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5— Rights and Reason
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Rights and Reason

"A strident language of rights," Mary Ann Glendon argues, has come to dominate—and to impoverish—our current political discourse. This language of rights, a legal language first and last and itself impervious to the more nuanced languages circulating in other cultural domains, has nonetheless "seeped" into all spheres of life, saturating their expressive channels and blocking out their "nonlegal tributaries." In so doing, it has hardened into a distinctive "dialect," an American dialect, notable for "its starkness and simplicity, its prodigality in bestowing the rights label, its legalistic character, its exaggerated absoluteness, its hyperindividualism, its insularity, and its silence with respect to personal, civic, and collective responsibilities."[1]

This statement, prefacing Glendon's recent (and much-discussed) book, Rights Talk (1991), serves as a lucid summary for the "critique of rights" that, since the late 1970s, has been gathering force from three directions: from Critical Legal Studies in law,[2] from exponents of "classical republicanism" in history,[3] and from communitarian philosophers in political theory.[4] All three see themselves as challengers to liberalism, challenging its procedural neutrality, its historical primacy, its moral ontology. And, though coming from different intellectual traditions and often gesturing toward different political ends, all three share the conviction that rights are not only central to liberalism but also symptomatic of it, symptomatic of its conceptual contradiction as well as its operative predicament.

Glendon herself (a professor at the Harvard Law School and a popular spokeswoman for communitarianism) thus fashions her critique on broadly cognitive and institutional grounds: namely, that an undue emphasis on rights unduly privileges the judiciary, making public policy as well as private settlement dependent on litigation; that this centrality of jurisprudence comes at the expense of legislative and electoral processes; and that its strident legalism impedes "a grammar of cooperative living."[5] In short, what flows from the language of rights is an absolute principle of justice, one that extends to


all areas of life, and one that knows neither compromises nor concessions. Describing the world (and dividing the world) always in categorical terms, always in terms of those with "right" and those with "no right," such a language can render only a categorical verdict: an unconditional victory for one party and an unconditional defeat for the other. As Glendon succinctly puts it, the language of rights ensures that "the winner takes all and the loser has to get out of town."[6] Such a language—inscribing an absolutism at once cognitive and consequential—clearly has implications for the shape of our public life, for the shape of liberal society.[7]

Moral Subjectivism: Hobbes and Locke

Glendon (as noted) is not the only one to have taken on this formidable target. Still, to gauge the force of her critique, it is helpful to recall the tremendous ethical weight that has coalesced around the concept of rights since the seventeenth century, an ethical weight that in turn has helped to anchor something like the moral ontology of liberal justice. The work of Ronald Dworkin is representative here. For Dworkin, any theory of justice worth its name—any theory of justice that aspires to be a general principle—must be based on an antecedent "deep theory" of rights. Rights are foundational to justice, Dworkin argues: foundational, because they "are not simply the product of deliberate legislation or explicit social custom, but are independent grounds for judging legislation and custom."[8] Rights, in other words, belong to a moral order at once higher and deeper than positive law, higher and deeper than customary practice. Themselves underived from human institutions, they define a more basic sphere of sanctity, at once predating the social order and overriding it if necessary. Dworkin thus insists that rights are "natural ," that they are rooted in humanity rather than society, and that to infringe upon a right is to infringe upon the humanness of that person: it "means treating a man as less than a man."[9]

This moral priority of rights—the sense that they are humanly immanent rather than socially designated—is even more striking in the work of Joel Feinberg. Our very conception of humanity, our idea about "what it is to be a human being," Feinberg argues, would have been unintelligible without an antecedent concept of rights. Indeed, according to him, "our respect for persons may simply be respect


for their rights."[10] Feinberg is speaking for himself, of course, in his strong claim, his belief in a perfect fit, a perfect coextension or correspondence between rights and humanness. His weaker claim, however—about the immanence of rights—has been an important feature of English political thought since the seventeenth century. What follows from this immanence is what we might call a sequential ordering of two domains, the moral and the political, the former being understood not only as ontologically prior but prior in such a way as to be vested exclusively in the private subject, vested in him in contradistinction to his political obligations. The claim of rights, in other words, is understood to issue from the natural man. Growing out of his humanness, and out of the morality immanent in that humanness, it puts the moral subject at the origin of any polity.

In Hobbes, this presumption about an antecedent moral domain—and its antecedent placement within the natural man—thus made it possible to think of politics as a secondary, auxiliary order, founded on contractual obligation, and founded very much as a sequel to the phenomenon of natural rights. The monarchical despotism that Hobbes championed was thus eminently amoral. Its justification must be derived, then, from a prior morality, a morality inhering in the consent of those who voluntarily agreed to its terms, those who voluntarily entered into contract. Hobbesian morality thus had its home not in the realm of politics but in the realm of private judgment, private volition. What was "moral" was what was judged moral by those who consented to it; it had meaning only for those consenting judges.

Morality, then, was not only individually vested in Hobbes, it was also individually constructed. This individual construction, in turn, gave rise to a radically subjectivized definition of the good. "Aristotle hath well defined good as that which all men desire," Hobbes said. "But, since different men desire and shun different things, there must need be many things that are good to some and evil to others. . . . Therefore one cannot speak of something as being simply good ; since whatsoever is good, is good for someone or other. . . . For the nature of good and evil follows from the nature of circumstances."[11] Hobbes's syntax of morality—"whatever is good, is good for someone or other"—thus constructed the moral predicate as a conditional predicate: appended to, dependent on, and limited by a "someone" who validated it and gave it meaning. And, since it was this "some-


one" who was vested with the Hobbesian natural right—a right not only individually held but also individually interpreted—the claim of rights was necessarily a subjective claim, a claim constituted by the judgment of some particular person. Its primacy signaled "the incorporation of a subjectivist ethos" into political theory and "open[ed] the way for the emotivist revolution in ethics," as Ian Shapiro has persuasively argued.[12]

In Locke, this moral subjectivism became nothing less than an epistemology: a highly elaborate (and highly influential) theory about the grounds for private knowledge, the grounds for private judgment. Fashioned out of the Protestant theology of voluntarism, this subjectivist epistemology would in turn lay the groundwork for some of the most enduring features of modern liberalism.[13] What followed from it, in fact, was nothing less than the central tenets of liberalism, toleration and consent. Since Locke believed that moral knowledge was autonomously achievable by every individual, that every private judgment reflected this knowledge, he also accorded political priority to such judgment, arguing that it should always be given institutional sanction.[14] Each of us has the capacity for reflexive knowledge, Locke said, and, through it, each of us becomes the best judge of our own actions:

We have a power to . . . examine, view, and judge, of the good or evil of what we are going to do; and when, upon due Examination , we have judg'd, we have done our duty, all that can, or ought to do, in pursuit of our happiness; and 'tis not a fault, but a perfection of our nature to desire, will, and act according to the last result of a fair Examination .[15]

Moral knowledge, for Locke, was subjectively attainable and subjectively demonstrable. It was this subjective ground for knowledge which made "liberty of conscience" not just a psychological theory, and not just a religious doctrine, but above all a political credo, the founding tenet of liberalism. "Every man is put under a necessity, by his constitution as an intelligent being, to be determined in willing by his own thought and judgment what is best for him to do," Locke said.[16] And, since each man is the best judge of his own welfare, the "consent" of each must be the sole ground for the legitimacy of any political order.

It was this epistemology—this presumption about the private


grounds for knowledge, private grounds for judgment—that lay at the heart of A Letter Concerning Toleration (1689). "The care of Souls cannot belong to the Civil Magistrate," Locke wrote, for "true religion consists in the inward and full perswasion of the mind," and no one should be "put under a necessity to quit the Light of their own Reason, and oppose the Dictates of their own Consciences." As for the church, Locke thought that it should be treated as no more than a secular institution, which is to say, as "a voluntary Society of Men, joining themselves together of their own accord." As such, the church should be granted the "fundamental and immutable Right of a spontaneous society," but not the right to compel any belief, not the right to coerce the conscience of any citizen, so that "all the Rights and Franchises that belong to him as a Man, or as a Denison, are inviolably to be preserved for him."[17]

A Letter Concerning Toleration was not strictly about rights, but its epistemology, its cognitive environment, was one in which the concept of rights was entirely at home.[18] Indeed, as its repeated appearance here suggests, "rights" was crucial to Locke as a kind of notational point of transit: a word which would allow him to inscribe both his key tenets, toleration and consent, and to stipulate a reciprocal relation between the two. Toleration was understood, that is, as a species of right, a right of immunity extended by the state to its citizen, while consent was understood as a right reciprocating it, a right of legitimacy extended by the citizen to the state. The concept of rights thus institutionalized the moral claim of the subjective, guaranteeing its political expression, even as it individualized the ground of consent, moralizing its operative term.

And yet, to the extent that moral judgment and political consent were not fully symmetrical—to the extent that the "Light of one's own Reason" might not shine equally brightly as a reason of state—the concept of rights was also haunted from the outset by a kind of epistemological predicament, a dangerous lack of fit between its two operating terms. Committed, on the one hand, to the moral priority of private judgment, and, on the other hand, to the political need for consensual legitimacy, the idea of "rights" would seem to be torn by a divided allegiance from its very inception. Locke himself recognized the problem, and, in his cautious endorsement of "majority rule," he would seem to be suggesting a solution of sorts, a way to circumvent that divided allegiance:


For when any number of men have, by the consent of every individual, made a community, they have thereby made that community one body, with a power to act as one body, which is only by the will and determination of the majority[,] . . . and so every one is bound by that consent to be concluded by the majority. . . . [T]he act of the majority passes for the act of the whole and, of course, determines, as having by the law of nature and reason the power of the whole.[19]

Majority rule was one way by which the subjective could be conditionally bound to the collective, one way by which the moral claim of private judgment could be honored even in its breach. And yet the very need for such a concept would also suggest that the "Light of one's own Reason" had ceased to be a foundational concept, had ceased to be the adequate ground for a political community. Indeed, at the heart of Lockean liberalism is an epistemological crisis, a wavering definition of "Reason," wavering, we might say, between two operating agencies and two operating locales: between Reason as it is individually embodied and Reason as it is collectively manifested, between Reason as it inheres in the judgment of particular individuals and Reason as it inheres in the political will of a community.

With no guarantee of universality, no guarantee of a rational ground for agreement, moral subjectivism is thus always in danger of becoming a "mere" subjectivism, a subjectivism with no referential ground other than what is apprehended by itself. Indeed, to the extent that toleration is premised on the legitimate existence of rational dis -agreement—the legitimate noncoincidence between one's own reason and the reason of others—Lockean reason itself would seem to be infinitely divisible and infinitely relativized by those divisions, to the point where one's own reason might turn out to bear no resemblance to the reason of others. Reason, so divided and so relativized, must seem an argument against itself: an argument against its presumed transcendence, its supposed status as the ground of commensurability, its much-lauded ability to settle disputes. Seen not as an integral entity or unifier, but as something possibly fractured and possibly incomplete, reason would seem to constitute human beings not as consensual subjects, but as contending ones. And human differences, issuing from such a divided constitution, might turn out never to be reconcilable, never to fall within the domain of rational settlement. Reason, for Locke then, would seem always to be hovering on the verge of a principled concession: a concession to the limits of its ad-


judicative scope, a concession to the limits of its integrity, instrumentality, absoluteness.

In the three hundred years following Locke, it is the language of rights which makes this concession unnecessary and, to some extent, unthinkable. For if rights begin as a conflictual mode, it is simultaneously a mode of conflict resolution, one which operates, we might add, not only by awarding one side with an undisputed victory, but also by awarding it with an undisputed claim to reason. The universe of rights is thus a "concessionless" universe, in which conflict is understood only to be a kind of epiphenomenon, resolvable by reason—and resolvable above all by imagining reason as a discrete, absolute entity, discretely and absolutely assignable to one side, the side with "rights." If the concept of rights grew out of an epistemology of moral subjectivism, as I have tried to argue, it is also compelled by the very terms of its operation to disavow that genesis, or rather, to rewrite it and to rename it, so that the triumph of the right holder is never anything other than the triumph of sole and objective truth. And so, the adversarial language so crucial to rights turns out to be a language incapable of anything other than a categorical verdict, one that divides the adversaries into those with "reason" and those with "no reason," absolute winners and absolute losers. It is perhaps inevitable then that in the recent debate over liberalism, it is the concept of "rights" that is once again being adduced by both sides, adduced as the trumping claim, the most invincible of forensic weapons. A defender of the welfare state like John Rawls, for example, can do so by invoking rights as a "deontological" (that is, nonutilitarian) order of justification.[20] Conversely, a defender of the minimal state like Robert Nozick can invoke the same concept, only to argue that, because "individuals have rights" that are absolute, an "extensive state will violate persons' rights not to be forced to do certain things, and is unjustified."[21]

The language of rights has indeed "saturated" our public life, as Mary Ann Glendon charges, so much so that its invocation in most political debates now seems as reflexive as it is obligatory. And yet, as Alasdair MacIntyre has reminded us, the availability of such a language (let alone its preeminence) is a relatively recent phenomenon. The concept of rights, according to him, had no means of expression in Hebrew, Greek, Latin, Old English, classical and medieval Arabic,


or in Japanese even as late as the mid-nineteenth century.[22] And indeed, even in a political culture increasingly defining itself through the concept of rights, there has always existed a countertradition whose exponents have tried, under various banners, to uncover the contradictions (or predicaments) of this concept.

Writing in 1640, Hobbes's infamous but not altogether undiscerning critic, Sir Robert Filmer, argued that the natural rights theory was untenable because it imagined human beings to be free, to be unencumbered and unobligated, in a way that no actual human beings could ever be. "I cannot understand," he wrote, "how this right of nature can be conceived without imagining a company of men at the very first to have been all created together without any dependency one of another, or as mushroom (fungorum more ) they all on a sudden were sprung out of the earth without any obligation one to another."[23] Filmer was speaking, of course, from the vantage point of monarchical absolutism, but his objection to Hobbes's mushroomlike individuals would be echoed, two and a half centuries later and from quite a different place on the political spectrum, by none other than Emile Durkheim. "One can exercise a real right," Durkheim said, "only by thinking one is alone in the world, without reference to other men." Rights do "not lead wills to move toward common ends, but merely [make] things gravitate around wills in orderly fashion." For that reason, a society founded upon rights "will resemble an immense constellation where each star moves in its orbit without concern for the movements of neighboring stars."[24] Still more recently, J. G. A. Pocock, in his sponsorship of classical republicanism, has linked the concept of rights to the "law-centered paradigm" of liberal culture, an adversarial culture. In such a culture, the citizen is "defined not by his actions and virtues, but by his rights to and in things," a "negative citizenship" which can lead only to an "extra-civic" and "ego-centered" form of life.[25] Meanwhile, for Roberto Unger and others associated with Critical Legal Studies, the language of rights is chiefly responsible for the "antinomies" in "liberal psychology" as well as in "liberal political theory," antinomies not only "fatal to its hope of solving the problems of freedom and public order" but also generative of "basic and insoluble paradoxes" in its "accounts of experience."[26]

And so, the language of rights, as natural and immanent as it has


now become, can appear quite otherwise to its critics. My own argument is very much inspired by these critics. Like them, I am skeptical about the foundationalist claim made on behalf of rights, skeptical about the alleged fit between rights and humanness. I am skeptical, most of all, about its epistemology, skeptical about its description of the world through an adversarial grammar that constructs its subjects not only as opponents, but as opponents bearing discretely judgeable sets of claims and having discretely judgeable relations to Reason. Such a grammar can resolve conflict only by a verdict of "total justice,"[27] only by resolving the world into a residueless language: a syntax of uncompromising and all-liquidating absolutes. Airtight and all too legible, such a syntax virtually invites its own abuse. And, at its most abused, it will lend itself to a moral subjectivism which, triumphant under its dispensation, will also rewrite its victory as objective truth, rewrite its name as the name of Reason.

Still, as troubling as that syntax is, what concerns me here is not so much its formal properties, but rather the circumstances which set it into motion: the circumstances which enlist its descriptive and adjudicative capacities and stretch those capacities, either to the point of illegibility or, as is more often the case, to the point of super legibility. In reconstructing those circumstances, I hope to fashion something other than a purely logical critique based solely on the internal consistency or adequacy of its object. I want to acknowledge, rather, both the historical need for the language of rights and some of the abuses it has historically authorized. To take both into account, the language of rights is most fruitfully studied, I argue, as a historical semantics , a language invoked always within a genealogy of conflict, an inherited web of tyrannies and injuries, and a language whose human meanings must matter as much as its logical coherence.

This is what Patricia Williams has in mind when, against the inherited tyrannies and injuries of black history, she makes a case for the continual vitality, and indeed the continual necessity, of the language of rights:

For the historically disempowered, the conferring of rights is symbolic of all the denied aspects of their humanity: rights imply a respect that places one in the referential range of self and others, that elevates one's status from human body to social being. For blacks, then, the attainment of rights signifies the respectful behavior, the collective responsibility, properly owed by a society to one of its own.[28]


Williams's emphasis on the special relation of rights to black history forcefully reminds us that the language of rights is above all a semantic structure, sedimented into being by its many invocations, given meaning by its many contexts of use. At the same time, this semantic particularity—its construction by a particular social group, with meanings unique to that group—must remind us as well of its non-foundational character and the danger of any foundationalist claims made on its behalf. In what follows, I want to keep this double perspective alive, paying attention both to the experiential need for rights and to the possible dangers of their deployment. The language of rights, then, will appear both as an inflected structure of meaning and as a vexed negotiation with a syntactic form. It will both speak in its own voice, on its own terms, and speak in its own despite, in a theater too large to be entirely its own and in full view of the consequences—intended or not, foreseen or not—of its grammar of justice.

While this double perspective is, to some degree, my own experiment within this chapter, it is also an experiment—carried out with great aplomb, if not always with the happiest conclusion—within the nineteenth-century novel itself. For it is here that the language of rights is most often seen from both inside and out: as an inflected structure of meaning and as a vexed negotiation with a syntactic form. Here, on the one hand, the language of rights is intimately rehearsed: as a way of life, a set of felt necessities and compulsions, and a set of meanings subjectively elaborated and subjectively ascertained. But here too, on the other hand, this language is cruelly put on display: its descriptive and adjudicative properties sharply tested, tested in their operative effect and in the shape of the world they prescribe and project. Moral subjectivism is both reality and "reality" in the novel, both naturalized in its self-evidence and exhibited in quotation marks. The image of justice that emerges, then, out of this simultaneous immersion and perspective, is also an image less than perfectly rationalized, one that invites, if nothing else, a reading that supplements it, a reading that ponders its "reality" as well as the losses and residues entailed by its naturalization.

An Adversarial Language: The Awakening

I want to try out some of these propositions in Kate Chopin's The Awakening (1899), a novel that in its complex play of personal griev-


ance and personal indulgence, in its portrayal of moral subjectivism and delineation of its excess, would seem not only to exemplify a rights-based model of justice but also, in light of its outcome, to serve as that model's most devastating, if most cherishing, critic.[29] Published just nine years after the landmark essay by Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy" (an essay arguing for the "right of the individual to be let alone "),[30] and written moreover during a period when the substantive rights of the Fourteenth Amendment had become an interpretive minefield, The Awakening is a salient example of what I have tried to call a "historical semantics," a textual field rich with accumulated resonances. Certainly, the language of rights is everywhere observable in the book. Indeed, in the very opening scene, we see a rather bizarre instance of its usage, a usage occasioned by a dispute between a man and two birds.

The man in question is Mr. Pontellier, who is trying to read the newspaper. He is prevented from doing so by a talking parrot and a whistling mockingbird, who are making nuisances of themselves. What follows is an account of the respective claims of the man and the birds, couched in the language of jurisprudence with the rights and privileges of each party specified and enumerated: "The parrot and the mocking bird were the property of Madame Lebrun, and they had the right to make all the noise they wished. Mr. Pontellier had the privilege of quitting their society when they ceased to be entertaining."[31]

The parrot and the mockingbird would be surprised to learn that they have a "right" to make noise, and Mr. Pontellier, on his part, would be equally surprised to learn that it is a "privilege" to escape from birds that are dinning into his ears. If the language of rights is conspicuously present here, it is also conspicuously present in quotation marks, a dubious honor that, I might add, will not be its last in this novel. Indeed, the concluding pages of The Awakening , like the opening scene, also bring the language of rights into a kind of dubious prominence, for this is the very language Edna Pontellier invokes the night before she drowns herself, when she tries to make sense of her life and justify her behavior.

"I'm not going to be forced into doing things," Edna tells Dr. Mandelet, her well-intentioned but largely unhelpful counselor. "I don't want to go abroad. I want to be left alone. Nobody has any right—except children, perhaps—and even then, it seems to me—or it did


seem—" The sentence is left tantalizingly unfinished, for Edna, sensing the "incoherency of her thoughts, [has] stopped abruptly" (147). Perhaps, given the claim she is making, this is not a sentence she can afford to finish. Like Warren and Brandeis, Edna wants privacy, she "want[s] to be left alone." And, for her as for them, it seems natural that this desire should be expressed in terms of a fundamental entitlement, in terms of a "right" which is not to be denied her. What is striking about Edna's language of rights, however, and what makes it immediately problematic, is that in her particular syntax, the right holder turns out to be a nonsubject, a nonentity, a "nobody [who] has any right."

Seen in isolation, Edna's statement must seem more than a little puzzling, because, far from being something that "nobody" has, rights are usually thought of as something that everybody has. Still, the construction is not as strange as it might appear, for Edna, true to the language of rights, is operating here out of an adversarial grammar, one that, in assuming a constitutive opposition between persons, must assume as well a constitutive opposition between two kinds of rights: rights possessed by oneself and rights possessed by others. Since the latter is necessarily a threat to the former, its consignment to a "nobody" is likewise necessary, the negative attribution here being a syntactic effect (and a necessary effect) of Edna's language of rights.

And so it is not exactly a contradiction that Edna should believe "nobody has any right," while she fills her head with thoughts" "concerning the eternal rights of women" (86), as her husband complains. Mr. Pontellier is exaggerating, of course, because what Edna wants is actually something more personal: not eternal rights for women but a particular right for herself, a right to be "left alone" and to "harbor thoughts and emotions" which "belonged to her and were her own, and [which] she entertained the conviction that she had a right to" (62).

Such a preoccupation with "rights" is not altogether fortuitous. For even though the novel does not elaborate on this point, living as Edna did (and as Chopin herself did), as a married woman in turn-of-the-century Louisiana, the catalog of rights denied her was indeed staggering. Not only was she denied the right to vote, but under the laws of Louisiana (based upon the Napoleonic Code) she was also denied the right to contract without her husband's consent, the right to public


office, the right to legal residence, the right to institute a lawsuit, the right to equal partnership in the family's "community property," and the right to equal guardianship of her children.[32] Unlike Mr. Pontellier, whose rights are extensive and absolute, and who, moreover, has just been caught looking at his wife "as one looks at a valuable piece of personal property" (3), Edna's rights are highly limited, highly conditional. It is against that unspoken deprivation that we must see her attempt to imagine for herself one ultimate sphere of entitlement, a space rightfully her own, claimable by "nobody" else. And it is a further sign of that deprivation that she can do so only by retreating into herself, only by taking up residence inside her own "thoughts and emotions," a kind of mental property which "belonged to her and were her own" (62).

For Edna, then, the exercise of rights can come only from a particular account of herself, an account of her inviolate personhood, imagined as a sphere of exclusive possession. She is on good authority here. Warren and Brandeis, in "The Right to Privacy" (1890), had offered a theory about just such inviolate personhood, defined as exclusive possession and defined, most specifically, by invoking the language of rights. Human progress, Warren and Brandeis argued, had enlarged the ranks of existing rights, adding to their numbers an important newcomer, the "right to one's personality" the "right to be let alone." This new right bore some resemblance to traditional property rights, Warren and Brandeis said, for in it there "inheres the quality of being owned or possessed." But in order to acknowledge the unprecedented scope of this new right, it must be defined as a right that exceeded the traditional "narrow grounds of protection to property," a right whose jurisdiction must now extend to all "thoughts, emotions, and sensations." In short, the right to an "inviolate personality" must be seen as the broadest and most inclusive of property rights; it must "comprise every form of possession—intangible as well as tangible," so that its sphere of protection would be equally broad and inclusive:[33] "The right of property in its widest sense, including all possession, including all rights and privileges, and hence embracing the right to an inviolate personality, affords alone that broad basis upon which the protection which the individual demands can be rested."[34]

In defining the "right to one's personality" as a property right—a right whose protectability is vested in the exclusivity of its pos-


session—Warren and Brandeis not only looked forward to a crucial development in twentieth-century constitutional law,[35] they also brought to the fore a long-standing presumption in the theory of rights. In the Second Treatise , for example, Locke had also understood the citizen's political right to be a property right, a property right so broadly defined as to afford the broadest scope for immunity:

the supreme power cannot take from any man part of his property without his own consent; for the preservation of property being the end of government and that for which men enter into society, it necessarily supposes and requires that the people should have property. . . . Men, therefore, in society having property, they have such right to the goods which by the law of the community are theirs, that nobody has a right to take their substance or any part of it from them without their own consent.[36]

Property rights, then, were the most basic of rights. And since Locke also defined "property" to comprise things both tangible and intangible—since he had famously declared that "every man has a property in his own person; this nobody has any right to but himself"[37] —for him, property rights ended up encompassing the full spectrum of rights. This Lockean "proprietary" thinking not only imagined all rights as ownable objects, it also put a special emphasis on their exclusiveness, on their possession by "nobody but himself."[38] In the twentieth century, this line of thinking would lead Joel Feinberg to come up with a striking metaphor for the ownability (as well as utility) of rights. Rights, he says, "are especially sturdy objects to 'stand upon,' a most useful sort of moral furniture."[39]

But if rights are a kind of furniture, the possession of such furniture, even the moral variety, would seem to take some work. Furniture is not something one is born with, it is something one has to acquire. And so, even though in theory rights are supposed to be humanly immanent, native and universal to all of us, in practice they turn out to be things one has to seize from others: they have to be "claimed, demanded, affirmed, insisted upon."[40] The acquisition is strenuous, as Richard Flathman has humorously pointed out: "It is not only common but generally thought unexceptionable for [right-holders] to claim, maintain, assert, demand, and insist upon their rights. It is rarely taken amiss, indeed often applauded, if they do so forcefully, staunchly, resolutely, boldly, and even zealously."[41]


A right so forcefully, staunchly, resolutely, boldly, and zealously claimed must be felt, from the other side, as a highly unsubtle pressure. Theorists from Bentham to Hohfeld thus speak of a "correlativity" activated by the concepts of rights, the complementary genesis of a positive and a negative term, so that whenever there exists a right holder entitled to a benefit, there must also exist a complying party obligated to yield that benefit.[42] Between the one with something to claim and the one with something to surrender, there would seem to be an antagonism at once structural and inevitable.

Indeed, given the proprietary conception of rights—given its imagined status not only as something owned but as something owned in defiance of others and to the exclusion of others—it is hardly surprising that the language of rights should be an adversarial language, haunted by a Hobbesian vision, "a condition of Warre of every one against every one." "In such a condition," Hobbes said, "every one is governed by his own Reason," and "every man has a Right to every thing; even to one anothers body. And therefore, as long as this naturall Right of every man to every thing endureth, there can be no security to any man, (how strong or wise soever he be), of living out the time, which Nature alloweth men to live."[43] It is this natural "Warre of every one against every one" that led Warren and Brandeis to speak of privacy rights as more fundamental than those rights "arising from contract or from special trust," because privacy rights alone can protect us, they are "rights as against the world ."[44] And it is the same "Warre of every one against every one" that leads political philosophers now to speak routinely not just of a right to something but also of a "right against someone."[45]

"Right against someone": the phrase hardly sounds idiomatic, but, for that reason, it is also especially telling. We don't tend to use such a phrase, but perhaps it structures our lives more than we think. In any case, I want to suggest that this is the phrase that structures The Awakening , when, toward the end of the novel, we are shown a vision of Edna's children—those who do have a right, a right against her—appearing "like antagonists who had overcome her; who had over-powered and sought to drag her into the soul's slavery" (151). Such antagonism is by and large imagined by Edna, but it is also logical that she should so imagine, because within the adversarial grammar which is hers—within the adversarial grammar which is the grammar of rights—"against" is neither incidental nor even circumstantial,


but constitutive. The concept of rights is syntactically a combative mode. Its "most natural use," Ronald Dworkin says, arises when a "society is divided, [when] appeals to cooperation or a common goal are pointless."[46]

Conflict Dissolution

And yet, while the concept of rights grows out of conflict, it is simultaneously a mode of conflict resolution. Rights are, after all, the primary means by which a victory is claimed, claimed as the absolute subordination of the loser to the winner. "The function of a legal right," Carl Wellman has written, is to give "legal priority to the desires and decisions of one party over those of the other."[47] What allows the concept of rights to resolve conflict, then, is an adversarial grammar that not only divides the world but also expunges it in that division, dispelling its shadows and nuances in the light of two blindingly unambiguous terms: "reason" and "unreason," "right" and "no right." Such a grammar brings together two contending parties only to demolish one of them, hollowing out its features and emptying out its contents, in order to grant full justification, full validity, to the claim of the victor. Rights flourish on an "illusion of absoluteness," Mary Ann Glendon suggests.[48] And what they render most absolute of all is the concept of justice, affirmed now in its dream of objective adequation, its dream of a world exactly equal to the verdict it sees fit to pronounce. So the particular brand of "conflict resolution" achieved by rights might more accurately be called "conflict dissolution," for the world being described, the world being instituted through their agency is a world in which the losing claim does not even amount to a claim, in which the triumph of the winner is the triumph of Reason itself, the fit between the two being perfect, leaving behind no regret and no residue.

This conflict dissolution, the reduction of every conflict into a non-conflict, the reduction of every opposing claim into a nonclaim, thus confers on the concept of rights not just a coercive authority but what appears to be a moral authority, making it "morally legitimate for one human being to determine by his choice how another should act."[49] The triumph of rights is, above all, an epistemological triumph, one that confers reality on one claim, one body of evidence and one line of reasoning, over that of its opponent. And the undoing of the losing


claim, the erasure of its evidence and the dismissal of its reasoning, is perhaps the necessary basis for the authority granted the right holder, an authority which, to be seen as moral authority, must appear to issue not from the successful demolition of its opponent, but from a Reason immanent in the nature of things.

It is this conflict dissolution—the most bitterly partisan, most bitterly divisive use of it—that we are witnessing now on both sides of that most partisan, most divisive of debates, the debate over abortion: a debate conducted, predictably, in the language of rights, with each side claiming full moral authority for itself, full validity on its side, as if what is at stake is solely and exclusively the woman's right to choose, solely and exclusively the fetus's right to life. That absolute claim of reason must entail, again on both sides, an absolute attribution of unreason to the claim of one's opponents, preempting their very contestatory ground, to the point where the debate itself might begin to look like a nondebate, a debate whose verdict is nothing if not objectively self-evident. This is why, for those who are pro-life, the fetus's mother is so often a nonissue, and why, for those who are pro-choice, the fetus is so often a nonbeing. It is this preemptive dissolution of conflict which troubles Laurence Tribe, who, in spite of his staunch support for abortion, cannot nonetheless agree with the Court's decision in Roe v. Wade to "rank the rights of the mother categorically over those of the fetus, and to deny the humanity of the fetus."[50] And it is this preemptive dissolution of conflict which troubles Catherine MacKinnon, who has argued, emphatically and courageously, that "the abortion choice must be legally available and must be women's, but not because the fetus is not a form of life ."[51]

In any case, the preemptive logic of rights is such that even philosophers who are their advocates have been struck by their ability to make and unmake the world, their ability to sanction not only an adversarial map of reality but also an absolute verdict, an absolute assignment of reason, and an absolute allocation of freedom. As Joel Feinberg puts it, "If Nip has a claim-right against Tuck, Tuck is bound and Nip is free. Nip not only has a right, but he can choose whether or not to exercise it, whether to claim it, whether to register complaints upon its infringement, even whether to release Tuck from his duty, and forget the whole thing."[52] Focusing even more tellingly on this absolutism of rights, H. L. A. Hart suggests that a right is best expressed through "the figure of a bond," a bond which, significantly, is


"not that of two persons bound by a chain, but of one person bound, the other end of the chain lying in the hands of another to use if he chooses."[53]

If only to protect herself, then, if only to free herself from the "chain" which others will use absolutely, and use absolutely to bind her, Edna must insist that "nobody has any right," that the enthralling chain lies in no other hands but her own. The propositions "Edna has a right" and "nobody has any right" operate, then, not as a contradiction, and not even as two alternative accounts of rights, but as the two faces of a single principle. What is crucial for the right holder, it seems, is not so much self-fashioning as negative attribution, the refashioning of one's adversary from a potential right holder into a nonclaimant, perhaps even a nonentity. Still, this making of a "nobody," while psychologically understandable and perhaps even pragmatically enforceable, is not so rationally justifiable. How does one explain the nonexistence of rights in others, when one does claim a right for oneself? How can one stand up for the integrity of one right rather than that of another, when their domains of entitlement overlap and neither can enjoy a discrete identity? Or, to put the question even more broadly, how can one turn the concept of rights from an absolute concept, whose authority rests on a premise of universal applicability, into a relative concept, whose claim is conditional, presumptive, and therefore disputable?

This contradiction-between a universalist premise and a particularist enforcement—is one that has haunted the concept of rights since the seventeenth century, one that, according to Roberto Unger, resulted from the synthesis of a "theology of transcendence" and an "interest group pluralism" which attended the genesis of the concept, and one that "had vitiated it from the start."[54] There are conflicting grammars at work here, conflicting grammars sedimented out of a historically divided genealogy. The Critical Legal Studies movement, not surprisingly, has seized upon this uneasy synthesis as a focal point in its critique of rights. More tradition-minded thinkers, too, have struggled to cope with the contradiction. For some of them, the notion of "prima facie rights" seems initially to be the answer. These are rights which are more or less provisional, which remain sovereign while left to themselves but can be overridden should a superior right intervene. Clearly, this is one way to acknowledge the possible conflict among rights, invalidating some without abandoning the con-


cept wholesale. However, as we might imagine, such a solution is not without its hazards. Indeed, the very notion of prima facie rights is vexing to some theorists, who see in it more damage than benefit. For Herbert Morris, prima facie rights amount to a kind of epistemological lie, a denial of rights under the pretense that no rights exist. Such a lie, such a summary transformation of a right holder into a nonclaimant, must end up undermining the very moral ontology which makes rights intelligible:

It is seriously misleading to turn all justifiable infringements into noninfringements by saying that the right is only prima facie , as if we have, in concluding that we should not accord a man his rights, made out a case that he had none. To use the language of prima facie rights misleads, for it suggests that a presumption of the existence of a right has been overcome in these cases where all that can be said is that the presumption in favor of according a man his rights has been overcome.[55]

Joel Feinberg, finding prima facie rights equally objectionable, has also argued against the concept, on the ground that rights "are not something that one has only at specific moments, only to lose, regain, and lose again as circumstances shift. Rights are themselves property , things we own, and from which we may not even temporarily be dispossessed."[56] True to his conception of rights as "moral furniture," Feinberg is mostly worried here about the sanctity of property, worried that a single instance of infraction might make all infractions justifiable. In any case, for both him and Morris, prima facie rights threaten the very integrity of rights, because in making rights provisional rather than absolute, situational rather than universal, they also eliminate any hope for a foundational authority, any hope for a transcendent arbiter. To make all rights prima facie is to recognize that their domain is a domain of overlapping entitlement rather than a domain of discrete proprietorship. It is also to recognize that commensurability is a judicial hope rather than a natural order, that two legitimate claims might fall on the same object, and that there might not be anything like full adequation in the settlement of disputes, anything like an integral Reason disclosable through adjudication. One might argue, with Martha Minow and others, that this qualified approach to rights is probably the best way to salvage the concept.[57] But, understandably, it is not an intellectual price everyone is willing to pay.

Against this background, The Awakening might be seen as an at-


tempt—wonderfully audacious, but perhaps also self-mocking from the outset—not to pay that intellectual price. Indeed, this seems to me to be the very burden of its subjectivist discourse, a discourse so impervious to the claims of others that it might even be said to have resolved, however momentarily, the vexing contradiction between the moral absolutism that the concept of rights inherits and the operative relativism that it dictates. What Chopin experiments with is a strategy of conflict dissolution that, I suggest, is something like the cognitive obverse of prima facie rights. For if prima facie rights arise out of the reluctant acknowledgment on the part of political philosophers that the domain of rights is the domain of incommensurate claims—and therefore the domain of imperfect resolutions—The Awakening labors to dispense with that acknowledgment, to ward off its unwelcome shadow. What the novel offers, then, at its most exhilarating and most utopian, is thus an image of rights-without-conflict, an image of rights as blissfully freestanding, blissfully free from any danger of overlap and any danger of fuzzy entitlement.

It is this fantasy of discreteness which suspends that fearful preposition, the preposition "against," making Edna (if only for a brief moment) simply a holder of rights, a holder rather than a claimant. Imagining rights as being somehow intransitive, somehow divorced from the "chain" which usually accompanies them, the novel also imagines Edna as intransitive, as divorced from the recipients of her actions, so that those actions now seem pertinent only to herself, without consequence for others and apparently not directed against others. Because her rights by definition do not interfere with anyone else's, because "nobody has any right" whenever and wherever she does, there is no danger that her exercise of rights might infringe on the rights of anyone and no danger that her actions might hurt anyone. The positive and the negative correlatives of rights are here symmetrical only by inversion, only by virtue of what the symmetry represses. The assumption of rights empties out the possibility of infringement, so that the very substance of rights might be said to reside in the latter's absence.

What The Awakening asks us to imagine, then, however briefly and however abortively, is a world in which the moral agent can indeed live by "the Light of [her] own Reason" and honor "the dictates of [her] own conscience," as Locke counsels, and can do so without abuse to others, without infringing upon their rights, without violat-


ing the contours of their being. Such a fantasy does not last, for in Edna we see, with fatal clarity, the danger that the "Light of one's own Reason" can run into, its inadequacy as the ground of commensurability with others and indeed its inadequacy as the ground of continuity within itself. Since Edna's reason is indistinguishable from whim, a self such as hers

can have no rational history in its transitions from one state of moral commitment to another. Inner conflicts are for it necessarily . . . the confrontation of one contingent arbitrariness by another. It is a self with no given continuities, save those of the body which is its bearer and of the memory which to the best of its ability gathers in its past.[58]

I take this passage from Alasdair Maclntyre, from his account of the "emotivist self," not only because it uncannily describes the corporeal and mnemonic life that makes up Edna Pontellier but also because, in highlighting the frailty of that self as the seat of reason, it dramatizes what I take to be the central problem of moral subjectivism: namely, the contradiction between one's own reason and a reason not so heavily personalized, the contradiction between a reason possessed by oneself and a reason shareable with others. Taking Edna as a not so remote descendent of the Lockean moral subject, I want to explore not her comfortable sojourn in "bureaucratic individualism" (Maclntyre's emphasis), but her disturbing placement in any theory of justice, both in the larger political sense of what constitutes a legitimate ground for entitlement and in the narrower legal sense of what constitutes a legitimate basis for adjudication. In a world where private judgment is morally prior, how might that judgment be itself adjudged? To what extent can such judgments be taken as the ontological ground for rights, the ontological ground for claims against others? Can a foundation for justice ever be derived from the light of one's own Reason? What epistemology can suffice as the epistemology for a human community?

Living by the light of her own reason, Edna decides one Tuesday, her weekly reception day, not to stay at home to receive callers. Living by the light of her own reason, she decides not to entertain the wives and daughters of her husband's business associates, not to put herself among the human furniture assembled for that purpose: "a light-colored mulatto boy, in dress coat and bearing a diminutive silver tray for the reception of cards," and a "maid, in white fluted cap,


offer[ing] the callers liqueur, coffee, or chocolate, as they might desire" (66). There is something exhilarating about Edna's decision, but there is also something troubling about her rationale. "I simply felt like going out, and I went out" (66), she tells her husband. Edna does not meet her husband in confrontation, but neither does she meet him in apology. Indeed, it is her ability to sidestep both—her ability to sidestep any possibility of conflict by sidestepping any acknowledgment of conflict—that marks her new beginning as a discrete holder of rights, someone whose actions have reference only to herself. It is not entirely fortuitous that a few chapters later Edna should be found reading Emerson, reading him until "she grew sleepy" (96), for it is Emerson, of course, who has prescribed, in "Self-Reliance," just such a course of action as Edna would eventually adopt: "I shun father and mother and wife and brother when my genius calls me. I would write on the lintels of the door-post, Whim . I hope it is somewhat better than whim at last, but we cannot spend the day in explanation. Expect me not to show cause why I seek or why I exclude company."[59]

Emerson is the most immediate authority for Edna, but a more general authority might be said to be the entire liberal tradition itself, a tradition of moral subjectivism, as I have tried to argue. If The Awakening is any indication, that tradition, so strikingly exemplified here, would also seem to be caught in a profound sense of crisis, a profound unease about its relation to anything that might be called a commensurate (or at least communicable) Reason, a reason not uniquely one's own but intelligible to others. Chopin, from that perspective, must be seen not only as an heir to Emerson but as a deeply troubled one. For Emerson had used the word "whim" with confidence, confident that "it is somewhat better than whim," confident, as he also said in "Self-Reliance," that "to believe your own thought, to believe that what is true for you in your private heart is true for all men."[60] That confidence is starkly absent in Chopin. Indeed, Edna's whim is just that and no better than that: whim. It speaks only of her impulse, her caprice, her desire to be unencumbered, but opens outward to no broader frame of reference. The light of one's own reason has become what "I simply felt like." And so, what is true for Edna in her private heart is not and cannot be true for anyone else. It is certainly not true for her husband, who, bewildered by her new conduct, can think of no reason for it except possibly that her mind has gone momentarily


astray. "I don't know what ails her," he complains when he goes so far as to consult Dr. Mandelet, the family doctor. "She doesn't act well. She's odd, she's not like herself. I can't make her out" (86).

Nor does Edna want to be "made out" by anyone. Her thoughts and actions are indeed private to her now, but private in a way that would have horrified not only Emerson but Warren and Brandeis as well. For her privacy here is not at all a designated sphere of immunity, not at all the legal recognition of a protected right, but an ontological condition inhering in the very fact of her being, making her oblique to others, unintelligible to others, the light of her reason offering no illumination to theirs. If moral subjectivism ever since the seventeenth century has been in danger of disintegrating into a "mere" subjectivism, in Edna we see that danger materialized with a vengeance. What is dramatized in The Awakening , then, what erupts not in spite of but because of its dissolution of conflict, is something like an epistemological crisis, in which the voice of subjectivism is allowed to speak both on behalf of its heroine and in testimony against her, its language of rights being intoned both as a felt necessity and as a relational hazard, both as an ontological given and, in the end, as an ontological nightmare.

Evidentiary Grammars

I want to link this epistemological crisis, this unhappy career of the "Light of one's own Reason," to what I take to be a more widespread problem of subjectivity at the turn of the century. What one "felt like," I have tried to argue, had since the seventeenth century been part of a larger moral and political argument, and so was never strictly a private phenomenon, never strictly private in its ramifications, in the institutional edicts it permitted and sustained. In nineteenth-century America, the primacy of the subjective was especially important in institutional terms, important in a broad range of evidentiary and adjudicative contexts. Indeed, as Morton Horwitz has argued, the entire legal history of the nineteenth century might be said to revolve around this fateful concept. As Horwitz describes it, the rise of modern contract law marked a movement away from an eighteenth-century "doctrine of consideration" (which imposed public regulation on the terms of transaction) to a nineteenth-century "will theory of contract" (which regarded the voluntary agreement, the prover-


bial "meeting of minds," of the transacting parties as proof of fairness). Evidence was progressively localized and personalized in the nineteenth century, we might say,[61] and by mid-century, Horwitz argues, the transformation was more or less complete: a doctrine of regulated exchange had been replaced by a "subjective theory of contract."[62]

From this perspective, the primacy of the subjective in The Awakening is neither accidental nor idiosyncratic, but long heralded, amply instantiated, and indeed utterly predictable. What is not so predictable, however—at least within Horwitz's model—is the extent to which subjectivity is invoked here not in preparation for its famed "meeting" with another subjectivity, in their mutual entry into contract, but to make such a meeting impossible in the first place. After all, when Edna says, "I simply felt like going out," she is not proposing to meet anyone—not her many callers and emphatically not her husband; not on any earthly terrain and not in any mental space. Contract, its structure of agreement and structure of validation, would seem then only to be part of the legal edifice which subjectivity is called upon to uphold. Another part of the edifice, which it upholds with equal facility, is something like the obverse of contract, something like the non meeting of minds.

Indeed, what Horwitz seems to have overlooked is the extent to which subjectivity is a reversible category: the extent to which it lends itself both to the honoring of certain claims and to the discounting of others. For subjectivity carries both a positive and a negative evidentiary weight: it comes alternatively stamped with a seal of authority and a badge of disrepute. Authoritatively, it emanates from "the Light of one's own Reason," whose private judgment is ratified, sanctified, legitimated. Disreputably, however, it can turn that reason into its own ground of refutation. Like the concept of rights, which derives from it and formalizes its juridical expression, the subjective too underwrites a structure of correlativity, the complementary genesis of a positive and a negative term, mutually defined and mutually obliterating. In short, just as rights speak to a "Warre of every one against every one" in the realm of entitlement, the subjective speaks to a "Warre of every one against every one" in the realm of evidence.

It is helpful, then, to speak of two evidentiary grammars, both centered on subjectivity, though putting it to two contrary uses. We find, on the one hand, an indicative grammar, where what one "feels like,"


offered as a kind of descriptive fact, constitutes the basis for asserting claims. Complementing it, on the other hand, is an attributive grammar, where subjectivity imputed to someone else, imputed as a matter of mere perception, makes the claims of that person fanciful and suspect. This evidentiary discrimination is crucial to any moral subjectivism, crucial if private reason is to have any claim to being universal reason, for the integrity of such a claim must rest on its ability to banish all contrary reasons under a provision of dismissibility. It is that provision of dismissibility that we are witnessing in The Awakening , in its handling of competing bodies of evidence and competing claims to reason, although what is dismissed here, being made to appear so different from what is affirmed, is perhaps not even recognizable as its counterpart.

In any case, as far as subjectivism is concerned, Edna can hardly be said to have a monopoly. She is the most dramatic example, of course, being the one who, in the course of the book, "began to do as she liked and to feel as she liked" (74). But her husband, as it turns out, is not without subjective doings and feelings of his own. He has feelings concerning his children, for example, which he exhibits late one night when he gets back from Klein's hotel:

Mr. Pontellier returned to his wife with the information that Raoul had a high fever and needed looking after. Then he lit a cigar and went and sat near the open door to smoke it.

Mrs. Pontellier was quite sure Raoul had no fever. He had gone to bed perfectly well, she said, and nothing had ailed him all day. Mr. Pontellier was too well acquainted with fever symptoms to be mistaken. He assured her the child was consuming at that moment in the next room.

He reproached his wife with her inattention, her habitual neglect of the children. If it was not a mother's place to look after children, whose on earth was it? He himself had his hands full with his brokerage business. He could not be in two places at once; making a living for his family on the street, and staying at home to see that no harm befell them. He talked in a monotonous, insistent way. (7)

In a book so subtly nuanced and so evanescent in tone, this portrait of Mr. Pontellier is interesting not because it is ironic, but because the irony is so heavy-handed, so gratuitously close to the surface. In the detail about the cigar and in the blunt verdict that concludes the portrait, Chopin seems to be supplying quotation marks for an inci-


dent whose rhetorical status really needs no elucidation. She supplies those quotation marks, I argue, because Mr. Pontellier's subjectivity, presented here as a bad example—as self-indulgent, egoistical, and obviously wrong—is otherwise not so readily, or at least not categorically, distinguishable from its more privileged counterpart: his wife's subjectivity, which, for much of the book, is given a voice only intermittently ironized, only intermittently inflected with its own critique. The quotation marks are firmly in place for Mr. Pontellier, then, not to indicate a difference that preexists but to secure a difference precariously maintained.

Central to the portrayal of subjectivity in The Awakening is a practice of selective validation, by which contrary perceptions are sorted out, distributed into separate categories, assigned different evidentiary weight. Seen in this light, the novel offers an important supplement to the Horwitz thesis. Where Horwitz describes a categoric endorsement of the subjective in contractual processes, what we see in Chopin is instead a selective endorsement, an internal differentiation within what Horwitz takes to be a unitary term. The modification is worth noting, I think, not only because it points to a certain unevenness here between law and literature, but also because it helps to highlight a rather surprising outcome from that uneven development. For in the course of the nineteenth century, it was the more complex, more "literary," configuration of the subjective that would emerge as a broad cultural understanding, so that what one "feels like" would come to figure in more and more complex ways, bear more and more complex kinds of witness. In that process, the subjective would also be fitted out for a broader operating theater, moving from its home in contract to a newfound centrality in constitutional law and opening up new venues for the absolutization of justice.

Indeed, given the images of antagonism in The Awakening , it is tempting to speculate on a larger shift in the conception of the subjective before and after the Civil War: from one that presupposes a rational common ground to one that envisions the breakdown of that common ground, from one partial to commercial agreement to one mindful of civil dispute.[63] For if the subjective in antebellum America was invoked for the "meeting of minds" in contract, as Horwitz argues, the very possibility of contract would seem to rest on the possibility of such a meeting. According to the canon of commercial law, one's own reason was also the reason of one's contracting partner.


And so the harmony between these two, and between these and others, was extolled in every conceivable guise, by jurists, politicians, economists, and spiritualists. According to Eric Foner, harmony was one of the most important tenets of antebellum republican ideology.[64] The advent of the Civil War made such a presumption highly untenable. Indeed, disharmony seemed the order of the day. As Northerners and Southerners each clung to the light of their own reason, and as each of them offered that as universal Reason, subjectivity itself became the site of sectional conflict: the fault line along which the seemingly unitary fact of slavery was fractured into two mutually unrecognizable accounts.

From this perspective, the Civil War might be seen as a crisis of moral subjectivism itself: a crisis brought about by the violent foregrounding and violent juxtaposition of human reason as the source of antagonism, the source of mutually conflicting and confounding versions of reality. The crisis of subjectivity in the work of the classic authors—in Hawthorne and Melville, for example—would seem to bear a striking relation to the historical crisis which, in one sense at least, was literally a civil war, a war internal, perceptual, and evidentiary, fueled by contrasting representations of slavery and mutual accusations of falsehood. That crisis of subjectivity would reappear in The Awakening both as an enduring legacy and as an attempt at erasure, an attempt—as urgent as it was unsuccessful—to put to rest the epistemological anxieties that plagued the American Renaissance and, possibly, the historical conflict that inspired them. We need only compare The Awakening with a novel like Pierre , or a story like "Young Goodman Brown," to see how far Chopin has traveled. In her hands, the ambiguous evidence that permeated the fiction of the mid-nineteenth century is recomposed into a privileged center, a heroine who colors much of the book in her own hue, until the spectral appearance of infantile antagonists pushes her to her fateful decision.

Subjectivity in The Awakening , then, is not just a psychology but also an epistemology and, as such, an adjudicative practice as well. Here, questions of rightness, questions of entitlement, and questions of reality are all subject to an evidentiary weighing, and all subject to a consequential verdict. The legal language that figures so prominently in the opening scene is not at all decorative here; it makes up the very ground rules of the novel, its structure of affect as well as structure of representation. In this sense, The Awakening is very much


a tribute to the primacy of jurisprudence in American life: a tribute to its adversarial language, its tendency to saturate other domains of discourse, not the least of which being the discourse of subjectivity. It is this "legalization" of the subjective—its definition and permeation by the concept of rights, its definition and sometimes demolition by the "against" which correlates rights—that transforms its seemingly inward domain into a kind of adjudicative battlefield, the scene of evidentiary accrediting and discrediting. And to the extent that this inward domain has traditionally been the domain of the novel, it is through its depictions that we might begin to reconstruct the circumstances and consequences of that battle of evidence. Here, in keeping with the novel's double perspective, its habitual play of distance and proximity, we might expect to find not only the experiential fact of moral subjectivism but also its deadly excess, not only the space of freedom it helps to underwrite but also the style of segregation enacted in its name.

The complex inflections activated by the novel—the nuanced perspectives it weaves and unweaves—suggest that the relation between law and literature is perhaps not strictly analyzable as a logic, a formal analogy. We need a more supple vocabulary, more fine-tuned as well as more densely analytic, in order to capture not only the broad principles of commensurability between these two domains but also a few crucial shades of difference. I want to experiment with such a model by looking at the dual career of the subjective—in law and in literature—in the late nineteenth century, a period usually known as the golden age of "laissez-faire philosophy in constitutional law"[65] and one that virtually invites a kind of analogical thinking about law and literature.

It is tempting, indeed, to collapse The Awakening , with its search for a personal sphere free of obligation, into the broad outlines of laissez-faire constitutionalism, with its search for an economic sphere free of regulation.[66] In what follows, I want to resist this collapsibility and to maintain an analytic space between the two, in order to study not the linear translatability of a single term, but the positional and appositional network that inflects it and gives it its particular resonance. What interests me, then, is not the category of the "subjective" seen in isolation, but rather the semantic universe revolving around it. In the late nineteenth century, the meaning of this word—and its special importance to the languages of rights—cannot be fathomed


without looking at the parallel emergence of a new legal term, a term that, at first glance, might seem its antithesis. I am thinking of the term "substantive," as expounded by the doctrine of "substantive due process," a doctrine which conferred on the concept of rights a definitional solidity and which, by putting these rights under the jurisdiction of the Supreme Court, would drastically expand the role of the judiciary, ushering in the "substantive jurisprudence" of the "Lochner era."[67]

Substantive Jurisprudence: Lochner to Plessy

Beginning with the Slaughterhouse Cases of 1873[68] and moving with increasing speed and unanimity thereafter, the Supreme Court worked out a "substantive" interpretation of the Fourteenth Amendment, which in the succeeding decades would be regularly used to challenge federal and state regulations, subjecting them to judicial review. In Allgeyer v. Louisiana (1897), in the now notorious Lochner v. New York (1905), and in a host of other cases, including Adair v. United States (1908), Coppage v. Kansas (1915), and Adkins v. Children's Hospital (1923), the Court struck down laws that prohibited "yellow dog" contracts and laws that established minimum wages and maximum hours. Such laws were unconstitutional, the Court explained, because they were a "palpable invasion of rights secured by the fundamental law"—especially the "rights of private property" and the "right of free contract."[69] It is this substantive jurisprudence—this insistence on substantive rights, especially the right to contract—which transformed the Fourteenth Amendment from a guarantee of civil rights into the centerpiece of laissez-faire constitutionalism.[70]

The period between 1897 and 1937,[71] known to legal historians as "the Lochner era," might also be called the era of the substantive, during which a particular set of rights would come to appear as solid, as self-evident, and as objective as things, as if they literally had materialized into moral furniture. Although this substantive jurisprudence might seem directly contrary to the weightlessness of moral subjectivism, we should not forget that the substantive is itself a judicial designation, itself a form of attribution, proceeding from an epistemology which, even as it names as "substantive" that which is accorded evidentiary weight, must consign to insubstantiality that which is not.


After all, when the Court struck down a New York statute setting a ten-hour daily maximum for bakers, on the ground that it violated the "right of free contract," it was discounting the bakers' demand for physical and mental well-being.[72] And when it struck down a District of Columbia law setting minimum wages for women, on the similar ground that it violated "the right to contract about one's affairs [which] is a part of the liberty of the individual," it was discounting the women workers' demand for satisfactory pay.[73]

Within the Court's epistemology—not only adjudicating but also affixing reality—the distinction between the "substantive" and the "subjective" was nothing if not self-evident. Dissenting from that epistemology, however, we might point out that the distinction here was only a kind of semantic effect, the effect, that is, of a particular evidentiary grammar, a particular form of judicial designation, which as the very basis for its verdict must assign to the winning and losing sides two discretely opposing names: solid facts versus shaky perceptions, utter validity versus utter groundlessness. Like the language of rights which is its natural language, substantive jurisprudence selectively endorses the world, selectively credits and discredits, emptying out the claim of its opponent in order to give itself full validity, conceding to its opponent no shred of evidence in order to equate itself with the sum total of Truth. In its epistemological absolutism, its impulse always to spell its name as the name of Reason, substantive jurisprudence must stand as one of the most troubling episodes in the history of moral subjectivism. It is certainly one of the most troubling episodes in the history of rights, a history marked not only by moral certitudes but equally by moral erasures.[74] With Roberto Unger, then, we might say that "substantive justice is the political equivalent of the morality of desire,"[75] the former being not so much a check to the latter as a mirror of it; for within the adversarial language of rights, the substantive is the requisite name for the triumphantly subjective, the requisite name for the claim that has won out, that has beaten its opponent into insubstantiality.

The intense subjectivism in such a novel as The Awakening , then, is not so much an isolated phenomenon as a cultural disposition, not so much a challenge to substantive jurisprudence as a dramatization of its epistemology. Of course, within the pages of the novel, the embodiment of subjectivism is eventually destroyed—surely a nontrivial detail when we ponder the relation between law and literature, their


concurrence as well as their dissonance. In any case, it is perhaps unavoidable that the novel should share with the law a common language, the language of rights, which, in the novel no less than in the law, must make and unmake the world, crystallize and nullify reality. It is within this context that we might take stock of the "groundless" claims of a figure like Mr. Pontellier. Also within this context, we should perhaps take stock as well of another character, whose claims are still more groundless than Edna's husband's. This is the children's quadroon nurse: "a huge encumbrance, only good to button up waists and panties and to brush and part hair; since it seemed to be a law of society that hair must be parted and brushed" (10).

Here the quadroon is not so much an actual person as an abstract device, seen strictly from the standpoint of the children, the targets of that device. She is "a huge encumbrance," a fixture and a nuisance, though also grudgingly a utility of sorts, good for tidying up one's appearance. In that capacity, as the mechanism by which hair is parted and brushed, she is presented, moreover, as an agent of the "law of society." It is inconceivable that any antebellum quadroon would have been portrayed in such a light or within such a cluster of associations. The quadroon is, after all, the quintessential (as well as most glamorous) victim of slavery, and, through the popularizing efforts of authors like Lydia Maria Child, Henry Wadsworth Longfellow, and, of course, Harriet Beecher Stowe, this tragic figure has long been seen not as an agent of the "law of society" but as a human challenge to that "law."

Even in postbellum literature, especially in literature about Creole life, the quadroon remains a significant presence: at once fascinating, enigmatic, and treacherous. Lafcadio Hearn, for example, devotes one of his "Creole Sketches" to quadroon servants, who, according to him, are "absolutely heartless, without a particle of affection or real respect for an employer or his children, yet simulating love and respect so well that no possible fault can be found with them." Such servants "see everything, and hear everything, and say nothing." "They can tell a lie with the prettiest grace imaginable, or tell a truth in such a manner that it appears to be a lie." Not surprisingly, they are "dangerous enemies—and there is no denying that their enmity is to be dreaded."[76] George Washington Cable similarly dwells on two quadroon characters in his 1879 novel, The Grandissimes . One of these is the black Honoré Grandissime, who bears the same name as the


white hero of the story, and the other one is the slave woman Palmyre, whose "concealed cunning" and "noiseless but visible strength of will" sometimes "startled the beholder like an unexpected drawing out of a jewelled sword."[77]

Clearly, what intrigues both Hearn and Cable is the opaque subjectivity of the quadroons: not so much their proven capacity for mischief as their unknown potential. At once highly developed and highly illegible, their fascination is simultaneously their threat. The quadroon in The Awakening , by contrast, is neither fascinating nor threatening.[78] Indeed, in being so unremarkable and so much taken for granted, she might even be said to have inaugurated an entirely new chapter in the career of this well-worn literary type. She is still advertised as a quadroon, of course, and in fact is never referred to by any other term. The repetition of the word, however, inscribes her not as a racial but as a textual phenomenon: she enters the scene routinely only as part of a compositional tableau. She is either heard as background noise (a "pursuing voice . . . lifted in mild protest and entreaty" [66]) or seen as background commotion ("little quick steps" following the children [70]). And in both cases, the spatial mapping of her person is such as to put her at once in sight but out of focus, within earshot but out of our range of attention. Like the lady in black and the pair of young lovers, who are not so much characters as a kind of human stage prop, the quadroon too seems to have no life other than what we might call a compositional life.[79] It is almost as if her center of gravity were somewhere else, as if her natural habitat were a different sort of narrative, whose ghostly lineaments here mark both its separateness and its irrelevance. Unlike Mr. Pontellier, whose subjectivity is accommodated but discredited, the quadroon's subjectivity is unaccommodated and immaterial.[80]

An uneven mapping—a deliberate play of light and shadows—makes subjectivity in The Awakening a highly composed phenomenon, which is to say, highly centralized, highly circumscribed, and highly differentiated. The quadroon's "off-centeredness" complements the centered subjectivity that is Edna's. She complements Mr. Pontellier as well, whose subjectivity, though admitted into the narrative, is nonetheless not accorded any evidentiary weight. The fate of these two characters bespeaks the fate of humanity itself in a world organized into substantive claims and groundless claims, a world in which each and every one, living by the light of his or her reason,


must try to blot out the light of others. And so Mr. Pontellier turns out not to be the only one (and certainly not the best-known one) whose subjectivity is rendered shadowy after a due weighing of evidence. Indeed, on May 18, 1896, just three years before his fictive case in The Awakening was thrown out of court, so to speak, a real case was thrown out of a real court—and on the same ground, that of fallible subjectivity.

I am being coy here, so let me hasten to add that the case I have in mind is Plessy v. Ferguson , a case that, as we know, has to do with racial accommodation and discrimination in railroad cars. I would like to argue, however, that it also has to do with the crediting and discrediting of evidentiary authority, the making and unmaking of moral subjects, and thus the granting and withholding of the title of "reason." Not altogether accidentally, Plessy v. Ferguson , like The Awakening , also unfolded in New Orleans, a city with a prosperous black middle class as well as a long history of racial discrimination.[81] In 1860, for example, a segregated streetcar system was established in New Orleans, blacks being allowed only in cars marked with a star. After the Civil War, white supremacy was maintained by the Black Codes, the 1866 New Orleans riot, and the 1876 Battle of Liberty Place (in which Oscar Chopin, Kate's husband, took part as a member of the White League).[82] In 1890 the Louisiana legislature passed a Jim Crow railroad car bill. It was this segregation law that Homer Plessy set out to challenge when, on June 7, 1892, he took a seat in a white coach. He was arrested and bound over to the Criminal District Court for the Parish of Orleans, where Judge John H. Ferguson ruled against him. That decision was upheld by the state supreme court, and, upon appeal to the United States Supreme Court, it was similarly upheld on May 18, 1896, with a single dissenting vote from Justice John Marshall Harlan.

The Plessy case, long considered pivotal (and infamous) by legal historians, has recently also attracted the attention of literary critics, who see it as a dramatic example of the binary construction of race.[83] Enlarging upon these readings, I want to suggest that Plessy has to do, still more broadly, with the binary construction of moral subjects—labeling them as either "reasonable" or "subjective," "having rights" or "not having rights"—in one of the most extreme attempts to make the language of rights commensurate with the world, and commensurate with a putatively discrete, putatively unified canon of reason.


Indeed, it is the appeal to this canon of reason that enabled the Court majority to interpret the establishment of Jim Crow cars not as a constitutional violation of the Fourteenth Amendment but as a local "police measure," the reasonableness of which was to be decided by the state legislature and the reasonableness of which the Court was quite ready to affirm:

So far, then, as a conflict with the Fourteenth Amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and with respect to this there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness it is at liberty to act with reference to the established usages, customs and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the races is unreasonable.[84]

Such a claim of reason should alert us, if nothing else, to its constitutive abuse. It should remind us of the danger (as alive today as it was one hundred years ago) of any conception of reason that imagines its object to be integral and undivided, any conception of reason that takes self-evidence to be its predicate and "unreason" to be its partner.

In the immediate case of Plessy , since "reasonableness" was to be defined with reference to "established usages, customs and traditions"—and since the Court had also made it clear that no reasonable laws would "conflict with the general sentiment of the community"[85] —it was not surprising that the community in question should lose no time in making its sentiment heard. The New Orleans Times-Democrat summed it up: "A man that would be horrified at the idea of his wife or daughter seated by the side of a burly negro in the parlor of a hotel or at a restaurant cannot see her occupying a crowded seat in a car next to a negro without the same feeling of disgust."[86] It was this feeling of disgust that the Court deferred to. According moral authority to the private judgment of its citizens, it must also—by the very terms of its epistemology—generalize that judgment from a particular view into a universal view, generalizing it, in effect, into an objective reason, a judicial reason. Jim Crow laws were not unreasonable because the community had endowed them with the light of its own reason, a reason the Court adopted as its own.


In the semantic universe of Plessy v. Ferguson , "reason" turned out to be the judicial name for that "feeling of disgust" that had triumphed, a feeling that was no longer called a feeling now, no longer seen as subjective. But even as the Court sided with one feeling, giving it the dignified name of "reason" and giving it the legal right to keep segregated cars, it must turn the opposing claim into a non-claim, a "mere" sentiment with no objective ground beneath it. Here as elsewhere, selective discrediting is the necessary complement to the granting of an absolute right, the crediting of an absolute reason, and so in Plessy , too, we will find not only a subjectivity that is honored but also one that is dismissed, as we can see in the penultimate paragraph of the ruling:

We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.[87]

In the opinion of Justice Henry Billings Brown (who wrote for the Court majority), Jim Crow cars are not really discriminatory. There is no good "reason" why one should feel discriminated against. But if one does, it is only because one chooses to put a subjective "construction" upon something that is actually quite neutral. Subjectivity, in this usage, is clearly not something one would want to confess to, but something one must try to uncover in others. Within this attributive grammar, subjectivity is not only itself stripped of any evidentiary weight, but in its newly acquired hollowness it would also become a highly serviceable, highly absorbent category, something like a cognitive black hole, by which another concept—the concept of "injury"—is further dissolved, further relieved of any substantive contents.

Injury here turns out to be a matter of one's private perception, not "anything found in the act" but existing only in the eye of the beholder. The eye of the beholder is a sphere surprisingly commodious, and indeed surprisingly accommodating, but what it accommodates it also discredits. What Plessy v. Ferguson upholds, then, is not just separate accommodations for blacks and whites in railroad cars, but also separate accommodations (and separate legal designations) for two versions of the subjective. In this landmark Supreme Court rul-


ing, the crisis of subjectivity that had afflicted the nation for over half a century was finally brought to an end, finally recomposed into a more perfect union, a union of subjects no longer subjective, just plain reasonable.

For those left out of that union, those who perversely clung to their own view of things, the Court also had a handy epithet. Still, in putting the subjective to such good use, in deriving from its alleged groundlessness an entire provision for dismissibility, Plessy v. Ferguson might be doing no more than putting a legal mandate on what had long been established as a social practice. It is worth noting that as early as 1867, thirty years before the Plessy decision, New Orleans newspaper editorials were already availing themselves of the category of the subjective, which they also used as the ground for dismissal, the ground on which to squelch any protest against the city's segregated "star cars":

Touching the question of conveyance in the city railroad cars, the negroes have no well grounded cause of complaint. A sufficient number of cars have been set apart for their accommodation, and between the star cars and the others there are no distinctions in make or general appearance. How is it then that they clamor for shadows when their substantial rights are already granted? Simply, because vindictive and avaricious adventurers have poured the leprous distilment of dissatisfaction into their ears, and they are ready to do what in their sober moments they would themselves condemn. What real difference can it make to a negro whether he rides in a car ornamented by a star, or one which is not thus ornamented?[88]

In a language worthy of Lochner , the New Orleans Times also claimed to know something about "substantial rights" and "real difference." It knew, for a fact, that there were no objective distinctions between the regular cars and the star cars and that, if anything, the latter were somewhat better ornamented. Any black protest against the star cars must be a mere "clamor[ing] for shadows": utterly preposterous and utterly groundless, something no "sober" person would ever do. If this contrary designation of substance and shadow, reason and unreason, seemed almost ritualistic, perhaps it was also a necessary ritual, necessary to an epistemology that, ceaselessly trying to solidify its own claim, must ceaselessly trump the rest of the world into groundlessness.


The Absolutization of Justice

After the decision against Homer Plessy in the Criminal District Court, the New Orleans Times-Democrat commended Judge Ferguson, "who has completely disposed of the African claim, and shown how little there is in it." It should be clear from now on, the editorial went on to say, that the Louisiana legislature "has the undoubted right to compel negroes to occupy separate cars from the whites." As for those "silly negroes who are trying to fight this law," the sooner they "stop wasting their money in combatting so well-established a principle—the right to separate the races in cars and elsewhere—the better for them."[89]

It might come as a surprise that those who championed segregation should choose to speak in the language of rights, when one would have thought (as Plessy's attorneys did) that the only rights involved here were civil rights, the "rights secured by the 13th and 14th Amendments."[90] And yet it is finally neither illogical nor even ironic that the Times-Democrat should insist on its "undoubted right" to segregate blacks and whites, because the language of rights, as we have seen, is the very language by which one can achieve "undoubted" victory, the very language by which one can "completely dispose of the [opposing] claim, and show how little there is in it." What is being worked out here, then, in this unhesitant language, is something like the "absolutization" of justice, a phenomenon still very much with us in the late twentieth century, but whose features were already traceable in the nineteenth—traceable not least of all in its discourse of moral subjectivism, a discourse at home not only in the novel but also in constitutional law, and instituting, in its wake, not only the figure of a right holder but also the figure of a nonentity, someone who has "no well grounded cause of complaint."

And so, even though the New Orleans Times-Democrat did not forthrightly declare, as Edna Pontellier does, that "nobody has any right," the logical correlative to its "undoubted right to compel negroes to occupy separate cars" is of course a variant of her statement. I make this observation not to show that Edna is a champion of segregation, or that The Awakening is a "racist" book, but to suggest that within a rights-based model of justice, a model entertained, elaborated, but eventually also shattered within its pages, segregation is a possible (and indeed historically proven) outcome. Even in The Awakening we


can still point to the quadroon as a casualty of sorts: not a casualty of racism but a casualty of the novel's subjectivist discourse, which, to the extent that it is centered on Edna, and to the extent that it coincides with her epistemology, must also be bounded by the representational limits of that epistemology, bounded by its texture, its circumference, its sense of the real. Such a discourse can put Edna at the emotional center of the novel only by marginalizing the emotions of others; it can affirm the substance of her grievance only by consigning to insubstantiality any grievance other than her own.

It is not surprising, then, that the quadroon is a shadowy figure in The Awakening . How can she be otherwise? This is a book, after all, where the grievance of the main character is itself shadowy, experienced only by Edna herself and not accessible to anyone else. As Chopin depicts it, "An indescribable oppression, which seemed to generate in some unfamiliar part of her consciousness, filled her whole being with a vague anguish. It was like a shadow, like a mist passing across her soul's summer day. It was strange and unfamiliar; it was a mood" (8). It is a tribute to The Awakening that this shadowy oppression is not dismissed out of hand, that, for all its immateriality and undemonstrability, it is nonetheless given a voice, given substance through the very agency of representation. And yet "oppression" defined through this evidentiary grammar must make any alternative ground for grievance not so much nonexistent as unintelligible, so far beyond its pale as to be unrecognizable within its terms. Concentrating on the "shadow" of Edna's unhappiness, the novel can enlist only such an evidentiary grammar, only such a representational scale, as will accentuate that shadow into substance. To address the quadroon's grievance would have meant a different grammar, a different scale, a different relation between shadow and substance. No wonder she is assigned separate accommodations.

It is the segregation of the quadroon, her off-centeredness within the story, that enables Edna to see herself, with almost no irony, as being "dragged into the soul's slavery" (151). True to her compositional utility throughout the novel, the quadroon has once again made herself available, available in this case as a metaphor, which, reflecting upon Edna's condition and substantiating it in kinship, would also give a name to her "indescribable oppression." Appropriating that name, Edna can see herself as a slave, a sister to the quadroon, indeed figuratively to be equated with her.[91] This sisterly


equivalence can be asserted, however, only by draining the quadroon of her substance and turning her into an abstract category, a category of injury, which Edna can symbolically try on, symbolically claim as her own. The quadroon is doubly desubstantialized, then, rendered shadowy both by the novel's discourse of moral subjectivism and by a metaphoric structure which translates her onto a different scale, using Edna as her measure. It is this metaphoric translation which gives the quadroon her peculiar weightlessness, just as it is the weight of the metaphor which lends substance to the "shadow" of Edna's grievance. By the force of the metaphor, mistress and servant are now commensurate, although that commensurability, we now see, can be secured only at the quadroon's expense. If Edna is a slave, the quadroon can only be a nonentity.

Edna's identity is thus very much the effect of a symbolic exchange. It is this exchange, in fact, which rationalizes her world, giving her a grievance answerable to her complaint, underwriting both her feat of semantic equation and her feat of subjective adequation. Unlike many of the female characters we have encountered in the course of this book—unlike Judith in The Deerslayer , Deborah in Life in the Iron Mills , and Irene in The Rise of Silas Lapham , none of whom can be said to inhabit a fully matching universe—Edna, to her credit but also to her misfortune, has indeed achieved full rationalization by the end of her story. Thanks to the book's evidentiary grammar, she has found a name for her condition, matched herself with an identity which equals her sense of being. But having thus made herself equatable with a slave, Edna would seem also to be subsumed by that identity, exhausted by it, so that, again unlike the other characters we have studied, she alone lends herself to an integral verdict, a verdict that admits of no qualification, no margin of discrepancy, and thus no possibility of residue. She is a slave, no more and no less, and it is the absoluteness of that equation that now renders her life "complete," in the most chilling sense of that word, in a way that the lives of Judith, Deborah, and Irene will never be. Not altogether accidentally, then, it is at this juncture that Edna is visited with an apparition, a haunting image of those who, she thinks, are on their way to enslave her: "The children appeared before her like antagonists who had overcome her; who had overpowered and sought to drag her into the soul's slavery for the rest of her days" (151).

The children, who have been insubstantial throughout the book—


in much the same manner as the quadroon—now materialize before her. Of course, their appearance here is in one sense only a phantom appearance, a trick in the eye of the beholder. (The actual children are in Iberville, being taken care of by their grandmother.) But that apparition is in another sense a necessary apparition for Edna, a necessary corollary to her newfound identity as a slave. In a completely integrated world, as Edna's world has now become, the making of the slave must be matched by the making of her masters, and it is to fit that bill that the phantom children are now summoned forth. They are her "antagonists"; they have "overcome" and "overpowered" her. And so, what H. L. A. Hart calls "the figure of a bond" is once again at work, except that, of course, it is Edna who is now in bondage, the chain of enslavement being firmly lodged (or so she imagines) in the hands of her children.

Edna is a slave, then, nothing but a slave, just as her children are slave masters and nothing but slave masters. In that residueless description, in the numbing completeness of its all-or-nothing verdict, the epistemology of moral subjectivism has come full circle. Having metaphorically turned herself into a slave, Edna can only see herself now as absolutely powerless, absolutely tyrannized, absolutely without rights. This language, the language of absolutism, is the only language Edna speaks, and she is a slave to it in more senses than one. A slave to that language, there is nothing left for her to do but to claim for herself the only freedom legible in its terms, and to head out toward that realm which is as absolute as her enslavement is imagined to be absolute: a realm where her right to herself can indeed be undisputed, where her husband and children "need not have thought that they could possess her" (152).

If The Awakening begins with an ambiguous gesture toward the language of rights, it ends, in the death of Edna Pontellier, with a gesture no less ambiguous. But a rights-based model of justice is perhaps always about endings, always about a verdict that dissolves all conflict, clearing away all lingering doubt, all lingering messiness. The Awakening , in giving its ending that summarizing and crystallizing weight, would seem to embody the language of rights up to the last. Embodying that language, it must remain a discourse of subjectivism even as it chronicles the demise of its moral subject. And indeed that demise, unfolding in its luminous detail, its sense of ceaseless yearning and ceaseless endeavor, its sense, in short, of being


anything but a suicide, is a fate reserved only for Edna. The quadroon would have been an unimaginable candidate.

Because it is so unimaginable, however, it is also helpful, for a brief moment, to entertain this unlikely candidacy. What might have prompted the quadroon to kill herself? What would have been the circumstances of her heroic (or not so heroic) decision? And what sort of response might it have elicited? These questions cannot be answered under the auspices of The Awakening , under its too closely guarded emotional center of gravity, its too tightly knit fabric of the world. But some indirect answer, some intimation of an answer, is perhaps suggested by another exemplary "suicide" which would also unfold in New Orleans, only one year after the publication of The Awakening . Unlike Edna's idyllic demise, however, this act of self-destruction brought with it no "hum of bees" or "musky odor of pinks" (153). It took place, rather, on the unidyllic Saratoga Street, in the midst of the most fanatic manhunt New Orleans had ever known.

On the night of July 23, 1900, a black man named Robert Charles got into a scuffle with the police while sitting with a friend on the doorstep of a house that belonged to a white family. When more officers were dispatched to arrest him, he killed two of them. And before he was himself shot and trampled into the ground four days later, on July 27, he would kill five more people, including two more officers, and leave eight others seriously wounded. A race riot, meanwhile, quickly spread across New Orleans.[92]

Anticipating Native Son by some forty years, Robert Charles might be seen as a precursor of Bigger Thomas, especially in Richard Wright's generic description of that figure: "The Bigger Thomases were the only Negroes I know of who consistently violated the Jim Crow laws of the South and got away with it, at least for a sweet brief spell . . . [before they were] made to pay a terrible price."[93] Robert Charles was, of course, more deliberate and deadlier in his plan of execution and, in that regard, also more resolutely suicidal. He was universally branded as a "demon," a "devil in embryo," and a "lawless brute, only in the form of human."[94] Amid this denunciatory fervor, however, it occurred to the New Orleans Daily States that some sobriety might be advisable after all. "If the wild and heroic stories of his bloody triumphs are continued," that journal warned, "some Yankee scoundrel will write his life and depict him as the negro


Coeur de Lion."[95] But the bloody triumphs of Charles were so riveting that hardly anyone (least of all the Daily States itself) was able to heed that warning. In an editorial called "Making of a Monster," the New Orleans Times-Democrat tried to put the monster into perspective and ended up conceding that it "involv[ed] one of the most remarkable psychological problems of modern times":

It is only natural that the deepest interest should attach to the personality of Robert Charles. What manner of man was this fiend incarnate? What conditions developed him? Who were his preceptors? From what ancestral strain, if any, did he derive his ferocious hatred of the whites, his cunning, his brute courage, the apostolic zeal which he displayed in spreading the propaganda of African equality?[96]

Whatever it was, the subjectivity of Robert Charles was at least not dismissible. Still, for all its fascination, his life would not be written for many years: not by the journalists of New Orleans and not by Kate Chopin. Indeed, a subjectivity such as his is not so much repugnant as unintelligible within their language of rights, a language in which the likes of him will never find accommodation, because its evidentiary grammar, its map of shadow and substance, will give credence only to one sort of feelings, one set of claims, one image of Reason. But even though that language refuses to make room for Robert Charles, even though it refuses to grant him substance in its account of the world, his response to that erasure is, all the same, a response strictly within its terms. For his attempt to do justice, in all its violent absolutism, is perhaps no more than an exaggerated mirror image of that violent absolutism which, then as now, has cast such a large shadow over the idea of justice. This instance of commensurability, at once grotesque and grotesquely recognizable, is itself a plea for an alternate language, a language that, responsive to the many shades and meanings of reason, will perhaps bring to our awareness not only the absolute claim of rights, not only the absolute claim of justice, but also what is not resolved by these concepts.


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