Precetto, valore, sanzione: categorie giuridiche ‘sotto processo' in Melville

This essay approaches some of Herman Melville’s best known sea stories (mainly “Benito Cereno” and “Billy Budd, Sailor”) from a Law & Literature perspective. The first section is mainly focused on “Benito Cereno” and, through an analysis of the literary text, deals with the ambiguity of any form of social construction of hierarchy, power distribution, exclusion, stigmatization, and roles, inside and outside what Goffman called ‘total institutions’. Criminal law as an instrument for reaffirming existing balances of power is explored, as well as the relevance of a critical approach to social and legal institutions. The second section is mainly devoted to an analysis of “Billy Budd” which, through the figures of Vere, Billy and Claggart, provides a ‘parable’ of the three different elements which criminal law is made up of, and whose lack of balance can’t but produce injustice, albeit in different forms: Captain Vere represents the formal element of law, the need for positive rules and a well-defined set of legal prescriptions and procedures, without which the free pursuit of each person’s values and interests could degenerate into abuse and violence, but which always harbors the risks of empty legalism and blind enforcement of laws contrary to basic human rights; Billy Budd, the ‘natural’ man, symbolizes the force of natural law and of the values and rights which demand recognition and protection, even, in case, against the letter of unjust positive laws, but whose pursuit regardless of formal limitations whatsoever may lead, in turn, to violence and injustice; Claggart, the Master-at-Arms and Billy’s slanderer, stands for the darkest side of criminal law, the component of force, bare power and cruelty which is intrinsic to it, and particularly to its sanctions. Like the Mutiny Act which Vere chooses to enforce on Billy, Claggart embodies all the risks steaming from a conception of criminal law as an instrument of war on people reduced to ‘entities’ (‘hands’ in the maritime jargon of the time), to personal or social enemies. The third section therefore deals with the intrinsic relational nature of any rule, and with the dangers of a legal system forgetting such a dimension, as well as with possible ways of developing the relational and restorative potential of criminal law.