Is law objective?
Can the objective rule of law or its formal application comfortably co-exist with emotion and human subjectivity?
How do we reconcile these powerfully opposing forces in administering justice?
Specifically, do passion, irrationalism, self-interest, and emotion subvert or promote legal decisions? And how much should legal analysis openly rely on social facts, ethical values, feelings or intuitions?
These inquiries allow us to investigate further what it might mean to “think like a lawyer.” For instance, lawyers are trained to solve problems through linear, rule-based reasoning—a largely formalistic enterprise. Is this thinking too narrow? What does it leave out? Does it discount the ability to see all sides, to capture relevant details, to regard the likely consequences, and to engage moral possibilities? Is such thinking always intellectually honest? Should we enlarge our notion of “thinking like a lawyer” to embrace these literary, pragmatic, and humanistic concerns?
Melville’s haunting, prolix and allusive novella, Billy Budd, helps us answer these urgent questions about how we decide legal-moral dilemmas with, as the author puts it, “warm hearts and cool heads.”
We also turn to Judge Cardozo’s famous musings on how judges decide cases in his seminal work, The Nature of the Judicial Process. The relevance of these extra-judicial writings to Billy Budd may become clearer if you re-read Chapters 19-26 in the novella. Then ask yourself what options are legitimately open to Captain Vere when making his “legal” decision? And on what basis do he and the drumhead court actually make their decision to convict Billy?
How do we, as readers, go about deciding such questions? This question is deceptively layered because it asks you – the reader – for more than answers to the plot’s questions about passion, reason and objectivity in the law. It also asks about the nature, structure and meaning of the story itself. We may come to realize that Melville’s story is also a “tale about how to tell tales.” It is, in many instructive ways, a self-referential narrative about the interpretation and meaning of people and texts – subjects central to the legal system’s aims.