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and by mid-century, Horwitz argues, the transformation was more or less complete: a doctrine of regulated exchange had been replaced by a "subjective theory of contract."^[62]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]