Allen Porter Mendenhall

Archive for the ‘Austrian Economics’ Category

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Abolish the Bar Exam

In America, American History, Arts & Letters, Austrian Economics, History, Humanities, Law, Libertarianism, Nineteenth-Century America on July 20, 2012 at 8:45 am

Allen Mendenhall

The following piece first appeared here at LewRockwell.com.

Every year in July, thousands of anxious men and women, in different states across America, take a bar exam in hopes that they will become licensed attorneys. Having memorized hundreds if not thousands of rules and counter-rules – also known as black letter law – these men and women come to the exam equipped with their pens, laptops, and government-issued forms of identification. Nothing is more remote from their minds than that the ideological currents that brought about this horrifying ritual were fundamentally statist and unquestionably bad for the American economy.

The bar exam is a barrier to entry, as are all forms of professional licensure. Today the federal government regulates thousands of occupations and excludes millions of capable workers from the workforce by means of expensive tests and certifications; likewise various state governments restrict upward mobility and economic progress by mandating that workers obtain costly degrees and undergo routinized assessments that have little to do with the practical, everyday dealings of the professional world.

As a practicing attorney, I can say with confidence that many paralegals I know can do the job of an attorney better than some attorneys, and that is because the practice of law is perfected not by abstract education but lived experience.

So why does our society require bar exams that bear little relation to the ability of a person to understand legal technicalities, manage case loads, and satisfy clients? The answer harkens back to the Progressive Era when elites used government strings and influence to prevent hardworking and entrepreneurial individuals from climbing the social ladder.

Lawyers were part of two important groups that Murray Rothbard blamed for spreading statism during the Progressive Era: the first was “a growing legion of educated (and often overeducated) intellectuals, technocrats, and the ‘helping professions’ who sought power, prestige, subsidies, contracts, cushy jobs from the welfare state, and restrictions of entry into their field via forms of licensing,” and the second was “groups of businessmen who, after failing to achieve monopoly power on the free market, turned to government – local, state, and federal – to gain it for them.”

The bar exam was merely one aspect of the growth of the legal system and its concomitant centralization in the early twentieth century. Bar associations began cropping up in the 1870s, but they were, at first, more like professional societies than state-sponsored machines. By 1900, all of that changed, and bar associations became a fraternity of elites opposed to any economic development that might threaten their social status.

The elites who formed the American Bar Association (ABA), concerned that smart and savvy yet poor and entrepreneurial men might gain control of the legal system, sought to establish a monopoly on the field by forbidding advertising, regulating the “unauthorized” practice of law, restricting legal fees to a designated minimum or maximum, and scaling back contingency fees. The elitist progressives pushing these reforms also forbade qualified women from joining their ranks.

The American Bar Association was far from the only body of elites generating this trend. State bars began to rise and spread, but only small percentages of lawyers in any given state were members. The elites were reaching to squeeze some justification out of their blatant discrimination and to strike a delicate balance between exclusivity on the one hand, and an appearance of propriety on the other. They made short shrift of the American Dream and began to require expensive degrees and education as a prerequisite for bar admission. It was at this time that American law schools proliferated and the American Association of Law Schools (AALS) was created to evaluate the quality of new law schools as well as to hold them to uniform standards.

At one time lawyers learned on the job; now law schools were tasked with training new lawyers, but the result was that lawyers’ real training was merely delayed until the date they could practice, and aspiring attorneys had to be wealthy enough to afford this delay if they wanted to practice at all.

Entrepreneurial forces attempted to fight back by establishing night schools to ensure a more competitive market, but the various bar associations, backed by the power of the government, simply dictated that law school was not enough: one had to first earn a college degree before entering law school if one were to be admitted to practice. Then two degrees were not enough: one had to pass a restructured, formalized bar exam as well. Read the rest of this entry »

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Liberty and Shakespeare, Part Two

In Arts & Letters, Austrian Economics, Economics, History, Humanities, Law, Law-and-Literature, Legal Education & Pedagogy, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Shakespeare, Western Civilization on May 22, 2012 at 8:08 am

Allen Mendenhall

The following essay orginally appeared here at Mises Daily.

The Later Works (1973 to present)

It is well settled that James Boyd White’s The Legal Imagination (1973)[29] catalyzed the law-and-literature movement as we know it today. A professor in the Department of English, Department of Classics, and College of Law at the University of Michigan, White brings a unique interdisciplinary perspective to bear on this field that he more or less founded. He remains prolific even in his old age, having published a string of books on a wide variety of topics having to do with legal rhetoric and legal or literary hermeneutics. Since White’s landmark tour de force in 1973, several legal scholars have followed in his footsteps, venturing into literature (broadly defined to include novels, plays, poems, short stories, essays, and so on) to make sense of legal culture and legal texts. Some of the resulting scholarship has been quite good — some, however, more than slightly wanting.

Shortly after White’s “overture,” the work of literary PhDs like Robert Weisberg (PhD, English, 1971, Harvard University; JD, 1979, Stanford University), Richard H. Weisberg (PhD, French and comparative literature, 1970, Cornell University; JD, 1974, Columbia University), and, among others, Stanley Fish (PhD, English, 1962, Yale University) lent credibility to a field seen as dubious by law-school deans and territorial literature professors.[30] Today the movement seems to be picking up, not losing, momentum, in part due to the interdisciplinary nature of the project and in part due to the literati heavyweights who have used the movement as an opportunity to enlarge their celebrity status (to say nothing of their salaries).

The vast array of Shakespeare-focused works that flew under the banner of law and literature during the 1970s, ’80s, and ’90s actually undermined the entire field. Titles like Michael Richmond’s “Can Shakespeare Make You a Partner?” (1989)[31] signaled a practical but nonscholastic rationale for lawyers to turn to Shakespeare’s texts. Works most commonly addressed during this period include The Merchant of Venice, King Lear, Hamlet, and Measure for Measure.[32] In the rush to canonize Shakespeare in this budding genre that sought to include humanities texts in professional schools, even the conspiracy theories of a Supreme Court justice, John Paul Stevens, became authoritative readings.[33] Stevens is not the only Supreme Court justice with an opinion on the Shakespeare authorship debate, as the following chart by the Wall Street Journal[34] makes clear:

Shakespeare’s Court
The Supreme Court on the likely author of Shakespeare’s plays:
Active Justices
Roberts, Chief Justice No comment.
Stevens Oxford
Scalia Oxford
Kennedy Stratford
Souter “No idea.”
Thomas No comment.
Ginsburg “No informed views.”*
Breyer Stratford
Alito No comment.

*Justice Ginsburg suggests research into alternate candidate, Florio.
Retired Justices
O’Connor Not Stratford
Blackmun* Oxford
Brennan* Stratford

*Deceased

That Supreme Court justices have weighed in on Shakespeare’s authorship is more a study in itself and less a constructive contribution to Shakespeare scholarship. Not long after Stevens’s law-review article, at any rate, some creative attempts to render the Shakespeare as lawyer or other conspiracy theories surfaced. Law professor James Boyle, for instance, penned a novel, The Shakespeare Chronicles (2006),[35] dealing with the obsessive search for the “true” author of Shakespeare’s works. I suspect that Boyle would admit that The Shakespeare Chronicles, being fiction, does not represent scholarship, even if its production required rigorous scholarly research. Read the rest of this entry »

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The Oft-Ignored Mr. Turton: Part One

In Arts & Letters, Austrian Economics, E.M. Forster, Eastern Civilizaton, Economics, Fiction, Humane Economy, Humanities, Jurisprudence, Law, Law-and-Literature, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Philosophy, Politics, Western Civilization on April 12, 2012 at 7:44 am

 Allen Mendenhall

The following originally appeared here at Libertarian Papers.  Full Works Cited to appear in Part Three.

There it was. Bombay. E.M. Forster, affectionately called Morgan by his friends, hurried to the railing of the ship to get a better view. The blue sparkling water stretched out before him until it met land on the horizon where buildings and bustling communities nestled among green trees. Forster had been sailing for two weeks. He was tired and dirty. The heat bothered him. It had forced him to sleep on deck where he could catch the occasional cool breeze. His friends Robert Trevelyan and Goldworthy Lowes Dickinson, or “Goldie,” were with him at the railing. The three men chirped about the welcome scene of city life. Forster breathed a sigh of relief. Here he would be liberated from the constraints of Britain. Forster achieved some celebrity after the recent publication of Howards End.  This getaway would enable him to escape the public gaze. Soon he would see his friend and sometime lover Syed Ross Masood, and also his friend Malcolm Darling, who had recently attained a favorable post in the Indian Civil Service. On this autumn day in 1912, Forster did not know that his journey would inspire his best fiction yet.

Forster made two long trips to India during which he observed district collectors, local laws, and local courtrooms at work. He spent most of his time in territories ruled by Hindu maharajahs. His experiences in India suggest that his familiarity with colonial law was greater than that of the average Englishman living in India and certainly greater than that of the average Englishman living outside India. This familiarity manifests itself in A Passage to India, published in 1924. Forster’s knowledge about district collectors in particular allowed him to use the character Mr. Turton as a site for critique. Nevertheless, Forster transmogrifies the district collector and the legal system in several passages in the novel.

In light of his knowledge of the colonial experience, including the colonial legal experience, Forster’s rejection of verisimilitude seems intentional and not the consequence of misunderstanding. Forster allows enough actual law into the novel to ensure his and his characters’ credibility, but he does not go so far as to depict the legal system as it appeared on a day-to-day basis, perhaps because the routine workings of law did not always excite. Forster gives us enough real law to make his story and characters believable, but he does not bore us with total accuracy. His hyperbolic depictions of Turton and the law invest the novel with political significance. This essay examines how Forster uses Turton to portray colonial law and rule of law discourse as dispensable flourishes of liberal ideology. It argues that Passage challenges the idea that law is universal and can be universally applied. Forster shows instead that law is entrenched in discourses of religion, race, community, and culture. To this end, he holds up Brahman Hindu as an alternative to British rule of law and to the reforming utilitarianism of Jeremy Bentham. He contrasts the coercion and compulsion of rule of law to the emergent orders attendant upon Brahman Hindu. Although Forster later championed Mulk Raj Anand’s novel The Untouchable (1935), which attacked the endemic injustice of the Hindu caste system, he held out Brahman Hindu as a distinctive category of Hinduism that, in its inclusivity, rejected caste and exclusionism. His was not a referential but an idealized conception of Brahman Hindu; nevertheless, the signifier “Brahman Hindu” seems less important to the novel than the concept Forster summons forth: that of spontaneous order rather than of the centralized, artificial construct of British rule of law. This order represents a polycentric system.

The characters in Passage demonstrate that the colonial encounter is too complex for grand schemes of criminal and civil law. Unlike utilitarian jurisprudence, Brahman Hindu accounts for the complicated nexus of interrelated people and processes that shape Indian society. Utilitarianism and rule of law jurisprudence are closely related, especially in the British-Indian context, and Forster rejects these braided concepts in favor of the multiplicity of Brahman. Forster extols Brahman Hindu philosophy because it exalts the variety of human experience and, unlike the despotism resulting from Benthamite utilitarianism, embraces emotion and romanticism. For Forster, a one-size-fits-all legislative calculus simply will not do.

Rule of Law and Utilitarian Jurisprudence

Outside of Forster’s novel, there is not, to my knowledge, a jurisprudential school of Brahman Hindu. Yet Forster uses Brahman Hindu in a fictional medium to register an alternative to rule of law discourse. It is impossible to say whether Forster believed that an actual legal system predicated on Brahman Hindu would be viable or efficient. It is clear, however, that Forster uses Brahman Hindu in the novel to point out the insufficiencies and bigotry that rule of law discourse perpetuates. Forster may not have been literally advocating a Brahman legal system, but instead for any kind of system, like Brahman, that refused to universalize laws into ultra-rigid codes of behavior. He seems to have pointed out what Murray Rothbard recognized many years later: that Bentham’s “consistent philosophical utilitarianism” is bound up with “intensified statism” that opens “a broad sluice-gate for state despotism” (49).[1]

Even if there is no jurisprudential school of Brahman Hindu, the makeup of colonial courts under the rule of the East India Company included Muslim Maulavis and Hindu Pandits who advised British magistrates on legal matters. Thus, there was a definite set of procedures, rules, and laws with which Hindu law participated.[2]

The concept of rule of law has become increasingly dubious among jurisprudents. According to John Hasnas, rule of law is the belief that “law is a body of consistent, politically neutral rules that can be objectively applied by judges” (5). Figures as wide-ranging as Carl Schmitt (McCormick 205-248) and Judith N. Shklar have criticized rule of law for the ideological freight that it carries.[3] Brian Z. Tamanaha calls rule of law an “exceedingly elusive notion” (9). Hasnas suggests that the belief in rule of law goes “a long way toward explaining citizens’ acquiescence in the steady erosion of their fundamental freedoms” (5). For Hasnas, rule of law is a “powerful” and “dangerous” myth that “can command both the allegiance and respect of the citizenry” (5). Richard Posner refers to rule of law as “the central tenet and aspiration of the American legal ideology” (43), a “complex of beliefs” (45), a “body of myth” (45), and “a cornerstone of liberal polity” (45). Posner’s indictments might apply not only to the American legal landscape but also to early 20th century British advocates of rule of law such as Albert Venn Dicey (1835-1922), who published some of his most influential work while Forster published his most influential novels (Dicey died in 1922, the year Forster visited India for the second time).

Dicey is perhaps best known for popularizing rule of law. He incorporated three kindred principles in his definition of rule of law. For the purposes of this essay, the first principle—”absence of arbitrary power on the part of the government” (183)—is the most instructive. This principle implicates the awkward interface between the British and their Indian subjects in Chandrapore. It pits arbitrariness and predictability against one another. Of this principle, Dicey claims, “In this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint” (184). In other words, rule of law is stable and steady whereas legal systems instituted upon flexible and case-by-case bases are too free from external controls to function smoothly or properly. Taking into account the prominence of Dicey’s dissertations about rule of law, and also the fact that those beliefs are firmly rooted in utilitarian and positivist traditions of jurisprudence dating back to Bentham,[4] we may assume that Forster considered rule of law to be a product of, or justification for, colonial rule in India. If Forster did not think as much, he at least considered rule of law an apt starting-point from which to critique various formations of British imperialism. Put another way, rule of law provided Forster with a motif and theme that differed wildly from the motif and theme of Brahman Hindu that he wished to explore if not exalt. For Forster, either rule of law was a vehicle to glorify Brahman Hindu, or Brahman Hindu was a vehicle to disparage rule of law. Either way, rule of law appears in his novel like an archetypal prescription that he seeks to ward off and run down.

Forster undoes the privilege of Dicey’s rule of law and instead extols the arbitrariness and variety intrinsic to Brahman Hindu. Forster even has the Muslim Aziz reflect admiringly that “Hinduism, so solid from a distance, is riven into sects and clans, which radiate and join, and change their names according to the aspect from which they are approached” (265). Hinduism, although divided into subcategories, is inclusive in nature—so inclusive, in fact, that Aziz himself could be considered Brahman by way of Godbole (265). Aziz’s reflection is even more telling for its juxtaposition of the laws of Hindu states with the British legal system in Chandrapore. The problems in Hindu states were “totally different” because “here the cleavage was between Brahman and non-Brahman; Moslems and English were quite out of the running, and sometimes not mentioned for days” (265). The rulers in Hindu states are still Hindu people sharing a common culture. They are not a foreign power seeking to impose values upon an alien culture. Nevertheless, the “fissures in Indian soil are infinite” (265) such that even non-Hindus are incorporated into Hindu society. All are fused into the transcendental, absolute philosophy of Brahman. All are subject to the order—the laws—of the universe.

Whereas Dicey defends positive rules laid down by humans, Forster celebrates ordered chaos, a paradox that needs no resolution because it is the ultimate resolution. Chaos brings about order and justice; the British insistence on human-made order results in disorder and injustice. Therefore, British rule of law seems little more than a rhetorical flourish and a pretext for colonial rule, or else a grave mistake.

Forster and District Collectors in India

During the early weeks of his six-month visit to India, Forster enjoyed a country expedition, arranged by Masood, with a district collector, the local magistrate and revenue administrator. Attentive as he was, Forster must have scrutinized this collector as he scrutinized other figures he encountered (Furbank 226). Forster often recorded his observations of people and based fictional characters on those observations.[5] He even seemed at times to blur the distinction between reality and fantasy. “Forster conducted his life as if everyone lived in a novel,” submits Wendy Moffat, adding that he carefully observed every occasion and subjected “even the most clear-cut matters” to interpretation (12). This trait was not lost on those who encountered Forster in India.[6] After the publication of Passage, many of these individuals saw themselves in the various characters of the novel. Forster did not even bother concealing the identity of Mr. Godbole, a Brahman whom Foster met in Lahore (Sarker 50 and Furbank 249). Godbole appears in the novel with his name and identity intact.

During his second trip to India, roughly one decade after his first trip, Forster visited with Rupert Smith, a former assistant magistrate who had since become a district collector. Smith’s house, befitting his social station, was impressive. Smith was “rather proud” of this house, but was “later annoyed to see [it] vilified in A Passage to India” (Furbank 92).[7] It would, I think, be fair to say that Smith and the other collectors whom Forster observed in India served as models for Mr. Turton, the fictional collector in Passage. Forster’s acquaintance with collectors suggests, at any rate, that he was at least aware of collectors’ official and legal responsibilities. Forster exaggerated and ridiculed these responsibilities in the novel. His portrayals ruffled the feathers of more than a few British readers both in Britain and in India. He received, for instance, the following letter from H.H. Shipley, a gentleman recently retired from the Indian Civil Service who had read Passage with disgust:

Frankly, your Collector is impossible. There is not a Collector in India—not an English Collector—who would behave as he does. No Collector in his senses would go to the railway station to witness the arrest of a Native Asst. Surgeon. Nor would he discuss a case ‘pendente lite’ publicly at the Club. Nor (incidentally) do Collectors clap their hands at such meetings to enforce silence or attract attention. […] If a Collector behaved as Turton did he would be written down as a madman. And pardon me if I say that the idea of the members rising to their feet at Heaslop’s entrance made me roar with laughter. In our Indian Clubs a member is a member, not a God, whether he be Collector or Merchant’s Assistant.  We are not such bum-suckers as that, if you will excuse the expression. (Furbank 126–27)

Shipley’s take on Turton typifies the British outrage that Forster faced after the publication of Passage. Shipley’s perception of Turton as a real-life figure and not as a memorable or hyperbolic creation of fiction not only fails to account for narrative technique but also points to the urgency with which British readers in India sought to counter threats to existing social and legal orders.[8]

Referred to as “the Collector” by the narrator and the other characters, Turton is an aptronymic figure in that his nickname signifies not only his job but also his “collected” demeanor. He is rich in contradiction and uniquely situated vis-à-vis the law. More or less in charge of the local government, this oft-ignored figure aspires, with limited success, to neutrality—as well he might, for the job of collector called for strategic, intercultural maneuvering. We first hear of Turton by way of three prominent Indian characters—Hamidullah, Mahmoud Ali, and Dr. Aziz—who casually discuss whether Indians and Englishmen can become friends. “Why, I remember when Turton came out first,” one of the men (it is unclear which) announces, adding, “You fellows will not believe me, but I have driven with Turton in his carriage—Turton! Oh yes, we were once quite intimate. He has shown me his stamp collection.” “He would expect you to steal it now,” counters another. This dialogue indicates how India transforms the English; it is perhaps Forster’s way of indicting the system rather than certain individuals. Forster invites readers to think of Turton as a decent man spoiled by dislocation and desensitization—as a victim, in other words—and not as an instinctively villainous oppressor. This scene also reveals the hypocrisy of the imperial legal system as manifested by a glaring double-standard: Mrs. Turton’s acceptance of a sewing machine from “some Rajah or other” in exchange for running water in the Rajah’s territory (4–5). The men remark that the law would not tolerate such bribing by an Indian, thus foreshadowing the law’s double-standard as applied to Aziz. Read the rest of this entry »

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Allen Mendenhall Interviews Jeffrey Tucker

In Arts & Letters, Austrian Economics, Creativity, Economics, Humane Economy, Humanities, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Philosophy, Writing on March 26, 2012 at 1:00 am

Jeffrey Tucker is the publisher and executive editor of Laissez Faire Books. He is the author, most recently, of Bourbon for Breakfast: Living Outside the Statist Quo (2010) and It’s a Jetsons World: Private Miracles and Public Crimes (2011). The former editorial vice president of the Ludwig Von Mises Institute, he is an adjunct scholar with the Mackinac Center for Public Policy, a research fellow with the Acton Institute, and a faculty member of Acton University.

Q: Jeff, this interview is exciting for me. It’s something of a reversal of the interview that we did together in January 2011. This time, I’m interviewing you. I’d like to start off by asking about your two recent books, Bourbon for Breakfast and It’s a Jetsons World. Tell the readers of this site a little about both books.

A: Both books cover the unconventional side of private life as governed by the market and human volition. I guess you could say that this is my beat. I’m interested in the myriad ways in which the government’s central plan — and there is such a thing — has distorted and changed our lives, and also interested in the ways we can get around this plan and still live fulfilling lives. I take it as a given that everything that government does is either useless or destructive or both. The government does a tremendous number of things, so this is a huge area. Bourbon is more focused on the rottenness of the state and its harm, while Jetsons is more the marvelous things that markets do for us. Neither subject gets the attention they deserve.

Q: These books are available in PDF format online. Explain why you’ve chosen to make your work freely and widely available.

A: Every writer wants to be read, so it only makes sense for all writers to post their material. Of course publishers tend to intervene here with promises of royalties in exchange for which you become their slave for the rest of your life plus 70 years (that’s when they dance on your grave). This is the essence of copyright. It is a bad deal for writers. Those who go along with it these days nearly always regret it later. If they actually earn royalties — and very few actually do — it is likely they would have earned more had the material not been withheld pending payment. The bestselling books of 2012 — the Hunger Games series — are posted by pirates everywhere, even against publisher wishes. But, you know, this is starting to change. Publishers are gradually seeing the point to posting material online. Sadly, they aren’t budging on the copyright issue, which is really pathetic. No libertarian should ever publish anything with any institution that is not willing to embrace a very liberal policy on reprints, and one that is likely enforceable such as Creative Commons – Attribution. Meanwhile, the government is using copyright, a phony form of property rights, to step up its despotic control over the digital age. The situation is extremely dangerous. One hundred years from now, they will be laughing at our times and poking fun at how the anachronistic state tried its best to thwart progress.

Q: You strike me as an optimist. Is that true?

A: Not as a matter of principle but there are certain rational reasons to be very hopeful about the future. The future is always uncertain except in this one sense: it will be different from today. The state is very bad at managing change. Freedom is very good at managing change. Freedom is a form of play, a relentless process of adaptation, trial and error, of testing and pushing out the boundaries. Freedom is really marvelous at implementing an infinite world of ideas, whereas the state pretty much has only one idea: push people around. This is why freedom always ends up outrunning the ability of the state to manage it. Freedom is smarter, and connects more closely with human ambitions and dreams, and this is especially true in a digital age. For this reason, I think we have reason to be full of confidence and hope.  

Q: After a long tenure at the Ludwig Von Mises Institute, you recently became publisher and executive editor of Laissez Faire Books. A lot of people are anxious to see what you’re going to do with that enterprise. What can you tell them at this point?

A: Well, I’m glad to report that we are selling books and that’s fantastic. We also have some two dozen books in the process toward publication. I’m being pretty fussy with the books overall, commissioning excellent introductions and writing all sort of editorial prefaces and things. As we approach summer, you will see many more wonderful things happen, things that have never been done before, but I think I’ll let the details be a surprise.

Q: What is Laissez Faire Books? Many readers of this site are probably unfamiliar with it.

A: The company has this brilliant history that traces to 1972. Murray Rothbard was in many ways at the center of its founding but there were also many Randians involved. Between that point and the digital age, it was the main way that people received libertarian literature. Oddly, one thing I’ve noticed since coming to work here is that the “curator” role is still something that Laissez Faire can play. If we can guarantee a certain number of sales on a particular book, we can make the difference as to whether it is published or not. Much to my surprise, this seems to be happening already.

I’m extremely pleased that Agora Financial took over LFB in 2011. Agora is a for-profit company with offices all over the world, and the firm has a dynamic ethos that embraces commerce, change, and progress. The past is just data in a company like this, while all the energy action is in the future. As you might imagine, I like this environment. It is a natural home for me.

Thank you so much for taking the time, Jeff. Is there anything else you’d like to say before we conclude?

A: I have a strong sense these days that libertarianism, broadly considered, is undergoing huge changes in strategic outlook, and I’m happy about that. We are moving away from the “movement” mentality of the analog age and into a broader sense of the global universe of ideas. This means taking more risks, exploring more areas, and generally having more fun than ever. It’s a good time to love liberty.

Thank you so much.  This was really great, and I hope we can do it again.

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Henry Hazlitt, Literary Critic

In American History, Arts & Letters, Austrian Economics, Book Reviews, Creative Writing, Creativity, Economics, Essays, Ethics, Fiction, History, Humane Economy, Humanities, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Philosophy, Politics, Western Civilization, Western Philosophy, Writing on March 20, 2012 at 9:05 am

Allen Mendenhall

The following appeared here at Prometheus Unbound and here at Mises.org.

Remembered mostly for his contributions to economics, including his pithy and still-timely classic Economics in One Lesson (1946), Henry Hazlitt was a man who wore many hats. He was a public intellectual and the author or editor of some 28 books, one of which was a novel, The Great Idea (1961) — published in Britain and later republished in the United States as Time Will Run Back (1966) — and another of which, The Anatomy of Criticism (1933), was a trialogue on literary criticism. (Hazlitt’s book came out 24 years before Northrop Frye published a book of criticism under the same title.) Great-great-grandnephew to British essayist William Hazlitt, the boy Henry wanted to become like the eminent pragmatist and philosopher-psychologist William James, who was known for his charming turns of phrase and literary sparkle. Relative poverty would prevent Hazlitt’s becoming the next James. But the man Hazlitt forged his own path, one that established his reputation as an influential man of letters.

In part because of his longstanding support for free-market economics, scholars of literature have overlooked Hazlitt’s literary criticism; and Austrian economists — perhaps for lack of interest, perhaps for other reasons — have done little to restore Hazlitt’s place among the pantheon of 20th century literary critics. Yet Hazlitt deserves that honor.

He may not have been a Viktor Shklovsky, Roman Jakobson, Cleanth Brooks, William K. Wimsatt, John Crowe Ransom, Allen Tate, Lionel Trilling, Dwight Macdonald, or Kenneth Burke, but Hazlitt’s criticism is valuable in negative terms: he offers a corrective to much that is wrong with literary criticism, both then and now. His positive contributions to literary criticism seem slight when compared to those of the figures named in the previous sentence. But Hazlitt is striking in his ability to anticipate problems with contemporary criticism, especially the tendency to judge authors by their identity. Hazlitt’s contributions to literary criticism were not many, but they were entertaining and erudite, rivaling as they did the literary fashions of the day and packing as much material into a few works as other critics packed into their entire oeuvres. Read the rest of this entry »

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Book Review: Paul Cantor and Stephen Cox’s Literature and the Economics of Liberty

In Arts & Letters, Austrian Economics, Book Reviews, Communism, Conservatism, Economics, Essays, Fiction, History, Humane Economy, Humanities, Law-and-Literature, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Novels, Philosophy, Politics, Western Civilization, Western Philosophy on January 23, 2012 at 4:53 am

Allen Mendenhall

The following book review originally appeared here in the Fall 2010 issue of The Independent Review.

Humans are not automated and predictable, but beautifully complex and spontaneous. History is not linear. Progress is not inevitable. Our world is strangely intertextual and multivocal. It is irreducible to trite summaries and easy answers, despite what our semiliterate politicians would have us believe. Thinking in terms of free-market economics allows us to appreciate the complicated dynamics of human behavior while making sense of the ambiguities leading to and following from that behavior. With these realities in mind, I applaud Paul Cantor and Stephen Cox for compiling the timely collection Literature and the Economics of Liberty, which places imaginative literature in conversation with Austrian economic theory.

Cantor and Cox celebrate the manifold intricacies of the market, which, contrary to popular opinion, is neither perfect nor evil, but a proven catalyst for social happiness and well-being. They do not recycle tired attacks on Marxist approaches to literature: they reject the “return to aesthetics” slogans of critics such as Allan Bloom, Harold Bloom, and John M. Ellis, and they adopt the principles, insights, and paradigms of the Austrian school of economics. Nor do Cantor and Cox merely invert the privilege of the terms Marxist and capitalist (please excuse my resort to Derridean vocabulary), although they do suggest that one might easily turn “the tables on Marxism” by applying “its technique of ideology critique to socialist authors, questioning whether they have dubious motives for attacking capitalism.” Cantor and Cox are surprisingly the first critics to look to Austrian economics for literary purposes, and their groundbreaking efforts are sure to ruffle a few feathers—but also to reach audiences who otherwise might not have heard of Austrian economics.

Cantor and Cox submit that the Austrian school offers “the most humane form of economics we know, and the most philosophically informed.” They acknowledge that this school is heterodox and wide ranging, which, they say, are good things. By turning to economics in general, the various contributors to this book—five in all—suggest that literature is not created in a vacuum but rather informs and is informed by the so-called real world. By turning to Austrian economics in particular, the contributors seek to secure a place for freedom and liberty in the understanding of culture. The trouble with contemporary literary theory, for them, lies not with economic approaches, but with bad economic approaches. An economic methodology of literary theory is useful and incisive so long as it pivots on sound philosophies and not on obsolete or destructive ideologies. Austrian economics appreciates the complexity and nuance of human behavior. It avoids classifying individuals as cookiecutter caricatures. It champions a humane-economy counter to mechanistic massproduction, central planning, and collectivism. Marxism, in contrast, is collectivist, predictable, monolithic, impersonal, linear, reductive–in short, wholly inadequate as an instrument for good in an age in which, quite frankly, we know better than to reduce the variety of human experience to simplistic formulae. A person’s creative and intellectual energies are never completely products of culture or otherwise culturally underwritten. People are rational agents who choose between different courses of action based on their reason, knowledge, and experience. A person’s choices, for better or worse, affect lives, circumstances, and communities. (“Ideas have consequences,” as Richard Weaver famously remarked.) And communities themselves consist of multiplicities that defy simple labels. It is not insignificant, in light of these principles, that Michel Foucault late in his career instructed his students to read the collected works of Ludwig von Mises and F. A. Hayek. Read the rest of this entry »

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Allen Mendenhall Interviews J. Neil Schulman, Prometheus Award–Winning Author of Alongside Night

In Artist, Arts & Letters, Austrian Economics, Creative Writing, Creativity, Economics, Fiction, Film, Humanities, Imagination, Libertarianism, Literary Theory & Criticism, Literature, News and Current Events, Novels, Philosophy, Screenwriting, Television, Television Writing, Writing on January 17, 2012 at 9:00 am

J. Neil Schulman

J. Neil Schulman is a novelist, actor, filmmaker, journalist, composer, and publisher.  Among his many books are Alongside Night and The Rainbow Cadenza, both of which won the Prometheus Award.  Visit his website at http://jneilschulman.rationalreview.com/.

 

The following interview originally appeared here at Prometheus Unbound: A Libertarian Review of Fiction and Literature.

AM:  Right off the bat, it strikes me that I don’t know what to call you.  Will Neil work?

JNS:  Sure. It’s J. Neil Schulman in credits, and Neil in person.

AM:  Anyway, thank you for doing this interview, Neil.  You’ve had a fascinating and unique career.  You’ve written novels, short fiction, nonfiction, screenplays, and other works.  Which of your works is your favorite and why?

JNS:  Every artist gets asked this question sooner or later. I asked it of Robert A. Heinlein when I interviewed him in 1973, and his answer was, “The latest one I’ve been working on.”

I’ve only completed one movie so far — Lady Magdalene’s — so it’s a Hobson’s Choice on that one. Ask me again when I’ve made two! But a lot of people also seem to like the script I wrote for The Twilight Zone, “Profile in Silver.”

I’ve written three novels. My first, Alongside Night [editor's note: free in pdf], seems to be my most accessible and popular. I consider my second novel, The Rainbow Cadenza, to be my most layered, literary, and richest in explicit philosophy. My third novel, Escape from Heaven, is my favorite. It may not be as timely as my first novel or literary as my second novel, but it’s the one that’s closest to my heart…both the funniest thing I’ve ever written, and the one which is most deceptively simple. It appears to be a lightweight piece of comic fantasy, but it’s full of ideas that if examined more closely turn both traditional theology and rationalist philosophy on their heads.

Short stories? I’ll pick a few: “The Musician,” “Day of Atonement,” and “When Freemen Shall Stand” — all in my collection Nasty. Brutish, and Short Stories — and my latest short story, “The Laughskeller,” published on my blog, J. Neil Schulman @ Rational Review.

AM:  Your worldview is, in a word, libertarian.  Why is that?  How does libertarianism come across in your writing?

JNS:  In my nonfiction essays it comes across explicitly. In fiction, drama, and comedy, I try to examine libertarian themes without preaching. I was probably most subtle doing this in The Rainbow Cadenza. The utilitarian politics advocated by the chief villain, Burke Filcher, is so self-consistent that a lot of readers have thought this character speaks for the author. In fact, I wrote the novel to attack utilitarianism as a nullification of the natural individual rights I believe in. The novel reduces utilitarianism to absurdity — it’s a formal satire of it.

Alongside Night is less subtle, though I’m probably more successful in the new movie script than the 1970s novel when it comes to letting the audience make up its own mind. I have learned some refinements of my craft in the last three decades.

Alongside Night by J. Neil SchulmanAM:  I recently noticed that you commented on a post at the Austrian Economics and Literature blog edited by my good friend Troy Camplin.  Tell me about the influence that Austrian economics has had on you.

JNS:  I would say that Austrian economics — and more fundamentally, the analytical tools of praxeology and games theory — have been fundamental to my work for my entire professional career. They’re not the only tools in my kit, but they get shopworn as much as any of them. Austrian economics is most explicit in Alongside Night, projecting the social and political consequences of fiat money hyperinflation — but I used games theory in plotting “Profile in Silver” and applied praxeology to the afterlife in Escape from Heaven. Read the rest of this entry »

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Law and Literature at the Seventh Annual Meeting of the Property and Freedom Society

In Arts & Letters, Austrian Economics, Conservatism, Economics, Humane Economy, Humanities, Law, Law-and-Literature, Libertarianism, Literary Theory & Criticism, Literature, News and Current Events, News Release, Philosophy, Politics, Western Philosophy on January 14, 2012 at 9:55 am

Allen Mendenhall

The Seventh Annual Meeting of the Property and Freedom Society will take place in Bodrum, Turkey, at the Hotel Karia Princess, from Thursday, September 27, through Monday, October 1, 2012.  Readers of this site may be interested in some of the proposed talks for this event.

Hans-Hermann Hoppe and Stephan Kinsella will speak on Philosophy and Law.  Professor Hoppe’s paper is titled “The Nature of Man: Does Any Such Thing Exist?”  Mr. Kinsella’s paper is titled “The Market for Law.”

Sean Gabb and Benjamin Marks will speak on Literature and Literary Criticism.  Dr. Gabb’s paper is titled ”On Literature and Liberty.”  Mr. Marks’s paper is titled “On H. L. Mencken as a Libertarian Model (and Some Romantic Libertarian Delusions).”

Other literati to speak include Jeffery Tucker, who interviewed me about literature and the economics of liberty and who now is the executive editor for Laissez Faire Books, and Theodore Dalrymple.

 

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Speculations About Baudrillard

In Arts & Letters, Austrian Economics, Economics, Humane Economy, Humanities, Literary Theory & Criticism, Philosophy, Western Philosophy on November 22, 2011 at 9:54 pm

Allen Mendenhall

The following post originally appeared here at Austrian Economics and Literature.

The emancipation of the sign: remove this ‘archaic’ obligation to designate something and it finally becomes free, indifferent and totally indeterminate, in the structural or combinatory play which succeeds the previous rule of determinate equivalence. The same operation takes place at the level of labour power and the production process: the annihilation of any goal as regards the contents of production allows the latter to function as a code, and the monetary sign, for example, to escape into infinite speculation, beyond all reference to a real production, or event to a gold-standard. The floatation of money and signs, the floatation of ‘needs’ and ends of production, the floatation of labour itself—the commutability of every term is accompanied by speculation and a limitless inflation (and we really have total liberty—no duties, disaffection and general disenchantment; but this remains a magic, a sort of magical obligation which keeps the sign chained up to the real, capital has freed signs from this ‘naïvety’ in order to deliver them into pure circulation).

—Jean Baudrillard, from “Symbolic Exchange and Death”

Baudrillard’s hyperreality is fascinating. I’ve written about it here and here. I have reservations about Baudrillard, but I think his theories could be useful to libertarians and Austrian economists. What follows is merely speculation. I’m seeking feedback, not advancing an argument that I’m invested in.

What Baudrillard calls the “political economy of the sign,” economists call the “subjective theory of value.” Claiming that his term is inadequate because its signification is allusive and coded, Baudrillard seems to multiply the subjective theory of value until it (and what it evaluates: the good or service for which people exchange currency) becomes something else, something re-signified. In so doing, Baudrillard seems to mimic or participate in the very semiotic processes that he is describing.

The re-signified version of the subjective theory of value can no longer be called the subjective theory of value because the re-signified version is, to a degree, counterfeit; the same can be said of the materiality (the thing used to facilitate or complete an economic transaction) constituting the monetary unit described by the subjective theory of value. Strictly speaking, the re-signified version of this theory is itself a replacement copy of the theory, just as money and other units of exchange are merely signs standing in the place of “worth.”

The subjective theory of value holds that a thing does not possess inherent worth. Instead, worth arises because of the social value that attaches to a thing. Worth, or cost, is the price which one person is willing to pay and which another person is willing to sell. Standing in contradistinction to the labor theory of value, which Baudrillard seems to pooh-pooh (perhaps because of his disaffiliation with the Marxism of his youth), the subjective theory of value maintains that worth or cost depends upon the ability of a thing to satisfy the wants of consumers. A consumer is satisfied to the extent that a thing is useful to him. Utility here is measurable in psychological and not just “practical” terms; a person may want something because it makes him feel good. What seems to bother Baudrillard is the extent to which consumers exchange goods (themselves mediated by signs and representations) to become plugged into a symbolic network rather than to satisfy an immediate need. The satisfaction is what comes with the entrance into a symbolic order.

A thing, according to this conception of value, is not worth a lot simply because a lot of people mix their labor with it. Nor is a thing worth a lot because of some essential properties or qualities it contains. Rather, thing A is worth a lot because people think it is worth a lot: because people are willing to exchange something they own (thing B or C or D) in order to own thing A.

For Baudrillard, the subjective theory of value (a term he never uses) has vast implications for the sign in the postmodern world, just as the sign has vast implications for the subjective theory of value in the postmodern world. Because the worth or value of a thing is not tied to labor, it is, in a way, as Baudrillard suggests, subject to infinite speculation and free from all reference to production. Media of exchange (e.g., money) float outside the real—which is to say, outside of material things. They became simulacra for some temporary and contingent concept of value. Perhaps more importantly, the media of exchange are themselves distorted and fabricated by structures of symbols marking various exchanges. Fiat money brings about the complete arbitrariness of the sign, which is entirely divorced from use value. The ability of a green piece of paper (speaking in terms of American dollars) to become exchangeable for products depends upon social signification; the economy itself is dominated by signs and images, which are, after all, what producers and consumers exchange for products. Read the rest of this entry »

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The Oft-Ignored Mr. Turton in E.M. Forster’s A Passage to India

In Arts & Letters, Austrian Economics, Book Reviews, Communication, E.M. Forster, Eastern Civilizaton, Emerson, Essays, Fiction, History, Humane Economy, Humanities, Jurisprudence, Law, Law-and-Literature, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Novels, Philosophy, Politics, Religion, Transnational Law, Western Civilization, Western Philosophy on October 17, 2011 at 11:55 am

Allen Mendenhall

The following post first appeared here at Prometheus Unbound: A Libertarian Review of Fiction and Literature.

A Passage to India, by E.M. Forster [trade paperback]; also made into an award-winning film.

Perhaps the most important task of all would be to undertake studies in contemporary alternatives to Orientalism, to ask how one can study other cultures and peoples from a libertarian, or a nonrepressive and nonmanipulative, perspective.

– Edward Said, Orientalism

When I asked Dr. Plauché what I should review for my first contribution to Prometheus Unbound, he suggested that I elaborate on my recent Libertarian Papers article: “The Oft-Ignored Mr. Turton: The Role of District Collector in A Passage to India.”  Would I, he asked, be willing to present a trimmed-down version of my argument about the role of district collectors in colonial India, a role both clarified and complicated by E.M. Forster’s portrayal of Mr. Turton, the want-to-please-all character and the district collector in Forster’s most famous novel, A Passage to India.  I agreed.  And happily.

For those who haven’t read the novel, here, briefly, is a spoiler-free rundown of the plot.  A young and not particularly attractive British lady, Adela Quested, travels to India with Mrs. Moore, whose son, Ronny, intends to marry Adela.  Not long into the trip, Mrs. Moore meets Dr. Aziz, a Muslim physician, in a mosque, and instantly the two hit it off.  Mr. Turton hosts a bridge party — a party meant to bridge relations between East and West — for Adela and Mrs. Moore.  At the party, Adela meets Mr. Fielding, the local schoolmaster and a stock character of the Good British Liberal.  Fielding invites Adela and Mrs. Moore to tea with him and Professor Godbole, a Brahman Hindu.  Dr. Aziz joins the tea party and there offers to show Adela and Mrs. Moore the famous Marabar Caves.

When Aziz and the women later set out to the caves — Fielding and Godbole are supposed to join, but they just miss the train — something goes terribly wrong.  Adela offends Aziz, who ducks into a cave only to discover that Adela has gone missing.  Aziz eventually sees Adela speaking to Fielding and another Englishwoman, both of whom have driven up together, but by the time he reaches Fielding the two women have left.  Aziz heads back to Chandrapore (the fictional city where the novel is set) with Fielding, but when he arrives, he is arrested for sexually assaulting Adela.  A trial ensues, and the novel becomes increasingly saturated with Brahman Hindu themes.  (Forster is not the only Western writer to be intrigued by Brahman Hinduism.  Ralph Waldo Emerson and William Blake, among many others, shared this fascination.)  The arrest and trial call attention to the double-standards and arbitrariness of the British legal system in India.

Rule of law was the ideological currency of the British Raj, and Forster attempts to undercut this ideology using Brahman Hindu scenes and signifiers.  Rule of law seeks to eliminate double-standards and arbitrariness, but it does the opposite in Chandrapore.  Some jurisprudents think of rule of law as a fiction.  John Hasnas calls rule of law a myth.  Whatever its designation, rule of law is not an absolute reality outside discourse.  Like everything, its meaning is constructed through language and cultural understanding.  Rule of law is a phrase that validates increased governmental control over phenomena that government and its agents describe as needing control.  When politicians and other officials lobby for consolidation or centralization of power, they often do so by invoking rule of law.  Rule of law means nothing if not compulsion and coercion.  It is merely an attractive packaging of those terms. 

British administrators in India, as well as British commentators on Indian matters, adhered in large numbers to utilitarianism.  Following in the footsteps of Jeremy Bentham, the founding father of utilitarianism, these administrators reduced legal and social policy to calculations about happiness and pleasure.  Utilitarianism holds, in short, that actions are good if they maximize utility, which enhances the general welfare.  Utilitarianism rejects first principles, most ethical schools, and natural law.  Rather than couch their policymaking in terms of happiness and pleasure, British administrators in India, among other interested parties such as the East India Company, invoked rule of law.  Rule of law manifested itself as a concerted British effort to discipline Indians into docile subjects accountable to a British sovereign and dependent upon a London-centered economy.  The logic underpinning rule of law was that Indians were backward and therefore needed civilizing.  The effects of rule of law were foreign occupation, increased bureaucratic networks across India, and imperial arrogance.

Murray Rothbard was highly critical of some utilitarians, but especially of Bentham (see here and here for Rothbard’s insights into the East India Company).  In Classical Economics, he criticized Bentham’s opinions about fiat currency, inflationism, usury, maximum price controls on bread, and ad hoc empiricism.  Bentham’s utilitarianism and rule of law mantras became justifications for British imperialism, and not just in India.  A detailed study of Hasnas’s critique of rule of law in conjunction with Rothbard’s critique of Bentham could, in the context of colonial India, lead to an engaging and insightful study of imperialism generally.  My article is not that ambitious.  My article focuses exclusively on A Passage to India while attempting to synthesize Hasnas with Rothbard.  Forster was no libertarian, but his motifs and metaphors seem to support the Hasnasian and Rothbardian take on rule of law rhetoric and utilitarianism, respectively.  These motifs and metaphors are steeped in Brahman Hindu themes and philosophy. Read the rest of this entry »

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