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8
Introduction
9
On the surface, the law is an authoritative set of rules put in place to
govern social living. Its sources are diverse and its reach is expansive. It
comes in different guises, labeled “criminal,” “civil,” or another such
variant. Although in actuality it is quite impossible, we are presumed to
know what these rules of ordered living are, at our peril. Ignorance of the
law is not an excuse. Yet even if we somehow mastered the rules, that
knowledge, standing alone, would still leave us ignorant about the law in
essential ways. Written rules have a past. They have a purpose—a raison
d'etre. With few exceptions, they are grounded in pre-existing
fundamental principles which, in part, reveal winners and losers in
struggles for power. Written rules acquire meaning in application, where
they can bear but faint resemblance to their formal terms. The law springs
from and operates within the complex dynamics of life itself, and hence is
infinitely richer than its manifestation in the form of rules.
There is no better way to expose and explore these dimensions of the
law than by entering the world in which the law functions and sampling
some of the exquisitely challenging human and social issues—an array of
the lawlemmas—which arise in life and beg principled resolution. The
following pages thus offer a series of essays—purely fictional, although
rooted in fact—involving characters whose perspectives and predicaments
help shed light on the competing values and down-to-earth practical
considerations that vie for dominance as their narratives unfold. Two
characters are especially frequent visitors.
Professor Ethan Andrew Jurus teaches at a large state university. His
classes are law-related, including his undergraduate Issues in Justice
seminar. He is a licensed attorney who occasionally handles cases in
addition to his classroom responsibilities. His knowledge of legal doctrine
is vast, owing to the considerable time he has spent ensconced in libraries
while absorbed in tomes of law. He would be the first to admit that his
insights about life are less fully developed, although he remains eager to
take advantage of experiences that will enhance them, including soliciting
and seriously considering the perspectives offered by his students.
Prudence Emma Durham—known to her friends as “Pru”—is a college
student enrolled in Professor Jurus's Issues in Justice class. The language
and methods of law are new to her, as they are to most students at her
level. She nevertheless is a quick study and her healthy measure of
common sense more than compensates for her modest store of legal
knowledge. Inquisitive by nature, and not at all timid about pressing for
answers, she is inclined to roam in thought and action where others do not
venture. While conceding the importance of book learning, she is eager to
10
take advantage of the extracurricular lessons that help define a college
education.
Regularly lurking near the intersection of Professor Jurus and Pru's
perspectives about law, education, life, and other things that matter is the
elusive quest for justice.
The questions they encounter find home in the lively arena of human
activity. Perhaps because they cannot be put to rest elsewhere, these
questions frequently come in search of answers within the much narrower
and tidier confines of courts of law. The problems they embrace are not
abstractions. They originate, sometimes inauspiciously and sometimes
quite dramatically, in the day-to-day experiences of real people. How they
are answered can deeply and directly affect those individuals' wellbeing.
But that is not all.
When questions find their way into a court of law, their answers—in the
form of a jury's verdict, a trial judge's ruling, or an appellate court's
decision—are announced as acts of judgment. Superimposed upon the
individuals who are conscripted as actors in these very public morality
plays are larger and sometimes transcendent issues. Their resolution gives
voice to fundamental value choices, choices that reaffirm, clarify, or for
the first time articulate shared standards of morality and elemental notions
of right and wrong. The resultant decisions and decisional principles then
assume a life of their own, largely decoupled from the individuals and
cases that spawned them. It thus becomes all the more important to be
able to explain—to justify—why and how the questions were answered as
they were.
Not surprisingly, the answers given to questions of law are often
controversial and disputed. The same can be said about the accompanying
foundational premises, principles, and supporting rationale. Law is not a
science. It is not value-free. It is not a brooding presence that hovers
somewhere above and independent of society, awaiting discovery and
application. It is a conspicuously human institution. Like the individuals
who crafted and continue to mold it, and like the social relationships it is
designed to manage, the law can be complex, highly nuanced, fraught
with ambiguities, and extraordinarily frustrating to try to harness. Like
life, it can be quite messy.
The snippets of life portrayed in the ensuing pages come cloaked in
familiar legal garb: for the most part, they evoke questions of criminal law
and constitutional law. Within those cavernous headings they invite
exploration of a host of difficult value choices and case-specific
subsidiary issues. A more detailed precis is not needed. It would prove
11
unsatisfactory to rely on the language of the law to introduce the life
stories and misadventures that lie ahead. It will be far better to accompany
Professor Jurus, Pru, and their supporting cast of characters as they forge
their own way through the ethical thickets and questions of justice which
they encounter.
Endnotes
1. Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 55
(1964).
12
13
Chapter 1
E THAN ANDREW JURUS was alone on the jogging path, or at least the
stretch within his view. He clipped along the riverside in the chill of the
emerging dawn. Two men were fishing from a rowboat. The sweet smell
of ripened apples spilled and receded in invisible air pockets as he ran. A
stocking cap was pulled snugly over his closely cropped salt and pepper
hair and a tube-shaped turtleneck—one of the best purchases he had made
—cradled his chin, leaving only a brief swath of grayish eyes, a sharp,
longish nose, and thin lips exposed to the air. He cherished this time, and
he needed it. It was a time when he did some of his best thinking, or rather
when his best thoughts came to him, unbidden and uncontrolled. It was a
time when, as much as he could, he left behind the skein of being
Professor Jurus, escaped the cloister of his office, and lost himself in the
rhythm of morning. It was the time when he felt most alive.
Later he would teach his first class of the day, an introductory level
undergraduate course in its inaugural offering, called Issues in Justice.
The title was imprecise, bordering on a misnomer, although he doubted he
would be called on it. His grounding was in law, a discipline only
tenuously connected to justice. The class itself sampled a hodgepodge of
issues which he personally found to be interesting, ethically challenging,
and meriting exploration as exercises in value clarification if nothing else.
Measured by the uncompromising tenor of class discussions, he
sometimes felt terribly alone in holding these opinions. He had never been
seriously pressed about how well the issues fit within the rubric of
“justice.”
He liked using case studies when he taught. His students could relate to
them and tended to be quite willing to grapple with the problems
confronting the people caught in their webs. Gradually, the students' focus
almost invariably shifted from trying to resolve the specific situation
before them to identifying the more general principles needed to govern
14
other cases that could be expected to present similar circumstances. When
it worked, Professor Jurus could take a back seat and allow the magic of
inductive reasoning to take hold upon his students. He thought it better to
sneak up on the meaning of justice in context than to invite hopelessly
abstract discussions outside of his students' frame of reference. They were
young, after all, and had limited life experience, which was not their fault.
He frequently was inclined to want to remind his students that the cases
they parsed were much more than abstractions purposed to serve as
vehicles for academic discussion, though he rarely yielded to that
temptation. Jurus's principal calling was college professor, but he also
took on select cases as a lawyer, something he considered important not
only because of the principles involved, but because of the people he
represented. His clients typically were individuals whose travails and
misadventures had immersed them, sometimes involuntarily and
sometimes wilfully, in circumstances where they had much—if not
everything—to lose in a court of law. Their lives gave painful birth to the
case decisions made in courtrooms, which then were sometimes reduced
to writing and assimilated into the greater corpus of the law. They were
not just bit players conjured up in a playwright's idle time.
Now well into his morning run, Jurus's thoughts settled on Yvette
Porter, her seven-year-old son Jeffy, and Jeffy's pet goldfish, Frank. Jurus
had a goldfish when he was Jeffy's age. He had brought it home from a
school fair, its carrying case a quart-size plastic bag filled with water and
secured at the top with a twist tie. From there, fish and water were
transferred to a small, rectangular aquarium carefully positioned on the
dresser next to his bed. The bottom of the aquarium was coated with a
layer of colored sand, and on the sand sat a sculpted castle with a jutting
flagpole. Ethan twice tapped a box of fish food and watched as the
granules dispersed in the water. His fish, the first fish he ever had, swam
in inquisitive circles, its mouth pursing and relaxing. He went to sleep.
When he awoke the next morning, his fish no longer swam. It floated
listlessly at the water's surface. His mother said this sort of thing always
happens and she would get him another fish, but she never did, probably
to spare him another such morning. They buried the fish together under a
bush in the back yard.
Jeffy Porter's goldfish Frank was a fixture in the bowl on the coffee
table in the living room of the apartment that Jeffy and his mother Yvette
called home. Frank had occupied this station for almost two years, a silent
sentry making his watery rounds. Jeffy's father did not live with them and
Jeffy rarely saw him. Yvette had not married him and she had dated
15
different men over the past several years. Her relationships with them
were not always happy. Some were frighteningly stormy. Yvette was
diminutive in stature but grandly spirited. When she argued, which she did
often, her words spewed forth in screams which, when decipherable, could
make a sailor blush. She was never physically violent. This was not
always true of the men in her life.
Yvette had been dating Carlos for the past three months. They had first
met while standing in line at a movie theater. Yvette was accompanied by
her sister and Carlos had gone with one of his friends. Having struck up a
conversation outside the theater, the four sat together and then went out
for drinks after the movie ended. Carlos called Yvette the next evening
and they began seeing one another regularly. Yvette had recently cooled
on the relationship. She was fiercely independent and Carlos had a
possessive streak that rubbed her the wrong way. Each of them had a
temper and, predictably, their clashing personalities had produced
explosive arguments. Yvette had had enough. She had told Carlos that she
no longer wished to see him. He nevertheless stopped by unannounced at
her apartment at 8:00 one Monday evening. Jeffy sat on the living room
floor, drawing in front of the television.
“Where were you last night?” Carlos demanded of Yvette. “Why didn't
you answer when I called?” He had stormed into the apartment without
knocking, bypassing any semblance of a greeting.
“What are you doing barging into my apartment? Who invited you over
here? Get out!” screamed Yvette.
“Answer me, woman,” said Carlos, “and don't tell me what to do.”
“Get the hell out of here, and get out now!” shrieked Yvette, ramping
up her volume. “I don't answer to the likes of you. Get out and stay out!
Leave me alone! It's over. Go! Get out! Now!”
“Don't you talk to me that way,” Carlos snarled. “I'm warning you.”
“Warning me? Warning me? What's that mean, ‘warning me’? What
the hell are you talking about?”
“I'll show you what it means!” shouted Carlos.
Carlos smelled of alcohol. He was not tall but he was powerfully built,
and stocky. Veins bulged at his temples. He strode deeper into the
apartment, advancing toward Yvette.
Jeffy sat frozen on the living room floor, staring up helplessly into the
escalating chaos. Afraid to keep looking, he wrapped his head in his arms
and curled into the carpet. He felt Carlos nearby and then heard the sound
of shattering glass as something crashed heavily into the living room wall.
16
“I'll stomp you like this fish,” Carlos yelled at Yvette. “Hey, Jeffy, look
here. Look see what your mama's gone and made me do. Look here at
your little fishy.”
Jeffy looked up. Water stained the wall and dripped onto the carpet.
Glass shards littered the room. He saw Frank straining on the floor,
arching, struggling against the hostile environment in his suddenly
transformed world. And then Carlos's boot descended, twisted, and Frank
disappeared. In his place was left a nondescript goo-like smear. What
might have been an eye gave hint of a baleful, reproachful stare.
“You goddamn son of a bitch!” Yvette had never been so angry in her
life. She wanted to kill Carlos. Instead, she took Jeffy in her arms. She
screamed at the top of her lungs until Carlos at last withdrew from the
apartment, slamming the door behind him. Yvette called 911. She sobbed
as she cradled her son. Jeffy trembled, whimpering miserably for Frank.
Jurus learned about these events directly from Yvette and Jeffy. He had
a soft spot for animals generally, and a particular fondness for the
Leighton Animal Protection Society, LAPS, and its no-kill animal shelter.
This is where he had found his pet dog Baffin, part Labrador and other
parts unknown, a mix that had produced a relentlessly angelic disposition
and a relationship of reciprocal, unconditional devotion. Jurus now
represented LAPS on a pro bono basis and had helped the Society
navigate through the red tape needed to acquire and preserve its status as a
non-profit organization. When Cheryl Colbert, LAPS's Director, asked
Jurus if he would consider signing on as a special prosecutor to assist the
District Attorney's office in pursuing criminal charges against Carlos, “to
get justice for Frank and Jeffy,” Jurus initially was uncertain. As a general
rule, he was much more comfortable defending people than prosecuting
them. After speaking with Yvette and Jeffy, his misgivings had vanished.
Jurus swung up the narrow trail from the jogging path to the road and
headed for home, less than a mile ahead. He would shower, let Baffin out
to renew her acquaintance with the morning in their modest back yard,
have coffee and breakfast while scanning the Leighton Gazette for items
of interest—the New York Times would come later, at his office computer
—and then be off to campus. Today was a teaching day.
Twenty-five students were enrolled in his Issues of Justice class. On
any given day he could expect 18 to 20 to attend. The class met twice
weekly from 9:00 to 10:20, which represented the break of day for many
undergraduates, whose circadian rhythms were in perpetual rebellion
against the Registrar's provincial scheduling practices. Jurus often began
his class sessions “off syllabus,” departing from the day's assigned topics
17
to comment on other matters, even if they had nothing to do with the
planned lesson. The only prerequisite was that he found the items to be
thought-provoking, making a boundless set of issues fair game. Still
preoccupied with his musings while jogging, he decided to sample
reactions to what had transpired, altering names and a few minor details to
avoid compromising Yvette and Jeffy's privacy.
“Make him pay for a new fishbowl,” said Donovan. “He's got no right
to go in there and break their fishbowl. I'd make him clean up the mess,
too. And he should get the kid a new fish.”
Jurus concealed a sigh. Donovan always could be counted on to get
discussion going. Maybe this was as good a place as any to start.
Prudence Durham rolled her eyes. “Pru,” as she preferred to be called,
was one of the most intellectually energetic students Jurus had
encountered in years. She was just a sophomore and had yet to declare a
major. Like many of her peers, she was dressed in pajama pants, or maybe
sweats (Jurus found it difficult to discriminate), and her blondish hair
tumbled from a loosely formed pile on the top of her head. Not always
finding the time to complete assigned readings, she nevertheless had an
uncanny knack for zeroing in on the heart of even the most complicated
issues and then divining a creative and often exquisitely sensible
resolution. Her views sometimes shifted with testing, but others far more
commonly eventually came around to her way of thinking. She was
frequently impatient, and not always tactful, in responding to her
classmates' arguments.
“For crying out loud,” Pru said in exasperation, “he didn't just knock it
off the table with his elbow and then trip on the fish. He did it on purpose.
The guy's sadistic. He's violent. He killed the little boy's fish and he'd
probably do it again. He needs to be punished.”
“You don't lock somebody up for breaking a fishbowl,” replied
Donovan. “He didn't kill anybody. He squished a fish. No different from
filleting it and eating it. What do you want to call that, ‘fishy-cide’? You
want to convict him for murdering a fish? Get the boy a new fish and tell
Hubert [the pseudonym Jurus had used for Carlos] to leave his mom and
him alone.”
In this exchange Jurus heard echoes of the law's historical and more
recent conception and treatment of animals—or rather, animals of the
nonhuman variety. Not that long ago, within this country's legal tradition,
domesticated animals were considered the property of the humans who
owned them. They had no identity, rights, or interests independent of that
18
status. They could (and often still can) be bought and sold, slaughtered for
market, used for scientific experimentation, and otherwise dealt with in
ways indistinguishable from other commodities. As such, their value was
measured, like other property, exclusively in economic terms. The losses
suffered in a fire that claimed a farmer's pigs and a fire that claimed his
barn were calculated and compensated in the same way. Property is
property.
Gradually, begrudgingly, the law began to change. Animal cruelty laws
defined as a crime, usually a low grade misdemeanor, the mistreatment of
at least some kinds of animals (those used in agriculture often were
exempt) by intentionally causing them unnecessary pain, or by denying
them the food or shelter they needed for survival. Federal and state
regulations limited the funding made available for some types of research
that relied on select animal species. In many states, cruelty to animals
under particular circumstances, such as when directed against household
pets, now qualified as a felony. Several areas of law nevertheless clung
stubbornly to the notion of animals as property, as fungible goods of the
same order as other commercial possessions. Under this conception, the
goldfish bowl that formerly had adorned Yvette's coffee table was worth
considerably more than Frank himself. Jeffy—much like Jurus when he
had his brief encounter with a goldfish as a boy—had acquired Frank for
free at a local charity event. The goldfish bowl cost $10.95 at Walmart.
“Do you have any pets, Donovan?” Pru was taking aim at her prey.
“Yeah, we have a family dog. Sparky. Got him at the shelter.”
Pru was eyeing Donovan's iPod and his laptop computer. “O.K., so say
you got him for 10 dollars from the shelter and then paid to get him shots
and have him neutered. Now let's say you're sitting at home with Sparky
and you have your music going on your $200 iPod and you're working
away on your $1200 laptop. All of a sudden a fire breaks out in your
room. You have to get out in a hurry and you can only take one thing with
you. What's it gonna be: Sparky, the iPod, or the computer?”
Donovan saw where this was going. “Look, we're not talking about
somebody's dog. We're talking about a goldfish. Goldfish swim around in
circles all day. That's all they do. Before you know it, they're belly-up and
you have to get yourself another one. Happens all the time.”
Tasha, another student in the class, entered the discussion. “It's one
thing for a fish to go belly-up. That didn't happen here. He killed the fish.
And he did it in front of the little boy.”
Taylor rallied in support of Donovan. “I'll bet that same little boy's done
19
the exact same thing, but he just calls it ‘fishing.’ That's what you do
when you go fishing. You kill a fish. I've gone fishing since I was seven,
like this boy. The fish is just as dead. That's no crime.”
“I'm not talking about it from the fish's point of view,” said Tasha. “I go
fishing. I eat fish. Fish are fish. But I'm looking at Hubert here. That man's
evil. He did it on purpose to hurt the lady and her little boy. And how do
you think that boy feels, his pet fish stomped on like that? No, that man's
got to be punished for doing that.”
Pru pressed on. “What if this isn't the little boy's goldfish swimming in
circles in a bowl all his life, but some dolphin swimming free in the ocean
getting caught up in a tuna boat's net and they just let it die? Or what if it's
some elephant killed by poachers who want its tusks for ivory? Or what if
it's your pet dog Sparky, Donovan? Don't you care about the dolphin, or
the elephant, or Sparky? Don't you care that they swim and roam the
jungles and chase tennis balls and squirrels and have a life? Is it only
about Hubert and about how the little boy feels?”
Jurus's thoughts strayed to one 4th of July when a group of pre-
adolescent boys had amused themselves by lobbing firecrackers over
Jurus's backyard fence, into Baffin's domain. Jurus had not been home at
the time. When he returned he discovered the M-80 and cherry bomb
casings. He did not know precisely what Baffin had endured. He knew it
could not have been pleasant. Pru's salvo reminded him of the 19th
century passage, oft-quoted by animal rights activists, written by British
philosopher Jeremy Bentham.
The day may come when the rest of the animal creation may acquire
those rights which never could have been withholden from them but
by the hand of tyranny. The French have already discovered that the
blackness of the skin is no reason why a human being should be
abandoned without redress to the caprice of a tormentor. It may one
day come to be recognized that the number of the legs, the villosity of
the skin, or the termination of the os sacrum are reasons equally
insufficient for abandoning a sensitive being to the same fate. What
else is it that should trace the insuperable line? Is it the faculty of
reason, or perhaps the faculty of discourse? But a full-grown horse or
dog is beyond comparison a more rational, as well as a more
conversable animal, than an infant of a day or a week or even a
month, old. But suppose they were otherwise, what would it avail?
The question is not, Can they reason? nor Can they talk? but, Can
they suffer?1
20
“Aw, geez, Pru, now you're going too far,” said Donovan. “Next you're
going to want to ban hunting, outlaw leather shoes, and we're all eating
tofu sandwiches instead of hamburgers.”
Jurus knew it was coming. It was a point worth exploring, indeed, one
that he hoped would nag for a reply—agitate either for endorsement or
active resistance—when some remnant of the conversation penetrated life
beyond the classroom. But now he felt it was time to redirect the class
discussion, to ground it more concretely in what had transpired between
Carlos, Yvette, Jeffy, and Frank, and in the law.
“I think we would all agree that there's a difference,” Jurus offered,
“between a personal code of conduct—a way of behaving that you find
agreeable to your own way of thinking—and a rule that ought to be
binding on everyone, whether they like it or not. Pru might opt for tofu
and Donovan might prefer McDonald's. Maybe they can agree to disagree:
vive la difference. At some point we're going to impose on their personal
choices. Pru won't be able to snack on peyote, at least not lawfully,” he
continued, drawing from her a look of protest, “and cannibalism will be
off limits to Donovan” (this, to a grumble from Donvovan and general
titters) “even if he takes a liking to Hannibal Lecter's menu.” Silence of
the Lambs was one of the few movies Jurus had seen. He often was
hopelessly adrift when trying to make sense of contemporary cultural
referents. His students just as frequently were baffled by his own
examples. “Let's get back to Hubert and Carol and Andy [the latter two
names substituted for Yvette and Jeffy] and their fish. What kinds of
‘binding-on-everyone’ rules did Hubert break, and what should be the
consequences?”
Naomi raised her hand. “Well, he shouldn't have come into their
apartment without permission. That's breaking and entering, or
trespassing, or something. And he smashed the fishbowl. You can't just
destroy somebody's property. He'll have to pay for that. That ought to be a
crime, too.”
“O.K.,” said Jurus, “no disagreement there. We have laws against
barging into somebody else's home uninvited. And if he broke the
fishbowl on purpose, which he did, it seems fair that he should have to
pay for a new one to replace it. Carol could sue him, civilly, if it's worth it
to her. That would compensate her for damages—‘make her whole’ again.
We might also want to think about punishing Hubert for breaking the
fishbowl. We're all familiar with vandalism, intentionally damaging or
destroying someone else's property. That's a crime, so now we're coming
at Hubert with double barrels, a civil lawsuit so Carol can recover her
21
losses, and a criminal prosecution—brought in the name of the State, or
the People, or society as a whole, rather than on behalf of Carol, Andy,
and the goldfish. Now, there's a different purpose: to punish Hubert. Why
might we want to punish him, and not just make him pay back Carol and
replace the fishbowl?”
“Because he's a creep,” volunteered Isaiah.
“Is it a crime to be a creep?” asked Jurus.
Isaiah was forced to elaborate. “Because he's a creep who smashed the
fishbowl.”
“I think those hunters who club seals in the head so they can sell their
pelts are creeps,” said Pru, “and that ought to be a crime. Why is it wrong
to smash a fishbowl but all right to bash a defenseless seal in the head?”
“There you go again,” protested Donovan. “You're bound and
determined to make it a crime to eat hamburgers. How do you think they
kill those cows? They bash 'em in the head with this big old power
hammer. Wham.”
Jurus intervened. “Let's stick with the goldfish. Did Hubert commit a
crime when he killed the goldfish? Does he deserve to be punished for it,
maybe locked up in jail? Is it different from just going fishing? Somebody
propose a rule—should there be a rule of law that makes it a crime for
Hubert to kill the goldfish swimming around in Carol and Andy's
apartment, but not kill the same goldfish when it's swimming around in a
pond? Should both be a crime? Neither?”
It probably was too big of a question, framed too early in the
discussion, to expect a correspondingly grand response. Silence
descended.
“You're a creep if you act like Hubert. You're not a creep to go fishing.
That's what it boils down to,” said Isaiah.
“Does how he kills the fish make a difference?” prodded Jurus. “What
if after Hubert pulled the fish out of the pond on his fishing line, he let it
flop around on the ground, and then stepped on it with his boot? Should
that matter?”
“Nah,” Isaiah responded, “now he's just putting it out of its misery. It's
quicker than dangling on the end of a hook and flopping around
suffocating. That's no crime.”
“Does why he kills the fish matter? What if it has nothing to do with
putting the fish out of its misery? Suppose he sees Carol and Andy
walking nearby. He and Carol have been arguing. He wants to get back at
her through Andy. He knows Andy has a pet goldfish. So he calls them
22
over, tosses the fish he caught on the ground, tells Andy to watch, and
then he stomps on it with his boot? Now, do we have a crime?”
“Yeah,” said Isaiah, “now he's a creep. He's being mean to that boy.
He's doing it on purpose. Lock him up.”
“What if Andy's not watching? What if Hubert's just a bully, or mean,
and he likes to make animals suffer? That's why he grinds his boot into the
fish, so he can get this perverse sort of pleasure through the fish's pain. He
enjoys it. Now where are we?”
“It's not about the fish,” insisted Isaiah. “A squished fish is a squished
fish. It doesn't care why it got squished. I still say he can pull it out of the
water and let it drown—or whatever happens when you're a fish and
you're out of the water and can't breathe—or he can stomp on it, either
one, and for whatever reason he wants, so long as he's not doing it to be
mean and hurt the little boy.”
Pru's hand shot up and her head was shaking. “Oh, that's just great. Let
him squish the fish for whatever reason he wants, as long as we're not
looking. We don't care about the little fishy. What if it's not a little fish?
What if it's Donovan's dog, Sparky? Stomp on Sparky, and Sparky's going
to whine and bark and yelp and scream, and he's going to do that whether
or not we can see and hear him. And what if it's not Sparky he's stomping
on, but little Andy? Nobody's around to see or hear. Does that make it all
right? It's wrong either way. It's not about how the fish is killed, and it's
not about why it's killed, or who's watching when it's killed. What matters
is that it's killed. Any way you map it out, the fish is dead, dead, dead.
And Hubert is guilty, guilty, guilty,” said Pru. “Period. Case closed.”
“First, the fish, then those hamburgers,” warned Donovan. “Sounds to
me like you're mixing up what the professor called your personal code of
conduct with rules that everybody's supposed to follow, Pru. The man's no
criminal just because he likes to go fishing. And if a fish can't breathe
once it's pulled out of the water, what's wrong with stepping on it, make it
die quicker? Same difference. And like Isaiah said, the fish doesn't care
why it got stomped on. It's no crime to be a creep.”
Professor Jurus interrupted. “I don't think we're going to solve this one
right now. Maybe we can come back to it later. Let's get on to our topic
for today....” Even as he made this transition, his thoughts spun ahead to
the criminal charges filed against Carlos and his role as special prosecutor.
There should be little difficulty securing Carlos's conviction for
destroying the fishbowl. The jury wouldn't like his behavior and his
conduct fell squarely under the definition of malicious destruction of
23
personal property. However, the fishbowl was inexpensive and the offense
would simply be a misdemeanor. Jurus was unsure whether the jury would
find that Carlos had entered Yvette's apartment unlawfully. He probably
would claim that he had knocked and Yvette had let him in. Even if they
believed that he had come through the door uninvited, Carlos would only
be guilty of misdemeanor criminal trespass.
The aspect of Carlos's behavior that Jurus thought was most offensive,
and why he had agreed to serve as special prosecutor, was the way he had
killed Frank, including its impact on Jeffy and his mother. But was it a
crime to kill a goldfish? Under state law the answer appeared to be . . .
maybe . . . or, it depends. The discussion among his Issues in Justice
students had danced around the law's definitional lines.
Goldfish were not a protected species under state law. It was perfectly
lawful to kill them for sport, as in fishing, or, if one had the appetite, to
make a meal of one—filleting them, as Donovan had put it. Pru's moral
compass, which did not tolerate that a goldfish's life should be expendable
to satisfy such human whims, clearly differed from the criminal code.
On the other hand, the law appeared to take an interest in how, and
sometimes why at least some kinds of animals are killed. State law
generally forbid acts of “cruelty to animals,” wild or tame, and whether
belonging to the person him- or herself or to another. But did Carlos's
conduct amount to “cruelty”? The statute offered a definition. “‘Cruelty’
to an animal includes every act, omission, or neglect, whereby
unjustifiable physical pain, suffering or death is caused or permitted.”2
Jurus couldn't be sure whether Carlos's behavior qualified. Who could tell
what physical pain or suffering Frank had endured? Still, Carlos arguably
had caused Frank's “unjustifiable . . . death.” Either way, Jurus thought
this charge could be presented to a jury with a reasonable chance of their
finding Carlos guilty. Yet “cruelty to animals” was still a misdemeanor; in
the law's eyes it deserved no greater punishment than smashing a lifeless
glass fishbowl.
Unless, that is, Carlos's conduct amounted to “aggravated” cruelty to an
animal, an offense that was defined as a felony.
A person is guilty of aggravated cruelty to animals when, with no
justifiable purpose, he or she intentionally kills or intentionally
causes serious physical injury to a companion animal with
aggravated cruelty.
“Aggravated cruelty” shall mean conduct which (i) is intended to
cause extreme physical pain, or (ii) is done or carried out in an
24
especially depraved or sadistic manner.
“Companion animal” means any dog or cat, and shall also mean
any other domesticated animal normally maintained in or near the
household of the owner or person who cares for such other
domesticated animal. “Companion animal” shall not include a “farm
animal”....3
If it would be difficult to prove that Carlos had caused Frank to suffer
“unjustifiable physical pain,” under the misdemeanor “cruelty to animals”
statute, Jurus thought it would be at least as difficult to prove that Carlos
“intended to cause” Frank to suffer “extreme physical pain,” as
contemplated by the first part of the felony “aggravated cruelty to
animals” law. But perhaps a stronger case could be made under the second
part—that by directing Jeffy to watch him stomp on Frank, Carlos had
killed Frank “in an especially depraved or sadistic manner.” This
provision seemed to capture at least part of Tasha's concern: “He did it to
hurt the little boy.” And, at the heart of it, it sounded like another way of
saying that cruelty to animals is a felony if you're both cruel and a creep.
Isaiah would be on board.
But there was yet another stumbling block. None of this mattered unless
Frank, a goldfish, could be dignified under the statute as a “companion
animal.” Jurus inferred that this restriction on the felony charge had been
hammered out as a compromise necessary to gain the law's passage. The
explicit exclusion of “farm animals” from the scope of the aggravated
cruelty to animals statute solidified his belief that lobbyists had their
hands on the lawmaking process. Was Frank or was he not a companion
animal? The law was far from clear. Cats and dogs, which, like farm
animals, presumably were of interest to some constituents and their
lobbyists, were expressly protected. Then it became more of a free for all.
“‘Companion animal’. . . shall also mean any other domesticated animal
normally maintained in or near the household of the owner or person who
cares for such other domesticated animal.”
Jeffy would certainly have considered Frank to be a companion. Cats
and dogs were not allowed in the apartment complex where he lived, so he
had been overjoyed when his mother agreed that he could have a fish.
Jeffy devotedly cared for Frank, feeding him, greeting him in the morning,
tapping on his bowl to say hello, just as he would have looked after
another kind of pet. But then again, he might have done the same with a
frog, or a grasshopper, or the ants in an ant farm. Would this be another
question for the jury? The statute required that a “companion animal”
25
Another random document with
no related content on Scribd:
l’habitude. L’humanité n’aurait pas dépassé la tourbe si elle n’avait
pas saigné. Elle redeviendrait tourbe si elle ne saignait plus. Si je
m’accrois en ce moment, c’est parce que Georges tombe. Ma
passion s’exaspère, et mon besoin de la comprendre, et ma soif de
l’utiliser… » Il se souvint du dernier chapitre de l’histoire de Saint-
François. Des hommes, après sa mort, s’étaient battus sur son
cercueil pour s’emparer du cadavre. Et, dans les siècles qui
suivirent, le génie italien avait éclaté avec d’autant plus de
puissance, que l’orgie meurtrière avait plus déchiré les mœurs.
L’épouvante et l’orgueil s’étaient élancés côte à côte, comme pour
conquérir à l’homme quelque équilibre perdu. Il y a bien celui du
canard. Celui de l’aigle, volant du côté de la foudre, est un peu plus
près du soleil.
Il sortit. Le jour était de braise ardente. Derrière la ville, un pic de
pierre gravissait l’azur dans le feu. Tant de douceur, dans ce lieu
terrible… Le contraste le poursuivait. Pas d’eau, pas de feuilles, pas
un oiseau, là où le tendre anachorète avait pris pour confidentes
l’eau, les feuilles, sifflé pour charmer les oiseaux. Il faillit écraser du
pied une vipère qui dormait sur une roche. Quand François
l’appelait, la vipère venait aussi. Dante, rouge d’enfer, était l’ami de
Giotto, tout nimbé des ailes des anges. Angelico, Masaccio, l’âme
ouvrant à la forme, sans en dévoiler le mystère, l’accès du ciel,
l’énergie virile tendue à arracher à la forme son plus redoutable
secret, venaient ensemble dans l’Église et se heurtaient au parvis.
Sforza, Vinci, le plus sauvage instinct, la plus divine intelligence,
collaboraient. Raphaël et Buonarotti se rencontraient sur une cime
après avoir traversé pour l’atteindre, l’un des prairies pleines de
fleurs, l’autre un formidable désert… Sur le petit ermitage de terre,
une énorme église de marbre écrasait l’espoir.
Il resta là huit jours, cherchant le sommeil, la paix du cœur, en
proie à un délire d’intelligence qui le précipitait sans merci, sans
arrêt, des certitudes les plus consolantes aux doutes les plus cruels.
Il allait seul par la campagne, sombre de flamme fixe à pic. Quand il
trouvait quelque fontaine, il y regardait son visage, dont l’expression
violente et volontaire l’exaltait. Il enfonçait son front dans l’eau froide,
et, quand il l’en sortait, il s’en allait plein d’une angoisse étrange
parce que l’eau froide, agitée, ne lui renvoyait plus de lui qu’une
image confuse. Nu-tête alors, il laissait le soleil sécher sa face, et la
poussière, de nouveau, poisser ses cheveux mouillés. Ailleurs, on
l’eût pris pour un fou. Ici, on le laissait errer à l’aise. Il allait à la
Portioncule demander à un Franciscain, tout riant et gazouillant, de
lui parler de saint François. L’autre ne se lassait jamais de lui conter
la charmante aventure, les dialogues avec les oiseaux, de lui
montrer les roses sans épines, de le conduire à un figuier où crissait
une cigale, la même qui donnait au saint des conseils. Il vit, dans un
tombeau étrusque, des figures grimaçantes, l’innombrable aspect de
la mort. Il fut témoin d’une idylle adorable entre un couple de
scorpions. Il vit les approches troublantes, les grâces, l’émoi, l’aveu.
Quand le mâle eût conquis la joie, la femelle perça son cœur.
VII
Quand Pierre ouvrit les yeux, réveillé par le bruit des rues, des
chambres, le va-et-vient des couloirs, il pensa tout de suite à ce qui
s’était passé la veille. Bien qu’il eût dormi d’un trait, il sut que
pendant qu’il dormait, quelque chose était resté suspendu sur sa
conscience, qu’il s’était réservé d’examiner à son réveil. La sœur
d’Élisabeth était devenue sa maîtresse. Il n’eut d’abord aucun
remords, mais une sorte de surprise. Il aimait Élisabeth. Il avait pour
Clotilde une amitié très vive, faite de sympathie pour sa générosité
naturelle et d’admiration pour sa beauté. Elle adorait son mari qu’il
estimait beaucoup lui-même. Pourquoi avaient-ils succombé ?
Ils étaient innocents. L’avait-il désirée ? Il ne s’en souvenait pas.
Quinze jours, ils avaient eu l’un pour l’autre une amitié ardente dont
l’un et l’autre avait besoin. Quinze jours, ils n’avaient pu se passer
l’un de l’autre, parce que l’un cherchait dans l’autre le complément
de la solitude intérieure qui l’obligeait à poursuivre un fantôme
capable de la peupler. Elle avait pleuré au cours même de leurs
étreintes, et comme il lui demandait pourquoi, elle avait répondu :
— Je l’aime.
— Qui aimez-vous ?
— Richard.
— Pourquoi vous êtes-vous donnée ?
— Je ne sais pas. Je n’avais pas l’amour, dont je vis, quand il est
là. C’est vous qui étiez là. Quand vous me reprendrez, je pleurerai.
— Pourquoi ? Vous regrettez ce que vous avez fait, Clotilde ?
— Non.
— Vous m’en voulez ?
— Non.
— Mais pourquoi m’avez-vous choisi ?
— Je ne vous ai pas choisi. Nous étions dans un tourbillon. Tous
deux, nous cherchions l’amour. Vous parliez. Vous êtes
enthousiaste. Vous êtes fort. Je n’ai pas compris. Je n’ai pas lutté…
J’étais comme une morte… Je ne sais pas !
Il avait senti dans sa chair même la saccade de ses sanglots. Il
frémit. Il ferma les yeux. Le lit était encore imprégné d’une odeur
puissante. Les bras étendus, à plat ventre, il la recueillit longuement.
Il revit le corps illustre illuminant de grandes vagues fauves le
crépuscule qui dorait la chambre à travers les rideaux tirés. Une
douleur voluptueuse frissonna le long de sa moelle. Il mordit les
draps. Il fouailla sa mémoire, afin qu’elle n’oubliât rien. Il l’entoura
cruellement d’images précises. Le désespoir sensuel l’emplit de sa
grande marée. Il sentit qu’il ne devait plus voir Clotilde, il se
demanda s’il serait assez fort pour ne plus la voir, il souhaita de ne
pas l’être. Et comme il souffrait de se dire qu’il ne l’aurait plus, le
remords de souffrir à cause de cela envahit en vagues pressées la
souffrance physique du regret et du souvenir.
C’était un visuel. Et il n’y avait point de sa faute si sa culture
imprégnait tout son être au point de mêler les visions de l’art aux
visions de la vie, de les fortifier les unes par les autres et de les
précipiter plus profondément solidaires dans son imagination. Avec
son ventre raviné, ses seins rigides, un peu bas, ses bras héroïques,
avec les muscles de son cou tendus de la poitrine au crâne, ses
yeux fermés, sa grande bouche, son visage dramatique, la torsion
de son torse dans la volupté, elle lui rappelait les femmes de Michel-
Ange. Il avait possédé la Nuit. Il ne la posséderait plus. Il avait serré
dans ses bras un être qui souffrait dans le plaisir même et réunissait
dans la tragédie amoureuse l’esprit de Dieu à la forme terrestre, un
être tel que seul le génie d’un héros peut en bâtir de pareils. Et
désormais, il promènerait par le monde le désespoir immense que
cela ne fût jamais plus. Où était la force ? Dans l’enfer du
renoncement ou dans l’enfer de la conquête ? La guerre à soi. La
guerre aux autres. Un homme antique eût marché dans le sang des
autres. Un chrétien marché dans le sien. L’un au risque de mourir.
L’autre au risque de ne pas vivre. Voilà le choix.
Et pourtant, il ne l’aimait pas ! Il aimait Élisabeth. Il n’eût pas
voulu lier sa vie à celle de Clotilde. Mais ne plus l’avoir ! Chaque fois
qu’il les opposait l’une à l’autre, une grande onde de douleur, suivie
d’une sueur subite, tordait son être, et il étreignait ses draps. Il
cherchait l’odeur ardente, pour souffrir plus. Ce n’était pas assez, il
voulut souffrir davantage. Il évoquait l’image de la fiancée, leur
dernier baiser à Paris, la veille de la rupture, leur rencontre à
Lucerne. Et il lui revint aussitôt ce que Clotilde lui avait dit d’elle, qu’il
fallait qu’il l’épousât.
— Je ne veux pas qu’elle reste fille.
L’élancement devint intolérable, parce que cette idée s’associa
brutalement au souvenir de la gloire charnelle de la sœur
d’Élisabeth. L’une ou l’autre. Il était trop pur pour que ce fût l’une et
l’autre. A moins qu’il ne fût pas assez fort…
— Je dois fuir. Où aller ? La guerre…
Qu’était la guerre, auprès de la torture qu’il sentait ? Jamais il
n’avait tant souffert depuis le début de la guerre. Et jamais, depuis
quinze heures, il n’avait tant vécu. La guerre… Il refit son ardent
voyage, Bologne, Sienne. Assise. Il revit sourdre le sang d’entre les
dalles des cités. Des cités libres, qui avaient jeté le monde dans la
voie de la conquête déchirante de l’individu. La guerre… Il
connaîtrait le drame humain dans sa totalité, dans son ensemble,
puisque l’occasion sacrilège en était offerte aux humains. Il
connaîtrait pour s’accroître, pour féconder l’avenir. Il irait, avec tous
les autres, arroser de sa sueur sanglante la terre toujours ingrate où
pousserait un pain qu’il ne mangerait pas. Il se leva, presque joyeux,
délivré d’un poids formidable. Il partirait le jour même pour la France,
pour là où on se battait.
Il courut ouvrir les rideaux, derrière qui les croisées ouvertes lui
montrèrent de nouveau le paysage immortel, les grandes façades
rigides, la colonne triomphale, les collines amères où le noir feuillage
poussait. Clotilde peuplait ce paysage, et soudain il la vit partout. Un
spasme le terrassa. Il s’écroula sur le fauteuil où elle était tombée la
veille, et s’en souvint. Il se courba, les coudes aux genoux, roulant
sa tête entre ses mains. Et le cercle de la torture recommença à
tourner. Jusqu’à ce qu’il fût arrivé au point où Élisabeth lui était
apparue et où l’idée de la fuite vers la guerre avait surgi.
Il sentit qu’il devait accrocher à ce projet sa résistance. Et il
commença par s’interdire de discuter les idées qui le délivraient. Il se
dit : « Je suis riche. Je voyage. J’apprends. De pauvres gens
tombent chaque jour par milliers pour protéger ma richesse, pour
couvrir mon voyage, pour accroître mon savoir. Et parmi ces jeunes
gens, le frère… » Il eut un spasme, il pensa vite, pour ne pas s’y
arrêter. « Pendant qu’un ami meurt, peut-être, je prends sa femme,
et s’il n’est pas mort après la guerre, je lui serrerai la main, s’il
consent à prendre la mienne. » Encore une image cruelle qu’il
repoussa. « Ma fiancée me méprise. Si elle savait ce qui s’est passé
ici, je la dégoûterais. Et quand elle veille son frère, elle doit me
haïr. » Il chercha autre chose. « Tout le monde est stupide, tout le
monde ergote sur les aspects et les prétextes de la guerre, nul ne la
regarde fixement. Le sentimentalisme imbécile et féroce du patriote
m’écœure. Le simplisme puéril du pacifiste m’exaspère. Nul ne voit
qu’un monde naît, qu’il faut aider à le faire naître, par n’importe quel
moyen, pourvu qu’il naisse… Les accoucheurs emploient le fer… » Il
s’en voulut de l’argument physiologique. Il chercha de nouveau :
« Que faisait Chambrun à Lucerne avec les hommes en chapeau
vert ? Des affaires ?… Il paraissait bien peu pressé que la guerre
cessât. Il mange la chair de son fils. Et il engraisse. Moi, je veux que
ça finisse. Mais la guerre peut-elle finir autrement que par la guerre ?
Chambrun l’allonge. Le pacifiste aussi. Si j’accrois la force d’un
groupe, la force de l’autre décroît, la guerre s’abrège… Je pars !… »
Il se leva, il se mit à sa toilette. De temps à autre, un élancement
douloureux l’arrêtait, fixait son esprit. Et parfois il devait s’asseoir
pour souffrir plus à son aise. A un moment il se dit que Clotilde, qui
était partie dans la nuit sans dire quand elle reviendrait, pouvait
entrer d’une minute à l’autre. La lutte, alors, prit une forme nouvelle.
Il faisait durer sa toilette, ou la pressait. Comme il allait l’achever, il
eut un remous violent dans les veines. Des bruits de pas, des bruits
de jupes s’arrêtaient devant chez lui. On frappait. Il courut ouvrir,
bouleversé. Ce n’était qu’une lettre.
Il reconnut l’écriture, et son émoi changea d’objet. Élisabeth lui
écrivait. L’enveloppe portait l’adresse même de l’hôtel. Il sut ainsi
qu’elle répondait aux lettres que Clotilde et lui-même lui écrivaient
depuis quinze jours…