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Is “Vital Motion” a Halakhic Concept?

Citron, Rodger

Touro Law Review 
Volume 36 Number 1 Article 5 
2020 
Herman Melville’s Billy Budd: Why This Classic Law and Literature 
Novel Endures and is Still Relevant Today 
Rodger Citron 
Touro Law Center, rcitron@tourolaw.edu 
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and is Still Relevant Today," Touro Law Review: Vol. 36 : No. 1 , Article 5. 
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17 
HERMAN MELVILLE’S BILLY BUDD: 
WHY THIS CLASSIC LAW AND LITERATURE NOVEL 
ENDURES AND IS STILL RELEVANT TODAY 
Rodger Citron* 
I. INTRODUCTION 
Professor Sam Levine graciously invited me to speak at this 
conference on Jewish and American Law.  His invitation sent me back 
to the work of Yale Law School Professor Robert Cover, who helped 
forge the path that Sam not only follows but extends and enlarges in 
his two-volume book.1   
Cover wrote Justice Accused: Antislavery and the Judicial 
Process, which explores the conflict between morality and positive law 
in the context of the dilemma faced by certain judges in the North 
before the Civil War2 These judges faced an excruciating dilemma in 
cases in which they asked to enforce the fugitive slave laws and return 
slaves to the South.  As Cover details, many of these judges applied 
the Act despite their deep personal opposition to slavery.  The decision 
to enforce the fugitive slave laws was agonizing for these judges.  
Nonetheless, their commitment to the law compelled them to obey the 
law rather than conscience.3    
Cover sets the stage for this conflict through an intriguing 
discussion of Herman Melville’s Billy Budd, Sailor (An Inside 
 
*Rodger Citron is a Professor of Law and Associate Dean for Research & Scholarship at Touro 
College, Jacob D. Fuchsberg Law Center.  He is a graduate of Yale College, where he majored 
in American Studies, and Yale Law School.  An earlier version of this article was published 
online in Justia, see Rodger Citron, Herman Melville’s Billy Budd: Why this Classic Law and 
Literature Novel Endures and Is Still Relevant Today, JUSTIA (Jun. 19, 2019) 
https://verdict.justia.com/2019/06/19/herman-melvilles-billy-budd-why-this-classic-law-and-
literature-novel-endures-and-is-still-relevant-today.   
1 This dynamic is perhaps best illustrated in Samuel J. Levine, Halacha and Aggada: 
Translating Robert Cover’s Nomos and Narrative, 1998 UTAH L. REV. 465 (1998). 
2 ROBERT COVER, JUSTICE ACCUSED: ANTISLAVERY AND THE JUDICIAL PROCESS (1984).   
3 Id.   
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18 TOURO LAW REVIEW Vol. 36 
Narrative).4  ‘Melville, the author of Moby Dick, or The Whale, is one 
of our nation’s greatest writers.  When he died in 1891, however, 
Melville had only a modest literary reputation.   
In fact, he “had been out of public view for so long that The 
New York Times identified him as Henry Melville,” writes Professor 
Christopher Benfey.5  Early in the 20th century, Melville’s reputation 
enjoyed a revival.  A century later, he continues to enjoy a prominent 
place on the syllabus of 19th century American literature courses.   
Why, more than 200 years after Melville was born, should we 
continue to read ‘Billy Budd?  Because, as Cover recognized,  Billy 
Budd explores perhaps the most fundamental question in legal 
philosophy:  when, if ever, may a legal official not follow the text of 
the written law in order to pursue a more just outcome?   
This article examines the jurisprudential question at the heart 
of Billy Budd.  It begins with a brief summary of the novel, considers 
the conflicting interpretations, and concludes with some thoughts on 
why Billy Budd continues to be relevant today.   
II. BILLY BUDD: A SYNOPSIS 
“The manuscript of Billy Budd as Melville left it at his death in 
1891 may be most accurately described as a semi-final draft,” 
according to Harrison Hayford and Merton M. Seals, Jr., the editors of 
the 1962 edition that is still widely used today.  The manuscript was 
not published until decades after Melville’s death in 1924.6  Hayford 
and Seals say that Melville wrote Billy Budd in three phases.7     
The first phase focused on Billy Budd.  Billy is a handsome and 
able sailor, conscripted from a merchant ship – the Rights-of-Man – to 
serve in the English Navy on the Bellipotent.  It’s 1797, and England 
is at war with France.  Billy is young, innocent, and handsome; his 
only “occasional liability” is a “vocal defect” that occasionally causes 
him to stutter or renders him speechless.8   
 
4 HERMAN MELVILLE, BILLY BUDD, SAILOR (Harrison Hayford & Merton M. Sealts, Jr. 
eds. 1962).   
5 Christopher Benfey, The Loved One, THE NEW YORK REVIEW OF BOOKS  (May 10, 
2018) https://www.nybooks.com/articles/2018/05/10/billy-budd-the-loved-one/.   
6 Editors’ Introduction, Billy Budd supra note 4 at 12.   
7 Id. at 1-3.   
8 Billy Budd, supra note 4 at 53.   
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2020 HERMAN MELIVILLE’S BILLY BUDD 19 
In the second phase of his writing, Melville introduced John 
Claggart, the Bellipotent’s master-at-arms.  Claggart is described as “a 
man about five-and-thirty, somewhat spare and tall, yet of no ill figure 
upon the whole” with the “brow of the sort phrenologically associated 
with more than average intellect.” 9  
Unlike the rest of his shipmates, Claggart despises Billy and 
conspires against him by falsely accusing Billy of planning a mutiny.  
The ship’s captain, Edward Vere, does not believe Claggart and 
summons Billy so that the accusation can be made to his face.  Told of 
the charge, Billy is unable to respond.  Instead, “quick as the flame 
from a discharged cannon at night,” Billy’s right arm shoots “out, and 
Claggart [drops dead] to the deck.”  Captain Vere sends for the ship’s 
surgeon, who confirms that Claggart is indeed dead.  “Struck dead by 
an angel of God!” Vere exclaims.  “Yet the angel must hang.”10   
In the third phase of his work, Melville developed the character 
of Captain Vere.  Vere is a “sailor of distinction,” with a “certain 
unaffected modesty . . . [that] suggests a virtue aristocratic in kind.”  
Occasionally the captain reveals “a certain dreaminess of mood.”11   
In response to Claggart’s death, Vere assembles a tribunal, 
known as a drumhead court, and explains what has happened.  As 
described in the novel, the governing law, the Mutiny Act, holds that 
it is irrelevant that Billy was provoked by Claggart or that Billy did not 
intend to kill him.  Equitable defenses or exceptions are not available 
because of the risk of mutiny – a very real risk when the novel is set.  
Vere adheres to a strict interpretation of the Act.  Billy is convicted 
and hanged the next morning.12 
The novel does not end with Billy’s execution.  Subsequently, 
while returning to the English fleet, the Bellipotent battles an enemy 
ship.  Vere is mortally wounded.  His last words, “inexplicable to his 
attendant,” are “Billy Budd, Billy Budd.”13    
III. THE CLASSIC VIEW: CAPTAIN VERE AS A TRAGIC FIGURE   
Billy Budd engages many classic literary themes.  For example, 
Billy is associated with nature, on the one hand, and Vere with 
 
9 Id. at 64.   
10 Id. at 101.   
11 Id. at 60-61.   
12 Id. at 114, 122-24. 
13 Id. at 129.   
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civilization.  Religious imagery abounds, with Billy described as 
Adam before the fall and sacrificed, like Jesus Christ some say, for a 
greater good.  Claggart, by contrast, is associated with the serpent.  Yet 
another school of thought explores the extent to which the novel is 
homoerotic.       
For law and literature scholars, the central theme is the conflict 
between strictly adhering to the letter of the law or disregarding it in 
order to reach a just outcome.  They focus on Captain Vere’s dilemma.  
Vere likes Billy, does not believe that he planned a mutiny, and knows 
that he struck Claggart involuntarily, without intending to kill him.  
Nonetheless, Vere concludes that he has no choice but to follow the 
Mutiny Act.  Billy must be convicted and must hang.      
The classic interpretation of Vere is that he is a tragic figure.  
Former Yale Law School professor Charles Reich articulated this view 
in a 1967 essay, aptly titled, “The Tragedy of Justice in Billy Budd.”14   
As noted earlier, Professor Cover, elaborated on the notion of 
Vere as a tragic figure in Justice Accused. Vere, according to Cover, 
may be seen as a depiction of Melville’s father-in-law, Lemuel Shaw, 
who served as chief justice on the Massachusetts Supreme Court and 
wrestled with whether to enforce the Fugitive Slave Act in the 
1850s.15   
My view accords with the classic interpretation.  The tragedy 
of Vere is highlighted by the penultimate chapter of the novel, which 
sets out a garbled account of the events a few weeks after they occurred 
in a “naval chronicle of the time.”  This published story reports that 
Claggart uncovered a plot and “was vindictively stabbed to the heart 
by the suddenly drawn sheath knife of Billy Budd,” the “ringleader.”  
After reporting that Budd “paid the penalty of his crime,” the article 
concludes that his prompt punishment “has proved salutary.  Nothing 
amiss is now apprehended aboard H.M.S. Bellipotent.”16 
Captain Vere knowingly requires Billy to hang in order to 
prevent rumors of unrest from spreading because such rumors could 
foster mutiny.  And this story, published in “an authorized weekly 
publication,” suggests that Vere’s decision was warranted because 
order has been maintained on the Bellipotent.  Of course, having read 
the Inside Narrative, we know that this account is false.  Vere’s tragedy 
 
14 CHARLES REICH, THE TRAGEDY OF JUSTICE IN BILLY BUDD (1967) 
15 Robert Cover supra note 2.  
16 Billy Budd supra note 4 at 131.   
4
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2020 HERMAN MELIVILLE’S BILLY BUDD 21 
is exacerbated by the fact that truth has been sacrificed in this account, 
along with Billy.       
IV. OTHER INTERPRETATIONS OF CAPTAIN VERE 
It is a testament to the brilliance of Melville’s novel that it has 
inspired conflicting interpretations.  Former Judge Richard Posner – 
author of Law and Literature, just one of his many books – has written 
that Captain Vere properly followed the law and, consistent with his 
duty of commanding a major warship, justifiably sacrificed Billy 
Budd.17   
Other law professors see Vere in a much more sinister light.  
Professor Richard Weisberg contends that Captain Vere is not 
constrained by the Mutiny Act but, rather, manipulates the law to bring 
about the unjust execution of Billy Budd.18   
Professor Steven Winter extends this argument while returning 
to Professor Cover’s suggestion that Vere may be seen as Chief Justice 
Shaw.  Winter argues that Melville intended to identify Vere with 
Shaw.  Moreover, according to Winter, “the judgment of Vere/Shaw is 
plain: he is a tool, a tool of violence.  Nothing more.”19   
While I do not fully subscribe to any of these interpretations – 
either that of Posner or those of Weisberg and Winter – all of them are 
plausible.  The latter two are as creative as they are provocative.       
V. THE CONTINUING RELEVANCE OF BILLY BUDD 
Billy Budd is relevant today because we – lawyers, judges, 
society – continue to wrestle with whether to follow the literal text of 
the law when doing so may sacrifice justice in a specific case.   
During the confirmation hearings for then-Judge Neil Gorsuch 
for appointment to the Supreme Court, for example, much was made 
of his dissent in TransAm Trucking, Inc. v. Administrative Review 
Board, United States Department of Labor20, which became known as 
“the Case of the Frozen Trucker.”   
 
17 RICHARD POSNER, LAW AND LITERATURE (1st ed. 1998), at 155-65.  
18 See, e.g., Richard Weisberg, How Judges Speak: Some Lessons on Adjudication in 
Billy Budd, Sailor, with an Application to Justice Rehnquist, 57 N.Y.U. L. REV 1 (1982). 
19 Steven Winter, Melville, Slavery, and the Failure of the Judicial Process, 26 
CARDOZO L. REV. 2471, 2494 (2005).   
20 833 F.3d 1206.  
5
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22 TOURO LAW REVIEW Vol. 36 
The United States Court of Appeals for the Tenth Circuit 
summarized the facts: 
Alphonse Maddin was employed as a truck driver by 
. . . TransAm.  In January 2009, Maddin was 
transporting cargo through Illinois when the brakes on 
his trailer froze because of subzero temperatures.  After 
reporting the problem to TransAm and waiting several 
hours for a repair truck to arrive, Maddin unhitched his 
truck from the trailer and drove away, leaving the trailer 
unattended.  He was terminated for abandoning the 
trailer.21 
Subsequently, an administrative law judge concluded that 
Maddin was wrongfully terminated, a decision that ultimately was 
upheld by the Tenth Circuit.   
Gorsuch dissented.  His statement of the facts began:  “A 
trucker was stranded on the side of the road, late at night, in cold 
weather, and his trailer brakes were stuck.  He called his company for 
help and someone there gave him two options . . . [including the option 
to] sit and wait for help to arrive.”  The trucker did not do that, Gorsuch 
wrote, but instead decided “to unhook the trailer and drive his truck to 
a gas station.”  TransAm subsequently fired him for “disobeying orders 
and abandoning its trailer and goods.” 22  
Gorsuch added, “It might be fair to ask whether TransAm’s 
decision was a wise or kind one.  But it’s not our job to answer 
questions like that.  Our task is only to decide whether the decision was 
an illegal one.”23  
The disagreement between the Tenth Circuit judges in the 
majority and Judge Gorsuch in his dissent echoes the debate inspired 
by Captain Vere’s decisions to try, convict, and hang Billy Budd.  
More than two hundred years after Melville’s birth, his last novel still 
resonates today.       
 
 
21 Id. at 1208.  
22 Id. at 1215 (Gorsuch, J., dissenting).   
23 Id. 
6
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Herman Melville’s Billy Budd:  Why This Classic Law and Literature Novel  Endures and is Still Relevant Today

Sanchez, Alexandra

FOSTA: A Necessary Step in Advancement of the Women’s Rights Movement

Beharry, Todd K.

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Board, Editorial

Touro Law Review 
Volume 35 Number 4 Article 1 
2020 
Masthead 
Editorial Board 
Touro Law Center 
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Jesus and the Mosaic Law: Agapic Love as the Foundation and Objective of Law

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Applying Maimonides’ Hilkhot Teshuvah–Laws of Repentance – in the Criminal Law System of the State of Israel: an Israeli Judge’s Perspectives

Hale, Ph.D., Ian

Touro Law Review 
Volume 36 Number 1 Article 9 
2020 
Book Review: Was Yosef on the Spectrum by Samuel J. Levine 
Ian Hale, Ph.D. 
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Vol. 36 : No. 1 , Article 9. 
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91 
BOOK REVIEW: WAS YOSEF ON THE SPECTRUM BY 
SAMUEL J. LEVINE 
Ian Hale* 
Samuel Levine is a prominent New York Law Professor and 
foremost Judaic scholar.  He has written a unique and important book.  
It conjoins both factual Biblical history with modern neuroscience and 
psychology to tell us part of the yet unacknowledged story of the 
history of Autism.  This book is special, it must be read.  
Titled Was Yosef on the Spectrum published by Urim 
Publications, the book combines his extensive knowledge of 
Rabbinical commentary up to the present day, with the Torah, the 
Talmud, and Autism, producing a unique insight linking our past with 
the future.1  The Yosef referred to is the one from the book of Genesis. 
Yosef was the next youngest son of Jacob, also known as Israel.  
He is best known as the wearer of The Coat of Many Colours, given to 
him by his father as a mark of his special status of wisdom from his 
youngest years and as the interpreter of dreams, much to the envy of 
his older brothers who plotted against him and sold him into slavery.  
After enduring many hardships, Yosef rose to find favor with Pharaoh 
to become his chief adviser and wisest counselor.  He was the visionary 
who saw the significance of his dream of seven lean cows consuming 
seven fat ones.  He told Pharaoh it prophesized seven years of plenty, 
followed by seven years of famine throughout the lands of Egypt.  
Taking his advice, Pharaoh was careful to store the seven years of good 
harvests which saved his Kingdom from the famine Yosef had 
foretold.  
During his life, Yosef showed many of the now-recognized 
characteristics of an Autistic person.  His determination, his special 
ability to identify and focus on important things, while being poor at 
 
*Professor Ian C. E. Hale Ph.D. is a well-known  online consultant, author, broadcaster, 
advocate and researcher in Autism, Asperger's Syndrome, and neuro-diversity.  He is from 
Bristol, England.  
1 SAMUEL J. LEVINE, WAS YOSEF ON THE SPECTRUM (2019).  
1
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92 BOOK REVIEW Vol. 36 
the mundane and social aspects of life, which caused him many 
problems—but he never gave up, eschewing love of power, always 
thinking of the common good above himself.  His strong sense of 
compassion (he forgave his brothers and made sure his family was 
looked after), his love of nature, and care for people and animals, his 
fearlessness; his strong sense of justice and total unfailing loyalty to 
friends, even in adversity, and perhaps most tellingly, his “different 
brain” which allowed him to see what others couldn’t.  It is precisely 
those characteristics which, today are so sought after by major 
corporations like Microsoft, IBM, and SAP.  Autistic people are 
special with their special “mystic” skills and non-standard hyper 
connection to creation and intelligence. 
In recognizing this, we all owe a special debt to Professor 
Levine.  This is not just an account of the past, but a proven 
understanding of the present and a prophesy of Professor Levine 
himself to us all, here and now, of a potentially glorious future.  It is 
also a warning against ignoring what God has given to us with his gift 
of Autism to those He has chosen. 
It is with real joy that I recommend this book without 
reservation to every reader who seeks true knowledge on many of the 
subjects covered.  It is a story of triumph against seemingly impossible 
odds (something all too many autistic people and their families face 
today) and a message of hope.  Truly one of the most outstanding reads 
of this new century, it deserves seven stars. 
 
 
2
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Book Review: Was Yosef on the Spectrum by Samuel J. Levine

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