Lawmaking, Bilateral Rules, and a Debunking of Catch-22

In “Lawmaking, Bilateral Rules, and a Debunking of Catch-22,” Levmore describes Joseph Heller’s antiwar novel Catch-22 as a “one-trick pony” that has little to say about law. The paradoxical legal rules that have made Catch-22 so famous bear little relation to actual law, Levmore argues. Whereas Catch-22’s rules have a binary, either-or structure, actual law is filled with exceptions, caveats, or additional variables that soften the law’s effects. In real life, where a rule might seem too stark, law generally utilizes a standard. Levmore observes that a novel’s ability to engender empathy or compassion likely depends on how plausible it is, and how connected with reality. On this dimension, he views Catch-22 as falling short.

Paul Beatty, the Rhetoric of War, and the Selling Out of Civil Rights

Elizabeth Anker situates Paul Beatty’s The Sellout in a literary tradition that enlists satire as an instrument of critique. Anker demonstrates that Beatty violates race-related taboos in order to confront readers with the avoidances that those taboos impose. Beatty’s biting humor, with its slippage between metaphor and reality, serves to disrupt the self-satisfaction and complacency that mark conventional narratives about the legacy of the Civil War and the civil rights movement in American constitutional politics. The Sellout shows us, in Anker’s view, that the tradition of written constitutionalism and its celebratory symbolism of “quill and ink” has often served instead to enable and legitimize the criminalization and disenfranchisement of African Americans. Moreover, courts have assimilated a racialized language of urban combat—including the so-called wars on poverty, drugs, and crime—that has perpetuated structural racism, reinforcing standards of decorum and good citizenship that have operated as barriers to inclusion in the liberal democratic public sphere.

Law and War in the New World

James Fenimore Cooper’s first novels form an overarching narrative that attempts to capture the American experience. In The Last of the Mohicans, modeled on the captivity narrative, the civilized European world, bound by formal legal rules, overtakes a wilderness—but not completely, and not always for the better. In The Spy, the protagonist is both a social outcast and a true hero of the American Revolution. In The Pioneers, the central character cannot reconcile himself with the new society taking shape in the United States. Each novel culminates in a trial that turns on the law of war. The novels use the tension between the law of war and the inner moral compass of the hero to understand the fate of the young republic and whether it, too, is destined to suffer the fate of past civilizations, each of which was born, rose, and then fell.

How War Makes (and Unmakes) the Democratic State

Focusing on the figures of the terrorist and the migrant, Huq suggests that war in the twenty-first century, in partial contrast to its precursors, may prove costly to democracy. Whereas war once served to develop bureaucratic capacity, shrink wealth gaps, and expand the franchise, it is less likely to perform these functions in a period when war is increasingly cabined to distant zones of violence, mechanized, and privatized. Huq considers a pair of novels by Mohsin Hamid, The Reluctant Fundamentalist and Exit West. The former documents the transformation, and potential radicalization, of a young Pakistani professional in the wake of the September 11 attacks; the latter follows a couple from an unspecified city on the brink of civil war to the Greek island of Mykonos, then to London, and finally to Marin County, California, where their relationship dissolves. Whereas right-wing populists cast the terrorist and the migrant as racialized threats to civilization and national culture, Hamid’s protagonists instead embody a commitment to pluralism, inclusion, and democratic openness.

Army of the Wronged: Autobiography, Political Prisoners, and Black Radicalism

Shelby presents an analysis of the warfare between Black radicals associated with the Black Panther Party and the US government during the era of the Black Power movement. Shelby observes that these would-be revolutionaries regarded US law as having no authority over them. The radicals also thought that their declaration of war was reciprocated, that state officials were self-consciously using the tactics and machinery of war to repress this internal uprising and insurgency, including killing, capturing, and incapacitating Black radicals. Shelby contends that there is truth in this characterization, and lessons to be learned from it. He explores the underlying questions of political morality through an examination and comparison of four autobiographies—by George Jackson, Huey Newton, Angela Davis, and Assata Shakur. Each spent significant time in prison, and each regarded themselves as political prisoners and, in some ways, as prisoners of war. Attention is given to the narrative conventions these authors rely on to achieve their aims, a tradition that can be traced to, but differs in important ways from, African American slave narratives.

Law and Its Limits in Albion Tourgée’s Bricks without Straw

Tourgée’s novel explores the challenges posed by the wartime abolition of slavery in the United States and the federal government’s attempt to impose a new legal order on the southern states. The Ohio-born Tourgée was an accomplished writer as well as a judge in Reconstruction North Carolina, and the novel—which is set in central North Carolina—takes up the possibilities and limits of legal reform in the wake of war. Masur argues that Bricks without Straw presents a largely pessimistic vision of law’s capacity to change deeply rooted social and political structures. Tourgée’s novel warns readers that when it comes to overcoming the legacies of slavery, the law is outmatched by white southerners’ racism and contempt. Masur situates Tourgée’s novel in the context of his political experience, which convinced him that an abstract commitment to individual rights meant little without robust federal institutions capable of protecting those rights against state and local resistance.

Crucified by the War Machine

Nussbaum studies Britten's War Requiem for its insight into the possibility of reconciliation after armed conflict, focusing on images of the body, both beautiful and vulnerable.

Catch-22 and the Law of Large Organizations

Like Levmore, Masur observes that the quintessential feature of the absurdist guidelines in Catch-22 is that they are all structured as rules, rather than standards. There is no discretion available to the officers charged with implementing the army’s battery of legal commands and regulations. But whereas Levmore sees this as unrealistic, Masur argues that strict legal rules are endemic to large organizations such as the army. Governing millions of people is an immense logistical and organizational challenge. Upper-level commanders must ensure that mid-level officers follow orders consistently; mid-level officers must ensure that they are treating their soldiers equitably and without favoritism. In fact, as Masur observes, the modern US Army operates under the guidance of hundreds of minute and often preposterous rules, just like the army in Heller’s novel. In this respect, Catch-22 succeeds in capturing important features of both war and other types of mass mobilization.

Law and Legitimacy in A Farewell to Arms

Laura Weinrib reads Ernest Hemingway’s celebrated 1929 novel as an indictment of war’s moral and legal logic. While commentary on A Farewell to Arms has typically emphasized the transgressive nature of Henry and Barkley’s love affair, Weinrib argues that the novel’s unmarried protagonists may in fact have entered into a common law marriage, and, at minimum, both their relationship and their unborn child are capable of retroactive legitimation. The sentimentality and comparative conventionality of the love story, according to Weinrib, accentuate the brutality of wartime conduct, which Hemingway regarded as irredeemably criminal. By the same token, the navigability and relative predictability of the civilian legal system stand in stark contrast to the arbitrariness of the wartime legal order.

Law, Literature, and War

The volume opens with the plenary panel from the original conference on War in Law and Literature in February 2018, at which Justice Stephen Breyer, Chief Judge Diane Wood, and scholar Paul Woodruff discussed the volume’s themes. The panel was preceded by a production of Euripides’s The Trojan Women (415 BCE) in modern translation, acted by a group of law-school faculty and students, and the three panelists often refer to the production they have just seen. Why The Trojan Women? The editors wanted to begin the conference with a vivid and emotionally rich example of the literature of war. Although Euripides’s play is obviously not about an American war, it was chosen for its universally resonant depiction of war’s devastation, and its effect on both combatants and the women and children they leave behind.