Herman Melville’s “Bartleby the Scrivener” is a story about an atypical copyist in a 19th century lawyer’s office. Its exquisite prose has provided a quote- “I prefer not to” -that has stirred up quite heated academic activity. It triggered a plethora of analyses  by the likes of Agamben, Deleuze, New, and Zizek. The last of the thinkers brought attention to it by frequenting a t-shirt printed with the phrase on prime UK television, conferences, and talks.

Although thought- provoking and valuable, these analyses do not focus on the interaction between an individual and following the law. Therefore, I would like to briefly unpack the phrase and reveal its meaning as a third option to a lay person interacting with the law. Plainly, if we consider a situation in which a rule mandates behavior, any person has three different options to act: one can follow the rule, break it, or “prefer-not-to”. The last option takes two shapes: withdrawal from application and active application avoidance.

To illustrate the 3 possibilities, imagine the case of someone walking down a street and wishing to cross. The first chance is at a lighted crosswalk. Let us consider the following: you can either stop and wait for the light to turn green, or directly disobey the red-light and, clear road permitting, pass unimpeded. The argument is you have a third option that we do not consider usually. In this case, you can simply prefer-not-to; just keep walking. In doing this, you interact with the legal rule but do not break or follow it, instead choose to avoid any of its applications. Avoiding the light even though you want to pass, can exemplify ‘withdrawal’, as you choose to avoid action that would trigger any application.

This is very similar to a second kind of preferring-not-to, which will be described in the following example: Imagine that you enjoy riding your bicycle. You especially like letting go of the handlebars. But there is a little problem; the local regulations prohibit this behavior on public roads and there is a very high probability of a fine. Yet, you remain adamant and still want to ride without hands. So, what do you do? In this case, preferring-not-to would amount to constructing an environment where the no-hands rule cannot apply. Accordingly, you isolate yourself on private roads. Here, you again know the rule, but given that it is not a public road, you can do figure-eights without hands unperturbed by traffic police. Hence, you are actively building an environment to avoid any kind of altercation with the hands-on-the-bar rule. 

There are points of similarity and difference in both forms of preferring-not-to. They presuppose a system of known rules, knowing the specific rule you want to avoid, a willingness to not hinder what action or inaction you might want, and looking for a way to avoid any altercation with the rules in play. Their differences lie in the proactive nature of the second, where you build up an environment without breaking rules to avoid the application of other rules. But finally, both suffice to evidence that there is more than just following, or breaking rules, and that Melville’s Bartleby had an interesting foresight.

Taking these last points as the conclusion to this essay, I would to finish with a suggestion. We as lawyers can answer question regarding the law, but, sometimes, it is good to look to the story tellers for the questions and the other things that escape us..