Harm’s Way: Tragic Responsibility and the Novel Form (review)

Sandra Macpherson gives a new treatment to an old problem—the relationship of the novel to the law—in this reading of Defoe, Richardson, Fielding, and Frances Sheridan in light of shifting legal conceptions of liability and agency in the eighteenth century. For F. R. Leavis, the ethical imperative of the novel form was that it provided a bastion for the growth of the individual against the limits placed on that growth by the increasingly legally enshrined “technologico-Benthamism.” The extent to which that project had simplified both the literature and Bentham was evidenced in Michel Foucault’s Surveiller et Punir (1975) and in the elaborations of its argument for the eighteenth- and nineteenth-century novel by, for example, John Bender and D. A. Miller respectively. In these analyses, the rise of the introspective modern subject, with which the novel’s creation of introverted individuals was so closely aligned, was, pace Leavis, itself deeply implicated in the development of a legalistic culture in the West that criminalizes its subjects even as it grants, or rather demands of, them the belief in themselves as self-asserting agents. While this thesis of the complicity of the novel form with self-asserting bourgeois subjectivity (anticipated, of course, in very different terms by Ian Watt) continues to have compelling advocates in, for instance, Nancy Armstrong’s recent work, Harm’s Way makes a markedly different engagement with the question of the relation of novelistic subjectivity to the law.

Macpherson shares the Foucauldian antihumanist commitment to “abandoning the claims of the person” (16) and “the normative criteria of liberal subjectivity” (4), but cautions that “if this is quite literally dehumanizing, it is not, therefore, inhumane” (23). Where she departs from previous terrain is in insisting that eighteenth-century law and the novels that reflect it may covertly share some of this antihumanist drive. Macpherson draws on the philosopher Bernard Williams’s Shame and Necessity (1993), the project of which (as she summarizes it) is to show “the persistence of Greek models of personhood, agency, and responsibility in a modernity that is supposed to have overcome them” (29). In this argument, the familiar view of the eighteenth century as incrementally advancing a distinctly modern subject, entrepreneurially responsible for her conscious actions, may be reflected in criminal law (the area of law about which literary criticism has historically been most curious), but is severely qualified by closer consideration of developments in the law of torts. Specifically, the area of strict liability: “laws that impose responsibility for accidental injury without requiring that it be shown the wrongdoer acted carelessly or with fault, laws indifferent to mental states” (4). In Macpherson’s genealogy, an indifference to mens rea proliferated as, for instance, masters could be liable for the actions of their servants from around 1700 (36), and Edward Coke’s seminal seventeenth-century interpretation of the sixteenth-century Lord Dacre’s Case conceived as potentially criminal the unintended consequences of other originally less serious illegal acts (64).

Harm’s Way shows how these legal developments and their ethical implications are returned to compulsively in the nascent English novel. Whereas Defoe and Richardson puzzle over whether people who infect others with diseases they are unaware that they carry and rapists whose victims subsequently die can rightly be called murderers, Fielding represents violence as cartoonishly harmless and liability law as distastefully un-English. Sheridan, finally, asks whether a man’s physical arousal is distinguishable from consent to sex. This rise of the novel takes place in a context “of absolute tragic liability for accidents of fate and the unconscious, spasmodic body” (145). It shares with the law, as Macpherson sees it, an attachment to what falls outside of the intention of the self-asserting modern subject, so placing both the novel and the law in a deconstructive relationship to precisely the kind of subjectivity earlier analyses saw them as promoting. Macpherson regards this attachment to the unintended as structurally tragic, defining tragedy...