Allen Porter Mendenhall

Paul H. Fry’s “Configurative Reading”

In Academia, American Literature, Arts & Letters, Books, British Literature, Humanities, Literary Theory & Criticism, Literature, Pedagogy, Philosophy, Teaching, Western Philosophy on April 16, 2014 at 8:45 am

Below is the fourth installment in the lecture series on literary theory and criticism by Paul H. Fry.  The three two lectures are here, here, and here.

The American Founders and Natural Law Jurisprudence

In Jurisprudence, Arts & Letters, Thomas Jefferson, American History, Western Civilization, History, Slavery, Law, Laws of Slavery, Humanities, Liberalism, Literature, Philosophy, Historicism, Western Philosophy, Southern History, Christianity, America, Britain, Books, American Literature on April 9, 2014 at 8:45 am

Allen 2

The American founders, many of them, validated their political cause and secession from Britain by resorting to natural law theories and paradigms.[i] Thomas Jefferson memorialized these theories and paradigms in the Declaration of Independence.[ii] While studying nature and the physical world, Jefferson extended natural law jurisprudence while revising it to fit the needs and settings of the New World.[iii] Rather than looking to divine or moral prescription to ground his natural law theories, Jefferson looked to nature. He borrowed from Newtonian ideas about the laws of the universe and applied them to the laws of man.[iv] A human law was, by this logic, akin to the law of gravity.

The American insistence on natural law was a reaction to the analytical positivism gaining credence in Britain.[v] This school of jurisprudence found its fullest expression in the utilitarianism of Jeremy Bentham and John Austin. These men treated laws as linguistic constructs: commands that attained the status of law because people followed them, not because they reflected a priori or transcendent rules of the cosmos. American founders such as Jefferson saw natural law as a way to distinguish themselves from their British counterparts and to define what it meant to be American. William Blackstone, one of the few British jurists still clinging to natural law principles,[vi] enjoyed vast success from American purchases of Commentaries on the Laws of England.[vii] The popularity of this treatise in America had to do with Blackstone’s support for ideals that, from the colonials’ perspective, affirmed Revolutionary rhetoric and philosophical principles.[viii] Blackstone died in 1780. His death ushered in the age of positive law jurisprudence in England.[ix]

In America, however, natural law picked up momentum in the wake of the Revolution and American independence.[x] That ideas of natural law flourished during the Enlightenment, especially in America where institutions were supposed to reflect—indeed embody—Enlightenment principles, is curious because the Enlightenment glorified reason and humanism: progressive concepts seemingly incongruous with a moral theory derived from ancient church teachings and philosophical orthodoxies. This disjuncture reveals the extent to which colonials sought to divorce their culture and communities from the British. Á la Blackstone, colonials would go great lengths to “prove” their natural law theories through application of the scientific method and appeals to reason.[xi] Natural law jurisprudence did, in fact, fit within a scientific and rational framework in many important respects. For instance, natural law, like laws of the natural world putatively discoverable by reason, logic, and experiment, were by definition universal. Just as truths about the external world allegedly were deduced through sustained study of specimens and species, so truths about the human condition were, natural theorists argued, deduced through sustained study of human behavior and the history of the races.[xii] In this sense, colonial jurists viewed natural law not as retrograde, superstitious, or religious, but as cutting-edge and scientific. Americans were not alone in their attention to the scientific elements of law. In Western and Central Europe during the mid-to-late eighteenth century, rulers and leaders “sought to rationalize their legal systems, to make law scientific, to extend it in a vernacular language evenly over their territories, and to put an end to the earlier jumble of customs, privileges, and local rights.”[xiii] Save for Blackstone’s efforts, however, this scientific trend did not gain much traction in England.[xiv]

Early Americans, particularly northerners[xv] but also Virginians such as Jefferson and George Mason, celebrated the ideals of natural law and natural rights appearing in the Declaration, but they found those ideals difficult to implement in everyday practice. Although staunchly committed to the principles of natural law, the colonials, at least those with representation or voice in the political sphere, discovered that abstract philosophy did not readily translate into workaday rules and regulations.[xvi] “It was one thing,” submits David Brion Davis, “to state abstract propositions, and quite another to decide how the law applied to a particular case.”[xvii] Above all, the “peculiar institution” of American slavery called into question the Enlightenment values upon which American natural law jurisprudence depended. Cries of freedom and liberty rang hollow once Americans were no longer up against an oppressive British Empire. These cries began to sound hypocritical—if they did not seem so already—as the institution of slavery became a mainstay of the economy of the fledgling nation.[xviii] How could colonists extol freedom, liberty, and equality yet enslave masses of people? This American philosophical “inconsistency pinched harder when slaves began to speak the language of natural rights.”[xix] As Samuel Johnson, the eminent British Tory and man of letters, quipped, “How is it that we hear the loudest yelps for liberty among the drivers of negroes?”[xx]



[i] “The American Revolution, as it ran its course from 1764 to 1776—from the first beginnings of resistance down to the Declaration of Independence and the creation of new colonial constitutions—was inspired by the doctrines of Natural Law.” Ernest Baker, in Natural Law and the Theory of Society: 1500-1800, ed. Otto Gierke (Cambridge, England: Cambridge University Press, 1934) at I, xlvi. See generally Clarence Manion, “The Natural Law Philosophy of the Founding Fathers,” University of Notre Dame Natural Law Institute Proceedings (Notre Dame, Indiana: University of Notre Dame Press, 1949). See also Raymond Whiting, “The American Interpretation of Natural Law,” A Natural Right to Die: Twenty-Three Centuries of Debate (Westport, CT: Greenwood Press, 2002) 109-118.

[ii] “[T]he argument of the Declaration is a subtle, if ambiguous, blending of empirical historical analysis and the metaphysics of Natural Law. To prove its central contention—that the revolution was made necessary by British policies—the document enumerates twenty-seven specific events in recent history which reveal precisely how Britain acted to establish despotism. […] But the revolutionaries meant to transcend arguments of expediency, for such arguments were always subject to the vicissitudes of opinion and opinion might lead one to conclude that a revolution was in fact unnecessary and therefore unjustifiable. To remove their claims from the arena of opinion and to ground them with certainty, the revolutionaries felt constrained to found the argument for justification on the principle of Natural Rights which was rooted in the theory of Natural Law as applied to politics and society. Thus the grievances enumerated in the Declaration, weighty in themselves for some readers, were for others concrete examples of how one nation attempted to subordinate another to an ‘absolute despotism.’ The grievances, taken together, demonstrated that British policies had violated the fundamental principles of Natural Law itself.” Lester H. Cohen, “The American Revolution and Natural Law Theory,” Journal of the History of Ideas, Vol. 39, No. 3 (1978) at 491-92.

[iii] See generally Allen Mendenhall, “Jefferson’s ‘Laws of Nature’: Newtonian Influence and the Dual Valence of Jurisprudence and Science,” Canadian Journal of Law and Jurisprudence, Vol. 23, No. 2 (2010).

[iv] See generally Mendenhall, “Jefferson’s Laws of Nature.”

[v] See generally David Lieberman, “Mapping criminal law: Blackstone and the categories of English jurisprudence,” in Law, Crime and English Society, 1660-1830, ed. Norma Landau(Cambridge, England: Cambridge University Press, 2002 ) at 159-162. See also David Brion Davis, The Problem of Slavery in the Age of Revolution, 1770-1823 (Ithaca and London: Cornell University Press, 1975) at 343-385. Davis explains this English phenomenon as follows: “In England there was no ‘fundamental shift in values’ that mobilized the society into revolution. There was no counterpart to the American need for self-justification. No new hopes or obligations arose from an attempt to build a virtuous republic. Such phrases as ‘created equal,’ ‘inalienable rights,’ and ‘the pursuit of happiness’—all of which appeared in classic liberal texts—were qualified by a reverent constitutionalism that looked to Saxon precedent to legitimize ideals of freedom. The notion of man’s inherent rights, when assimilated to the historical concept of British ‘liberty,’ implied little challenge to traditional laws and authorities. And by the 1790s the very idea of inherent rights was giving way to radical and conservative forms Utilitarianism.” Davis, The Problem of Slavery in the Age of Revolution at 343.

[vi] In short, Blackstone believed that the common law reflected natural law principles and that any law contradicting natural law was invalid. Consider, e.g., the following quotation: “This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding all over the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original. […] Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these.” Sir William Blackstone, Commentaries on the Laws of England, Book I at 41-42.

[vii] See Russell Kirk, America’s British Culture (New Brunswick, New Jersey: Transaction Publishers, 1993) 36-40.

[viii] See Albert W. Alschuler, “Rediscovering Blackstone,” 145 University of Pennsylvania L. Rev. (1996) at 4-19. See also David Schultz, “Political Theory and Legal History: Conflicting Depictions of Property in the American Political Founding,” 37 American Journal of Legal History (1993) at 483-486.

[ix] The jurisprudential split between Blackstone and Bentham, while stark, was not as hostile as some first considered: “Until recently Bentham’s claim to have made a sharp break with Blackstone has won wide acceptance, and that fact, combined with Bentham’s ascendancy, was chiefly responsible for consigning Blackstone to obscurity. […] No doubt this outcome resulted in part from Bentham’s mastery of invective, and in part from the fact that the elderly Blackstone did not deign to notice the attacks of an upstart critic, much less reply to them. Even the strongest partisans of Bentham have conceded that much of his criticism directed at Blackstone was misplaced[…]. In spite of Bentham’s efforts, most historians of the relationship have acknowledged that Bentham, despite his implacable hostility, combined relentless criticism with passages of praise that became as famous as some of his barbs.” Richard A. Cosgrove, Scholars of the Law: English Jurisprudence from Blackstone to Hart (New York University Press, 1996) at 52.

[x] See generally George W. Casey, “Natural Rights, Equality, and the Declaration of Independence,” 3 Ave Maria Law Review 45 (2005). See also Philip A. Hamburger, “Natural Rights, Natural Law, and American Constitutions,” 102 Yale Law Journal 907 (1993). See also James Lanshe, “Morality and the Rule of Law in American Jurisprudence,” 11 Rutgers Journal of Law & Religion 1 (2009) at 11-15. See also Kevin F. Ryan, “We Hold These Truths,” 31-WTR Vermont Bar Journal 9 (2005-06) at 11-16.

[xi] “[Blackstone] presented law as a science, a ‘rational science,’ that included an extensive discussion of natural law. To Blackstone, the principles of natural law are universal and superior to positive law, including the common law. […] Natural law, according to Blackstone, is either revealed by God or discoverable through human reason. […] American jurisprudents readily accepted Blackstone’s natural law orientation. […] [N]atural law provided a convenient and useful justification for the adoption of English common law in the various states of the burgeoning nation. Especially in the decades following soon after the Revolutionary War, if the common law had been understood merely as an English institution distinctive to Britain itself, then an American reliance on the common law would have seemed impolitic or even treasonous. If, however, the common law arose from universal principles of the law of nature, which were revealed by God or discovered through human reason, then the common law would be legitimate everywhere, including in America.” Stephen M. Feldman, “From Premodern to Modern American Jurisprudence: The Onset of Positivism,” 50 Vanderbilt Law Review 1387 (1997) at 1396-97.

[xii] Thomas R. R. Cobb, a jurist from Georgia and an expert on slave laws, took pains to show how science validated the idea of slaves as naturally inferior and in need of white supervision. Consider this quote by Cobb: “The history of the negro race then confirms the conclusion to which an inquiry into the negro character had brought us: that a state of bondage, so far from doing violence to the law of his nature, develops and perfects it; and that, in that state, he enjoys the greatest amount of happiness, and arrives at the greatest degree of perfection of which his nature is capable. And, consequently, that negro slaver, as it exists in the United States, is not contrary to the law of nature.” Thomas R. R. Cobb, An Inquiry into the Law of Negro Slavery in the United States of America (Philadelphia: T. & J. W. Johnson & Co., 1858) at 51.

[xiii] Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 1789-1815 (Oxford University Press, 2009) at 403.

[xiv] Ibid. at 403-404.

[xv] “Southerners considered themselves law-abiding and considered northerners lawless. After all, southerners did not assert higher-law doctrines and broad interpretations of the Constitution. Rather, as Charles S. Sydnor has argued, they understood the law in a much different way and professed to see no contradiction between their code of honor, with its appeal to extralegal personal force, and a respect for the law itself.” Eugene Genovese, Roll, Jordan, Roll (New York: Pantheon Books, 1974) at 44.

[xvi] See Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 1789-1815 (Oxford University Press, 2009) at 405-408.

[xvii] David Brion Davis, The Problem of Slavery in the Age of Revolution (Ithaca and London: Cornell University Press, 1975) at 470.

[xviii] See generally David Brion Davis, The Problem of Slavery in Western Culture (Ithaca, New York: Cornell University Press, 1966) at 3-28. For a synthesis of the historical scholarship on this point, see Peter Kolchin, American Slavery, 1619-1877 (New York: Hill and Wang, 1993) at 63-92.

[xix] David Brion Davis, The Problem of Slavery in the Age of Revolution (Ithaca and London: Cornell University Press, 1975) at 276.

[xx] See James Boswell, The Life of Samuel Johnson, LL.D. (New York: George Dearborn, 1833) at 132.

Outposts of Culture: Gerald Russello Reviews Jason Harding’s The Criterion

In Academia, Arts & Letters, Book Reviews, Books, Britain, British Literature, Communication, Essays, History, Humanities, Literary Theory & Criticism, Literature, Scholarship, Writing on April 2, 2014 at 8:45 am
Gerald Russello
Gerald Russello practices law in New York and edits The University Bookman. He is the author of The Postmodern Imagination of Russell Kirk (University of Missouri Press, 2007).  His articles, essays, and reviews have appeared in The National Review, The New CriterionCrisis Magazine, The American Conservative, Chronicles, The Imaginative Conservative, The American Spectator, City Journal, The Intercollegiate Review, Modern Age, First Things, and many other publications.
This review originally appeared here in The University Bookman in 2003.  It is republished here with the express permission of The University Bookman.  The book under review is Jason Harding’s The Criterion: Cultural Politics and Periodical Networks in Inter-War Britain (New York, New York: Oxford University Press, 2002).


In the final issue of the Criterion, which appeared in January 1939, T. S. Eliot wrote that “continuity of culture” was the primary responsibility of “the small and obscure papers and reviews.” It was they that would “keep critical thought alive” amidst troubled times. And so it has been, for a century and more. The vitality of the “little magazines” is one of the strongest indicators of a culture’s intellectual level. These journals, typically of small circulation and little revenue, serve a crucial function as the medium for the transmission of ideas among scholars, elites, and the larger population. it is perhaps a sign of our times that so many of our Masters of the Universe choose to endow business schools or fund independent films rather than to support the written word. Many of the journals themselves, unfortunately, have become so obscure and inward-minded that they may no longer be worth the trouble.

The British aptitude for starting small associations of like-minded folk was well expressed by the profusion of little magazines, especially in the nineteenth and early twentieth centuries. This proclivity was to bear further fruit across the Atlantic, where Americans followed the British model. Up until the Second World War, America had a thriving culture of little magazines that tradition survives, in a somewhat anemic form, in the independent so-called “zines” that clutter the bookshops of progressive enclaves like Manhattan or Berkeley. There have been two recent examples of the differing fates of such journals here in the United States. Lingua Franca was an energetic journal devoted to academic life, which it chronicled in a sharp, intelligent style. After less than four years of publication it went bankrupt and ceased publication, only to be partially revived in an Internet incarnation after being acquired by the Chronicle of Higher Education. On the other end of the scale is Poetry, which recently received a gift of $100 million from a philanthropist whose own poems it had rejected. The gift instantly made the small journal one of the best-endowed cultural institutions in the country.

The Criterion was perhaps the most important of the journals of the last century. The first issue, which appeared in October 1922 and contained (without epigraph or notes) Eliot’s poem The Waste Land, changed Western intellectual life, and it continues to define what an intellectual journal should be. However, study of the Criterion has been subsumed by the focus on Eliot’s development as a poet and thinker. The larger cultural importance of the journal has received insufficient attention. That has now changed. From such an improbable place as the department of foreign languages and literature in Feng Chia University in Taiwan, where Jason Harding is assistant director, comes The Criterion: Cultural Politics and Periodical Networks in Inter-War Britain. It is a work of polished scholarship on the role of the Criterion in British intellectual life.

Harding divides his analysis into three parts. Part I, “Cultural Networks,” deals with the Criterion as one of a number of small intellectual periodicals, such as the Adelphi and New Verse, which appeared in this period. The second section, titled “The Politics of Book Reviewing,” focuses on a number of regular Criterion contributors, and their relationship with, and treatment by, Eliot as their editor. The chapters include studies of almost forgotten figures like Bonamy Dobrée and Montgomery Belgion as well as more well-known figures such as John Maynard Keynes and the difficult but brilliant Ezra Pound. Harding shows that, while Eliot directed and organized every aspect of the journal, each of the contributors played their own part in establishing the Criterion’s preeminent position.

The final section, “Cultural Politics,” focuses on the purpose of the Criterion as Eliot came to see it in the dark days of the 1930s. As the influence of the journal increased, it became known not only as a showcase of modernism but also as a conduit for what Eliot called “the mind of all Europe” and a defense of the West. The author discusses Eliot’s attempts to persuade major Continental intellectual figures such as Ernst Robert Curtius to contribute to the journal, and his efforts consistently to review foreign periodicals for his British readership.

Harding presents a complex cultural picture in service of his goal of establishing the Criterion as part of “an ongoing cultural conversation, most immediately a dialogue with a shifting set of interlocking periodical structures and networks.” Eliot, as an editor, had to deal not only with his rival journals, but also with his sensitive patron, Lady Rothermere. There were also those occasionally truculent contributors, such as Wyndham Lewis or D. H. Lawrence, who sometimes abandoned the Criterion for other, better-paying reviews.

Among a number of fascinating episodes, Harding recounts here the controversy over classicism and romanticism between Eliot and John Middleton Murry, founder of the Adelphi. Murry launched the first salvo in 1923, claiming that there was no tradition of classicism in England. Although not the subject of the attack, Eliot felt obliged to respond and published in the Criterion the following month his famous defense of classicism, “The Function of Criticism.” Murry and Eliot were to have a limited rematch at the end of the decade over the humanism of Irving Babbitt. Other scholars have examined the substantive merits of their respective positions. Harding’s purpose is rather to show that the literary rivalries among serious journals spurred Eliot, as a writer and editor, to set out his critical and literary vision. They necessarily shaped the kind of journal Eliot was creating.

In his final sections, Harding examines the evidence for Eliot’s supposed anti-Semitic or fascist sympathies and finds them wanting. Under Eliot’s editorship, several writers documented the rise of Nazism in Germany, and the final issue contained a condemnation of Nazi racial theories. Harding concludes that: “Given the Criterion’s record on these matters, it is remarkable that recent critics have stigmatized the journal by suggesting that Eliot was sympathetic to the aims and methods of Nazism.” Harding realizes that Eliot’s conversion to Anglicanism and his efforts to “stitch together into some kind of unity the Latin-Christian elements of the otherwise diverse cultures of Western Europe” meant his rejection of the Nazi regime. And even though Eliot was somewhat sympathetic to fascism, that sympathy, as Harding demonstrates, was attenuated and did not cause him to suppress other viewpoints in the Criterion.

Drawing on a wealth of previously unexamined materials and private collections, Harding expands upon our knowledge of Eliot as a major twentieth-century figure. His careful research adds a new dimension not only to Eliot as a thinker and editor, but also to the entire period of British literary journalism.


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