Lawyers and Literature
James R. Elkins

Albert Camus, The Fall (New York: Vintage Books, 1956) (Justin O'Brien trans.)

"In a shady bar in Amsterdam, the man who does the talking in The Fall is indulging in a calculated confession. He recalls his past life as a respected Parisian lawyer, a pleader of noble causes, secure in his self-esteem, privately a libertine, yet apparently immune to judgment--the portrait of a modern man. The irony of the recital predicts the downfall." [Back book cover]

One might see the profession of law as work in a "fallen" world. Lawyers witness every manner of human deprivation and failing, failings writ small and large. Lawyers traffic in and derive benefit and profit from the failings of others; they come close to all that is vile and reprehensible in human behavior. Lawyers are, one suspects, always in danger of crossing the line to eat of the forbidden fruit of which they have gained knowledge.

 

"Every man has reminiscences which he would not tell to everyone but only his friends. He has other matters in his mind which he would not reveal even to his friends, but only to himself and that in secret. But there are things which a man is afraid to tell even to himself, and every decent man has a number of such things stored away in his mind."

--Dostoyevsky


(1) How is Jean-Baptiste Clamence's profession as a lawyer a part of the story Camus tells? [See e.g., pp. 25-26]

(i) We might think about professions and the virtues we associate with them. Clamence, for example, finds himself "rising to that supreme summit where virtue is its own reward." [23] [See also, 29] Clamence says about law: "I was on the right side; that was enough to satisfy my conscience. The feeling of the law, the satisfaction of being right, the joy of self-esteem, cher monsieur, are powerful incentives for keeping us upright or keeping us moving forward." [18]

What is it about being a professional that makes such feelings possible?

Clamence, commenting on this matter, suggests that:

My profession satisfied most happily that vocation for summits. It cleansed me of all bitterness toward my neighbor, whom I always obligated without ever owing him anything . . . . I lived with impunity. I was concerned in no judgment; I was not on the floor of the courtroom, but somewhere in the flies like those gods that are brought down by machinery from time to time to transfigure the action and give it its meaning. After all, living aloft is still the only way of being seen and hailed by the largest number. [25]

(ii) Being a lawyer, we judge; we become judges; we traffic in "innocence and justice." [65-66]. Clamence explains how he continued to use the term "justice" when his feelings and spirit were far from concerned about justice. [92].

How does Clamence's various acts of judging help you reconsider your own?

judging the Dutch bartender [3-4];

judging Parisians [6];

judging the Dutch [13-14, 40];

judging others and ourselves [76-83, 131, 137-140];

"dodging judgment" [77];

"Today we are always ready to judge as we are to fornicate." [77];

"People hasten to judge in order not to be judged themselves." [80-81]

(iii) On the difference between criminals and lawyers [see 25-26]

(iv) What does the story suggest about the character of lawyers? About their nature? Guilt and innocence? Judging others and ourselves? Confession? Memory? Self-deception? Self-discovery? Philosophy? Everyday life? Pathology? How are these weighty philosophical, psychological, and theological matters linked to Clamence's profession?

(2) Can you imagine a genre of stories that center on "the fall"? Do other significant literary works with this theme come to mind?

A theologian, William James O'Brien suggests that stories are distinguished by their "mode of imagining" and that the "fallen imagination" is one such mode.

The mode of imagining we are calling "fallen" is the characteristic mode for the gnostic storyteller who has fallen out of an innocent, direct relation to things and events . . . . He has turned away from a more immediate relation to things and happenings in favor of a relation to things hidden from the view of simpler souls. These things he takes to be the underlying reality for what passes before the eyes of those who have not been turned around. The one who has been converted, turned around, sees the things being carried across the bridge . . . and his gnosis consists of an apprehension of the relation of the shadows to these objects.

* * * *

Imagination in its fallen mode tends to construct explanations. It is unwilling to live without a comprehensive vision of an underlying reality in terms of which to understand things that an innocent imagination finds awesome and prefers to leave in shadow. It does not so much celebrate awesome facts as it first projects and then discovers meanings it takes to be more fundamental. It fails to notice its own activity in constructing the synthesis with which it is so impressed and so tends to become frozen in its new perspective. Though it often recommends itself as consciousness raising, it simply replaces a naive dogmatism with another dogmatism that is more subtle and more dangerous. [William James O'Brien, Stories to the Dark: Explorations in Religious Imagination 24, 48 (New York: Paulist Press, 1977)]

(3) What kind of strategy did you resort to in reading this story? How was your strategy affected by having read Tolstoy's "The Death of Ivan Ilych"?

How does Jean-Baptiste Clamence's story provide insight into the fate that befell Ivan Ilych?

(4) Jean-Baptiste Clamence speaks provocatively and holds himself out as knowing something about the world, about himself, and about the reader. We need to examine more closely what Clamence is saying, and whether the fine-textured literary surface of the story holds up under close scrutiny. We might also inquire into how the character of writing makes demands on us as readers.

Clamence "confesses" to a "weakness . . . for fine speech . . . ." [5]. Are the following passages a sign of weakness or strength in the use of language?

Look first at the epigram that Camus uses to begin the book:

"Some were dreadfully insulted, and quite seriously, to have held up as a model such an immoral character as A Hero of Our Time; others shrewdly noticed that the author had portrayed himself and his acquaintances . . . . A Hero of Our Time, gentlemen, is in fact a portrait, but not of an individual; it is the aggregate of the vices of our whole generation in their fullest expression." LERMONTOV.

"[T]he heart has its own memory. . . ." [6]

What kind of heart do lawyers have? Does it make any sense to talk about the heart of lawyers and how our hearts might be different than that of non-lawyers? What kind of memory do lawyers have?

"I was a lawyer before coming here. Now, I am a judge-penitent." [8] As the conversation proceeds, Clamence tells the patron who will become his companion in conversation,

"Come on, give up. My profession is double, that's all, like the human being. I have already told you, I am a judge-penitent. Only one thing is simple in my case: I possess nothing. Yes, I was rich. No, I shared nothing with the poor. What does that prove? That I, too, was a Sadducee . . . Oh, do you hear the foghorns in the habour? There'll be fog tonight on the Zuider Zee." [10]

Are all lawyers judge-penitents?

"Professions interest me less than sects." [9] How are professions like sects? Like cults?

"When one has no character one has to apply a method." [11] Should this statement be of particular concern to lawyers?

"I never had to learn how to live." [27]

Sylvia Law, writing, some years ago, about legal education, noted that "[w]e all need some sort of philosophy of life, but legal education is not designed to assist you in developing one." Professor Law goes on to note that

Perhaps this is as it should be. Certainly legal education with its emphasis on formalistic reasoning, anonymous evaluation and the development of the skills of the craft, provides many people with valuable opportunities for upward mobility on the basis of demonstrated ability to manipulate those skills.

[Sylvia Law, "Afterword: The purpose of Professional Education," in Stephen Gillers (ed.), Looking at Law School 205-215, at 210 (New York: New American Library, 1977)]

In a later edition of the book, Professor Law argues that:

Legal education often denies that value conflicts exist. Law school is not going to provide a "coherent system of large ideas" to assist you in resolving the dilemmas that confront a thinking person in dealing with sharp disparities in the distribution of wealth, political and social power, and resulting insecurity. We all need to develop some sort of philosophy of our lives together with others whose lives and ideas we respect. Law school is not designed to help. It is vital for law students to engage in work on the issues that inspired them to go to law school. Press your school to provide opportunities to expend your knowledge of the areas of human life that you find exciting and important. Do not let the individualist, competitive ideology of the first year discourage you from pursuing more cooperative forms of work that are available through clinics. Work with others. [Looking at Law School, 131-148, at 143 (New York: Meridian, 3rd ed., 1990)]

"I was at ease in everything, to be sure, but at the same time satisfied with nothing." [29]

From what you know about the legal profession and your days as a student of law, are you concerned about the forces within the profession that push to be satisfied with nothing? Or do you see dissatisfaction as a professional virtue?

"[W]hen the body is sad the heart languishes." [42]

"It seemed to me that I was half unlearning what I had never learned and yet knew so well--how to live." [42-43]

Is there a resonance with Tolstoy's "The Death of Ivan Ilych" in this statement?

In what sense do lawyers know how to live? What claim, if any, might a lawyer make, to reflecting the virtues of a good life?

"I am well aware that one can't get along without domineering or being served. Every man needs slaves as he needs fresh air. Commanding is breathing--you agree with me?" [44]

In what sense is this passage of special relevance to lawyers?

"The truth is that every intelligent man, as you know, dreams of being a gangster and of ruling over society by force alone." [55]

The law maintains its preeminent place in society by means of institutionalized force and violence. [See Martha Minow, Michael Ryan & Austin Sarat (eds.), Narrative, Violence, and the Law: The Essays of Robert Cover (Ann Arbor: University of Michigan Press, 1992)]

How does the law's violence find its way into the lives of lawyers?

"Thus I progressed in the surface of life, in the realm of words as it were, never in reality . . . . Gradually, however, my memory returned. Or rather, I returned to it, and in it I found the recollection that was awaiting me." [50-51]

How does the practice of law keep us on the surface of life? How does our way with words isolate us from some greater reality?

Recall Julia Kiefer's concern about the women who do the word processing at the law firm where she works: "She knew that the machines were cancerous, that the green glowing chains of perfectly formed calligraphy were as lethal as chains of carcinoma cells. It was all excess verbiage anyway, pages and pages of abstruse verbiage, and it was metastasizing and spilling out of the screens." "The Cornucopia of Julia K.," in Lowell B. Komie, The Legal Fiction of Lowell B. Komie 69-76, at 69-70 (Chicago: Swordfish/Chicago, 2005))

Charles Reich, who clerked for Supreme Court Justice Hugo Black and then joined a Washington, D.C. law firm, notes in The Sorcerer of Bolinas Reef that: "Our work was detrimental to us, in the most profound way." [27] One way the work was detrimental was that everything Reich wrote "usually met with some objections from the senior men and eventually ended up as a product different from what I had originally written. They always wanted everything put more strongly." [27-28] " 'It isn't positive enough,' they would object. 'You can put our position more strongly.' My own exact voice, then, was not what they wanted to hear. My expression, my thought, must fit larger objectives. I must present an argument with a conviction I did not necessarily feel, an eagerness that was not necessarily in me, a certainty that I might not possess." [28]

In what sense is law a matter of collective memory?

"Men are never convinced of your reasons, of your sincerity, of the seriousness of your suffering, except by your death. So long as you are alive, your case is doubtful; you have a right only to their skepticism." [74]"In order to cease being a doubtful case, one has to cease being, that's all." [75]

Do you agree with Clamence that we are all, always, doubted by those around us?

"The question is to slip through and, above all--yes, above all, the question is to elude judgment. . . . [I]t's a matter of dodging judgment, of avoiding being forever judged without ever having a sentence pronounced." [77]

How does being a lawyer allow us to avoid and elude judgment?

"Your successes and happiness are forgiven you only if you generously consent to share them. But to be happy it is essential not to be too concerned with others." [80].

"I realized, as a result of delving in my memory, that my modesty helped me to shine, humility to conquer, and virtue to oppress." [84-85]

What kind of memory work did Ivan Ilych do as a result of his "fall"?

How do lawyers use their professional "virtues" as swords?

The laughter that Clamence heard as he walked home on that one fateful evening, resulted, he says, in "being called." [84]

Have you ever been "called" to do, say, or be anything? In what sense have you been called to practice law? In the sense that a minister is sometimes said to be called to the ministry? Of what significance would it be, to see law as a calling rather than job? A profession rather than work?

In the realization that he must "answer" this call, Clamence says, "To begin with, that perpetual laugh and the laughters had to teach me to see clearly within me and to discover at last that I was not simple." [84]

How does the work we take up as lawyers bring complexity to our lives?

If you were forced by some devilish god to choose between being simple or being complex, which would you choose?

"[T]he surface of all my virtues had a less imposing reverse side." [85]

Have you given any thought to the "less imposing" dark, shadow side of the profession you have chosen? What possible benefit could be had by thinking about such dreadful matters?

"I had no idea where the serious might lie. . . ." [86-87]

How would you go about articulating concerns of this kind about your own life?

"I was absent at the moment when I took up the most space." [87-88]

Recall here, Ivan Ilych's realization that: “It is as if I had been going downhill while I imagined I was going up." [148]

"In solitude and when fatigued, one is after all inclined to take oneself for a prophet. When all is said and done, that's really what I am, having taken refuge in a desert of stones, fogs, and stagnant waters--an empty prophet for shabby times, Elijah without a messiah, choked with fever and alcohol, my back up against this moldy door, my finger raised toward a threatening sky, showering imprecations on lawless men who cannot endure any judgment." [117]

"Now my words have a purpose. They have the purpose, obviously, of silencing the laughter, of avoiding judgment personally, though there is apparently no escape. Is not the great thing that stands in the way of our escaping it the fact that we are the first to condemn ourselves?" [131]

(5) Clamence warns that "it is not enough to accuse yourself in order to clear yourself; otherwise, I would be as innocent as a lamb. One must accuse oneself in a certain way. . . ." [95-96]

How does one go about this business of accusing oneself in the right way? And what does this mean?

(6) Clamence finds that the "surface" of his virtues "had a less imposing reverse side." [85]

Carl Jung would have called Clamence's reverse side his "shadow," in contrast to the self we present to the world, which Jung referred to as the persona.

(i) How does Clamence play at being virtuous? ("I merely went on playing my role as well as I could. I played at being efficient, intelligent, virtuous, civic-minded, shocked, indulgent, fellow-spirited, edifying.") [87]

(ii) How does Clamence's virtuous persona give way to self-deception?

(iii) How can one go about living as if he or she had no shadow?

(iv) How does one see through the falsity she has created in her life?

Have there been moments or times in your life in which you have "seen through" yourself? Can you describe the experience? Would it be possible for a person, a lawyer, to cultivate, and to practice this kind of "seeing through" of the self?

Jean-Baptiste Clamence hears laughter on the Pont des Arts while walking home one evening. It is the strange laughter of memory, that sounds through Clamence's false virtue to help him see "where the serious might lie." [86-87]. The strange laughter is the sound that wakens memory. Imagine it: A sound that awakens memory. How is your own memory to be awakened? To remember is to awaken from the slumber of everyday life. But the memory of what? "[W]here the serious might lie"? A memory that confronts duplicity and self-deception?

(7) Clamence introduces us to the problem of enemies. [See e.g., 78-79] It was hard to admit, says Clamence, "that I had enemies among people I hardly knew or didn't know at all." [79]

What kind of enemies do you have? [See: Enemies of Reading]

Clamence notes that: "Doubtless they [the enemies] suspected me of living fully, given up completely to happiness; and that cannot be forgiven. The look of success, when it is worn in a certain way, would infuriate a jackass." [79]

For another fictional lawyer's observations on enemies, see Walker Percy, The Second Coming (New York: Farrar, Straus, Giroux, 1980).

(8) Clamence's story takes the form of a confession. Consequently, we might want to give some thought to how confessions work on their listeners and readers.

A confession must have an audience. Jean-Baptiste Clamence uses the patrons of an Amsterdam bar for his confessions, to engage "as often as possible" in what he calls "public confession." [139]

(i) Do you agree with Clamence's notion that one should not die without confessing "all one's lies"? [90]. Clamence resists his own admonition. "I pulled myself together, of course. What did one man's lie matter in the history of generations? And what pretension to want to drag out into the full light of truth a paltry fraud, lost in the sea of ages like a grain of sand in the ocean!" [90]

(ii) Clamence goes on to argue that "[o]ne must accuse oneself in a certain way, which it took me considerable time to perfect. I did not discover it until I fell into the most utterly forlorn state." [96]. Is Clamence talking here about confession or about something else?

The need to accuse begins "by extending the condemnation to all, without distinction, in order to think it out at the start." [131] Clamence asserts: "No excuses ever, for anyone; that's my principle at the outset. I deny the good intention, the respectable mistake, the indiscretion, the extenuating circumstance." [131]

As self-discovery begins, and he realizes that he is "not cured," he decides to take further action. "I had to submit and admit my guilt." [109]

(9) In what sense is memory a character in The Fall?

(i) What kind of memory do lawyers need? How are you asked to use your memory as a student of law ?

(ii) Clamence's confession to the patron at the Amsterdam bar is a work of memory.

"[T]he heart has its own memory . . . ." [6]

"First I had to recover my memory. By gradual degrees I saw more clearly, I learned a little of what I knew. Until then I had always been aided by an extraordinary ability to forget. I used to forget everything . . . ." [49]

"I never remembered anything but myself." [50]

"But just think of your life, mon cher compatriote! Search your memory and perhaps you will find some similar story that you'll tell me later on." [65]

"[A]fter prolonged research on myself, I brought out the fundamental duplicity of the human being. Then I realized, as a result of delving in my memory, that modesty helped me to shine, humility to conquer, and virtue to oppress." [84]

Clamence speaks of practicing a "useful profession" that "consists to begin with . . . in indulging myself up and down. It's not hard, for I now have acquired a memory." [139]

(10) Does Clamence succeed in making the reader a knowing witness to the world of self-deception described by Clamence?

Clamence argues that he does not beat his breast "crudely."

No, I navigate skillfully, multiplying distinctions and digressions, too--in short, I adapt my words to my listener and lead him to go me one better. I mingle what concerns me and what concerns others. I choose the features we have in common, the experiences we have endured together, the failings we share--good form, in other words, the man of the hour as he is rife in me and in others. With all that I construct a portrait which is the image of all and of no one. [139]

Clamence, speaking of the effect of his confession of shames, has "tricked" us, he says, into the realization that "we are in the soup together." [140]

(i) Has Clamence passed, as he claims, from the "I" to the "We"? [140]

(ii) Has Clamence's portrait of himself become, as he claims, a "mirror" in which you see yourself? [140]

(iii) Are you, the reader-patron of Clamence's story, now willing to admit "that today you feel less pleased with yourself than you felt five days ago?" [141]

(11) Is it possible to use the various psycho-literary case studies we have been reading to explore the shadow, the pathology, in your own life?

Consider Wendell Berry, a Kentucky farmer, poet, novelist, essayist, and, from all appearances, a sensible man. Wendell Berry is not a psychologist or therapist, but he speaks eloquently on things that matter to us. What follows is an excerpt from a longer poem titled, "The Change":

I'll never know what causes it
--the sudden going down
into pointless sorrow, great
beyond all causes I can think of,

the almost aimless attempt
to recover out of huge darkness
the too small thought of myself.

Something turns over
in the heart, like the black
side of a mirror turned
to the light. I'm exhausted
by the thought of all
the possibilities that are lost.

(12) How do you respond to the claim that Clamence makes near the end of the story that he has not changed his way of life? [142]. He says:

I continue to love myself and to make use of others. Only, the confession of my crimes allows me to begin again lighter in heart and to taste a double enjoyment, first of my nature and secondly of a charming repentance.

Since finding my solution, I yield to everything, to women, to pride, to boredom, to resentment, and even to the fever that I feel delightfully rising at this moment. I dominate at last, but forever. Once more I have found a height to which I am the only one to climb and from which I can judge everybody. At long intervals, on a really beautiful night I occasionally hear a distant laugh and again I doubt. But quickly I crush everything, people and things, under the weight of my own infirmity, and at once I perk up. [142]

Clamence claims to "pity without absolving" and "understand without forgiving . . . ." But "above all, I feel at last that I am being adored!" [143]

| Commentary |

Notes

<1> Supplementary Reading (Legal Wrings): Timothy Hoff, Lawyers in the Subjunctive Mood: Invention of Self and Albert Camus' The Fall, 23 Legal Stud. F. 235 (1999); Dawson Martin, The Lawyer as Friend, 32 Rutgers L. Rev. 695 (1979) (An essay on the amoral role of lawyers drawing on The Fall); Richard H. Weisberg, The Failure of the Word: The Protagonist as Lawyer in Modern Fiction 123-129 (New Haven: Yale University Press, 1984); Kenji Yoshino, Miranda's Fall?, 98 Mich. L. Rev. 1399 (2000)(Reviewing Albert Camus' The Fall); Graeme Orr, Surviving the Fall: Active Concern and Negligent Inaction Camus's The Fall, 5 Griffith L. Rev. 104 (1996); Daniel Stern, The Fellowship of Men that Die: The Legacy of Albert Camus, 10 Cardozo Stud. L. & Lit. 183 (1998); Shoshana Felman, Crisis of Witnessing: Albert Camus' Postwar Writings, 3 Cardozo Stud. L. & Lit. 197 (1991).

<2> Supplementary Reading on Self-Deception: [James R. Elkins, Archaeology of Criticism-Self Deception] [The Psychology of Self-Deception as Illustrated in Literary Characters]

<3> Camus received the Nobel Prize for Literature in 1957.

<4> Consider the following observation by G.K. Chesterton in Orthodoxy ( New York: Dodd Mead, 1908):

THOROUGHLY worldly people never understand even the world; they rely altogether on a few cynical maxims which are not true. Once I remember walking with a prosperous publisher, who made a remark which I had often heard before; it is, indeed, almost a motto of the modern world. Yet I had heard it once too often, and I saw suddenly that there was nothing in it. The publisher said of somebody, "That man will get on; he believes in himself." And I remember that as I lifted my head to listen, my eye caught an omnibus on which was written "Hanwell." I said to him, "Shall I tell you where the men are who believe most in themselves? For I can tell you. I know of men who believe in themselves more colossally than Napoleon or Caesar. I know where flames the fixed star of certainty and success. I can guide you to the thrones of the Super-men. The men who really believe in themselves are all in lunatic asylums." He said mildly that there were a good many men after all who believed in themselves and who were not in lunatic asylums. "Yes, there are," I retorted, "and you of all men ought to know them. That drunken poet from whom you would not take a dreary tragedy, he believed in himself. That elderly minister with an epic from whom you were hiding in a back room, he believed in himself. If you consulted your business experience instead of your ugly individualistic philosophy, you would know that believing in himself is one of the commonest signs of a rotter. Actors who can't act believe in themselves; and debtors who won't pay. It would be much truer to say that a man will certainly fail, because he believes in himself. Complete self-confidence is not merely a sin; complete self-confidence is a weakness. Believing utterly in one's self is a hysterical and superstitious belief like believing in Joanna Southcote: the man who has it has `Hanwell' written on his face as plain as it is written on that omnibus." And to all this my friend the publisher made this very deep and effective reply, "Well, if a man is not to believe in himself, in what is he to believe?" After a long pause I replied, "I will go home and write a book in answer to that question." This is the book that I have written in answer to it.

<5> Consider the following Sufi tale:

A Sufi sage once asked his disciples to tell him what their vanities had been before they began to study with him.

The first said, "I imagined that I was the most handsome man in the world."

The second said, "I believed that, since I was religious, I was of the elect."

The third said, "I believed that I could teach."

The fourth said, "My vanity was greater than all these; for I believed that I could learn."

The sage remarked, "And the fourth disciple's vanity remains the greatest, for his vanity is to show that he once had the greatest vanity."


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