BOOKS
Morrissey, Daniel & Appleyard, J. A.
Persons and Masks of the Law JOHN T. NOONAN, JR. Farrar, Straus & Giroux, $10 Lawyering HELENE E. SCHWARTZ Farrar, Straus & Giroux, $10 DANIEL MORRISSEY If, as Professor Noonan points out,...
...This goes counter to his announced intentions, but it is a danger structuralist approaches always seem prone to...
...It will make no converts, I suspect, but for the susceptible it will be an entrancing chapter in the elaboration of Barthes's program...
...She was able to wedge her way into trial work with a small Wall Street firm which needed some part-time help...
...His remedy is "theft": to fragment and efface the assumptions and points of view of the old text of culture, literature and science, and to disclose the "terrorist text" concealed in the received meaning...
...Noonan closes with a chapter questioning the value of caselaw...
...It works with Ignatius, but scholars have been reclaiming the original spirit of the Exercises for some time now...
...Noonan, however, doesn't contend with the obvious Marxist explanation of Wythe's oversight-that law is nothing more than the will of the dominant class, no matter who applies it...
...One result is that the three subjects tend to become specimens for Barthes to demonstrate on, their particular identities assimilated into his categories...
...The linguistic devices are identified and named (in the case of Sade there are fifty or so unrelated sections of one long chapter), but it is left to the reader to make the connections...
...It was irrelevant to Holmes that the United Fruit Company controlled the Costa Rican government and directed the seizure of its competitor's holdings there...
...Because that action was done under color of another country's authority, no participant could be sued for a violation of the United States anti-trust laws...
...What interests Barthes, though, is the sense in which these are not just three languages but the same language: self-enclosed, articulated into distinct signs, reordered, theatrical in their imagined details, and above all similar in that the languages themselves construct the subjects of their discourse...
...The sovereign's omnipotence had to be upheld even if that meant ignoring realpolitik and allowing a company subject to United States jurisdiction to flourish as a monopoly...
...by the violence that enables it to exceed the laws that a society, an ideology, a philosophy establish for themselves in order to agree among themselves in a fine surge of historical intelligibility...
...In the American Banana case, memorable to students of International Law for its ringing proclamation of the principle of sovereign immunity, Noonan shows lucidly how Oliver Wendell Holmes, Jr...
...The thesis is not so much argued as turned this way and that, examined almost randomly for its disclosures...
...There is no conclusion...
...As I said, a perplexing book...
...Indistinct and ineffable states of ecstasy were of no use for this purpose: clarity, articulation of detail, imaginative concreteness, discernment, and method were...
...Noonan recounts how they philosophically abhorred slavery but did nothing, when vested with law-making power, to bring about emancipation...
...Barthes compares only resemblances of form, and resists conclusions...
...She also aptly conveys the tedium of legal preparation and her bittersweet working relationships with some famous lawyer-activists...
...only if you reread the preface will Barthes's intention become clear: to redescribe the nature of written language as a rhetoric not of meanings or of effects, but as a rhetoric of the complex functions we now attribute to signs...
...Interestingly, Barthes's approach is ultimately political...
...More work for the decipherer of texts...
...Thus, Ignatius, in Barthes's view, faced with the inadequacy of the traditional language of mystics which aimed at achieving union with God, sought instead a language of interlocution with God, a language of question and answer, aimed at finding God's will in his life and the means of achieving it...
...Professor Schwartz's legal autobiography appears as a welcome practical respite from Noonan's rather ponderous philosophy...
...The law does not have a life of its own, he protests...
...His object was not so much theophany as "semiophany," the disclosing of signs of God's will...
...Noonan writes of jurisprudence...
...Barthes is interested in Sade, Fourier, and Loyola as "logothetes," formulators of new languages: Sade the inventor of a code of erotic pleasure, Fourier the constructor of a perfect society on paper, Loyola the logo-technician of the relationship between the individual and God...
...Such a theoretical statement would probably draw groans from a law school class, but it could be made interesting if set forth well in actual situations...
...It is a bit like reading Barthelme's short stories...
...was so wedded to the ideas of an autonomous sovereign as the only true source for law that he refused to acknowledge the reality of international power politics...
...Barthes is most successful where there is a "terrorist text" for his revisionist strategies to uncover...
...The shorthand style makes the subjects themselves elusive (unless Sade, Fourier, and Loyola are your constant reading...
...I take it that he has argued this elsewhere...
...He says at the end of his preface that there is no language available to us that is not enclosed in a bourgeois ideology...
...There aren't too many lawyers, male or female, who have defended both Bill Buckley and Jerry Rubin...
...This excess is called: writing...
...Noonan initially presents his thesis in an overly-conceptual and didactic introductory chapter and only partway redeems himself with three example cases from American legal history...
...But the professor is out to expose all that mythology...
...They rather accepted the well-entrenched legal framework which codified the institution of slavery...
...If precedent is not purposeful, then Dickens's comment in Bleak House puts it well: "The law is a ass...
...Helene Schwartz makes it quite clear that she is a woman who despite suffering significant sexual discrimination has had an interesting ten-year legal career...
...Is the displacement of erotic pleasure from action into language the same kind of shift...
...Farrar, Straus & Giroux, $10 Lawyering HELENE E. SCHWARTZ Farrar, Straus & Giroux, $10 DANIEL MORRISSEY If, as Professor Noonan points out, "the law" has been personified as some divine, self-sustaining entity, these two books present a couple of its avatars...
...But shiny bits of insight catch attention and lodge in the memory and become persuasive...
...A legal controversy in federalist Virginia over who owned a particular slave would be based on the unquestioned assumption that certain humans could be considered property...
...Holmes sanctioned that charade because in his "realistic" jurisprudence the law had no other foundation than "the articulate voice of some sovereign...
...Igna-tius's language is not a language of description or evocation of religious experience, but a language of instruction in how to methodize that experience...
...Helene Schwartz projects herself as a balanced, plucky advocate for both her own occupational claims and the REVIEWERS jean bethke elshtain is an assistant professor of political science at the University of Massachusetts, Amherst...
...The idea is stunning: to link the sybarite marquis, the Utopian social planner, and the Jesuit saint, as founders of languages, and to examine their texts as instances of languages subverting historical and social contexts and establishing new possibilities of meaning...
...The legal theories, personalities, and courtroom tactics of the Buckley-Pauling case are seen through the interesting eyes of a female neophyte in a profession of seasoned males...
...Or is it even new...
...To put Noonan's point simply, blind justice, which claims to be fair, is really im-perceptive...
...About Sade and Fourier I am less convinced...
...As a corollary to that not-too-startling proposition he argues that this reified corpus of abstract rules, for all its touted evenhandedness, is inadequate to comprehend the varied factual nuances of each dispute which presents itself for adjudication...
...it's only a way real people deal with their fellows...
...For its users it created the form in which they had that experience...
...daniel morrissey, former editor of the Georgetown Law Weekly, is now the personal clerk of a federal judge in Chicago...
...Sade/ Fourier/ Loyola ROLAND BARTHES Hill and Wang, $8.95 J. A. APPLEYARD This is a perplexing book...
...These are brief studies (the essays on Loyola and Fourier are forty and fifty pages respectively...
...Her first assignment was to assist in the defense of William F. Buckley and his National Review who were being sued for libel by the renowned scientist Linus Pauling...
...Wythe, as chancellor of Virginia, and Jefferson, as governor and later President, conveniently masked their personal feelings behind magisterial offices and ignored the repugnant underpinnings of laws which they enforced...
...These gentlemen of the Enlightenment were the liveried liberals of the American revolution...
...Schwartz writes well of her appearances before the condescending Judge Julius Hoffman and lays out the issues of that famous trial in an interesting fashion...
...Schwartz emerged from law school in the mid 1960s and ran up against a formidable gender barrier looking for work in a tradition-conscious profession...
...Schwartz describes the practice...
...Wythe, a man who unequivocally believed that Negroes held the full attributes of humanity, sat as judge overlooking the basic question in such cases and ruled that the slave belonged to one or the other master...
...The author's second example is his best...
...It's about time a woman came along to write "My Life in Court...
...In the second half of the book the author describes her career as a "movement lawyer...
...Noonan again could make his point more simply...
...Leaving what became a dry commercial practice for more intriguing work in civil liberties, Schwartz got involved with a group preparing the Chicago Seven appeal...
...Sade gets almost half the book...
...But then presumably Barthelme reads Barthes, or both read Robbe-Grillet...
...constitutional rights of others...
...The social intervention of a text...
...He concludes that stare decisis, if invoked, must represent the continuity of rational discourse...
...FATHER JOSEPH A. APPLEYARD, S.J., is presently on leave from Boston College and working as a hospital chaplain in Boston...
...Lawyering is a book of legal war stories by an attorney in one of the glamour practices of the profession - constitutional litigation...
...Case one focuses on the "Virginia Liberators," Thomas Jefferson and his legal mentor George Wythe...
...is measured...
...Noonan also parses the well-studied Palsgraff case to show how Justice Cardozo's opinion defining the duty of an allegedly negligent defendant accepted the unquestioned but wrong notion that tort liability should be based exclusively on fault...
Vol. 103 • October 1976 • No. 21
