going to and from their daily work, like so many ants that cannot be distinguished one from another" ( Loom and Spindle, or Life among the Early Mill Girls [1898; rpt. Kailua, Hawaii: Press Pacifica, 1976], 37). In the same vein, Lucy Larcom suggests that every woman should "ask herself whether she would like to hear herself or her sister spoken of as a shop-girl, or a factory-girl, or a servant-girl," and ''if she would shrink from it a little, then she is a little inhuman when she puts her unknown human sisters who are so occupied into a class" ( A New England Girlhood [1899; rpt. Gloucester, Mass.: Peter Smith, 1973], 200). For a parallel argument about the nonintegral "multiple consciousness" of black women in the twentieth century, see Angela P. Harris, "Race and Essentialism in Feminist Legal Theory," Stanford Law Review 42 (1990): 581-616.

98. The Lowell Offering: Writings by New England Mill Women (1840-1845) , ed. Benita Eisler (Philadelphia: J. B. Lippincott, 1977), 52.

99. Ibid., 53.

100. Robinson, Loom and Spindle , 43.

101. Here, I am giving voice to a position well articulated by women historians. See, for example, Sally Alexander, "Women, Class, and Sexual Difference," History Workshop 17 (Autumn 1984): 125-149; Ava Baron, "Women and the Making of the American Working Class: A Study of the Proletarianization of Printers," Review of Radical Political Economics 14 (Fall 1982): 23-42; Emily Hicks, "Cultural Marxism: Nonsynchrony and Feminist Practice," in Women and Revolution , ed. Sargent, 219-238; Sonya Rose, "Gender at Work: Sex, Class, and Industrial Capitalism," History Workshop 21 (Spring 1986): 113-121; Joan Wallach Scott, "Work Identities for Men and Women," in her Gender and the Politics of History , 93-112.

102. Larcom, A New England Girlhood , 178-179.

103. Ibid., 223.

104. Nell Kull," 'I Can Never Be So Happy There among All Those Mountains': The Letters of Sally Rice," Vermont History 38 (1970): 49-57, quoted in Dublin, Women at Work , 37.

105. For an important collection of letters by the factory women, see Farm to Factory: Women's Letters, 1830-1860 , ed. Thomas Dublin (New York: Columbia University Press, 1981). Also valuable is the Harriet Hanson Robinson Collection at the Schlesinger Library, Radcliffe College, which includes letters from the Currier sisters.

106. Rebecca Harding Davis, Life in the Iron Mills (Old Westbury, N.Y.: Feminist Press, 1972), 22. All subsequent citations to this edition will appear in the text.

1. Jorge Luis Borges, "The Lottery in Babylon," in his Labyrinths , ed. Donald A. Yates and James E. Irby (New York: New Directions, 1964), 30, 34.

2. Barbara Goodwin, Justice by Lottery (Chicago: University of Chicago Press, 1992).

3. James Wycliffe Headlam-Morley, Election by Lot at Athens (Cambridge: Cambridge University Press, 1933), 2.

4. E. S. Staveley, Greek and Roman Voting and Elections (Ithaca: Cornell University Press, 1972), 61-72.

5. Calabresi and Bobbitt took this phrase from William Arrowsmith, who speaks of "a nightmare of justice in which the assertion of any right involves a further wrong, in which fate is set against fate in an intolerable necessary sequence of violence." See his Tragedy: Vision and Form , ed. William Corrigan (San Francisco: Chandler Publishing, 1965), 332.

6. Guido Calabresi and Philip Bobbitt, Tragic Choices (New York: Norton, 1978), 18, 41, 44.

7. Bernard Williams, Moral Luck (Cambridge: Cambridge University Press, 1981), 18.

8. Robert Nozick (a philosopher I never expect to agree with!) has recently argued that "many of philosophy's traditional problems have turned out to be intractable and resistant to rational resolution [because] these problems may result from attempts to extend rationality beyond its delimited evolutionary function." Among those problems he includes the problem of "justifying goals." See his The Nature of Rationality (Princeton: Princeton University Press, 1993), esp. 133-139.

9. Bernard Williams, Moral Luck , and Ethics and the Limits of Philosophy (Cambridge: Harvard University Press, 1985). See also the important essay by Thomas Nagel, "Moral Luck" (in which he discusses our "fractional" contribution to the effects of our action), in Mortal Questions (New York: Cambridge University Press, 1979). For a collection of essays on this subject, see Moral Luck , ed. Daniel Statman (Albany: SUNY Press, 1993). Relatedly, also see Judith Shklar's brilliant analysis of the unstable distinction between "misfortune" and ''injustice" in The Faces of Injustice (New Haven: Yale University Press, 1990).

10. Williams's example (after Charles Fried's) is the absurdity of justification when a man saves his wife rather than a stranger when those two are in equal peril.

11. This is, I think, a fairly standard summary of Kant's Groundwork of the Metaphysics of Morals (1785) and Critique of Practical Reason (1788).

12. See Jon Elster, Ulysses and the Sirens: Studies in Rationality and Irrationality (Cambridge: Cambridge University Press, 1984), and Solomonic Judge -

ments: Studies in the Limitations of Rationality (Cambridge: Cambridge University Press, 1989). Quotation from Solomonic Judgements , 121.

13. It might seem odd to speak of Christian theology in terms of luck, but here I claim the precedent of Bernard Williams, who writes, "the idea that one's whole life can in some such way be rendered immune to luck has perhaps rarely prevailed (it did not prevail, for instance, in mainstream Christianity)." See Moral Luck , 20. Also, we might want to consider the intimate ties between Christianity and magic, analyzed by Keith Thomas and David Hall, among others. See Keith Thomas, Religion and the Decline of Magic (New York: Scribners, 1971); David D. Hall, Worlds of Wonder, Days of Judgment: Popular Religious Belief in Early New England (Cambridge: Harvard University Press, 1989).

14. Jonathan Edwards, "God Glorified in Man's Dependence," in The Works of President Edwards , vol. 4, Containing Forty Sermons on Various Subjects (New York: Leavitt and Allen, 1858), 172. This sermon, delivered before an expectant Boston audience in 1731, was the first sermon published by Edwards.

15. Immanuel Kant, Groundwork of the Metaphysics of Morals , trans. H. J. Paton (New York: Harper, 1964), 57.

16. For a classic statement, see David Ross, The Right and the Good (Oxford: Clarendon Press, 1930). For a vigorous defense of desert and a response to Rawls, see George Sher, Desert (Princeton: Princeton University Press, 1987). Robert Nozick, in the face of Rawls's argument against desert, has retreated however to the weaker claim of "entitlement" as the ground of distributive justice. See Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), 185-231.

17. John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), 310-315, quotation from 314.

18. Ibid., 75.

19. Ibid., 74.

20. Nozick, Anarchy, State, and Utopia , 219.

21. Rawls, A Theory of Justice , 3.

22. Ibid., 12.

23. In his most recent work, Political Liberalism (New York: Columbia University Press, 1993), Rawls has put considerable distance between himself and Kant. He insists, for example, that justice as fairness is "political constructivism," as opposed to Kant's "moral constructivism." However, the difference here is a difference in scope, not a difference in their commitment to the categorical.

24. In Political Liberalism , Rawls argues that much of the criticism directed at his abstract conception of the person comes from not seeing the veil of ignorance as a hypothetical construct. To my mind, however, this abstractness governs not only the specific device of the veil of ignorance but also his general conception of political personhood.

25. Rawls, A Theory of Justice , 15.

26. Ibid., 47. See also 491, where Rawls once again compares ethical understanding to grammatical knowledge.

27. Noam Chomsky, Syntactic Structures (The Hague: Mouton, 1957), 5.

28. A cursory list of semantic theorists would include Rudolf Carnap, Donald Davidson, Michael Dummett, Hilary Putnam, W. V. Quine, Alfred Tarski, the later Wittgenstein, and Paul Ziff. Some of these, needless to say, themselves have complicated arguments about the analyzability of semantics. (Quine, for example, argues against the factuality of semantics in favor of its indeterminacy.)

29. Chomsky, Syntactic Structures , 100, 101, 106.

30. Chomsky's own impatience with semantics, of course, has not prevented other Chomskian linguists from trying to work out a generative semantic theory. See, for example, Jerrold J. Katz and Jerry A. Fodor, "The Structure of a Semantic Theory," in The Structure of Language: Readings in the Philosophy of Language , ed. Jerry A. Fodor and Jerrold J. Katz (Englewood Cliffs, N.J.: Prentice-Hall, 1964), 479-518.

31. For that reason, poetry, a linguistic performance if ever there is one, would also make no analytic sense to Chomsky. John Hollander seems to have this in mind when he incorporates a sentence Chomsky finds nonsensical ("Colorless green ideas sleep furiously") into his poem "Coiled Alizarine," his playful tribute and gentle rebuke to Chomsky.

32. This point emerges most clearly in Chomsky's critique of Paul Grice, Peter Strawson, and especially John Searle. See Chomsky, "The Object of Inquiry," in his Reflections on Language (New York: Pantheon, 1975), esp. 53-77. For a useful (and complexly qualifying) account of this debate, see Michael Dummett, "Language and Communication," in Reflections on Chomsky , ed. Alexander George (Oxford: Basil Blackwell, 1989), 192-212.

33. Noam Chomsky, Cartesian Linguistics: A Chapter in the History of Rationalist Thought (New York: Harper and Row, 1966), and Language and Mind , enlarged ed. (New York: Harcourt Brace Jovanovich, 1972), 1-23.

34. Chomsky, Language and Mind , 12.

35. Noam Chomsky, Aspects of the Theory of Syntax (Cambridge: MIT Press, 1965), 58.

36. Ludwig Wittgenstein, Philosophical Investigations , trans. G. E. M. Anscombe, 3rd ed. (New York: Basil Blackwell, 1958), §373.

37. Ludwig Wittgenstein, Philosophical Grammar , ed. Rush Rhees, trans. Anthony Kenny (Oxford: Basil Blackwell, 1974), part 1, §§104, 23.

38. Ibid., part 1, §133.

39. Wittgenstein, Philosophical Investigations , §19.

40. J. S. Thompson, "The Reactionary Idealist Foundation of Noam Chomsky's Linguistics," Literature and Ideology 4 (1969): 1-20.

41. "Linguistics and Politics: Interview with Noam Chomsky," New Left Review 57 (September-October 1969): 21-34, quotation from 31-32.

42. Chomsky, "On Cognitive Capacity," in Reflections on Language , 4.

43. On the whole, Chomsky is much more impressed by Descartes than he is by Kant, whom he tends to assimilate into the Cartesian tradition, noting that Kant's ideas are "rather similar" to the "rich and varied work of seventeenth-century rationalists." See Reflections on Language , 7, also 131.

44. Chomsky's commitment to civil disobedience is well known. For Rawls's detailed discussion of this subject, see A Theory of Justice , 363-391.

45. Ludwig Wittgenstein, Tractatus Logico-Philosophicus , trans. D. F. Pears and B. F. McGuinness (London: Routledge and Kegan Paul, 1961), 6.341.

46. Rawls himself has now come to concede this point. In Political Liberalism , acknowledging that his theory of justice is not and cannot be a comprehensive doctrine, he forthrightly says, "The idea of political justice does not cover everything, nor should we expect it to." And he goes on, "Political justice needs always to be complemented by other virtues" (21).

47. Rawls, A Theory of Justice , 494-495.

48. Gregory Vlastos, "The Individual as Object of Love in Plato's Dialogues," in his Platonic Studies (Princeton: Princeton University Press, 1973), 1-34, quotation from 32.

49. Michael Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982), 181.

50. Rawls, A Theory of Justice , 191. Susan Moller Okin has critiqued this neglect of feeling in Rawls as part of his Kantian heritage. See Okin, "Reason and Feeling in Thinking about Justice," Ethics 99 (1989): 229-249. See also her Justice, Gender, and the Family (New York: Basic Books, 1989). Okin's critique, however, does not extend to the ideal of justice, which remains for her a foundational ideal.

51. Kant, Groundwork of the Metaphysics of Morals , passim, quotation from 66.

52. Ibid., 66.

53. Walt Whitman, "Song of Myself," in Leaves of Grass: The First (1855) Edition , ed. Malcolm Cowley (New York: Viking, 1959), 28, ellipses in original. All subsequent citations to this edition will appear in the text.

54. My argument here parallels Philip Fisher's, in his discussion of Whitman's democratic poetics as an "aesthetics of the social space." See Fisher, "Democratic Social Space: Whitman, Melville, and the Promise of American Transparency," Representations , no. 24 (1988): 60-101.

55. Allen Grossman has written that Whitman's is "a world composed of a limitless series of brilliant finite events each of which imposed closure at the grammatical end of its account." See his "The Poetics of Union in Whitman and Lincoln," in The American Renaissance Reconsidered: Selected Papers from the English Institute, 1982-83 , ed. Walter Benn Michaels and Donald E. Pease (Baltimore: Johns Hopkins University Press, 1985), 183-208, quotation from 189.

56. Allen Grossman is exactly right, I think, when he writes that "the fullness of articulation of Whitman's poem" depends "on the failed predecessor system of which all that survives is love without an object" (ibid., 199).

57. For a fine reading of this detail, see Karen Sanchez-Eppler, Touching Liberty: Abolition, Feminism, and the Politics of the Body (Berkeley: University of California Press, 1993), 77.

58. Michael Sandel, "The Procedural Republic and the Unencumbered Self," Political Theory 12 (1984): 81-96.

59. Kant, Groundwork of the Metaphysics of Morals , 105.

60. The literature on this subject is formidable. See, for example, Paul Ziff, Semantic Analysis (Ithaca: Cornell University Press, 1960); Jerry A. Fodor and Jerrold J. Katz, "The Structure of a Semantic Theory," Language 39 (1963): 170-210; reprinted in The Structure of Language , ed. Fodor and Katz, 479-518. For more recent discussions, see Norbert Hornstein, "Meaning and the Mental: The Problem of Semantics after Chomsky," in Reflections on Chomsky , ed. George, 23-40, and Dummett, ''Language and Communication."

61. John Searle, "Chomsky's Revolution in Linguistics," The New York Review of Books June 29, 1972, 16-24, reprinted in On Noam Chomsky , ed. Gilbert Harman (Garden City, N.Y.: Anchor Press, 1974), 2-33.

62. J. L. Austin, "A Plea for Excuses," Philosophical Papers , 3rd ed. (Oxford: Clarendon Press, 1979), 201.

63. Mikhail Bakhtin, The Dialogic Imagination , ed. Michael Holquist, trans. Caryl Emerson and Michael Holquist (Austin: University of Texas Press, 1981), 293.

64. Quoted by Horace Traubel in his foreword to The American Primer (1904; rpt. Stevens Point, Wis.: Holy Cow! Press, 1987), viii-ix.

65. Martha C. Nussbaum, The Fragility of Goodness: Luck and Ethics in Greek Tragedy and Philosophy (New York: Cambridge University Press, 1986).

66. The charge of sentimentalism, influentially leveled by Ann Douglas in her The Feminization of American Culture (New York: Knopf, 1977), has actually not been disputed by Jane Tompkins in her equally influential defense of the women writers in Sensational Designs: The Cultural Work of American Fiction (New York: Oxford University Press, 1985).

67. Susan Warner, The Wide, Wide World (1850; rpt. New York: Feminist Press, 1987), 208. All subsequent citations to this edition will appear in the text.

68. Warner's father was ruined in the panic of 1837, and the family had to move from New York to Constitution Island, where Warner began writing novels to support her family and where she and her sister Anna remained for the rest of their lives.

69. The Catholic Church refers to Augustine as Doctor Gratiae . As Albert C. Outler notes in his introduction to Augustine, "The central theme in all of Augustine's writings is the sovereign God of grace and the sovereign grace of God." See Confessions and Enchiridion , ed. and trans. Albert C. Outler (Philadelphia: Westminster Press, 1955), 14. See also Jaroslav Pelikan's excellent discussion of Augustine's "paradox of grace" in The Emergence of the Catholic Tradition (100-600) , vol. 1 of The Christian Tradition (Chicago: University of Chicago Press, 1971), 292-307.

70. Augustine, Enchiridion , in Confessions and Enchiridion , §107 (404).

71. Augustine, On Christian Doctrine , trans. D. W. Robertson (Indianapolis: Bobbs-Merrill, 1958), 23.

72. Augustine, Enchiridion , §§99, 107 (pp. 398, 404). The quotation "God maketh one vessel for honorable, another for ignoble use" is from Proverbs 8:35.

73. Jaroslav Pelikan, The Growth of Medieval Theology (600-1300), vol. 2 of The Christian Tradition (Chicago: University of Chicago Press, 1978), 81. My discussion of Augustine and of Luther (to follow) is heavily indebted to this magisterial study.

74. Martin Luther, Lectures on the First Epistle of St. John (1527), trans. Walter A. Hansen, Luther's Works (St. Louis: Concordia Publishing House, 1956), 30:300.

75. The phrase, "I, Martin Luther, Augustinian," appeared in the letter to Mayor Muhlphordt, appended to The Freedom of a Christian (1520), trans. W. A. Lambert, rev. Harold J. Grimm, Luther's Works , 31:333.

76. Martin Luther, Lectures on Galatians, Chapters 1-4 (1535), trans. Jaroslav Pelikan, Luther's Works , 26:377.

77. The verse is "And because you are sons, God has sent the Spirit of His Son into your hearts" (Galatians 4:6).

78. Luther, Lectures on Galatians, Chapters 1-4 , 386-387, 380, 386, 387.

79. Ibid., 375.

80. The Bondage of the Will , a polemic against Erasmus, was considered by Luther himself to be one of his two or three best works.

81. Martin Luther, The Bondage of the Will (1525), trans. Philip S. Watson, Luther's Works , 33:37, 38, 43, 291.

82. John Calvin, The Institutes of the Christian Religion , ed. John T. McNeill, trans. Ford Lewis Battles (Philadelphia: Westminster Press, 1960), 205-212.

83. As Philip S. Watson points out in his notes to The Bondage of the Will , Luther is actually using the word "contingent" rather imprecisely, since he interprets "contingency" as virtually equivalent to "chance,'' as the Schoolmen did not. In Scholastic theology a distinction is made between necessitas consequentiae ("necessity of consequence") and necessitas consequentis ("necessity of the thing consequent"). The latter is absolute, but the former is conditional and includes contingency as part of its workings. Luther's imprecision has been noted by Erasmus as well, who, in his reply, said that most Christian theologians "define 'contingent' rather more accurately than you do."

84. Luther, Lectures on Galatians, Chapters 1-4 , 226-227.

85. Luther, Lectures on the First Epistle of St. John , 311.

86. Ibid.

87. Luther, Lectures on Galatians, Chapters 1-4 , 231, 226.

88. Against Max Weber's emphasis on the connection between Reformation theology and economic discipline (in The Protestant Ethic and the Spirit of Capitalism ), Michael Walzer emphasizes the connection between Reformation theology and political discipline. See Walzer, The Revolution of the Saints (Cambridge: Harvard University Press, 1965), quotation from 25-26.

89. Since much of my discussion will appear as a critique of Luther, I want to take this opportunity to acknowledge an aspect of Luther not emphasized in this chapter. In the same commentary on Galatians 4:6 in which Luther so frequently used the word "certainty," he also wrote movingly about the "sigh" uttered by the Holy Spirit when Moses, pursued by the

Egyptians, "saw the very presence of death in the water and wherever he turned his gaze," and became "thoroughly terrified." Then the Holy Spirit

emits what seems to us to be some sort of sob and sigh of the heart; but in the sight of God this is a loud cry and a sigh too deep for words. . . . Then the Father says: "I do not hear anything in the whole world except this single sigh, which is such a loud cry in My ears that it fills heaven and earth and drowns out all the cries of everything else." You will notice that Paul does not say that the Spirit intercedes for us in temptation with a long prayer, but that He intercedes with a sigh.

See Lectures on Galatians, Chapters 1-4 , 384-385.

90. Sacvan Bercovitch, The American Jeremiad (Madison: University of Wisconsin Press, 1978).

91. Luther, Lectures on Galatians, Chapters 1-4 , 124, 127, 128.

92. Augustine, Confessions , in Confessions and Enchiridion , Book 10, §6 (pp. 205-206).

93. Augustine, On Christian Doctrine , 9, 18, 10. Augustine here also distinguishes between two kinds of love, the love that uses and the love that enjoys, our relation to God being inimitably a case of the latter but also supremely a case of the latter.

94. Interestingly, Luther did critique Augustine for giving too little attention to faith: "In Augustine one finds too little faith, in Jerome none at all. No one among the ancient teachers is sincere to the extent that he teaches the pure faith" ( Lectures on the First Epistle of St. John , 313).

95. Luther, Lectures on Galatians, Chapters 1-4 , 127, 129.

96. Ibid., 129.

97. Luther, The Freedom of a Christian , 367.

98. Edward Taylor, Preparatory Meditations , First Series, no. 12, in The Poems of Edward Taylor , ed. Donald E. Stanford (New Haven: Yale University Press, 1960), 25.

99. Of course, Taylor also wrote (and perhaps is better known for) many other poems, not about the delights of loving God but about a debilitating sense of personal unworthiness.

100. Stanley Fish argues for the importance of Augustine to Donne and Herbert; Louis Martz argues for the importance of the medieval heritage to metaphysical poetry in general; Barbara Kiefer Lewalski argues against both Fish and Martz in presenting the metaphysical poets not as the tag-ends of medieval or Counter Reformation spirituality, but as pioneers of a Protestant poetics. However, since this Protestant poetics owes its vitality to the continuing presence of Augustine and to the poetic genres of the Bible, Lewalski's work actually supports my point here about the "historical memory" of Protestantism. See Fish, Self-Consuming Artifacts (Berkeley: University of California Press, 1972); Martz, The Poetry of Meditation (New Haven: Yale University Press, 1954); Lewalski, Protestant Poetics and the Seventeenth-Century Religious Lyric (Princeton: Princeton University Press, 1979).

101. David Hall, Worlds of Wonder, Days of Judgment , 11, and "The World

of Print and Collective Mentality in Seventeenth-Century New England," in New Directions in American Intellectual History , ed. John Higham and Paul Conkin (Baltimore: Johns Hopkins University Press, 1979), 169.

102. Sydney E. Ahlstrom, introduction to Theology in America (Indianapolis: Bobbs-Merrill, 1967), 24.

103. Perry Miller, The New England Mind: The Seventeenth Century (New York: Macmillan, 1939), 3-34.

104. For an account of the "multivocal" religious culture in Massachusetts, see Janice Knight, Orthodoxies in Massachusetts (Cambridge: Harvard University Press, 1994). For an account of the heterogeneity of popular religion, see Jon Butler, Awash in a Sea of Faith: Christianizing the American People (Cambridge: Harvard University Press, 1990).

105. Ahlstrom, introduction to Theology in America , 23.

106. Douglas, The Feminization of American Culture , 74-75.

107. For a suggestive reading of Edwards along these lines, see Sandra Gustafson, "Jonathan Edwards and the Reconstruction of 'Feminine' Speech," American Literary History 6 (1994): 185-212.

108. Jonathan Edwards, A Treatise Concerning Religious Affections , ed. John E. Smith, vol. 2 of Works of Jonathan Edwards (New Haven: Yale University Press, 1959), 107, 108.

109. Ibid., 100.

110. Ibid., 96.

111. To a modern reader, Locke uses the word "preference" in a rather peculiar way. A typical construction is: a man "prefers his not falling to falling," or "a Man would preferr flying to walking." In other words, the phenomenon of preference is related to the question of free agency. But Locke is also careful to distinguish between preference and volition ("Preference, which seems perhaps best to express the Act of Volition, does it not precisely"). See An Essay Concerning Human Understanding , ed. Peter H. Nidditch (1690; rpt. Oxford: Clarendon Press, 1979), II.xxi.5-15 (236-241). Edwards, on the other hand, uses the word "preference'' in a way much closer to our modern usage, relating it, that is, to our likes and dislikes. Perry Miller has presented Locke as the "central and decisive event" in Edwards's intellectual life. This view has now been challenged, especially by Norman Fiering. See Miller, Jonathan Edwards (New York: William Sloane, 1949), 52; Fiering, Jonathan Edwards's Moral Thought and Its British Context (Chapel Hill: University of North Carolina Press, 1981), 35-40.

112. Edwards, A Treatise Concerning Religious Affections , 97.

113. In this sense, Edwards's position is actually surprising close to Hobbes's. Hobbes writes, "Every man, for his own part, calleth that which pleaseth, and is delightful to himself, good; and that evil which displeaseth him. . . . And as we call good and evil the things that please and displease; so call we goodness and badness, the qualities or powers whereby they do it." See Hobbes, The English Works of Thomas Hobbes of Malmesbury , ed. Sir William Molesworth (Aalen, Germany: Scientia, 1962), 4:32.

114. Jonathan Edwards, Concerning the End for Which God Created the World , in Ethical Writings , ed. Paul Ramsey, vol 8. of Works of Jonathan Edwards (New Haven: Yale University Press, 1989), 422.

115. Ibid., 446.

116. Jonathan Edwards, "Love More Excellent than Extraordinary Gifts of the Spirit" (sermon), in Ethical Writings , 160.

117. Edwards, Concerning the End , 419.

118. Alan Heimert, Religion and the American Mind: From the Great Awakening to the Revolution (Cambridge: Harvard University Press, 1966), 108-112; Fiering, Jonathan Edwards's Moral Thought , 126.

119. Edwards, The Nature of True Virtue , in Ethical Writings , 568.

120. Ibid., 569, italics in original.

121. Edwards defines "a sense of desert " as "that sense of justice , before spoken of, consisting in an apprehension of that secondary beauty that lies in uniformity and proportion. . . . Which is indeed a kind of moral sense, or sense of a beauty in moral things. But, as was before shown, it is a moral sense of a secondary kind, and is entirely different from a sense or relish of the original essential beauty of true virtue" (ibid., 582, italics in original).

122. Ibid., 573. I should point out, of course, that Edwards is not unguilty of aestheticism himself, since he defines "true virtue" as that which "is beautiful by a general beauty" (540).

123. Ibid., 540.

1. Richard A. Posner, The Economics of Justice (Cambridge: Harvard University Press, 1981), 1.

2. This movement, especially powerful in the field of torts, is usually understood to have begun in the 1960s with Guido Calabresi and Ronald Coase. See Calabresi, "Some Thoughts on Risk Distribution and the Law of Torts," Yale Law Journal 70 (1961): 499-553; Coase, "The Problem of Social Cost," Journal of Law and Economics 1 (1960): 3-7.

3. Beginning with his 1957 dissertation on the economics of racial discrimination, Gary Becker has argued forcefully for the centrality of economic reasoning even in supposedly nonmarket domains (including the utilization of time, crime and prosecution, choice of marriage partners, reproduction, adultery, and suicide). For a classic statement of this economic fundamentalism, see Becker, The Economic Approach to Human Behavior (Chicago: University of Chicago Press, 1976).

4. Posner, The Economics of Justice , 1, 2, 3, 60, 87.

5. Howells, The Rise of Silas Lapham , ed. Walter J. Meserve and David J. Nordloh (Bloomington: Indiana University Press, 1977), 241. All subsequent citations to this edition will appear in the text.

6. Jeremy Bentham, A Fragment on Government , ed. F. C. Montague (Oxford: Oxford University Press, 1951), 93.

7. John Stuart Mill, Utilitarianism , in Essential Works of John Stuart Mill , ed. Max Lerner (New York: Bantam, 1961), 194.

8. Jeremy Bentham, Works , ed. John Bowring (New York: Russell and Russell, 1962), 1:31, italics in the original.

9. For one example of such critique, see George Fletcher, "Why Kant," Columbia Law Review 87 (1987): 421-432. Interestingly, Fletcher sees not only Law and Economics but also Critical Legal Studies as descendants of utilitarianism.

10. Posner, The Economics of Justice , 48, 33, 2.

11. On this point, see my introduction. Posner mentions Aristotle in passing, although oddly enough he seems to associate Aristotle only with corrective justice, whereas the discussion of justice in the Nicomachean Ethics is actually much broader in scope. See Posner, The Economics of Justice , 73.

12. Theodor W. Adorno and Max Horkheimer, Dialectic of Enlightenment , trans. John Cumming (New York: Continuum, 1989), 7, 6, 10, 7, 13, 10. The quotation from Bacon is from Advancement of Learning , in The Works of Francis Bacon , ed. Basil Montagu (London: W. Pickering, 1825), 2:126.

13. Descartes's influence on the Enlightenment is a much debated matter. An authoritative account is Ernst Cassirer, Philosophy of the Enlightenment , trans. Fritz C. A. Koelln and James P. Pettegrove (Boston: Beacon Press, 1955). For a valuable summary and partisan statement, see Aram Vartanian, Diderot and Descartes: A Study of Scientific Naturalism in the Enlightenment (Princeton: Princeton University Press, 1963). For the influence of Descartes in England, see Rosalie Colie, Light and Enlightenment: A Study of the Cambridge Platonists and the Dutch Arminians (Cambridge: Cambridge University Press, 1957). See also the excellent bibliographical essay appended to Peter Gay, The Enlightenment: The Science of Freedom (New York: Norton, 1977), 617-620.

14. Thomas Hobbes, De Cive , in Man and Citizen , ed. Bernard Gert (Indianapolis: Hackett, 1991), 91.

15. But see also Richard McKeon, The Philosophy of Spinoza (New York: Longmans, Green and Co., 1928), 153-157, 161-165, for an account of Spinoza's reservations about the mathematical model.

16. Quoted in John Grier Hibben, The Philosophy of the Enlightenment (New York: Scribner's, 1910), 165. It is fair to say, however, that this was a youthful remark; later in his life, Leibniz was not so confident. See, for example, his letter to Remond, in Ernst Cassirer, The Platonic Renaissance in England , trans. James P. Pettegrove (Austin: University of Texas Press, 1953), 152.

17. Locke, An Essay Concerning Human Understanding , ed. Peter H. Nidditch (Oxford: Clarendon Press, 1979), II.xvi.1 (205), italics in original.

18. Ibid., III.xi.16 (516), italics in original.

19. Garry Wills, Inventing America: Jefferson's Declaration of Independence (New York: Vintage, 1979), 151.

20. Bentham, Works , 3:286-287. For Bentham's indebtedness to (and divergence from) Beccaria, see H. L. A. Hart, "Bentham and Beccaria," in his Essays on Bentham (Oxford: Clarendon Press, 1982), 40-52.

21. The authoritative accounts remain Leslie Stephen, English Utilitarians (1900; rpt. New York: P. Smith, 1950), and History of English Thought in the Eighteenth Century , 3rd ed., vol. 2 (1876; rpt. New York: P. Smith, 1949). See also Ernest Albee, A History of English Utilitarianism (New York: Macmillan, 1902), 1-190; John Plamenatz, The English Utilitarians (Oxford: Basil Blackwell, 1949), 22-58; Anthony Quinton, Utilitarian Ethics (London: Macmillan, 1973), 11-26.

22. William Wollaston, for example, in his influential Religion of Nature Delineated (London: S. Palmer, 1724), had done much the same thing, and with the same degree of obsessiveness. A representative passage from Wollaston reads as follows (35-36):

When pleasures and pains are equal, they mutually destroy each other; when the one exceeds, the excess gives the true quantity of pleasure or pain. For nine degrees of pleasure, less by nine degrees of pain, are equal to nothing; but nine degrees of one, less by three degrees of the other, give six of the former net and true. . . . [T]he man who enjoys three degrees of such pleasure as will bring upon him nine degrees of pain, when three degrees of pain are set off to balance and sink the three of pleasure, can have remaining to him only six degrees of pain[.]

23. Robert Shackleton, "The Greatest Happiness of the Greatest Number: The History of Bentham's Phrase," first published in Studies in Voltaire and the Eighteenth Century (1972), reprinted in Essays on Montesquieu and on the Enlightenment , ed. David Gilson and Martin Smith (Oxford: Voltaire Foundation, 1988), 375-89.

24. Francis Hutcheson, Inquiry into the Original of Our Ideas of Beauty and Virtue (1725; rpt. Hildesheim: Olms, 1971), 1:163-164.

25. For Bentham's lack of influence, see P. A. Palmer, "Benthamism in England and America," American Political Science Review 35 (1941): 855-871; C. W. Everett, "Bentham in the United States of America," in Jeremy Bentham and the Law , ed. George W. Keeton and Georg Schwarzenberger (London: Stevens, 1948), 185-201. However, as I have been arguing, we should perhaps look at Bentham not as an isolated figure but as part of a broad intellectual tradition. For Bentham's influence on American legal thought, see Peter J. King, Utilitarian Jurisprudence in America: The Influence of Bentham and Austin on American Legal Thought in the Nineteenth Century (New York: Garland, 1986). For Bentham's influence on William Paley's "theological utilitarianism" as well as Paley's influence in America, see Wilson Smith, Professors and Public Ethics: Studies of Northern Moral Philosophers before the Civil War (Ithaca: Cornell University Press, 1956), 44-73; Herbert Schneider, A History of American Philosophy (New York: Columbia University Press, 1946), 37-42.

26. For an excellent account of the interchangeability of the moral and the economic in Adam Smith, see Istvan Hont and Michael Ignatieff, "Needs and Justice in the Wealth of Nations ," in Wealth and Virtue: The Shaping of Political Economy in the Scottish Enlightenment , ed. Istvan Hont and Michael Ignatieff (Cambridge: Cambridge University Press, 1983), 1-44. The literature on the subject is voluminous. See also Glenn Morrow, The Ethical and Economic Theo -

ries of Adam Smith (New York: A. M. Kelley, 1969); Hiroshi Mizuta, "Moral Philosophy and Civil Society," in Essays on Adam Smith , ed. Andrew S. Skinner and Thomas Wilson (Oxford: Clarendon Press, 1975); Ralph Anspach, "The Implications of The Theory of Moral Sentiments for Adam Smith's Economic Thought," History of Political Economy 4 (1972): 176-194; Nathan Rosenberg, "Adam Smith and the Stock of Moral Capital," History of Political Economy 22 (1990): 1-17. I don't mean to suggest, of course, that the discipline of economics is exclusively traceable only to moral philosophy. For alternative genealogies, see William Letwin, The Origins of Scientific Economics (Garden City, N.Y.: Doubleday, 1964). For a complex account of the relations between "political arithmetic," moral philosophy, and political economy, see Mary Poovey, "Toward a History of Classificatory Thinking,'' in Rethinking Class , ed. Wai Chee Dimock and Michael Gilmore (New York: Columbia University Press, 1994), 15-56.

27. Terence Martin, The Instructed Vision: Scottish Common Sense Philosophy and the Origins of American Fiction (Bloomington: Indiana University Press, 1961).

28. Henry F. May, The Enlightenment in America (New York: Oxford University Press, 1976), 346.

29. Oddly, the seminal essay undermining the centrality of Locke is by a leading Locke scholar. See John Dunn, "The Politics of Locke in England and America in the Eighteenth Century," in John Locke: Problems and Perspectives , ed. John Yolton (London: Cambridge University Press, 1969), 45-80. On classical republicanism, see above, chapter 2. Garry Wills has argued most strenuously for the centrality of the Scottish Enlightenment. See his Inventing America , and Explaining America: The Federalist (Garden City, N.Y.: Doubleday, 1981). For a critique, see Ronald Hamowy, "Jefferson and the Scottish Enlightenment: A Critique of Garry Wills' Inventing America," William and Mary Quarterly , 3rd ser., 36 (1979): 503-523. For connections between classical republicanism and the Scottish Enlightenment, see John Robertson, "The Scottish Enlightenment at the Limits of the Civic Tradition"; Nicholas Phillipson, "Adam Smith as Civic Moralist"; J. G. A. Pocock, "Cambridge Paradigms and Scotch Philosophers," all in Wealth and Virtue , ed. Hont and Ignatieff, 137-178, 179-202, 235-252.

30. Donald Meyer, The Instructed Conscience: The Shaping of the American National Ethic (Philadelphia: University of Pennsylvania Press, 1972); Wilson Smith, Professors and Public Ethics , 3-43; Douglas Sloan, The Scottish Enlightenment and the American College Ideal (New York: Teachers College Press, 1971), 73-184; David Fate Norton, "Francis Hutcheson in America," Studies on Voltaire and the Eighteenth Century 154 (1976): 1547-1568; Norman S. Fiering, "President Samuel Johnson and the Circle of Knowledge," William and Mary Quarterly , 3rd ser., 28 (1971): 199-236.

31. The other three divisions were natural theology, ethics, and jurisprudence. See Dugald Stewart, "Account of the Life and Writings of Adam Smith," in Adam Smith, Essays on Philosophical Subjects , ed. W. P. D. Wightman and J. C. Bryce (Oxford: Clarendon Press, 1980), 273-275.

32. For an account of Wayland, see Joseph Blau, Men and Movements in American Philosophy (Westport, Conn.: Greenwood Press, 1977), 82-92. See also Joseph Dorfman, The Economic Mind in American Civilization, 1606-1865 (New York: Viking, 1946), 2:758-767.

33. For an amusing account of the "overworked" Alford Professor, see Bruce Kuklick, The Rise of American Philosophy (New Haven: Yale University Press, 1977), xv-xvi, 28-45.

34. Francis Wayland, The Elements of Political Economy (New York: Leavitt, Lord and Co., 1837), vi.

35. Albert O. Hirschman, The Passions and the Interests (Princeton: Princeton University Press, 1977). I should point out that for Hirschman, "passions" are associated primarily with the political sphere and not with the moral. The relation he examines is thus between the economy and the polity (in a sustained disagreement with Joseph Cropsey's Polity and Economy ). However, as his own discussions of Hume and Adam Smith suggest, the economic would seem to be a moral instrumentality as well. See especially 48-66, 108-110.

36. John McVickar, Outlines of Political Economy (New York: Wilder and Campbell, 1825), 186-187. Quoted in Gladys Bryson, "Emergence of the Social Sciences from Moral Philosophy," International Journal of Ethics 42 (1931-1932): 304-323, quotation from 311.

37. A nineteenth-century descendent of utilitarianism, "marginal utility analysis" was developed by William Stanley Jevons in England and Karl Menger in Austria.

38. These arguments were developed by Patten in The Stability of Prices (Baltimore: American Economic Association, 1889); in an essay entitled "The Effect of the Consumption of Wealth on the Economic Welfare of Society," in Science Economic Discussion , ed. Richard T. Ely (New York: The Science Company, 1886), 123-135; and in The Consumption of Wealth (Philadelphia: T. and J. W. Johnson, 1889). For a useful discussion of Patten, see Daniel M. Fox, The Discovery of Abundance: Simon N. Patten and the Transformation of Social Theory (Ithaca: Cornell University Press, 1967).

39. Simon Nelson Patten, The Theory of Social Forces (1896; rpt. New York: Kraus Reprint, 1970), 75-108, quotation from 76.

40. Morton White, Social Thought in America: The Revolt against Formalism (Boston: Beacon Press, 1957), 14.

41. In particular, I would disagree with White's characterization of Holmes, who, far from recoiling from utilitarianism, was on record stating just the opposite. Holmes wrote, "For the philosophy of law, the Fragment on Government and Austin's lecture are worth the whole corpus [of Roman law]" from "Value of Precedent," American Law Review 7 (1873): 579, reprinted in Justice Oliver Wendell Holmes—His Book Notices, Uncollected Letters, and Papers , ed. Harry C. Shriver (New York: Central Book Co., 1936), 34-35. For a detailed discussion, see H. L. Pohlman, Justice Oliver Wendell Holmes and Utilitarian Jurisprudence (Cambridge: Harvard University Press, 1984).

42. Simon Nelson Patten, The New Basis of Civilization , ed. Daniel M. Fox

(1907; rpt. Cambridge: Harvard University Press, 1968), 145-164, quotation from 149.

43. Patten, The Theory of Social Forces , 77, 122.

44. G. Edward White, Tort Law in America: An Intellectual History (New York: Oxford University Press, 1980), xvi.

45. For a fuller discussion of penal reform, see chapter 1.

46. For a parallel argument about the persisting vitality of utilitarianism in late-nineteenth-century England, see Ellen Frankel Paul, Moral Revolution and Economic Science (Westport, Conn.: Greenwood Press, 1979).

47. David Rothman, The Discovery of the Asylum: Social Order and Disorder in the New Republic (Boston: Little, Brown, 1971), 155-179; Paul Boyer, Urban Masses and Moral Order in America, 1820-1920 (Cambridge: Harvard University Press, 1978); Alan Trachtenberg, The Incorporation of America: Culture and Society in the Gilded Age (New York: Hill and Wang, 1982), 101-139. For a parallel account of humanitarianism in England, see Gertrude Himmelfarb, Poverty and Compassion: The Moral Imagination of the Late Victorians (New York: Vintage, 1992).

48. Quoted in Asa Briggs, "The Human Aggregate," in The Victorian City: Images and Realities , ed. H. J. Dyos and Michael Wolff (London: Routledge, 1973),1:87.

49. Stuart Blumin, "Explaining the New Metropolis: Perception, Depiction, and Analysis in Mid-Nineteenth-Century New York City," Journal of Urban History 11 (1984): 9.

50. Boyer, Urban Masses and Moral Order in America , 123-124.

51. Ibid., 146.

52. My argument here about "rational benevolence" in organized charities parallels Lori Ginzberg's argument about the "passion for efficiency" in civil war relief. See Ginzberg, Women and the Work of Benevolence: Morality, Politics, and Class in the Nineteenth-Century United States (New Haven: Yale University Press, 1990).

53. Josephine Shaw Lowell, Public Relief and Private Charity (1884; rpt. New York: Arno Press, 1971), 90.

54. Ibid., 89, 111.

55. Ibid., 58, italics mine.

56. Ibid., 89, 90, 66, 103.

57. Herbert Spencer, Social Statics (1850; rpt. New York: Appleton, 1882), 353, 355.

58. Lowell, Public Relief and Private Charity , 104-105, 94, italics in original.

59. Thomas Haskell, "Capitalism and the Origins of the Humanitarian Sensibility," parts 1 and 2, American Historical Review 90 (1985): 339-361, 547-566. See also the AHR Forum on Haskell's essay, with responses to Haskell from David Brion Davis and John Ashworth and a further response from Haskell himself, in American Historical Review 92 (1987): 797-878. For the on-going debate, see The Antislavery Debate: Capitalism and Abolitionism as a Problem in Historical Interpretation , ed. Thomas Bender (Berkeley: University of California Press, 1992).

60. I am indebted to Richard Brodhead for suggesting this important qualification to the Haskell thesis.

61. Lowell, Public Relief and Private Charity , 69.

62. S. Humphreys Gurteen, A Handbook of Charity Organization (Buffalo: The Courier Company, 1882), 205.

63. William Graham Sumner, "The Shifting of Responsibility," The Independent , March 24, 1887, collected in Essays of William Graham Sumner , ed. Albert Galloway Keller and Maurice R. Davie (New Haven: Yale University Press, 1934), 1:260-265.

64. William Graham Sumner, What Social Classes Owe to Each Other (1883; rpt. Los Angeles: Caldwell, Idaho, Caxton Printers, 1952), 11.

65. William Graham Sumner, "The Forgotten Man," in Essays , 1:483, 479, 477, 486, 481, 483.

66. Sumner, What Social Classes Owe to Each Other , 98.

67. Francis Wayland, The Limitations of Human Responsibility (Boston: Gould, Kendall and Lincoln, 1838), 19.

68. Ibid., 162, 181-182.

69. The Elements of Moral Science , for example, sold more than two hundred thousand copies in the sixty years after its publication. See Blau, Men and Movements , 86.

70. See Lawrence M. Friedman and Jack Ladinsky, "Social Change and the Law of Industrial Accidents," Columbia Law Review 67 (1967): 53.

71. Lawrence M. Friedman, A History of American Law , 2nd ed. (New York: Simon and Schuster, 1985), 468.

72. Another interesting juncture is the rise of life insurance. For an account of that development, see Viviana Zelizer, Morals and Markets: The Rise of Life Insurance (New York: Columbia University Press, 1979).

73. Friedman, History of American Law , 299-302, 467-487; Morton J. Horwitz, The Transformation of American Law, 1780-1860 (Cambridge: Harvard University Press, 1977), 63-108, 201-210. See also Charles O. Gregory, "Trespass to Negligence to Absolute Liability," Virginia Law Review 37 (1951): 359-397. For a dissent from the Horwitz-Friedman position, see Gary Schwartz, "Tort Law and the Economy in Nineteenth-Century America: A Reinterpretation," Yale Law Journal 90 (1981): 1717-1775.

74. For a discussion of Holmes and liability, see Grant Gilmore, The Death of Contract (Columbus: Ohio State University Press, 1974).

75. Oliver Wendell Holmes, The Common Law (1881; rpt. Boston: Little Brown, 1946), 17, 90, 96, 79, 94.

76. See the preface to Towards a Jurisprudence of Injury , a 1984 report to the American Bar Association.

77. Oliver Wendell Holmes, "The Path of the Law," Harvard Law Review 10 (1897): 459-460.

78. See Richard A. Posner, "A Theory of Negligence," Journal of Legal Studies 1 (1972): 27-96. See also Law, Economics, and Philosophy , ed. Mark Kuperberg and Charles Beitz (Totowa, N.J.: Rowman and Allenheld, 1983); William Landes and Richard Posner, Economic Structure of Tort Law (Cambridge:

Harvard University Press, 1987); Steven Shavell, Economic Analysis of Accident Law (Cambridge: Harvard University Press, 1987). For contemporary approaches to torts different from the above, see George P. Fletcher, "Fairness and Utility in Tort Theory," Harvard Law Review 85 (1972): 537-573; Robert Epstein, "A Theory of Strict Liability," Journal of Legal Studies 2 (1973): 151-204; E. Weinrib, "Toward a Moral Theory of Negligence Law," Law and Philosophy 2 (1983): 37-62.

79. For the relation between Holmes and Peirce, see Note, "Holmes, Peirce, and Legal Pragmatism," Yale Law Journal 84 (1975): 1123; Herbert Hovenkamp, "Pragmatic Realism and Proximate Cause in America," Journal of Legal History 3 (1982): 3-30. For the relation between Holmes and Green, see Philip Wiener's chapter on "The Pragmatic Legal Philosophy of Nicholas St. John Green," in his Evolution and the Founders of Pragmatism (Cambridge: Harvard University Press, 1949), 152-171.

80. Morton J. Horwitz, "The Doctrine of Objective Causation," in The Politics of law , ed. David Kairys (New York: Pantheon, 1982), 201-213. For a more general discussion of the legal significance of causation, see H. L. A. Hart and A. M. Honore, Causation in the Law (Oxford: Clarendon Press, 1985); Robert E. Keeton, Legal Cause in the Law of Torts (Columbus: Ohio State University Press, 1963).

81. Stone v. Boston and Albany Railroad Co. 51 N.E. 1 (Mass., 1898); Central of Georgia Railway Co. v. Price , 32 S.E. 77 (Ga., 1898). Discussed in Hovenkamp, "Pragmatic Realism," 4.

82. Francis Wharton, "The Liability of Railway Companies for Remote Fires," Southern Law Review 1 (1876), 729.

83. Ibid., 745, 730, 746.

84. Francis Wharton, A Suggestion as to Causation (Cambridge, Mass.: Riverside Press, 1874), 8; also published as appendix to Treatise on the Law of Negligence (Philadelphia: Kay and Brother, 1874).

85. Wharton, "Liability of Railroad Companies," 732, 744.

86. Ibid., 739, 733.

87. Herbert Spencer, The Data of Ethics (New York: A. L. Burt, 1879), subsequently published as part 1 of The Principles of Ethics (New York: Appleton, 1892), quotations from 1:186, 183, 176, 175. As Spencer notes in his 1893 General Preface, the ideas assembled here "date back to 1851," and "it yields me no small satisfaction to find that these ideas which fell dead in 1850, have now become generally diffused" and "have met with so wide an acceptance that the majority of recent works on Ethics take cognizance of them."

88. Martin Pernick, A Calculus of Suffering: Pain, Professionalism, and Anesthesia in Nineteenth-Century America (New York: Columbia University Press, 1985).

89. Thomas Trotter, A View of the Nervous Temperament; Being a Practical Inquiry into the Increasing Prevalence, Prevention, and Treatment of Those Diseases Commonly Called Nervous, Bilious, Stomach and Liver Complaints (1808; rpt. New York: Arno Press, 1976), 21-22.

90. Pernick, A Calculus of Suffering , 148-157.

91. S. Weir Mitchell, "Civilization and Pain," originally published in Annals of Hygiene , summarized in Journal of the American Medical Association 18 (1892): 108. This is the same Dr. S. Weir Mitchell who prescribed the rest cure to Charlotte Perkins Gilman, a treatment she attacked in The Yellow Wallpaper .

92. Benjamin Rush, "Medicine among the Indians of North America: A Discussion" (1774), in his Selected Writings , ed. Dagobert D. Runes (New York: Philosophical Library, 1947), 259.

93. A. P. Merrill, "An Essay on Some of the Distinctive Peculiarities of the Negro Race," Memphis Medical Recorder 4 (1855): 67, quoted in Pernick, A Calculus of Suffering , 155. Blacks were understood to have a hereditary disease called "dyaesthesia Aethiopsis," which induced in them an "obtuse sensibility of body."

94. Horace Mann, "Twelfth Annual Report" (1848), in his Annual Reports on Education (Boston: Lee and Shepard, 1872), 676.

95. Letter of John William De Forest to his brother, November 27, 1863, De Forest Papers, Yale University Library. Quoted in George M. Fredrickson, The Inner Civil War: Northern Intellectuals and the Crisis of the Union (New York: Harper and Row, 1965), 87.

96. Lydia Maria Child, An Appeal in Favor of That Class of Americans Called Africans (Boston: Allen and Ticknor, 1833), 189.

97. Spencer, Principles of Ethics , 1:vii, 186.

98. Herbert Spencer, First Principles , 3rd ed. (London: Williams and Norgate, 1870), 489-490.

99. Spencer, Principles of Ethics , 1:x, 373, 372, 369.

100. I have taken this phrase from Bernard Williams, who calls attention to the "imperfect rationalisation" in any ethical theory that aspires to be a "model of theoretical rationality and adequacy." See Williams, Moral Luck (New York: Cambridge University Press, 1981), 81.

101. Here, I want both to acknowledge my indebtedness to Fredric Jameson and to distinguish my usage from his. For Jameson, "cognitive mapping" is a gesture toward some unrepresentable social totality; for me, "cognitive mapping" unsettles the very notion of totality. See Jameson, "Cognitive Mapping," in Marxism and the Interpretation of Culture , ed. Laurence Grossberg and Cary Nelson (Urbana: University of Illinois Press, 1988), 347-357.

102. William Dean Howells, The Minister's Charge , ed. Howard Munford, David Nordloh, and David Kleinman (Bloomington: Indiana University Press, 1978), 139. For an interesting discussion of this novel (focusing on the relation between language and complicity), see Elsa Nettels, Language, Race, and Social Class in Howells' America (Lexington: University Press of Kentucky, 1988), 153-162.

103. The classic statement on the "incommensurability of paradigms" is, of course, Thomas Kuhn, The Structures of Scientific Revolution (Chicago: University of Chicago Press, 1962).

104. Thomas Laqueur also commented on the linkage between humanitarianism and the novel. See his "Bodies, Details, and the Humanitarian Nar-

rative," in The New Cultural History , ed. Lynn Hunt (Berkeley: University of California Press, 1989).

105. Here, I would simply like to acknowledge my indebtedness to Anthony Giddens's important "antifunctionalist" theory of society, especially his emphasis on time and space. See, for example, his Central Problems in Social Theory (Berkeley: University of California Press, 1979), and A Contemporary Critique of Historical Materialism (Berkeley: University of California Press, 1981).

106. In this context, it is interesting to speculate on the "superfluous" in other literary forms as well. See, for example, Richard Poirier, "Superfluous Emerson," in his Poetry and Pragmatism (Cambridge: Harvard University Press, 1992), 37-75. For an implicit argument against using engineering as a model for literary analysis, see Martha Banta, Taylored Lives: Narrative Productions in the Age of Taylor, Veblen, and Ford (Chicago: University of Chicago Press, 1993).

107. In this sense, my book is a sustained argument with Walter Benn Michaels, The Gold Standard and the Logic of Naturalism (Berkeley: University of California Press, 1987).

108. William Dean Howells, "Editor's Study," Harper's 72 (May 1886): 973.

109. William Dean Howells, "Concerning a Counsel of Imperfection," Literature 1 (April 7, 1899): 290.

110. William Dean Howells, "The Man of Letters as a Man of Business," in his Literature and Life (New York: Harper and Brothers, 1902), 33-34.

111. Howells, letter to Roger A. Pryor, chief counsel of the anarchists, November 4, 1887, published in the New York Tribune , November 6, 1887, under the headline "Clemency for the Anarchists. A letter from Mr. W. D. Howells." William Dean Howells Papers, Houghton Library, Harvard University.

112. Howells to Francis Fisher Browne, November 4, 1887. Howells had written the letter with the understanding that it would be published, as indeed it was—in the Chicago Tribune , November 8, 1887. William Dean Howells Papers, Houghton Library, Harvard University.

113. See, for instance, Donald Pizer, Realism and Naturalism in Nineteenth-Century American Literature (Carbondale: Southern Illinois University Press, 1966); Harold Kolb, The Illusion of Life: American Realism as a Literary Form (Charlottesville: University of North Carolina Press, 1969); Edwin H. Cady, The Light of Common Day: Realism in American Fiction (Bloomington: Indiana University Press, 1971). For qualifying views, see Kermit Vanderbilt, The Achievement of William Dean Howells (Princeton: Princeton University Press, 1968); Henry Nash Smith, "Fiction and the American Ideology: The Genesis of Howells' Early Realism," in The American Self , ed. San Girgus (Albuquerque: University of New Mexico Press, 1981), 43-57.

114. In fact, as Patrick Dooley points out, contemporary readers of Howells "often focused on the love plot [and] all but ignored the bankruptcy plot." See "Nineteenth-Century Business Ethics and The Rise of Silas Lapham," American Studies 21 (1980): 79-93.

115. William Dean Howells, "Equality as the Basis of Good Society," Century 51 (November 1895): 64, 63, 64, 63.

116. Henry James, The Bostonians (Harmondsworth: Penguin, 1966), 390.

117. Alfred Habegger has also noted the less than happy endings in Howells and James. He sees those endings, however, as a protest by male authors against the "fantasy" endings of "women's fiction." See his Gender, Fantasy, and Realism in American Literature (New York: Columbia University Press, 1982), 109-110.

1. Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: Free Press, 1991), x-xii.

2. See, for example, Roberto Unger, Knowledge and Politics (New York: Free Press, 1975); Duncan Kennedy, "The Structure of Blackstone's Commentaries," Buffalo Law Review 28 (1979): 205-382. See also a special issue of the Texas Law Review , "Symposium: A Critique of Rights," Texas Law Review 62 (1984): 1363-1617, especially Mark Tushnet, "An Essay on Rights," 1363-1403, and Allan C. Hutchinson and Patrick J. Monahan, "The 'Rights' Stuff: Roberto Unger and Beyond,'' 1477-1539.

3. The prime example here is J. G. A. Pocock. See, for example, his "Virtues, Rights, and Manners: A Model for Historians of Political Thought," Political Theory 9 (1981): 353-368; reprinted in Pocock, Virtue, Commerce, and History (New York: Cambridge University Press, 1985), 37-50. Pocock's advocacy of classical republicanism is, of course, more fully articulated in The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton: Princeton University Press, 1975).

4. Glendon herself is a communitarian. See also Alasdair MacIntyre, After Virtue (Notre Dame: University of Notre Dame Press, 1981); Michael Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982).

5. Glendon, Rights Talk , passim, quotation from xii.

6. Ibid., 9.

7. I might mention, in this context, that Lani Guinier's advocacy of "cumulative voting" represents one of the most imaginative efforts to circumvent this "winner takes all" philosophy.

8. Ronald Dworkin, "Justice and Rights," in his Taking Rights Seriously (Cambridge: Harvard University Press, 1977), 177.

9. Ibid., 176, italics in original; Dworkin, "Taking Rights Seriously," in his Taking Rights Seriously , 199.

10. Joel Feinberg, "Nature and Value of Rights," Journal of Value Inquiry 4 (1970): 243-257; reprinted in his Rights, Justice, and the Bounds of Liberty (Princeton: Princeton University Press, 1980), 151.

11. Thomas Hobbes, De Homine , in Man and Citizen , ed. Bernard Gert (Indianapolis: Hackett, 1991), 47, italics in original.

12. Ian Shapiro, The Evolution of Rights in Liberal Theory (New York: Cambridge University Press, 1986), 48, 47.

13. It is worth pointing out that A Letter Concerning Toleration, An Essay Concerning Human Understanding , and the Two Treatises of Government were all published in the space of two years: the Letter in 1689, the Essay and the Two Treatises in 1690. James Tully has been especially persuasive in challenging peter Laslett's view that the Essay is irrelevant to the Two Treatises . See Tully, A Discourse on Property: John Locke and His Adversaries (Cambridge: Cambridge University Press, 1980).

14. As John Dunn long ago pointed out, the starting point for Locke is the "necessary autonomy of individual religious judgment," and the "transposition of this theme from theology and epistemology to sociology and politics made each individual man the final judge" of "the society in which he lived." See Dunn, The Political Thought of John Locke (Cambridge: Cambridge University Press, 1969), 39.

15. John Locke, An Essay Concerning Human Understanding , ed. Peter H. Nidditch (Oxford: Clarendon Press, 1979), II.xxi.47 (263-264).

16. Ibid., II.xxi.48 (264).

17. John Locke, A Letter Concerning Toleration , ed. James H. Tully (Indianapolis: Hackett, 1983), 26, 27, 28, 31.

18. The relative priority of rights or duties in Locke is a much debated matter, one that I do not wish to take up here. For a full discussion, see A. John Simmons, The Lockean Theory of Rights (Princeton: Princeton University Press, 1992).

19. John Locke, Second Treatise of Government , ed. Thomas Peardon (Indianapolis: Bobbs-Merrill, 1952), 55.

20. John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), especially 22-33, 310-315. The commentaries on Rawls are staggering in number. Ronald Dworkin, in particular, has emphasized the importance of rights to Rawls. See Dworkin, "Justice and Rights," 150-183. Also relevant here are Reading Rawls: Critical Studies of "A Theory of Justice," ed. Norman Daniels (New York: 1974); Robert Paul Wolff, Understanding Rawls: A Reconstruction and Critique of "A Theory of Justice" (Princeton: Princeton University Press, 1977); James Fishkin, Tyranny and Legitimacy (Baltimore: Johns Hopkins University Press, 1979); Sandel, Liberalism and the Limits of Justice ; Rex Martin, Rawls and Rights (Lawrence: University of Kansas Press, 1985); George Sher, Desert (Princeton: Princeton University Press, 1987). For my own sustained discussion of Rawls, see chapter 3 of this book.

21. This is the opening statement in Robert Nozick's Anarchy, State, and Utopia (New York: Basic Books, 1974). The commentaries on Nozick are likewise voluminous. In fact, most of the aforementioned discussions of Rawls discuss Nozick as well. In addition, see Reading Nozick: Essays on "Anarchy, State, and Utopia," ed. Jeffrey Paul (Oxford: Basil Blackwell, 1982).

22. MacIntyre, After Virtue , 69. But also see Richard Tuck, Natural Rights Theories (Cambridge: Cambridge University Press, 1979), which, in locating

the origins of natural rights in antiquity, somewhat qualifies MacIntyre's assertion. Also relevant here is Leo Strauss's spirited discussion of "classic natural rights" in Natural Rights and History (Chicago: University of Chicago Press, 1953).

23. Robert Filmer, Patriarcha and Other Political Works , ed. Peter Laslett (Oxford: Oxford University Press, 1949), 185-231, 241-251.

24. Emile Durkheim, The Division of Labor in Society , trans. George Simpson (New York: Free Press, 1933), 116-117.

25. Pocock, "Virtues, Rights, and Manners," 37, 43, 44.

26. Unger, Knowledge and Politics , 7.

27. I take this phrase from Lawrence Freidman. See Friedman, Total Justice (New York: Russell Sage, 1985).

28. Patricia J. Williams, The Alchemy of Race and Rights (Cambridge: Harvard University Press, 1991), 153. See also an earlier essay by Williams, "Al-chemical Notes: Reconstructing Ideals from Deconstructed Rights," in A Less Than Perfect Union: Alternative Perspectives on the U.S. Constitution , ed. Jules Lobel (New York: Monthly Review Press, 1988), 56-70.

29. Since my reading of The Awakening is at odds with most mainstream accounts, I want here simply to acknowledge my disagreement with three influential essays, all of which emphasize the "emancipatory" character of the novel: Elaine Showalter, "Tradition and Female Talent: The Awakening as a Solitary Book," in New Essays on "The Awakening," ed. Wendy Martin (New York: Cambridge University Press, 1988), 33-58; Sandra M. Gilbert, ''The Second Coming of Aphrodite: Kate Chopin's Fantasy of Desire," Kenyon Review 5 (Summer 1983): 42-66; Patricia Yaeger, "'A Language Which Nobody Understood': Emancipatory Strategies in The Awakening," Novel 20 (1987): 197-219.

30. Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy," Harvard Law Review 4 (1890): 193.

31. Kate Chopin, The Awakening (New York: Bantam, 1981), 1. All subsequent citations to this edition will appear in the text.

32. These denials of rights persisted into the twentieth century. See How Louisiana Laws Discriminated against Women (Washington, D.C.: National Women's Party, 1922).

33. Warren and Brandeis, "The Right to Privacy," 207, 193, 205, 204, 195, 205, 193.

34. Ibid., 211.

35. Privacy did not become a general unified right in tort law (as articulated by Warren and Brandeis); its crucial importance began only some thirty years later, when it migrated into constitutional law.

36. Locke, Second Treatise of Government , 79.

37. Ibid., 17. This image of Locke is, of course, the one that Macpherson wants to perpetuate. For discussions that qualify that image, see Tully, A Discourse on Property , 1-94; Alan Ryan, Property and Political Theory (Oxford: Basil Blackwell, 1984), 14-48; Richard Ashcraft, Revolutionary Politics and Locke's Two Treatises of Government (Princeton: Princeton University Press, 1986), 257-281.

38. This "possessive" aspect of liberal theory is the central emphasis in C. B. Macpherson's The Political Theory of Possessive Individualism (Oxford: Oxford University Press, 1962), a book that, not surprisingly, has generated (and continues to generate) a good deal of response, including Ian Shapiro's recent and persuasive objection that Macpherson's "anachronistic" market model fails to provide any historical understanding of the political writings of seventeenth-century England. See Shapiro, The Evolution of Rights in Liberal Theory , 69-79.

39. Feinberg, "Nature and Value of Rights," 151.

40. Ibid.

41. Richard Flathman, The Practice of Rights (New York: Cambridge University Press, 1976), 71.

42. Bentham writes, "It is by imposing obligations, or by abstaining from imposing them, that rights are established or granted. . . . All rights rest therefore upon the idea of obligation as their necessary foundation." See Works , ed. John Bowring (New York: Russell and Russell, 1962), 3:181. Wesley Newcomb Hohfeld, while classifying rights into four well-known categories—liberty rights, claim rights, power rights, and immunity rights—also argues that only claim rights can be discussed in a manner that is not "nebulous" and so commits himself to a positivist notion of rights that resembles Bentham's. See his influential Fundamental Legal Conceptions (New Haven: Yale University Press, 1919), 38-39. For the relation between Bentham and Hohfeld, see H. L. A. Hart, "Bentham on Legal Rights,'' in Oxford Essays in Jurisprudence , 2nd ser., ed. A. W. B. Simpson (Oxford: Oxford University Press, 1973), 171-201, and Joseph Singer, "The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld," Wisconsin Law Review 6 (1982): 975-1060. Many political theorists, I should also point out, have vigorously disagreed with the notion of "correlativity." For them, rights and duties are neither substantively nor even structurally symmetrical. See, for example, David Lyons, "The Correlativity of Rights and Duties," Nous 4 (1970): 45-55.

43. Thomas Hobbes, Leviathan , ed. C. B. Macpherson (Harmondsworth: Penguin, 1968), 189-190.

44. Warren and Brandeis, "The Right to Privacy," 213, italics mine.

45. Alan R. White calls attention to this unidiomatic usage: see "Rights and Claims," in Law, Morality, and Rights , ed. M. A. Stewart, Royal Institute of Philosophy Conferences, vol. 79 (Dordrecht and Boston: Reidel, 1983), 154. One thinker who is clearly worried about this "against" aspect of rights is H. J. McCloskey, who has tried to theorize about rights simply as abstract entitlement, independent of actual (and potentially coercive) enforcement. See McCloskey, "Rights," Philosophical Quarterly 15 (1965): 115-127.

46. Dworkin, "Taking Rights Seriously," 184. As already noted, Dworkin is an outspoken advocate of rights, so it is especially noteworthy that this statement is coming from him.

47. Carl Wellman, "Upholding Legal Rights," Ethics 86 (1975): 52.

48. Glendon, Rights Talk , 18-46.

49. H. L. A. Hart, "Are There Any Natural Rights?" Philosophical Review

64 (1955): 151-191, reprinted in Rights , ed. David Lyons (Belmont, Calif.: Wadsworth, 1979), 16.

50. Laurence H. Tribe, "The Abortion Funding Conundrum: Inalienable Rights, Affirmative Duties, and the Dilemma of Dependence," Harvard Law Review 99 (1985): 342. For a related argument, see also Tribe, "Foreword: Toward a Model of Roles in the Due Process of Life and Law," Harvard Law Review 87 (1973): 1-53, in which he links Roe v. Wade to Lochner .

51. Catherine MacKinnon, "Privacy v. Equality: Beyond Roe v. Wade," in her Feminism Unmodified: Discourses on Life and Law (Cambridge: Harvard University Press, 1987), 94, italics mine.

52. Feinberg, "Nature and Value of Rights," 149.

53. Hart, "Are There Any Natural Rights?" 19.

54. Roberto Unger, Law in Modern Society (New York: Free Press, 1976), 85. See also Hendrik Hartog, "The Constitution of Aspiration and 'The Rights that Belong to Us All,'" Journal of American History 74 (1987): 1013-1034, esp. 1024-1028.

55. Herbert Morris," Persons and Punishment, " The Monist 52 (1968): 499.

56. Joel Feinberg, Social Philosophy (Englewood Cliffs, N.J.: Prentice-Hall, 1973), 75.

57. Martha Minow advocates an "interpretive" approach to rights, which, in effect, constitutes all rights as prima facie rights. See her "Interpreting Rights: An Essay for Robert Cover," Yale Law Journal 96 (1987): 1860-1915. In this context, see also her critique of ''Reason" as an abstract norm in Making All the Difference: Inclusion, Exclusion, and American Law (Ithaca: Cornell University Press, 1990). For a "moderate historicist" position that not only argues that rights are conventional but defends them as such, see Thomas Haskell, "The Curious Persistence of Rights Talk in the 'Age of Interpretation,'" Journal of American History 74 (1987): 984-1012. For an advocacy of prima facie rights in an international context, see James W. Nickel, Making Sense of Human Rights (Berkeley: University of California Press, 1987).

58. MacIntyre, After Virtue , 33.

59. Ralph Waldo Emerson, "Self-Reliance," in Selections from Ralph Waldo Emerson , ed. Stephen E. Whicher (Boston: Houghton Mifflin, 1957), 150, italics in original.

60. Ibid., 147.

61. In his important study of evidence and narrative, Alexander Welsh emphasizes the rise of circumstantial evidence as the ground for drawing inferences. See his Strong Representations: Narrative and Circumstantial Evidence in England (Baltimore: Johns Hopkins University Press, 1992). Here, I emphasize subjective evidence as the ground for justifying claims.

62. Morton J. Horwitz, The Transformation of American Law, 1780-1860 (Cambridge: Harvard University Press, 1977), 160-210. But see also A. W. B. Simpson, "The Horwitz Thesis and the History of Contracts," University of Chicago Law Review 46 (1979): 542-601, which challenges the sharp distinction Horwitz draws between the eighteenth and the nineteenth centuries.

63. What I am describing here parallels the shift Horwitz himself sug-

gests, namely, from an antebellum "instrumental" conception of the law to a postbellum "formalist" conception. See The Transformation of American Law , 253-266.

64. See Eric Foner, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party before the Civil War (New York: Oxford University Press, 1970), and Politics and Ideology in the Age of the Civil War (New York: Oxford University Press, 1980).

65. Arnold M. Paul, Conservative Crisis and the Rule of Law: Attitudes of Bar and Bench, 1887-1895 (Ithaca: Cornell University Press, 1960), 235.

66. For a standard account, see Charles W. McCurdy, "Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez Faire Constitutionalism, 1863-1897," Journal of American History 61 (1975): 970-1005.

67. The first critique of substantive due process is Edward S. Corwin, "The Supreme Court and the Fourteenth Amendment," Michigan Law Review 7 (1909): 643-672. Since then, constitutional scholars have united in condemning the doctrine. Indeed, the bad reputation of Lochner is such that Morton Horwitz is moved to offer a revisionist reading. See his "History and Theory," Yale Law Journal 96 (1987): 1825-1835. For discussions about the expanded role of the Supreme Court, see Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (Cambridge: Harvard University Press, 1977); Christopher Wolfe, The Rise of Modern Judicial Review: From Constitutional Interpretation to Judge-Made Law (New York: Basic Books, 1986), 144-163; William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine (Cambridge: Harvard University Press, 1988), 148-200.

68. In Slaughterhouse , 16 Wall. 36 (1873), the Court upheld a Louisiana legislation creating a monopoly in the New Orleans slaughtering business. However, as legal historians have noted, it is the minority opinion there (put forth by Justice Stephen J. Field) that prevailed as a judicial doctrine in the decades to come.

69. Lochner v. New York , 198 U.S. 45, 56, 64 (1905), quoted in Laurence Tribe, American Constitutional Law (Mineola, N.Y: Foundation Press, 1988), 568. The other phrases are quoted in William Nelson, "The Impact of the Antislavery Movement upon Styles of Judicial Reasoning," Harvard Law Review 87 (1974): 513-566. Nelson argues for a direct link between the philosophy of natural rights and the doctrine of substantive due process.

70. For the centrality of the substantive in late-nineteenth-century and early-twentieth-century jurisprudence, see Tribe's excellent discussion in American Constitutional Law , 560-586.

71. Lochner was overturned in 1937, with West Coast Hotel v. Parrish , 300 U.S. 379 (1937).

72. Lochner v. New York , 198 U.S. 45 (1905).

73. Adkins v. Children's Hospital , 261 U.S. 525, 559 (1923). The quotation is from Herbert Hovenkamp, "The Political Economy of Substantive Due Process," Stanford Law Review 40 (1988): 380.

74. An even more chilling example is the Dred Scott case (1857), also decided by appealing to the "Doctrine of Vested Rights." See Jennifer Nedelsky, Private Property and the Limits of American Constitutionalism (Chicago: University of Chicago Press, 1990), 225.

75. The quotation is from Unger, Knowledge and Politics , 90, in the context of a larger and more complex argument about liberal psychology and liberal political theory, 29-144.

76. Lafcadio Hearn, "Creole Servant Girls," New Orleans Item , December 20, 1880, collected in Creole Sketches , ed. Charles Woodward Hutson (Boston: Houghton Mifflin, 1924),160-162.

77. George Washington Cable, The Grandissimes (1879; rpt. New York: Hill and Wang, 1957), 60.

78. As a further point of contrast, it is helpful to compare Chopin's portrait of Désirée in "Désirée's Baby" and Cable's portrait of Madame Delphine in Old Creole Days . Désirée is, of course, actually not a quadroon, even though she is made to suffer the fate of one. The injustice in Chopin's story is the injustice of a mistaken racial identity. Cable's Madame Delphine, by contrast, both suffers the fate of a quadroon and is actually a quadroon. The injustice in his story is the injustice of racial identity itself.

79. For the centrality of composition in The Awakening , see Michael T. Gilmore, "Revolt against Nature: The Problematic Modernism of The Awakening ," in New Essays on "The Awakening ," 59-87; for other examples of such "compositional" uses of human figures, see Jean-Christophe Agnew, ''The House of Fiction," in Consuming Visions: Accumulation and Display of Goods in America, 1880-1920 , ed. Simon Bronner (New York: Norton, 1989), 133-156.

80. Pertinent to my discussion here is Gayatri Chakravorty Spivak's discussion of the "subaltern subject-effect." See her "Subaltern Studies: Deconstructing Historiography," in her In Other Worlds: Essays in Cultural Politics (New York: Methuen, 1988), 204. For two different efforts to reorient the marginality of black women, see Angela P. Harris, "Race and Essentialism in Feminist Legal Theory," Stanford Law Review 42 (1990): 581-616, and Kimberle Crenshaw, "Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color," Stanford Law Review 43 (1991): 1241-1299.

81. See, for instance, John W. Blassingame, Black New Orleans (Chicago: University of Chicago Press, 1973); Dale A. Somers, "Black and White in New Orleans: A Study in Urban Race Relations, 1865-1900," Journal of Southern History 40 (1974): 19-42.

82. C. Vann Woodward, Origins of the New South (Baton Rouge: Louisiana State University Press, 1971), 211-212; Eric Foner, Reconstruction (New York: Harper and Row, 1988), 200-201, 550-551. The White League (formed in 1874) was a group openly advocating the use of violence to restore white supremacy. On Oscar Chopin's membership in this group, see Per Seyersted, Kate Chopin: A Critical Biography (Baton Rouge: Louisiana State University Press, 1969), 42, 45, 95.

83. Eric Sundquist, "Mark Twain and Homer Plessy," Representations , no.

24 (1988): 102-127; Walter Benn Michaels, "The Souls of White Folks," in Literature and the Body , ed. Elaine Scarry (Baltimore: Johns Hopkins University Press, 1988), esp. 188-190; Brook Thomas, "Tragedies of Race, Training, Birth, and Communities of Competent Pudd'nhead," American Literary History 1 (1989): 754-785.

84. Plessy v. Ferguson , 163 U.S. 537; decision by Justice Henry Billings Brown, May 18, 1896, reprinted in The Thin Disguise: Turning Point in Negro History. Plessy v. Ferguson: A Documentary Presentation (1864-1896) , ed. Otto H. Olsen (New York: Humanities Press, 1967), 111. For a discussion of this "reasonableness" argument, see also Charles Lofgren, The Plessy Case (New York: Oxford University Press, 1987), 183-184.

85. People v. Gallagher , 93 N.Y. 438, 448 (1883); cited in the Plessy decision by Justice Henry Billings Brown, reprinted in The Thin Disguise , 112.

86. Editorial, New Orleans Times-Democrat , July 9, 1890, reprinted in The Thin Disguise , 53.

87. The Thin Disguise , 111-112.

88. Editorial, New Orleans Times , May 7, 1867, reprinted in The Thin Disguise , 35.

89. Editorial, New Orleans Times-Democrat , November 19, 1892, reprinted in The Thin Disguise , 70-71.

90. The gravamen of relator's plea, cited by Justice Charles E. Fenner, Ex parte Homer A. Plessy , 45 La. Ann. 80; decision by Justice Charles E. Fenner, December 19, 1892, reprinted in The Thin Disguise , 71.

91. The analogy between marriage and slavery, I should add, was a standard trope in nineteenth-century feminist rhetoric. See Amy Dru Stanley, "Conjugal Bonds and Wage Labor: Rights of Contract in the Age of Emancipation," Journal of American History 75 (1988): 471-500.

92. See William Ivy Hair, Carnival of Fury: Robert Charles and the New Orleans Race Riot of 1900 (Baton Rouge: Louisiana State University Press, 1976).

93. Richard Wright, "How 'Bigger' Was Born," in Native Son (New York: Harper, 1940), xi.

94. New Orleans Daily Picayune , June 29, August 1, 1900; New Orleans Times-Democrat , August 6, 1900; New Orleans Southwestern Presbyterian , August 9, 1900. All quoted in Carnival of Fury , 2.

95. Carnival of Fury , xiii.

96. New Orleans Times-Democrat , July 29, 1900, epigraph to Carnival of Fury .