Abstract
In The Oracle and the Curse, Caleb Smith brings fruitful insights to well-studied terrain. Many of the events that emplot this beautifully written book – including post-revolutionary common law debates, Abner Kneeland’s blasphemy trial, Nat Turner’s rebellion, John Brown’s raid, the Dred Scott case, and more – will be familiar to its readers. But Smith’s use of what he calls “an historical poetics of justice” casts all of these in the light of a theme of great concern in both legal and literary discourses in the period between the Revolutionary War and the Civil War: the grounds of law’s legitimacy. The conflict between higher law and human law preoccupied the law’s public sphere as English rule ended, governmental structures and referents secularized, and slavery expanded. The book is about the ways in which “earlier conflicts over language and power” shaped the modes of address available in the antebellum struggle over slavery, and about the death of those genres and of the publics they summoned (22).
The diversity of texts Smith analyzes together – including essays, novels, poems, legal treatises, execution sermons, criminal confessions, convicts’ autobiographies, trial reports, and slave narratives – suggest how useful the interpretive analytic of “a poetics of justice” is for cutting across multiple disparate scenes and identifying within them a shared “modern formation” (ix). A “poetics of justice” focuses on the ways in which texts reveal their authors’ conceptions of the law’s public sphere. To look at a text for its poetics is to set aside for the moment the argument it says it is making and, instead, to excavate its assumptions about readership, the circulation of media, and the relationship between speech and action. His close readings are informed by Habermas’s theory of the deliberative public sphere, as well as critical revisions that emphasize “nonrational” forms of persuasion (over publicly verifiable claims) and the multiplicity of publics (over a single one that is engaged in learned debate on legislation) (8–9). All of these texts, argues Smith, imagined themselves to be summoning anew publics or counterpublics that were in some sense “lawgiving,” whether through being imagined as a sovereign people capable of granting retroactive legitimacy, or as a collective subject capable of rebellion.
Three stories frame the book. The first story is that of the judge and minister as oracle. The pre-revolutionary common law judge endeavored to speak as though to abnegate his very self and positions himself as “the mouthpiece […] of a law whose origins are elsewhere” – in the ancient past, God’s law, nature, or the national spirit (5). In the early republic, judges refashioned their oracular address by speaking in the name of a self-abnegating reason, legal form, and the sovereign people, instead of the spirit of an immemorial past. Ministers who had in the early eighteenth-century gripped listeners with execution sermons also reconstructed their oracular address, no longer speaking in the name of divine justice, but instead in the name of the public good, managing Christian sympathy by privatizing it, in order to bolster the law’s disembodied – formalistic and amoral – prerogative to adjudicate on matters of slavery and execution. In the antebellum period, the judge’s “duty of self-annihilation” threads through court decisions and permits slavery to endure (25).
Second is the story of the rise and fall of the curse – that mode of address which made claims to a higher law, uttered by “unapologetic offenders, righteous dissidents, and defiant martyrs” in an expanding mass press (5). In the post-revolutionary period, popular genres of crime literature, often focusing on the grotesque, also shifted from the conversion narratives of the eighteenth century to individuated accounts of motive and self-vindication. Over the course of the early nineteenth century, as judges and ministers moved away from references to higher law, those on the “other side of legal authority” increasingly invoked higher law to an audience it imagined as a “moral community” capable of reform and rebellion (4, 21). The death of the curse comes when federal law displaces counterpublic appeals to higher law, when the Civil War and the Fourteenth Amendment makes the prospect of inclusion in the nation tangible, “foreclos[ing] virtually all other spaces and scales of belonging,” and “absorbing critiques of the actual nation into the ongoing project of producing the nation as it ought to be” (208, 209). The curse’s death comes, too, when the power of speech in constructing and mobilizing publics wanes (215–16).
Third is the story of the politics of literature in the period and the ambivalences of a reform-minded literary elite who were forced to question “the value of literature” as dissidents and rebels put actual lives on the line in the name of the curse (29). The literary elite had cultivated a semi-autonomous position vis-à-vis law since the Jacksonian period – a position which variously enabled critique and threatened to quarantine it. Smith argues that through the sentimentalization of literature and the privatization of the reading experience, American writers contributed to the disciplining and regulation of the curse, promoting “influence” or private and gendered modes of producing social change over public “enthusiasm.” Nevertheless, the curse was “a monstrous other carried along and nurtured, in a way, within the heart of a sentimental culture” (34). Classic and lesser-known novels, tales, essays and poems by Stowe, Hawthorne, Jacobs, Delany and others at times idealize the curse and, at other times, underscore a deep distrust of it, argues Smith. Antebellum cursing only persisted according to Smith because of the ambivalence of a literary elite who not only sought to discipline enthusiastic and incendiary modes of address, but also acknowledged and structurally relied on their potency.
The book’s interdisciplinary posture recommends it to a wide range of “law and humanities” scholars with interests in literature, language, violence, mass media, slavery, or religion. For those who work on law and religion (as I do) the book’s account of secularization may seem to rely too heavily on inherited categories and referents whose explanatory usefulness we might question. For instance, Smith sometimes seems to cast almost any performative aspect of speech as “ceremonial,” or “ritual,” and therefore evidence of oracular address. His argument about the “reinvent[ion of] oracular justice for a secular age” (22) wavers between at least two (perhaps more) familiar but very different theses on secularization. According to one, secularization, understood as the separation between religion and law or politics, is proven to be “incomplete” when “secular” objects are shown to be merely a refashioned version of their old religious selves. According to another view, secularization is a specific kind of translation by the modern state of techniques of power inherited from Church structures or theocratic government. That Smith does not engage directly with the now very expansive literature on secularism to clarify this point should, however, not discourage readers from engaging with this insightful book.