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... ark is acquitted. V. THE TWO TRIALS: LITERARY METHOD & LEGAL METHOD The Cortland trial, then, turns out quite differently from the Stoddard trial.
In the Cortland trial Roark does not rely on the direct perception of the decision-maker to render a normative judgment. Indeed, he cannot, for it is a way of life that must be judged. Interestingly, we the readers can make precisely the sort of judgment Roark sought in the Stoddard trial because we have been able to perceive the competing ways of life the novel has laid before us. The novel is for the reader, what the pictures of the Stoddard Temple are within the novel. 59 But both for the reader and for the jury, we are helped in reaching our decision by an explicit account of the differences between the values of the life of the second-hander and the life of the autonomous, independent individual. In The Fountainhead, Roark's speech furnishes that account. And Roark (and Rand) uses the setting of the courtroom and the adversary system of justice as the context in which these two antagonistic ways of life are presented. 60 These trials, then, tell us little about law.
They are a setting for a philosophical battle. Earlier in the history of the United States, Alexis De Tocqueville, perhaps the most acute observer of American ways and mores, declared that all issues of public importance find their way into the courtroom: "Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question. " 61 That is no less true in Rand's fiction where trials play so prominent a role. Her novels comprise battles between good and evil. But the confrontations are not the physical contests of pulp fiction. The battles are essentially intellectual. And the modern battlefield for intellectual contests of this sort is the courtroom.
The adversarial system of justice [ 445 ] provides a near perfect metaphor for the intellectual contest between good and evil. The differences between the trials, however, suggest that the good is not self-evident and that once identified it does not inevitably prevail. It requires rational argument. But, as the novel itself demonstrates, abstract argument is much more likely to be appreciated in the context of particular events. Unquestionably Rand's position is both more understandable and more persuasive for being explicated not merely through a philosophical treatise, but through the events of a story with the philosophical discourse integrated into that story.
In short, the integration of the abstract and the particular is what provides the power of Rand's argument. But this is precisely what happens in the typical judicial opinion, though typically on a less grand scale involving more mundane matters. The typical opinion tells a story. 62 It recites a narrative of facts relevant to the matter to be decided. As any good lawyer or judge would admit (unless they fear giving away shop secrets), this narrative is not a random or even neutral recitation. It presents the facts in a way most likely to support the decision being rendered. 63 It is only after this narrative statement of the particulars of the case that an opinion goes on to address the legal doctrine applicable to the case. This legal doctrine is necessarily a set of abstract principles.
But the abstractions take on color from the particulars to which they are to be applied. Judicial decisions are not mere treatises on the law, seeking to set out general principles and their relationship to each other. The abstractions are connected to the facts, the particulars, to which they are to be applied, just as the abstractions of Roark's closing argument are attached to the particulars of the story. For example, when Roark talks about the selfishness of the creator, we better understand what he means because of an earlier incident in the book in which Roark, at a time when he is destitute, is offered a commission for a major bank building, on the condition that he change the elevation and ornaments-tion of his design.
Although the project could assure his career, he refuses the commission. One of his supporters among the bank's board of directors cries, "We want your building. You need the commission. Do [ 446 ] you have to be quite so fanatical and selfless about it?" 64 Roark is incredulous. He smiles, looks down at his drawings and responds, "That was the most selfish thing you " ve ever seen a man do. " 65 Similarly, when Roark speaks of man's mind as his principle means of survival and distinguishes those who would conquer nature from those who seek to conquer other men, we are reminded of the book's opening paragraphs: He looked at the granite.
To be cut, he thought, and made into walls. He looked at a tree. To be split and made into rafters. He looked at a streak of rust on the stone and thought of iron ore under the ground. To be melted and to emerge as girders against the sky. These rocks, he thought, are here for me; waiting for the drill, the dynamite and my voice; waiting to be split, ripped, pounded, reborn; waiting for the shape my hands will give them. 66 When Roark speaks of second hand consciousness, those for whom the views of other men are of greater moment than their own vision of reality, we call to mind all we have been shown of the life of Peter Keating.
When he speaks of the those who seek to conquer other men rather than nature, we recall all that we know of Ellsworth They. One could review Roark's speech virtually paragraph by paragraph and find in the plot of the novel particular applications of the abstract principles Roark articulates. Rand makes these connections explicit by having Roark dedicate his actions at the trial to those characters in the novel who personify the qualities he praises. It is these reconnection's to the action of the novel that helps make Roark's speech so rhetorically powerful. Abstractions alone are not sufficient, and particulars without articulated conceptual identification are also inadequate to an appropriately human level of awareness. Judicial opinions also do not end with the factual narrative.
Put another way, the judge does not submit photographs of what happened, as Roark submitted photographs of the Stoddard Temple, and announce the judgment. The judgment is not self-evident from the facts. Some explanation, in terms of the abstract principles of law governing the case is essential to an understanding of the result-just as Roark furnishes the abstract principles necessary to a full conceptual understanding of the way of life he embraces. Thus, the judicial method, combining the particulars of the individual case with the more abstract [ 447 ] principles of the law, finds its analogue in the literary method of The Fountainhead. [ 448 ] ENDNOTES Professor of Law, University of Maryland School of Law. An abbreviated version of this paper was presented at the American Culture Association Annual Meeting, San Francisco, California, April 3, 1999. I am indebted to Nichole Made, University of Maryland School of Law, Class of 2000, for dedicated and diligent research assistance 1.
Herman Melville, MOBY DICK 11 (Bantam Books, Charles Child Walcutt ed. , 1967) (1851). 2. Charles Dickens, A TALE OF TWO CITIES 3 (Tom Doherty Associates 1989) (1859). 3. Ayn Rand, THE FOUNTAINHEAD 15 (Signet 1993) (1943). 4. Roy A. Childs, Jr. , Ayn Rand: A Celebration, (June 1986). 5.
Barbara Branden, THE PASSION OF AYN RAND 407 - 22 (Doubleday 1986). 6. Though that situation appears to be changing. See Ayn Rand Arrives in Academe, Chron. Higher Educ. , Apr. 9, 1999, at A 17; Scott McLemee, The Heirs of Ayn Rand, Lingua Franca, Sept. , 1999, at 45. 7.
See, e. g. , Ayn Rand, ATLAS SHRUGGED 475 - 82 (Random House 1957); Ayn Rand, NIGHT OF JANUARY 16 th (Signet 1968) (1934); cf. Ayn Rand, ANTHEM 75 - 83 (Signet 1946) (1938). 8. See David Ray Papke, Conventional Wisdom: The Courtroom Trial in American Poplar Culture, 82 Marquette L.
Rev. 471 (1999). 9. Douglas J. Den Us, THE FOUNTAINHEAD, AN AMERICAN NOVEL 15 (Twain 1999) ("Roark gives an account of what he stands for within an established institutional setting of a particular culture-that is, from within an American courtroom. " Id. at 29 ("The Fountainhead is a novel of ideas. ") 10. Leonard Peikoff, OBJECTIVISM: THE PHILOSOPHY OF AYN RAND (Dutton 1991). 11. Id at 485. 12.
Id. at 364 - 66. 13. Id. at 365 - 66. 14. See, e. g. , Ayn Rand, INTRODUCTION TO OBJECTIVIST EPISTEMOLOGY (Meridian 1979) passim; Ayn Rand, FOR THE NEW INTELLECTUAL 19 (Signet 1961). 15.
Ronald E. Merrill, THE IDEAS OF AYN RAND 189 (Open Court 1991); Chris Matthew Sciabarra, AYN RAND: THE RUSSIAN RADICAL 466 (Pennsylvania State University Press 1995). 16. See, e. g. , Ayn Rand, THE AYN RAND LETTER 1, Vol. 1, No. 7 (Jan. 7, 1972). 17. Rand, The Fountainhead, supra note 3, at 22. 18. Id.
at 316 - 17. 19. Id. at 349. 20. Id. at 356. 21.
Id. at 348. 22. Id. at 349. 23. Id.
at 334. 24. Id. at 349 - 50. 25. Id.
at 352. 26. Id. at 353. 27. Id. at 354. 28. Id.
at 355. 29. Id. at 356. 30. Id. 31. Id.
at 350 - 57. 32. Id. at 357. 33. Id. 34. Id. at 328. 35.
Id. at 331. 36. Ayn Rand, ATLAS SHRUGGED 475 - 84 (Random House 1957). 37. Rand, The Fountainhead, supra note 3, at 343. 38. Id. 39.
Id. at 159. 40. Id. at 675. 41. Id. 42.
Id. at 766 - 85. 43. Id. at 605. 44. Id. 45. See, e.
g. , Rand, ATLAS SHRUGGED, supra note 36. 46. Rand, supra note 3, at 674. 47. Id. at 579. 48.
Id. at 676. 49. Id. 50. Id. at 677 - 78. 51.
Id. at 678. 52. Id. 53. Id.
at 679. 54. Id. at 680. 55. Id.
at 681. 56. Id. 57. Id. at 684. 58. Id. 59. Indeed, there is a kind of methodological reversal from the Stoddard trial to the Cortland trial.
In the former, those within the book are required to make a decision in the absence of a conceptual justification, relying instead on the immediate perception produced by the photographs. As readers, however, we do not get to see the photographs; we have no direct visual perception of the Temple, but are limited to conceptual description. With respect to the Cortland trial, on the other hand, the participants must rely almost entirely on Roark's presentation in the form of abstract, conceptual argument based on principles rather than perceptions. As readers, however, we have seen the concretes that give life to Roark's statement; that is, after all, what the book is all about. 60. Den Url, supra note 9. 61. Alexis De Tocqueville, DEMOCRACY IN AMERICA 280 (Knopf 1994) (1835). 62.
See, e. g. , David Ray Papke, Discharge as Denouement: Appreciating the Storytelling of Appellate Opinions, 40 J. Legal Educ. 145 (1990). See generally, sources cited in Samuel J. Levine, Halacha and Agenda: Translating Robert Cover's Nomos and Narrative, 1998 Utah L. Rev. 465, 482 n. 91. 63.
See, e. g. , Alan D. H ornstein, APPELLATE ADVOCACY IN A NUTSHELL 211 - 219 (2 d ed. 1998). 64. Rand, supra note 3, at 197. 65. Id. 66.
Id. at 16.
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