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1— Crime and Punishment
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Uneven Development

The contracting boundaries of the law gave rise to an interesting gray area, no longer covered by the rigor of penal statutes but perhaps not without an alternative form of sanction. If penal law would henceforth limit itself to the specifically criminal, rather than to the gener-


ally immoral, how was the latter to be maintained as an intelligible category? What persuasive or corrective instruments must it summon forth? And if sin no longer provided the legal basis for criminalization, what other functions might it continue to perform? In what context and with what resonances would such a concept continue to have meaning?

After all, living as we do in the late twentieth century, we are all familiar with the boldly advertised "sinfulness" of rich desserts, a usage that points to yet another semantic shift—at once a spreading and a thinning out of meaning—which completely transforms a word whose referential contents had once been narrow, literal, and unambiguous. This semantic transformation had its roots in the nineteenth century, I argue, in the growing separation between judicial and nonjudicial categories, especially the growing separation between sin and crime. This, together with the relaxation of religious discipline, effectively dislodged sin from its customary moorings. No longer anchored to a formal system of punishment, it became instead something like a floating signifier, opening itself to an extralegal set of meanings and lending its weight to an extralegal structure of justice.

This extralegal area—newly removed from the purview of the law but residually connected to it and possibly at odds with it—is of special interest to literary critics. For it is in this gray area, this alternative realm of justice, partly overdetermined but also partly indeterminate, that we might be able to observe some of the cultural specificities of the novel. Here I have in mind the recent hypothesis (advanced by D. A. Miller, John Bender, and Richard Brodhead, among others) about the possibility, amenability, and efficacy of the novel as an instrument of social discipline.[42] I want to reorient this hypothesis, taking as my point of departure not the perfected discipline of the novel but its precarious maintenance. What interests me is the uncertain primacy (and indeed the uncertain profile) of justice as it is textualized in the novel, as it takes the form of something other than a purely logical proposition. Unlike criminal justice, whose operative terms are to become specific and explicit, without nuance or ambiguity, novelistic justice remains allusive, elastic, circuitous. And unlike the canon of strict construction in criminal law, which now limits the "punishable" to its narrowest possible meaning, novelistic justice continues to operate under a canon of the broadest construction, pun-


ishing sins no longer deemed actionable by jurists and, out of that residual latitude, also stretching the concept of "punishment" to its breaking point.

The relation between law and literature that I am suggesting, then, is tangential (and perhaps even antithetical) to the ones more customarily proposed, including those offered by the early commentators on the novel. When Hazlitt said of Richardson that "he sets about describing every object and transaction, as if the whole had been given in on evidence by an eye-witness," and when Charles Lamb said that reading Defoe "is like reading evidence in a court of Justice,"[43] what they had in mind was the palpable affinity between two descriptive surfaces: the minute details of legal evidence and the minute details of novelistic portraiture. What concerns me, however, is not so much the affinity between the two surfaces as a discrepancy between what is inscribed or intimated in each. It is this discrepancy—between their figurative widths or densities, between the self-imposed singularity of reference in criminal law and the self-flaunting multiplicity of reference in the novel—that makes law and literature two different signifying theaters, two different punitive environments, generating different meanings for what counts as a crime and granting different degrees of completeness to its proposed resolution.

To put this another way, we might say that by the early nineteenth century, criminal law had become (or was trying to become) a non-symbolic field, the action of the law being restricted to "the unvarnished meaning of its words," so that "only those acts ought to be crimes which were plainly so labeled."[44] The desymbolization of the law—and the new, invisible forms of discipline that it occasioned—is the subject of Foucault's Discipline and Punish , a work that has inspired literary critics to see narrative fiction as one such form of discipline, functionally homologous to that of the school, the prison, and the police. This approach, which assumes a functional correspondence, a functional complementarity, between various social domains, is certainly one way to imagine the novel's historicity. And yet there is no reason why "complementarity" should be a privileged category of analysis and no reason why "society" itself should be thought of as a seamlessly functioning unit, a seamlessly integrated totality.[45] It is equally plausible to assume the opposite, I think, locating the novel's historical resonances not in its full complementarity to


other social forms, but in its incomplete alignment. What is especially worth investigating, from this perspective, is the possibility of an alternative form of justice in the novel: a different order of signification flowing from an actual offense to its intimated prohibitions and a different order of satisfaction (or lack of satisfaction) flowing from the act of punishment itself.

In short, what I want to elaborate here is something like a theory of "uneven development," a theory about law and literature as institutions historically oblique to each other, marked by a historical noncoincidence of boundaries, boundaries of signification as well as boundaries of satisfaction. Because "crime" retains a signifying fluidity in the novel, what prevails here is definitely not the path of the law but something more like a semantic "field": a field of the reprehensible, specified as well as adumbrated, encompassing and interconnecting a range of signifying registers. As in an echo chamber, crime here sets into motion a far more complex series of resonances than in criminal law. It bodies forth an entire spectrum of prescriptions and proscriptions, some having to do with the law and others not. It speaks to anxieties explicit and implicit. Given this signifying latitude, the justice that the novel dispenses is also "justice" stretched almost to its breaking point: stretched not only to accommodate retributive justice, an order of justice affecting one particular offender, but also to accommodate distributive justice, an order of justice affecting many diverse persons and assigning to each a due share of burden and benefit. Indeed, not the least interesting feature of the novel is the slippage that it effects between these two senses of justice—between a general problem of commensurability in collective life and a specific problem of commensurability in personal conduct—a slippage that, in making an issue out of the very meanings of the commensurate, in calling attention to its very ground of being, would also end up making it the most precarious of concepts: most fantasized and most fantastical.

Nowhere is the expansive scope (and problematic commensurability) of the novel more striking than in the "justice" it metes out to its female characters, which, in its punitive zeal no less than in its signifying instability, might be thought of as a distinctly novelistic effect, an effect growing out of its language of gender. That language, Nancy Armstrong has argued, is very much the novel's invention, at once its normative voice and its regulatory instrument.[46] Certainly,


among its punitive conventions we find a language not only explicitly sexualized, but sexualized in such a way as to dramatize the bounds of propriety and to penalize any overt or covert infractions. The language of gender carries not just the usual symbolic freight but symbolic freight of a particularly incriminating nature. In fact, we need only look at the harsh fate visited upon the heroines of the nineteenth-century novel, from Hester Prynne to Hetty Sorrel, to be impressed not only by the punitive zeal at work but also by the extent to which that zeal is sexually predicated, the extent to which novelistic justice is gendered justice.

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1— Crime and Punishment
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