West In Praise of Richard Weisberg's Intransigence @GeorgetownLaw @CardozoLaw

Robin L. West, Georgetown University Law Center, has published In Praise of Richard Weisberg's Intransigence at 29 Law & Literature 21 (2017). Here is the abstract.

In early essays on Herman Melville’s Billy Budd, Sailor, Richard Weisberg startled the literary and legal academic world with a novel claim: Captain Vere, he argued, far from being a tragic hero resigned to the moral and legal necessity of an unpopular act, as he had been commonly understood, was a murderer. His summary execution of Billy Budd, Weisberg showed, was neither required, excused, nor justified by law. Rather, Vere engineered an unreviewable conviction and death sentence, contrary to both the letter and spirit of the governing positive law, for personal gain. But why was Weisberg’s claim so novel? Why was it that for seven decades, well over half a century, Vere’s villainy was so obscure, even to so many legally sophisticated readers? In this article, I argue that the obscurity of Vere’s villainy resulted from the dominant legal theories developed over the past seven decades. This, in turn, explains the novelty of Weisberg’s understanding of Vere’s character: his understanding rests on a conception of law and legal meaning distinctively outside all our received jurisprudential traditions. And it suggests a much-needed corrective, not only of our understanding of Melville’s story, but also of our conventional and critical jurisprudence. It suggests the case, more specifically, for moving our conventional legal thinking away from its focus on the unjust law, and toward the duplicitous or unjust adjudicator, and for moving our critical sensibility away from its still-dominant commitments to indeterminacy, legal skepticism, and interpretive flexibility, and toward an appreciation of the virtues of legal intransigence. In the first part of this article, I put forward an account of why it was that Richard Weisberg could see clearly what was beyond the reach to most of Billy Budd’s professional readers for the duration of the book’s life, both in law and in literature. In the second part, I turn to Weisberg’s recent defense of legal intransigence, suggesting some reasons we should attend more carefully to the case Weisberg has made for intransigence and against “flexibility” in law and jurisprudence. I then offer a couple criticisms along with a qualified endorsement of Weisberg’s brief for interpretive fidelity to positive law, informed by humane commitments to text, law, and moral rectitude.

Download the article from SSRN at the link.