Crime as a Signifying Field

Judith's sexual failing is a figure of speech, then, a kind of punitive shorthand, where novelistic sanction is meted out both literally and vicariously, both to a specific crime plainly so labeled and to an unspecified range of guilty cognates. We might think of it as a point of metaphoric inscription, and it is helpful to remind ourselves of its adumbrative and substitutive relation to other signifying categories. Eve Kosofsky Sedgwick has observed that "the subject of sex [is] an especially charged leverage-point, or point for the exchange of meanings, between gender and class."^[49] Eva Kittay, writing more generally about metaphor as a cognitive principle, has argued that the exchange of meaning that it brings about is not just between two discrete terms but between two semantic fields, two domains of meanings, the structural properties of one being transposed upon the other.^[50] This "field theory" of metaphor helpfully elucidates the punitive workings of the novel, for it is this confluence of semantic fields—the multiple inscription of prohibition and penalty—that gives rise not only to the jurisdictional scope of the novel but also, I would

argue, to its peculiar harshness, its punitive zeal toward its signifying criminals.

It might seem odd to speak of the punitive as a signifying field, and yet Emile Durkheim, linking penal law to a residual religiosity, has alerted us to just this "metaphorical" dimension in crime and punishment (although, as he also says, "the metaphor is not without truth").^[51] A crime is always "an offense against an authority in some way transcendent," Durkheim argues, and in avenging a wrong, in demanding that "the culpable ought to suffer because he has done evil and in the same degree," we are propelled by "an echo in us of a force which is foreign to us, and which is superior to that which we are."^[52] As the enforcement of an "echo," punishment is symbolic and projective. Inscribed within its executed particular is always a broader, higher frame of reference, a broader, higher order of meaning.^[53]

This appeal to a transcendent ideal is certainly true of the Kantian retributionists, who demand punishment in the name of justice. And with slight modification it is true even of Kant's adversaries, the utilitarians, who, in making "social utility" the ground for punishment, in effect turn that into a higher principle, not unlike "justice" in Kant. Punishment for the utilitarians (as we have seen in Beccaria) is thus strictly a means to an end, the particularity of each case being harnessed always to the supreme goal of crime prevention. As Bentham says, the "first object" of punishment is "to prevent, in as far as it is possible, and worth while, all sorts of offences whatsoever; in other words, so to manage, that no offence whatsoever may be committed."^[54] For him as for Beccaria, punishment is not so much an act of reprimand as an act of preemption: it addresses not the accomplished deed but contemplated misdeeds, not the actual criminal but potential offenders. Bentham thus insists on the "exemplarity" of punishment, for "example is the most important end of all, in proportion as the number of the persons under temptation to offend is to one ." And, as he further argues, "there is not any means by which a given quantity of punishment can be rendered more exemplary, than by choosing it of such a sort as shall bear an analogy to the offence."^[55] The criminal is punished primarily as a sign, then, a salient example, condensing and displaying in his person an entire structure of prohibition. And, as a sign, he is posted mostly for the benefit of others, held up to serve them due warnings.

But as Bentham is the first to recognize, exemplary punishment can lead to excess, to a profligacy in signification, as it were. It is not surprising that immediately after his discussion of exemplarity, he should come up with a section on "frugality" (on the importance of not "produc[ing] any such superfluous and needless pain"), followed by another section in which he gingerly considers "exemplarity and frugality, in what they differ and agree."^[56] Indeed, for all its talk about the salience of example, The Principles of Morals and Legislation (1789) is deeply committed to frugality as the law's operative principle. And so Bentham begins his discussion of penology with a chapter on "Cases Unmeet for Punishment" and concludes with a chapter on "The Limits of the Penal Branch of Jurisprudence"—thus anticipating, by more than a century, Oliver Wendell Holmes's recommendations in "The Path of the Law."^[57] In the course of that intervening century, as criminal law became more and more frugal in its semantics, the luxury of signification became more and more a residual privilege of the novel. Here, then, is one instance of the uneven development between law and literature, although I should also add that such an unevenness is never quite absolute. Against the novel's semantic latitude, so continually in evidence, we should perhaps remind ourselves of a residual latitude in criminal law as well, an unacknowledged but perhaps unavoidable tendency to signify beyond its strict constructions, which suggests that even within its august precincts, a "crime" is never simply a given, external to or antecedent to its verdict, but is rather a semantic effect, given meaning by the very process of judgment.

This is not just a fanciful way of putting things. Some serious consequences follow, I think, from seeing crime as a semantic effect, shaped by the categories by which it is apprehended and represented. Indeed, if the debate among legal scholars is any indication, the very authority of criminal law—its claim to neutrality and rationality—would seem to rest on whether "crime" is to be understood as a substantive or interpretive phenomenon, whether it is seen as an autonomous given, with an objective existence in the world, or whether it is seen as a textualized effect, constituted by a meaning-giving procedure. Mark Kelman has argued, for example, that legal reasoning in criminal law is both propelled and constrained by its "interpretive constructs," which, by adopting a variably broad or narrow time frame with regard to causal antecedents and a variably broad or nar-

row compass with regard to intent, in fact prejudge the issue, since the verdict arrived at is a foregone conclusion given the choice of certain criminal law categories.^[58] Kelman does not use the phrase "signifying field," but he might well have, because what he seems to be suggesting is that the criminal law can assign blame only by constructing its object as a legally meaningful object, the legal meaning here being strictly an effect of the temporal and spatial grid which composes the event, which defines not just its veracity but its very content and character. Given the priority of these general legal categories over each particular crime, the assignment of blame would appear to be procedurally weighted, procedurally overdetermined, and the entire system of criminal justice might begin to look like something that is itself criminally unjust.^[59]

I mention Kelman at some length, partly to indicate the high stakes involved in speaking of crime as a signifying field, but partly also to distinguish my approach from his. Kelman is primarily concerned with the ground of judgment, or the lack thereof. Focusing on the "interpretive constructs" in criminal law, he calls into question its objective foundation, its descriptive transparency and adjudicative rationality. My chapter builds on his insight but reverses his direction of inquiry. Conceding at once that any verdict is interpretive, that it is enacted through a process of textualization and thus always semantically overdetermined, I want to focus all the same not so much on its arbitrary ground as on its abundant figures . What concerns me is the range of symbolic inscriptions brought into play by a particular act of judgment, the wealth of referents encoded in a seemingly discrete offense. Such a focus might seem unduly aesthetic, in a context where perhaps ethics alone ought to matter. And yet in the long run, the aesthetics of crime—its constitution as a signifying field and the semantic excess that accompanies that constitution—must end up leading us back to the question of ethics, must end up casting doubt not only on any particular instance of punishment but also on that higher idea which underwrites it and which it incessantly echoes: the idea of justice itself.

This much said, we can perhaps return to Judith, that signifying criminal, and to her crime, the crime of anonymity. If she is indeed a sign, what family of crimes does she stand for? What patterns of prohibition are adumbated by her specific instance of punishment, what clusters of social meanings are encoded, elaborated, vicariously af-

firmed? We might begin to answer these questions by circling back to the "crime of anonymity" itself, which, as it turns out, is not at all unique to Judith. Indeed, E. P. Thompson has discussed an entire category of offense under that label, and it is helpful here to recall the sense of his initial usage. By the "crime of anonymity," Thompson refers to a phenomenon common in eighteenth-century England, the writing and sending of anonymous letters, usually from the lowly to the exalted, letters variously salacious, rambunctious, or plain extortive. According to Thompson, such crimes were especially prevalent in a stratified society, a society of ascriptive estates, which, "in myth if not in actuality, rested upon relations of paternalism and deference." In such a world, where social distinctions were both customary and compulsory, norms of conduct depended entirely on the denomination of identity. A proper name not only indicated who one was, it also indicated what was proper to one's social station. Crimes of anonymity were deeply unsettling (and were treated as a capital offense) for that very reason. As Thompson says, "anonymity was of the essence of any early form of industrial or social protest," because (or so it seemed to eighteenth-century Englishmen) to refuse denomination was to reject the norms of social estate.^[60]

Judith, of course, is neither so political nor even so purposeful in her crime of anonymity. Still, it is worth noting that even in her case, names are intimately bound up with social station and social entitlement. She is glad to be temporarily without a name—to be "Judith, and Judith only"—because Hutter's name seems so clearly beneath her. He is a "coarse and illiterate" man; his marriage to her mother was a "horror," the two being "an ill-assorted pair," she being in "every way so much his superior" (399). The name "Hutter" ill becomes the mother, and, by the same token, it ill becomes the daughter as well. Judith's problem, a lifelong one apparently, is to find a last name that would consort equitably with the first, a last name that would give her a denotative parity.

Nor is Judith altogether without choice in this matter. Indeed, at various points the narrative teases us with the possibility of her finding a nomenclatural partner, even going so far as to couple her name with another name, holding up the compound as if to test for fit. The fit is not always ideal, however, as Judith is the first to notice. "No—no—Judith without a name would never consent to be called Judith March! Anything would be better than that !" she exclaims at one

point. She can afford to be firm there, because a more suitable name seems to be awaiting her, and she is not too shy to tell its owner, "the name is a good one; either Hetty or myself would a thousand times rather be called Hetty Bumppo or Judith Bumppo than to be called Hetty or Judith Hutter" (409, 405).

Natty is not so sure. He points out, reasonably enough, that the proposed names are "a moral impossible, unless one of you should so far demean herself as to marry me." And, so as not to be uncivil, he adds, "There's been handsome women, too, they tell me, among the Bumppos, Judith, afore now, and should you take up with the name, oncommon as you be, in this particular, them that knows the family won't be altogether surprised." In spite of such encouragement, however, the name "Judith Bumppo" is actually unthinkable, and for obvious reasons. Natty, however, offers a kinder and gentler excuse: "Judith, you come of people altogether above mine in the world, and onequal matches, like onequal friendships, can't often tarminate kindly" (405, 411). Judith and Natty would have been an "illassorted pair," not unlike Judith's mother and Hutter, since she too is "in every way so much his superior." Of course, Judith is not the one to raise any objections now, but the objections are raised for her and, we might add, against her. As a fallen woman she is manifestly not good enough for Natty; as the offspring of people "altogether above [him] in the world" she is manifestly too good for him. Sexual propriety and social station are inversely symmetrical here, in such a way as to bring about a curious alignment between being "too good" and being "not good enough." Judith is unacceptable on both counts, and it is now incumbent upon her to find a name she is neither above nor beneath, but perfectly equal to.