The Law Of The Excluded Muddle:
the Ethics Of Improvisation in William Gaddis's
A Frolic Of His Own

by Gregory Comnes
Critique 39 No.4 (Summer 1998):353-366.

No one can hear you read music.
--Erroll Garner

The specter of nihilism raised by the critique of objectivity is especially troubling to moral philosophy. Inscribed in the glossolalia of contemporary theory, the argument certifies that any quest for an incorrigible foundation of values is a category mistake. All such foundational "objects" are but verbal constructions, which upon careful consideration reveal the following sequence: the absence of a presumed presence, hence of representation, hence of stable meaning. Values that emerge as orthodox do so not because they are true but because they better exploit power, the political activity of priviliging one group by marginalizing/suppressing all others. Denied the possibility of testing the validity of ethical claims, of deriving an ought from an is, moral philosophy increasingly has embraced a skeptical rejection of universalizing ethical prescriptions. 1 In this climate moral philosophy is confined to some form of noncognitivism, disparagingly described as "Boo--Hurrah." One can exclaim or exhort, but one cannot prove one true or false moral statement. Factor in the historical record, and the status of contemporary ethics appears bleak. If the efforts to articulate universal moral claims are critiqued as "human, all too human," the suspicion grows that the basis for exhorting or exclaiming is not Nietzsche's transvaluation of all values but instead what Ernest Becker describes as the "organismic stomach project," the irrational urge to survive death through the diminishment of the other.

Perhaps spurred by the conceptual cul-de-sac that delimits moral speculation, an increasing number of theorists have turned to narrative as a possible means of carrying the message of ethics. Such writers as Paul Ricoeur and Hayden White have promoted the concept that the impulse to valuation is best realized as a narrative quest, while philosophers such as Philippa Foot and Martha Nussbaum argue the merits of a narrative based virtue ethics, shifting the fundamental moral question from what are the rules are to what kind of person one should be. 2 In Afer Virtue, Alasdair MacEntyre summarizes the importance of narrative to virtue theory, arguing that we properly understand ourselves only as a part of a narrative whole:

Man is in his actions and practice, as well as in his fictions, esentially a story-telling animal. He is not essentially, but becomes through his history, a teller of stories that aspire to truth. But the key question for men is not about their own authorship; I can only answer the question "What am I to do?" if I can answer the prior question "Of what story or stories do I find myself a part?" 3

A fundamental premise of virtue ethics is that narratives offer the potential for a qualitatively different response than does nihilism to the rejection of absolutes. If nihilism attacks the foundationalist vice of credulity with the critical virtues of suspicion and sophistication, it leaves unanswered the ethical question of how one might live life rather than waste it. Narrative, it would seem, has the power to provoke a response to this ethical dilemma, to "move" one to a place where nihilism can be displaced without embracing foundationalism.

To better understand this point, consider that all formalisms, including foundationalism and its nihilistic critique, operate according to the same logical principle first set forth by Aristotle: the law of the excluded middle. Foundationalism seeks indubitable knowledge of the thing itself--anything less is considered illusion. In a similar fashion, contemporary continental theory casts foundationalism as the fundamental illusion of Western thought, arguing instead the opposite extreme that all texts are always in "play." 4 The unforgivable arrogance of foundationalism and the unpardonable intimidation of contemporary continental theory may seem strange bedfellows, but both are based on the same "fundamental law of thought" that has resisted modification for 2300 years. 5 Each employs the powerful rhetorical tool of bivalent logic--Aristotle's dictum in De Interpretatione that "everything must either be or not be, whether in the present or the future"--insofar as each forbids anything other than the true or the not true. There are no partial ruptures of Plato's metaphysical center for Derrida, just as there are no partial forms for Plato.

In contrast, the narrative quest allows at least the possibility to traverse the middle ground between privilege and disprivilege. In this territory truth is not logical; instead, as Aristotle states in the Nichomachean Ethics , "We must be content to indicate the truth roughly and in outline." The strategy of the mean provides that partial contradiction--not too much, not too little--allows the possibility for some provisional meaning. The mean is the place where beliefs are not useless simply because they are relative to some context, where the otherwise excluded values of care and love find status equal to identity and non-contradiction.

However, having narrative serve as a credible way of providing an ethical dimension to contemporary life involves more than simply substituting the Nichomachean Ethics for De Interpretatione . The challenge of the nihilistic critique of meaning reminds contemporary readers just how muddled this middle ground has become. Aristotle's Entelechy, the inner urge to become what one is meant to be, is unintelligible when the self is perceived as a post-Humean "bundle of sensations"; Eudaemonia, the experience of living under the governance of moderation and reason, disappears in the noise of priviliged versus marginalized Kulturekampfs . Still, as Michel Serres suggests in The Parasite , the noise between two heterogeneous domains is also a form of communication. The legitimacy of a contemporary narrative based ethics, then, would depend upon selecting the right story, one that discerns the significance of the noise, showing how readers might negotiate the "excluded muddle" of contemporary life between foundationalism and nihilism in an ethically coherent way.

William Gaddis writes such stories, taking as a central concern of his work what I have elsewhere identified as his "ethics of indeterminacy." 6 In his first three novels, The Recognitions, J R, and Carpenter's Gothic , Gaddis articulates the problem in terms of how to "live deliberately" in a world dominated by the "unswerving punctuality of chance." 7 In a Paris Review interview, Gaddis suggests that the resolution to this problem "is precisely this courage to live without absolutes, which is really, nothing more than growing up, the courage to live in a relative universe and even one verging upon chance." 8 His latest effort, A Frolic of His Own, makes this point explicit, describing the character Basie as one who has "freed himself from these illusions" and who has found "the courage to live in a contingent universe, to accept a relative world." 9 In A Frolic Gaddis also continues to investigate how, if at all, reaching such a conclusion becomes the responsibility of art, defined in the novel as the "Human effort to imitate, supplement, alter or counteract the work of nature" (34).

However, making these points more explicit does not mean that the resolution of the problem is more assured. In fact, it has become more problematic, for A Frolic is also the first novel by Gaddis that does not specifically mention the "live deliberately" aesthetic. Already progressively reduced in stature in his previous work, the complete absence of Thoreaus's famous dictum in A Frolic suggests that if it is possible to "grow up" and manage without absolutes in a contingent universe, the discrepancy between the nature of the problem and the capacities of art to render it coherent is too great for any deliberate aesthetic to succeed. 10 Thoreau's concept assumes the existence of some formal principle or law; the task of the artist becomes the accomodation of the material of nature to that principle in order to provide some coherence, some human meaning to the experience, however provisional. Yet, if the search for the formal principle of justice--the basis of Thoreau's aesthetic--serves as a constant motif in the novel, the book's first line belies the effort: "Justice?--You get justice in the next world, in this world you get the law" (1). So while A Frolic is a novel about laws, existential as well as jurisprudential, its intent, citing Conrad, is not simply "to make you feel, above all to make you see" but also to confront "that glimpse of truth for which you've forgotten to ask" (363). The glimpse of truth Gaddis offers in this novel signals the futility of the position held by Thoreau: one cannot "live deliberately" or close the gap betwen justice and the law because there is no formal principle of justice, hence no gap. Instead, the book's title describes the true order of nature. According to Gaddis if a servant, while not performing any duty owing to his master, injures someone, the servant and not the master is solely responsible; the servant is on a "frolic of his own" (398). Gaddis explains this concept under the nineteenth century English common law rubric of imputed negligence, but Christina's statement, "isn't that really what the artist is all about?" (399) elucidates the significance of the frolic concept to Gaddis's thematic concerns. Echoing J. F. Lyotard's thesis in The Postmodern Condition , A Frolic argues that there is no providential justice, no "Master" and no "Master Narrative." "In this world" the artist is always alone, entirely responsible for finding the means to live in a universe where "you have the law," an adaptive process of the survival of the fittest, revealed both in nature and in the predatory behavior of the common man. A climate where "the artist is fair game and his cause is turmoil"(39) jeopardizes the very possiblity of art. How can the artist take on the responsibility to express the courage to live in a contingent world when the ground of expression no longer exists? Understanding a concept such as "courage" presupposes some integrative frame of reference, yet for the artist on a frolic of his own these master frames are absent. The situation is extreme. Disabled by the absence or unavailiblity of justice--and by extension intelligibilty and love--as grounds for expression, the artist, as Gaddis portrays him, is "driven by despair to embrace 'the unswerving punctuality of chance' (cit. omitted) sinking us deeper in the twilight of confusion from whence we shall now emerge inter canem et lupem, as it were" (292). In A Frolic the aliment of art, which seeks to express how to manage to be both human and humane in a contingent world, is confined to chance, "the work of nature." The question becomes what, if anything, will be its manner of dispatch, "the human effort to imitate, supplement, alter or counteract" nature's unswerving contingency.

Certainly the actions of the hapless artist manqué Oscar Crease fail to provide the answer. Nominally a part-time American history instructor at Lotusville Community College (189), Oscar is no Odysseus. He remains committed to--and lost in--a world of presumed absolutes. Having authored a monograph on Rousseau (20), Oscar has embedded several of the philosopher's notions of foundationalist Natural Justice in his play Once At Antietam . Originally the work of the character Thomas Eigen in J R , where it was described as "undigested Plato," in Oscar's hands the play focuses on the character Thomas. Through a series of chance events during the Civil War, Thomas hires substitutes from both North and South to fight in his place, only to find later that they killed one another at the battle of Antietam . Freighted with concepts of "justice, self-betrayal, destiny" (54) that range from the Republic to Camus, the play in turn becomes the cause célèbre of justice in A Frolic . Oscar asserts that the play was used without his permission to serve as the basis of a movie entitled The Blood in the Red White and Blue , a movie that crudely reduces the play's subtleties to "PATRIOTIC GORE IN NINETY MILLION DOLLAR SPECTACULAR" (49). As a result Oscar decides to assert "his full common law rights" and sue for infringement, not for the money but for "the principle of the thing" (94); seeking, as his character Thomas exclaims, "only justice!" (76) As both an artist and a "civilized man. . .maybe one of the last ones left" (334), Oscar assumes in his own life the principles held by the play's protagonist. The world operates according to the concept of "just" natural law championed by Plato and Rousseau. There exists an authoritative fixed text, coherent in form and correspondent to fact, describing a pre-meditated design of nature whose laws are accessible through reason. "Justice prevails," writes Plato in book 1 of the Republic , "when reason rules the appetites." The individual's purpose is to provide a rational exegesis of the text. The logos and the cosmos are congruent; the world is inherently intelligible, charitable, and providentially just. Any gap between justice and present conditions of greed can be closed if we but use our heads.

Events in A Frolic , however, demonstrate the fictionality of the idea that a just law of nature exists and is accessible to all persons through reason. "Natural Law" in A Frolic is present, but it is not the rational absolute Oscar and his philosophical brethern assume. Instead, Gaddis notes in citing the Sophist Thrasymachus, it is the concept that "Justice is nothing more than the interest of the stronger" (215): the recurring theme of Oscar's TV nature programs and the not so hidden agenda of a bevy of human predators ranging from the fundamentalist right to real estate salespeople "red. . .in tooth and claw" (566). Nature is not just; it is rapacious, a theater of adaptive and predatory deception.

Ironically, Oscar is fascinated with this adaptive deception in his favorite TV nature shows. One show describes flowers "arrayed in every deceitful variation of shape and odour, colour and design to target randy insects with spurious promises of sex and nectar provoking frenzies of pseudocopulation and the subsequent deposit of the pollen elsewhere it would do the most good" (337). As Oscar idly flips channels, another merges the predatory instinct of animal nature with human nature: "the flowering clusters of wild parsnip flooding their grazing predators with poison had been displaced by Serbs slaughtering Croats on the evening news" (507). This vision is reinforced by Bagby, the brutal pragmatist in Oscar's play, who reminds Thomas that with most people "you must knock a little justice into them now and again" (131). Bagby further offers a succinct summary of the status of justice by describing Quantness, the plantation that serves as the object of justice for Thomas, as a place "With the curious name... 'Quaintness,' is it...?" (141) In the context of adaptive natural law, rational justice is revealed as but a quaint anachronism, consigned to the same status as Oscar's play: a closet drama destined never to be performed.

Oscar's failure as an artist, his inability to express the means to negotiate a contingent universe, is a function of his credulity. Oscar believes that all things are connected through justice. Unlike the lawyer Madhar Pai, who skillfully deconstructs the concept of the originality of Once at Antietam , Oscar fails to distinguish the difference between an idea and the expression of an idea (202). The distinction recalls an issue central to Gaddis's first novel The Recognitions , the separation of a copy from an original. Because Oscar insists on the legitimacy of such absolutes as "genuine" and original," he fails to recognize that the various distinctions between intention and execution, between original and translation, are not absolute, but instead a function of interpretation: "Words words, words, that's what it's all about" (181). As a result he maintains an erroneously dualistic concept of reality which underscores his dilemma: "that it's a hard task always to be the same man" (545). Oscar also alludes to Montaigne's existential notion that "there is as much difference between us and ourselves as there is between us and other people" (545). However the insurance man Gribble reminds us that to be "in situation" in this world is better understood as a legal issue: "To put it in plain language you might almost say that this is a suit between who you are and who you think you are" (544-45). Oscar may imagine he is dedicated to justice, but his appetites are ruled not so much by reason as by a predilection for Pinot Grigio and various foods served "in the Spanish Style," appetites which tend to screen out the real conflict in his life. Reminiscent of the poet Baudelaire in 1848, who mounted the barricades to fight less against social injustice than against his stepfather General Aupick, Oscar's true battle is his unresolved issue of origin with his father Judge Crease. He writes his play because he wants his father to like him (253, 437), and when he discovers his father wrote the brief that resulted in winning his suit, not because he loved Oscar but because he loved the law (559), the news is devastating. Oscar feels that he has been "lied to all his life" (557,560): his play--like the "facts" of his family history that he based his play upon--are "a farce"(557). Like Kafka's protagonists, Gaddis's hapless character spends his life asserting his rights while never understanding the nature of the law, either formal or personal. Kafkaesque as well is Oscar's condition at the end of the novel. The Pinot Grigio and the food in the Spanish style have been replaced with cereal and peanut butter (572), while Oscar's replaces his obsession with his lawsuits with a growing fascination for a rock garden and tropical fish. In the face of a world without absolutes Oscar does not grow up; he alleviates his anxiety by sacrificing an ever increasing measure of reality.

If credulity is a vice in a contingent world, then suspicion and sophistication are virtues, ones practiced with great skill by those who ascribe to one type of unswerving punctuality in the novel: jurisprudential law. In A Frolic Gaddis sets the conflict betwen justice and jurisprudential law as an onging battle between Oscar's Grandfather and his contemporary Oliver Wendall Holmes, Jr. Oscar describes the battle as follows: "that's what it was all about between them right to the end these clashes and passionate opinions he was obsessed with justice as Holmes was with the law" (110). Gaddis resolves this conflict through the beliefs and actions of the novel's most overtly powerful character, Oscar's father "old Judge Crease down there following Holmes down the line. Justice Learned Hand exhorting Holmes 'Do justice sir do justice!' and Holmes stops their carriage. "That is not my job,' he says. 'It is my job to apply the law'" (285).

From Holmes (whose jurisprudence, one scholar notes, suggests an element of Thrasymachus), Judge Crease serves as an exponent of Legal Realism, the concept that Holmes depicted in The Common Law as an impartial and civilized substitute for revenge. 11 This position is a more agreeable alternative to the notion of vengeance, since retribution by a disinterested court provides a degree of social order not possible in a more natural state where violence is the only manner of redress. Apart from the regulative concept of impartiality, however, Legal Realism stresses that common law is nothing other than what the courts actively do. Under common law judgements should not be thought of as exegeses of an authoritative fixed text because there is no authoritative fixed text. Law is a prediction of what judges will do when presented with certain facts, not an enduring insight that underlies the judge's decision. As Holmes describes it, "The common law is not a brooding omnipresence in the sky but the articulate voice of some sovereign or quasi sovereign that can be identified." 12 The issue that this voice articulates is similar to that of Dickens mentioned in A Frolic . "Increasingly dissillusioned with the law as an instrument of justice," Dickens came "to regard it as a vehicle for imposing order on an unruly universe" (527), an order that is linguistic. Several times the novel makes the point that the law is "all" and "only language" (284, 559), and the issue of order exists because the language of the law is equivocal rather than univocal, insofar as the properties of language that can impede communication are on a par with the properties that enable it. In common law what separates good jurisprudence from bad is not truth but craft: the immersion in a large and demanding body of work with a commitment to scrupulousness and to the discovery of the right word, recognizing that decisions rely as much on rhetoric as logic or dialectic in proving their claims. Common law becomes nothing more than a "self regulating profession" (310): a servicable fiction, constrained by language and variously administered by men of varying competence. The goal becomes the effort of "trying to rescue the language" (285). There is no intrinsic relationship between common law and man's nature or the state of the world. Legal Realism holds that the goal of law is to mediate equitable jurisprudence without fostering the illusion that society can forego law for some transcendental absolute. Oscar may have defended the validity of Rousseau's "noble idea" of justice, but the attorney Madhar Pai's allusion to William James clarifies the common law preference for results: "--Noble idea! About all it was, that pragmatic notion of ideas as instruments for guides to action" (370). In common law the universal truths espoused by Rousseau are simply part of the whimsical condition of mankind. The principles of law are not symmetrical ideas but ungainly expressions of ideas, empirically discovered and celebrated because they work.

But if common law provides the expression of an idea sufficient to buffer predatory nature, several factors undermine its value as a source of courage in a radically problematic world. First, when Oscar exclaims "isn't that what language is for? to say what you mean? that's why man invented language, isn't it? so we can say what we mean?" (301), he underscores the problem that "saving the language" may come at at the expense of meaning. As Christina explains, "you talk about language how everything's language it seems all that language does is drive us apart" (384). As much a "self-regulating conspiracy" (484) as a profession, the highly rhetorical and self-referential nature of legal language, emerging from the need to be both flexible and comprehensive, privileges its use to a select few who rigorously study its intricacies. For the rest of us simply understanding it becomes a "trial," what Christina describes as "like pulling teeth!" (313).

Second, Christina's eccentric friend Trish articulates the limited scope of common law when she comments that "after all self preservation's nine tenths of the law really, isn't it?" (520). Generally the novel insists that the expressed ideas of common law are largely irrelevant to the novel's catalog of mean-spirited greed and a madness for absolutes that Gaddis describes as "an essential of the human condition" (375). The channel for this madness is the opposite of common law: revealed religion: "they're all raving maniacs to begin with looking for some grand design that they can fit into, some system of absolutes where they can find refuge, that's what the true believer is isn't he? And the more chaotic the times, the greater the demand for these absolutes. It's what drove Dostoevski's heroes over the brink isn't it? this panic at living in a meaningless universe?" (375)

Third, if the scope of common law is limited to ten percent of life, its success is dependent on avoiding rather than acknowledging the concerns of the artist. To work at all, legal language must confine itself to the message level of the text. Harry tells Oscar that the law is "not an art form it's an industry (453), an activity "about questions that do have answers" (454). But as Gaddis reminds us in Carpenter's Gothic , the artist must explore the other side of order "by asking questions to which there are no firm answers" 13 . Limiting itself to issues of "proximate cause" (290), "'The law,' wrote Justice Holmes, 'takes no account of the infinite varieties of temperment, intellect and education which make the internal character of a given act so different in different men. It does not attempt to see men as God sees them, for more than one sufficient reason'" (429). Yet, as Harry describes the true import of Oscar's play, the ability to look inside is what finding courage in this contingent universe is all about: "a play that's not really about justice in the first place not about injustice it's about resentment, it's resentment right from the start. . .blaming those faceless ogres out there instead of looking inside at the ogres we don't want to see, don't dare see our own hand in it, who we really are" (398). While common law does provide an adaptive response to a contingent universe in order to "save the language," it does so only by losing sight of the very humanity the language was meant to disclose.

With the perceived failure of both art and law to provide a humane means to live in a world without absolutes, A Frolic manifests a world of restless dialectic, an endless civil war "raging inside" (364) of "all tactics and no strategy" (508) where, as Harry explains, it's a "--wonder that even the smallest damn thing goes right at all" (392). He should know. Harry believes that one should do "not what is just but what is right" (396), but on page 531 the reader finds out that believing in what is right kills Harry. By factoring in Oscar's declining mental state, one is tempted to take Madhar Pai's prediction about the outcome of the "last act" (Gaddis's working title) as a comment on the novel: "--But we've always known the answer to that one haven't we, in death and madness old sport. Madness and death" (373).

The notion of apocalypse in A Frolic , however, is displaced by the more ominous idea that there will be no closure, apocalyptic or otherwise. Christina dismisses the significance of the various allusions made to apocalyptic verse--Yeats' "The Second Coming" and Frost's "Fire and Ice"--exclaiming " I don't give one damn who it is!" (583) as she consigns the last act of Oscar's play to the fire. But Christina's effort to assert order by a purgative act fails as the novel "ends," or more accurately terminates without telos. Lawsuits will continue past the novel's final page, echoing Christina's earlier insight about due process: "--It's not almost over. Somebody will win somebody will lose somebody will appeal and starts all over again doesn't it? isn't that what happens?" (244) Enthralled by the very movie he brought suit against, Oscar's comment on the carnage at Antietam acknowledges the omnipresence of "the unswerving punctuality of chance": "God it goes on it goes on" (478).

The motif of naming in the novel illuminates the consequence of a dialectic where contradiction relentlessly negates the concept of the absolute. Taking Plato's position in the dialogue Cratylus , Oscar argues that one's name must express one's true nature: "if it doesn't it's not a name at all change it any way you like" (234). What the novel reveals, however, is that the irony of his ill-fitting name ("Oscar" means "spear carrying god") is reinforced by the arbitrary expediency of its origins. Judge Crease, it turns out, named him Oscar because "well, we had to call him something" (314). Without his "essence," Oscar's world is meaningless, a condition best described by the concept of Alogos . The Greek origin of "surdus," Alogos means not only "irrational" but also "having no name." Without absolutes Oscar lives in an absurd world, one that is unintelligble and unnamable.

But if the world really is in the condition of Alogos , that does not mean the expression of its restless dialectic is the final word on the subject of courageously embracing contingency. If the process of naming Oscar signifies the triumph of capricousness over absolutes, how Basie acquires his name points in another direction. Madhar Pai tells Oscar that "--He's a free spirit! That's our friend Basie isn't it? Freed himself of these illusions of absolutes? Takes the name Basie because he likes the swing of it even if it was someone else's with more claim as its essence" (377-78). Basie's process of naming, both the name and the manner of selection, acknowledge a powerful if subtle subtext in A Frolic for providing a manner of dispatch adequate to the aliment of "the unswerving punctuality of chance": the an improvisational aesthetics of the "excluded muddle" articulated by jazz.

Jazz emerged from injustice. It finds its origins in the "call and response" songs sung by slaves like Oscar's character John Israel on plantations like Quantness. The music served as a mechanism of spiritual survival, affirming some semblence of humanity in the midst of a truly "contingent" world. With its basis in improvisation, jazz assumes a radically different position. In this type of music the criteria of harmony, symmetry, and wholeness of a contemplative form are replaced by the perception of the performance. Like the law, the aesthetic of jazz is not about an idea but its expression. With its emphasis on the spontaneity of improvisation, a common complaint about jazz is its apparent lack of form: "where's the melody?" people ask. But jazz is not formless; rather it presents audiences with a qualitatively different type of form, ad hoc in nature but form nonetheless. The difference is one of direction, what Ted Gioia refers to as retrospective form. 14 Gioia notes that unlike the "blueprint" method, one where the artist knows every move in advance of its execution, jazz artists work without a score. Instead they begin with "an almost random maneuver," then "adapt the later moves to the initial gambit," with each new phrase being shaped by what has gone before. 15

This notion of retrospective form inherent in jazz is an important part of understanding how one can courageously negotiate a contingent universe. Basie's statement "if you're black in America you're always playing a part, no way around it just got to find the right part to play" (278) is a reminder that jazz accepts "the unswerving punctuality of chance" as its aliment--there exists no transcendence, only a role to play. Jazz sets aside the absolute as the aesthetic criterion; its power derives not from the creation of a perfect work but from the imperfect act of creation itself. There are no scores, only parts. The accent is on the fusion of the performer with the performance, with the playing.

To be sure, the contemplative bias of a conventional aesthetics dedicated to beauty remains compelling, as Oscar's preference for the written word explains: "--it's always better that way the silent beautiful words coming off the page together to stop and listen to them to, to savour them without some vain fool in a costume prancing around up there just getting in their way, any of them!" (542) In his veneration of the inscribed text over performance, however, Oscar is ignorant of the truism put forth by the great jazz pianist Erroll Garner: "No one can hear you read music." In jazz the music is synonymous with and contingent upon its being played, an activity Oscar has forgotten (541).

Gaddis's specific allusions to the jazz world provide another important aspect of the larger significance of an aesthetics of improvisation. References to Count Basie and swing focus, not on free-form improvisation, which emphasizes speed and sheer intensity, but rather on a more melodic and thematically organized improvisation based on wit and allusion. Gaddis makes his aesthetic preference clear through the different styles used by the legal "soloists" in the novel. Like Madhar Pai, any player who embraces the avant-garde, bebop mode is "too quick," "has the answer ready before he hears the question, doesn't look back, sets up the game himself as if he's the only player" (388). In contrast, both the fictional and historical Basie "takes the long view" (265). The goal is not simply the moment, but the entire performance, communicating something of substance. By page 520, Pai seems to have won by changing the venue of Oscar's case, thus eliminating the implementation of federal statutes that would have been more favorable to Oscar's position. Basie's improvisation, however, is more in line with his namesake's. Avoiding overly rhetorical flourishes, Basie goes through the motions with a studied casualness that masks both his meticulous preparation and his theory of the case. On page 564 the reader finds that Basie indeed did know his audience. The circuit court's reversal of the appeal court's decision against Oscar (33-416) is based on the lower court's erroneous belief that the issue of novelty is necessary to create a property right. Although Basie knows this is erroneous, as Christina describes it, "he let it pass, he let their error pass on purpose so he could base the appeal on it that was the real trap!" (564) This result serves as a reminder that improvisation should not be mistaken for an "anything goes" immediacy: Basie's "solo" works because he balances improvisation and restraint.

The nature of jazz is a reminder that in a world without grounds for expression art must become its own occasion. Unable to transcend improvisation, jazz contains within it the inevitability of failure, the impossibility of capturing some absolute. Yet jazz also reinforces the point made in A Frolic of the necessity to accept failure as a precondition for achieving any sense of worth: "about failing at something worth doing because there was nothing worse for a man than failing at something that wasn't worth doing in the first place" (529). Perhaps because his "play," both as aesthetic object and human activity, remains unperformed, Oscar fails to grasp the point Harry makes, that with Judge Crease's death Oscar could begin his own improvisational frolic, freed from his "master" and the attendent obssession to please. In so doing he would be "Free to win or lose, drop out and fail throw the whole thing over If I think it's what I should do right now" (490).

This freedom to fail, to be human, also admits the possibility of compassion, the prerequisite for courageous action that neither justice nor the law acknowledges. In his actions Basie engages life with what philosopher Carol Gilligan calls a "different voice." 16 Gilligan argues that an "ethic of justice" dominates Western values by restricting moral debate to issues of duties and rights. As an alternative, Gilligan offers the "ethic of care," grounded in human concerns which cannot be confined to a set of rules and list of duties. Gilligan argues that a justice concerned with rights prompts the detached, formal question: "Should I do something or not?" In contrast, care takes into account the more complex humaneness of the situation, generating the question "should I do this, or should I do something else?" In its stress on personal involvement and intuitive understanding rather than objective detachment and logical conformity, Gilligan's alternative ethic reflects a preference for the improvisation. While Gilligan focuses on an ethics of care as reflecting the sensibility of women, the fact that Basie is both black and an ex-convict qualifies him for the status of the "other" as well. Perhaps this is why Basie has come to like Oscar, "--Always have to like a man that's at the end of his rope" (125). As Christina puts it, Basie "wasn't just a smart lawyer and a sweet natured man a real man, he was our friend!"(565) Despite all appearances to the contrary, Basie is not only the improvisational artist/lawyer but the one person in the novel who, instead of treating him as a means to an end, actually helps Oscar.

As an object of contemplation, jazz will always emerge second rate--unfinished, provisional, and far from absolute. If one is willing to replace perfection with human expressiveness as the aesthetic criterion, however, it becomes possible to make the manner of expression fit the aliment, to find a way to express the notions of courage and love in a contingent universe. As always with Gaddis, the cost is hard work. Not surprisingly then, Basie's presence is minimal, reminding us that the most successful improvisations are so subtle that they elude all but the most attentive. On page 564 for example, the explanation of Basie's successful strategy to win Oscar's appeal is couched in a description of yet another TV show depicting the restless dialectic of nature. But if we pay attention, we see Gaddis has played his improvisations well. There is no last act in the novel, nor does it end only in madness and death. Christina's call for help will be answered by Oscar's formerly flighty girlfriend Lily, who like Basie has learned the power of action: "so that's why you have to do something about something you can do something about" (540). There is no absolute darkness. Basie and the maturing of Lily represent small performances that keep the world inexplicable rather than absolutely negative.

In his latest novel William Gaddis demonstrates that we are all on frolics of our own. As Pai reminds us, if we can't all be artists, we can still do something: "We don't all have the talents to be poets, writers, most of just have to be content to do the world's work. Boring, repetitive, work anybody can do if they put their minds to it so you've just got to do a better job of it than they do" (361). The oblique allusion to Pynchon's Vineland is instructive. 17 Similar to Pynchon's thanatoid world, the world of A Frolic finds the mass of true believers combining an "inexhaustible appetite for being entertained" (468) with a "competition rivalry bugger thy neighbor" (485) that adds up to the "junkyard theme park the American Way" (496). As ever, the corner-cutting Pai omits the element necessary to offset the actions of both the thanatoids and the true believers. Doing the "world's work" means finding the courage to express care, within the constraints imposed by chance, rather than attempting to transcend its unswerving punctuality. The "better job," Gaddis shows, finds its expression in a combination of care and improvisation.

NOTES

1 Perhaps the best known version of noncognitivism is the emotive theory of ethics. An outgrowth of the post Nietzschean (and post Humean) critique of objectivity, emotivism is put forth by A. J. Ayer in Language, Truth, and Logic (New York: Dover Publications, 1946). The "boo-hurrah" criticism is found in J.O. Urmson, An Emotive Theory of Ethics (London: Hutchinson, 1968). For a recent overview of the subject see Panayot Butchvarov, Skepticism in Ethics (Indianapolis: University of Indiana Press, 1989). Those contemporary moral philosophers who choose to ignore the nihilistic critique of current continental theory (and there are many) continue to argue for an objective-based normative ethics. A representative example of the latter is John Rawls, A Theory of Justice (Cambridge: Harvard UP, 1971).

2 For Riceour's explanation of how an ethical attitude is embedded in narrative, see his trilogy Time and Narrative (Chicago: University of Chicago Press, 1985-1989). White's notion of how history works like a story is found in Metahistory (Baltimore: Johns Hopkins University Press, 1973). Representative of the narrative-based virtue ethics are Philippa Foot, Virtues and Vices (Berkeley and Los Angeles: University of California Press, 1978); and Martha Nussbaum, Love's Knowledge (New York: Oxford UP, 1990).

3 Alasdair MacEntyre, After Virtue (Notre Dame: University of Notre Dame Press, 1981, 1984) 216.

4 For a clear discussion of how Deconstruction falls prey to the paradox of self-reference, see John M. Ellis, Against Deconstruction (Princeton, New Jersey: Princeton UP, 1989), especially chapter six: "The Logic of Deconstruction."

5 For a summary of the law of the excluded middle as one of the three "laws of thought," see Irving Copi and Carl Cohen, eds., Introduction to Logic, ninth edition (New York: Macmillan, 1994), 372-374.

6 Gregory Comnes, The Ethics of Indeterminacy in the Novels of William Gaddis (Gainesville, Florida: University Press of Florida, 1994).

7 The expression "live deliberately" appears on page 900 of The Recognitions (New York: Harcourt, Brace & Co., 1955; paper back edition with corrections, New York: Penguin, 1992); page 477 of J R , (New York: Knopf, 1975; paerback edition with corrections, New York: Penguin, 1993); and page 139 of Carpenter's Gothic (New York: Viking, 1985; paperback edition with corrections, New York: 1986). The expression "the unswerving punctuality of chance" appears on page 9 of both The Recognitions and Carpenter's Gothic , and page 477 of J R .

In A Frolic of His Own the expression appears on page 292 (see endnote #9 below).

8 Zoltan Abadi-Nagy, "The Art of Fiction CI: William Gaddis," Paris Review 105 (Winter 1987):77.

9 William Gaddis, A Frolic of His Own (New York: Simon & Schuster, 1994), 378. Hereafter referred to as A Frolic and cited in the text.

10 In The Recognitions "live deliberately" is taken at face value. In J R the expression is connected to monogrammed doormats, then further reduced in Carpenter's Gothic to a phrase tied to a hapless fictional character.

11 Richard A. Posner makes this comment in his Law And Literature: A Misunderstood Relation (Cambridge Mass.: Harvard UP, 1988), 165, n.51. In chapter six Posner provides a summary of Legal Realism.

12 Southern Pacific Co. v. Jensen, 244 U.S. , 205, 221.

13 Carpenter's Gothic 184.

14 Ted Gioia, The Imperfect Art: Reflections on Jazz and Modern Culture (Oxford: Oxford UP, 1988), 61.

15 Gioia 61.

16 Carol Gilligan, In a Different Voice (Cambridge, Mass.: Harvard UP, 1982).

17 Thomas Pynchon, Vineland (Boston: Little Brown, 1984), 291. Together with Pynchon's oblique "Carpenter Gothic outhouse" reference to Gaddis on page 26 of Vineland , this allusion suggests the fascinating, if unverifiable, possibility that these writers have read each other's work. On the question of mutual influence, see Steven Moore, "'Parallel, Not Series': Thomas Pynchon and William Gaddis," Pynchon Notes 11 (February 1983):6-26.

© 1998, Gregory Comnes & Critique

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