Ferguson quotes Robert Cover in order to suggest that Captain Vere's orchestration of Billy's conviction represents a "positivist's condensation of a legal system's formal character." Were's speech to the court articulates eloquently and cogently a positivist and formalist justification for punishing Billy according to the letter of the law. His argument proceeds by refuting the claims of an alternative source of law, " Nature" or private conscience. The sentence that Billy undergoes puts in conflict two jurisprudential tradition, two ideologies of law, Natural Law and Legal Positivism.
Vere would argue that the vowed responsibility is that however pitilessly the law may operate in any instance, we nevertheless adhere to it and administer it.
For Cover, Billy Budd captures perfectly the predicament arising from con- flicts between positive law and individual conscience that Northern abolitionists on the bench faced prior to the Civil War. At a critical moment in Melville’s novella, Captain Edward Fairfax Vere addresses the drumhead court he has assembled aboard his ship Bellipotent to judge and sentence the handsome sailor Billy for the sudden and unpremeditated killing of the ship’s insidious master-of-arms Claggart. Billy, struck dumb with rage, has killed Claggart with one great blow after having been accused falsely of mutiny, and it falls to the tribunal to determine his guilt and punishment. The proper course of action is clear enough to Vere, but the court members appear hesitant to apply the English Mutiny Act of 1842, “war’s child” as Vere calls it, which commands the death penalty for any killing aboard a navy ship, inten- tional or otherwise. “I . . . perceive in you,” says Vere, “a troubled hesitancy, proceeding, I doubt not, from the clash of military duty with moral scruple—scruple vitalized by compassion.”
This passage can easily—perhaps too easily—be viewed as a moment of the triumphal assertion of a positivist vision of law.25 Vere’s insistent legal formalism—his claim that the law governing Billy Budd’s case is knowable and easily applied—in his mind binds him ineluctably to that recognition.26 Hence his disavowal of responsibility both for the consequences of the act’s commands and, much more disturbingly, for its divergence from the laws of nature. The troubling, perhaps immoral violence demanded by the Mutiny Act against Billy, the embodiment of natural innocence, cannot in this view of law play any part in the determination of his legal guilt.
And yet Vere’s insistence on the binding power of formal law is in this critical moment so overdetermined that the reader cannot help but identify with the equitable position that Vere disavows. Indeed Vere raises the stakes of obedience to law by according enormous status to human sympathy: it does not emanate simply from the realm of senti- ment, but rather from the realm of innate morality. He addresses the court:
In Captain Vere’s view, private conscience must yield to the progeny of war. War estab- lishes the conditions that give birth to summary “justice” under martial law; the violence of war spawns the violence of the Mutiny…