Below is the next installment in the lecture series on literary theory and criticism by Paul H. Fry. The previous lectures are here, here, here, here, here, here, here, here, here, here, here, here, here, here, and here.
Bartels v. Iowa, 262 U.S. 404 (1923), is short and to-the-point, extending and confirming the principles released by the United States Supreme Court that very day in Meyer v. Nebraska,[i] a companion case to Bartels that is also short and to-the-point. In Meyer, the Court struck down a Nebraska law restricting the teaching of modern foreign-languages to students from kindergarten to eighth grade. The majority in Meyer found that the law violated the Due Process Clause of the Fourteenth Amendment on the grounds that it infringed upon the liberty interests of teachers, who had a right to practice their profession without the interference of the state with their curriculum so long as that curriculum did not violate explicit State policy.[ii] There was, the Court reasoned, no link between the putative purpose of the law—to protect the welfare of children—and a threat to the public interest.[iii] The law was deemed arbitrary and not reasonably related to a legitimate state interest and, therefore, unconstitutional.
Holmes reserved his Meyers dissent—which maintained that this Nebraska law was constitutional—for the Bartels opinion. In Bartels, the United States Supreme Court addressed an Iowa law similar to the Nebraska regulation and reversed a decision of the Iowa Supreme Court, which had upheld the criminal conviction of a teacher who taught German to his students. “We all agree, I take it,” Holmes began his dissent, “that it is desirable that all the citizens of the United States should speak a common tongue, and therefore that the end aimed at by the statute is a lawful and proper one” (Bartels 412). The pronoun “we” lacks a clear referent. Does Holmes mean “we” justices or “we” Americans? The answer is probably the latter because “we” was (and is) widely and fluidly used to signify the assembled justices on the bench.
Holmes claims that the “only question is whether the means adopted deprive teachers of the liberty secured to them by the Fourteenth Amendment” (Bartels 412). He submits that he will not judge the law according to whether it is good or right but only pursuant to the terms of the Fourteenth Amendment. He states, to that end, that he may “appreciate the objection to the law” (“I think I appreciate the objection to the law”) but that the role of the judge is not to take sides on moral or political issues “upon which men reasonably might differ” (Bartels 412). “I am not prepared to say that it is unreasonable,” Holmes explains, using litotes, “to provide that in his early years [a student] shall hear and speak only English at school” (Bartels 412). If it is not unreasonable, then it is reasonable, and “if it is reasonable it is not an undue restriction of the liberty either of teacher or scholar” (Bartels 412).
Holmes’s dissent in Bartels is not known as one of his most notable or outstanding dissents. Nevertheless, it has been referenced not only by the United States Supreme Court[iv] but also by federal and state courts.[v] Although the majority opinion has never been overruled, Holmes’s dissent generally is cited favorably. My approximate calculation based on Westlaw searches is that this dissent has been cited almost 200 times in cases, administrative decisions, and federal court documents such as amicus curiae briefs.
The topic of his dissent—foreign languages in public schools—has been revisited by later courts because it remains relevant, and in that respect, it is not surprising that the dissent continues to be cited. Yet the topic alone does not explain why Holmes’s dissent in particular remains popular, especially if it is not binding precedent. There are other non-binding documents on the topic, including social science studies and law review articles, that are also relevant but that have not been cited in large numbers. Although Holmes’s reputation has something to do with the abundance of citations to his dissent, insofar as his legal opinion carries great weight among jurists, the properties of his dissent likely contribute to its ongoing appeal.
What are these properties? Besides litotes, mentioned above, there is also aphorism: “No one would doubt that a teacher might be forbidden to teach many things.” These words are carefully chosen. It would be absolutist to state that no one would doubt that a teacher is forbidden to teach many things, or to state that no one doubts rather than no one would doubt that a teacher might be forbidden to teach many things, or to state that no one would doubt that a teacher might be forbidden to teach a particular thing rather than many things. This short sentence is so well qualified that it manages to articulate a pithy generalization without succumbing to embellishment or misrepresentation. Moreover, the phrase “no one would doubt that a teacher might be” is anapestic, sharing the same feet of such memorable verses as “’Twas the night before Christmas and all through the house.”
In the opening line to a dissent about language, the deliberate use of sigmatism, or the repetition of “s” sounds for dramatic effect, is striking: “[…] is desirable that […] citizens of the United States should speak.” It is as if Holmes defamiliarizes the “common tongue” (his words) as he writes about the “time [of youth] when familiarity with a language is established.” At the very least, he highlights the nuances of language in a dissent expressed in nuanced language and addressing the very legality of language acquisition within a public institution. In addition, Holmes empowers his dissent with a religious-like seriousness by referring to his fellow justices as “brethren,” and he appears figuratively to objectify his “mind” as something separate from his “consciousness” when he claims that “I cannot bring my mind to believe.”
These moves are not merely literary grandstanding but the instantiation of an important feature of Holmes’s philosophical pragmatism: the fallibility of human intelligence. He will not profess certainty but will formulate his reasoning only in cautious qualifications.
Holmes follows, therefore, with the declaration that the objection to the prohibition on the teaching of foreign languages in Iowa “appears to me to present a question upon which men reasonably might differ” (my emphasis). His belief in the inherent limitations of human faculties prevents him from saying that the objection does present a question upon which reasonable men may differ.
Having introduced the theme of human knowledge, he turns to metonymy by referring to the state legislation as an “experiment” that the United States Supreme Court should not prevent from taking place. For aught that appears, either the term “experiment” or the state legislation may indicate the other; they are reversible concepts within the paradigm that Holmes establishes here. Treating the states as if they were laboratories, he gestures toward his conviction that the widening capacity of the aggregate knowledge of the community is made possible by allowing social experiments to take place on the most local levels, where the consequences of failure are minimized, whereas the failure of United States Supreme Court justices to rule properly regarding some law or another will have vast consequences that affect social coordination throughout the entire country. Subtle turns of phrase are enough for Holmes to implicate this grand philosophical notion to which he owes his most insightful dissents.
[i]262 U.S. 390 (1923).
[ii] “As the statute undertakes to interfere only with teaching which involves a modern language, leaving complete freedom as to other matters, there seems no adequate foundation for the suggestion that the purpose was to protect the child’s health by limiting his mental activities. It is well known that proficiency in a foreign language seldom comes to one not instructed at an early age, and experience shows that this is not injurious to the health, morals or understanding of the ordinary child.” (Meyer 403)
[iii] “The power of the state to compel attendance at some school and to make reasonable regulations for all schools, including a requirement that they shall give instructions in English, is not questioned. Nor has challenge been made of the state’s power to prescribe a curriculum for institutions which it supports. Those matters are not within the present controversy. Our concern is with the prohibition approved by the Supreme Court. Adams v. Tanner [citation omitted] pointed out that mere abuse incident to an occupation ordinarily useful is not enough to justify its abolition, although regulation may be entirely proper. No emergency has arisen which renders knowledge by a child of some language other than English so clearly harmful as to justify its inhibition with the consequent infringement of rights long freely enjoyed. We are constrained to conclude that the statute as applied is arbitrary and without reasonable relation to any end within the competency of the state.” (Meyer 403).
[iv] Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 518-19 (1969).
[v] Examples of federal court cases referencing Holmes’s dissent include the following: Yniguez v. Arizonans for Official English, 42 F. 3d 1217, 1242 (9th Cir. App. 1994); Kramer v. New York City Bd. of Educ. 715 F. Supp. 2d 335, 342 (E.D. New York 2010); and Cary v. Board of Ed. of Adams-Arapahoe School Dist. 28-J, Aurora, Colo. 598 F. 2d 535, 540 (10th Circ. App. 1979). Examples of state court cases referencing Holmes’s dissent include State v. Hoyt. 84 N.H. 38, 146 A. 170, 171 (N.H. 1929), and Hamilton v. Deland, 198 N.W. 843, 227 Mich. 111, 113 (Mich. 1924).
Daniel J. Kornstein is a senior partner at the law firm of Kornstein Veisz Wexler & Pollard, LLP, in New York City. He earned his law degree from Yale Law School in 1973 and has served as the president of the Law and Humanities Institute. He has authored several books including Loose Sallies, Something Else: More Shakespeare and the Law, Unlikely Muse, Kill All the Lawyers? Shakespeare’s Legal Appeal, Thinking under Fire, and The Music of the Laws. His writing has appeared in The New York Times, Wall Street Journal, Chicago Tribune, Baltimore Sun, and the Boston Globe. In 2002, Dan received the Prix du Palais Littéraire from the Law and Literature Society of France. In 2013, King Michael of Romania awarded him the Order of the Crown of Romania.
AM: Thanks for taking the time to discuss your new book with me, Dan. The name of the book is Loose Sallies, and as you state in your introduction, it’s not about fast women named Sally. For those who haven’t read the introduction or purchased the book yet, could you begin by discussing the book generally and say something in particular about your chosen genre: the essay.
DJK: Thank you, Allen, for this opportunity. Those of us who occasionally write are, as you know from your own experience, always delighted to have a chance to explain a bit about how and why we scribble. Loose Sallies is a collection of essays written over the past 25 years mostly about topics of general interest. The first 75 pages is about the drafting of the U.S. Constitution in 1787 and why that remarkable process and its end result are still so important to us today. The rest of the book ranges over a wide variety of topics, from our precious civil liberties to profiles of some famous judges and lawyers to current controversies. It should, I hope, appeal to everyone.
AM: Phillip Lopate has said that the essay is a “diverting” type of literature and that its hallmark is intimacy. You call the essay “intimate, informal and reflective, as if you are sitting at home in your living room or dining room and having a pleasant, sometimes provocative, sometimes stimulating, but always, one hopes, insightful and enlightening conversation.” I agree. The essay is my favorite genre because it’s the genre of the person. You can’t know a person until you’ve met the persona he creates in his essays—and if you don’t write essays, you may not know yourself. Who are your favorite essayists, and what is it about their essays that you find compelling?
DJK: My favorite essayists are the obvious ones: Montaigne, Francis Bacon, Addison & Steele, Hazlitt, Lamb, Orwell, Mencken, Macaulay, Emerson, V.S. Pitchett, E.B. White, Lewis Thomas, George Will, Virginia Woolf, Edmund Wilson, and Joseph Wood Krutch. My favorite living essayists are Lopate and Joseph Epstein, the former editor of The American Scholar magazine. All these writers make their essays compelling by their clarity of thought and uniqueness of expression and their ability to communicate original, stimulating ideas, making us see familiar things in a new light. Epstein, for example, can write on literary personalities as well as personal topics we all think we know about but do not really. Everyone in my pantheon of great essayists is a superb writer with a distinctive and memorable style.
AM: I recently interviewed James Elkins, a law professor at West Virginia University, here on this site, and he talked about lawyer poets and said that “our iconic images of lawyer and of poet are put to the test when we think about one person writing poems and practicing law.” You have something to say about this seeming double life. “Writing,” you say, is “part of my double life. I have a life other than the lawyer’s life I lead on the surface. The two sides—law and writing—reinforce and complement each other.” I’ve heard the phrase “the two worlds” problem used to describe the lawyer who is also a writer. But this doesn’t seem to be a problem for you, does it?
DJK: A lawyer IS a writer. Writing is most of what a lawyer does. To be a good lawyer, one needs to be a good writer. Verbal facility, sensibility to language, and lucid thinking are prerequisites for both. A legal brief and a piece of expository writing have much in common. Both have a point to make to persuade the reader. Both rely on effectively marshaling evidence to demonstrate the correctness of a particular perspective. The topics may differ, but the skill and technique are similar. The problem facing the lawyer-writer is more one of time and energy and desire than anything else. Law is a demanding profession, which means taking time off to do anything else cuts into one’s otherwise free moments. But if you want to write, you make the time.
AM: I’m curious, when did your love of literature begin? Did you have an “aha!” moment, or did the love evolve over time?
DJK: I cannot recall ever not loving literature. My paternal grandfather was a printer at Scribner’s and when I was a little boy he gave me four books by Robert Louis Stevenson that my grandfather had himself set in type in 1907. I gave Treasure Island to my son and Kidnapped to my daughter, and still have the other precious two volumes on my shelves.
I remember my father taking me as a youngster to the Public Library at Fifth Avenue and 42nd Street to get my first library card. In those days, the main building had a circulation department, and my father’s choice for my first library book was, of course, Tom Sawyer, a good choice for a ten-year old boy.
I remember as a teenager reading as much as I could in addition to books assigned in school. There were nights spent, in classic fashion, with a flashlight under the covers after bed time.
Inspiring teachers helped too.
AM: You’ve written a lot on Shakespeare. How did your fascination with him come about?
DJK: Like most people, I first met Shakespeare in high school English classes. Luckily for me, around the same time New York had a summer program of free Shakespeare in Central Park, which continues to this day. Starting in the summer of my junior year in high school — 1963 — I began to see two of Shakespeare’s plays every summer. It was at one of those performances — Measure for Measure in 1985 — that the passion grabbed me. I was 37 years old and had been practicing law for 12 years. As I sat watching Measure for Measure, I realized for the first time how much the play was about law, and that recognition — the “fascination” you refer to — set me off on a project that would last years. First, I wrote a short essay about Measure for Measure for the New York Law Journal, our daily legal newspaper. Then, months later, I saw a production of The Merchant of Venice and wrote another essay. From there, one thing led to another, and before long, I had the makings of a book.
I reread the plays I had read as a student and read many others for the first time. Then I read as much as I could find about Shakespeare and the law. The result was my 1994 book called Kill All The Lawyers? Shakespeare’s Legal Appeal.
I am still fascinated by Shakespeare. Each time I read or see one of his great plays, I get something new out of it.
AM: Many essays in Loose Sallies concern politics, law, government, and current events. You discuss the Founders, Holmes, Bill Clinton, Hugo Black, Steve Jobs, Ayn Rand—all sorts of people and even some decisions of the U.S. Supreme Court. You manage to do so without coming across as overtly political, polemical, or tendentious. How and why?
DJK: It is a question of style and goal. Every one of the essays has a thesis, some of which may even be controversial. The idea is to persuade your reader to accept your thesis, and that requires care and sensitivity, logic and demonstration, not name-calling or verbal table-pounding. If I am “overtly political, polemical or tendentious,” I will probably not convince anyone who does not already agree with me. A writer has to be smoother and subtler. We live in a country right now riven by political and cultural partisanship. Public controversy today between “red” and “blue” is almost always shrill. A reader tires of it; it becomes almost an assault on our sensibilities. To reach people’s hearts and minds, you have to credit both sides of an issue but explain patiently and show convincingly why you think one side is more correct than another. I am not running for public office so I have no “base” to appeal to. But I can at least try to keep the tone of the debates I engage in civil and pleasant.
AM: Do you consider the essays on these topics literary essays?
DJK:Most of the essays in Loose Sallies are not about so-called “literary” topics. True, one is about the literary style of Supreme Court opinions, and two discuss Justice Holmes’s opinion-writing style. But they are exceptions. So I do not think the essays for the most part are “literary” in that narrow sense. Nor do I think they are “literary” by way of being precious or mannered. I genuinely hope, however, that they are “literary” in the sense of being clear, crisp, well-written statements on a variety of topics of interest to all Americans today.
AM: Thank you for taking the time to do this interview. Loose Sallies has been enjoyable for me. I keep it on my desk in the office so that, when I need a ten-minute break, I can open it and read an essay. I slowly made my way through the entire book in this manner: a break here, a break there, and then, one day, I was finished. I really appreciate all that you have done not just for the law, but for arts and literature. It’s nice to know there are lawyers out there like you.
This review originally appeared here in The Independent Review.
“Television rots your brain.” That’s a refrain many of us grew up hearing, but it isn’t true. So suggests Paul Cantor in The Invisible Hand in Popular Culture, his second book about American film and television.
Cantor has become a celebrity within libertarian circles. He is Clifton Waller Barrett Professor of English and Comparative Literature at the University of Virginia and recently became a visiting professor at his alma mater, Harvard University. What’s remarkable about his appointment at Harvard is that it is in the Department of Government, not the Department of English. That doesn’t surprise those of us familiar with his breadth of knowledge and range of interests.
Recognized as an interdisciplinary scholar, Cantor attended Ludwig von Mises’s seminars in New York City before establishing himself as an expert on Shakespeare. Besides publishing extensively on literature of various genres and periods, he has been a tireless advocate for Austrian economics, even though Marxist theories and their materialist offshoots dominate his field. In 1992, the Mises Institute awarded Cantor the Ludwig von Mises Prize for Scholarship in Austrian Economics, and his work at the intersection of economics and literature resulted in Literature and the Economics of Liberty (Auburn, Ala.: Ludwig von Mises Institute, 2010), which he edited with Stephen Cox (while contributing nearly half of the book’s contents).
Like that work, The Invisible Hand in Popular Culture owes much to the theories of Friedrich Hayek, in particular the concept of spontaneous order. It is a reflection of spontaneous order that the most beloved films and television shows did not spring perfectly from the mind of some genius working in complete isolation. Rather, they emerged out of the complex interactions between producers and consumers and the collaborative efforts of scores of diligent workers. Viewer feedback facilitated modifications and improvements to films and television, which advanced in meliorative stages.
Hayek discusses spontaneous order to refute the belief that government intervention and central planning ought to force order onto the marketplace. Cantor discusses it to refute the belief that artistic creation stands outside of commercial exchange. Examining depictions of freedom and coercion in a wide variety of films and television shows, he highlights the disparity between elitist and populist understandings of American culture, which he links to “top-down” and “bottom-up” models of order, respectively. His position is that the popularity and artistic appeal of film and television appear to be proliferating despite the objections and insults levied by the cultural elite, who, it should be added with not a little irony, nonetheless probably watch a great deal of television.
Against the cultural elite and their promotion of patrician—and mostly European—standards for the arts, Cantor maintains that the marketplace enables creative and experimental forms of expression that aren’t so different from earlier aesthetic media such as the serialized novel or popular plays. He reminds us that “nineteenth century critics tended to look down on the novel as a popular form, thinking it hardly a form of literature at all,” and adds that it “was not viewed as authentic art, but rather as an impure form, filled with aesthetically extraneous elements whose only function is to please the public and sell copies” (p. 7). This once “vulgar” medium has lately been celebrated as one of the highest and most impressive categories of art. The form and content of great American novels—whether by Twain or Cooper or Salinger or Pynchon—should remind us that popular novels have been elevated as canonical even though they have rejected the standards and conventions that highbrow critics insisted were necessary for a work to constitute “literature.” Twain and Cooper recognized that highbrow presuppositions and expectations for novels derived from influential Europeans, so they set out to forge a uniquely American literature free from Old World constraints.
Because film and television are commercial, they allow ordinary Americans (as opposed to academics and the cultural elite, including and especially the neo-Marxists) to determine aesthetic standards and trends by indicating what does and does not interest them. Authors and television producers, in turn, become responsive and attuned to the demands of their consumers; they become, in short, entrepreneurs who must struggle against the status quo, defy the odds, and push the limits of artistic acceptability.
The elite disparage this process and advocate for aesthetic criteria divorced from the tastes and pleasures of the general public. As Cantor explains, “Elitists who profess to believe in democracy nevertheless have no faith in common people to make sound decisions on their own, even in a matter as simple as choosing the films and television shows they watch” (p. xiv). The elite would have film and television removed from the marketplace, but without the marketplace there would be no film or television.
Films and television shows might just become the masterpieces of the future; they might have already provided us with canonical “texts.” It is too early to say whether they have contributed substance to what Matthew Arnold called “the best that has been thought and said.” Greatness, after all, takes time to ascertain.
Orwell, Dr. Johnson, and Hume adhered to the “test of time” measure of greatness by which a work of art or literature is evaluated according to its ability to compete and survive in the literary marketplace over the course of generations. This measure requires the sustained consensus of consumers as opposed to the esoteric judgments of elite critics. A work’s ability to attract vast and diverse audiences and to do so long after its production is what makes the work great.
It might seem odd to think of Cantor’s subjects—South Park and The X-Files, for instance—alongside important literary works of the Western canon. And yet the groundlings who paid a penny to enter into the pit of the Globe Theatre, where they would stand and watch performances of Shakespeare’s plays, probably didn’t think they were witnessing greatness, either. Harold Bloom once said, “Cultural prophecy is always a mug’s game,” and Cantor is wise not to prophesy about the enduring merit of any films or television shows. Cantor’s point is not that the products of film and television will be considered masterpieces one day, only that they might be.
For the record, I consider it extremely unlikely that South Park or The X-Files will achieve classic status, but I would not extend that speculation to such films as Casablanca or the Star Wars trilogy. Cantor himself takes pains to distinguish first-rate works from run-of-the-mill entertainment by invoking “traditional criteria for artistic excellence” (p. xxii). We should not take him to mean that film and television are media superior to that which came before them; instead, he considers them as substantially similar to their artistic antecedents, except that their features signal an evolution in artistic preferences. The allure of art comes not from its alienation from popular culture, but from its ability to incorporate popular culture in ways that do not impede its power to speak beyond its moment.
To be sure, American film and television have produced an overwhelming amount of trash, but so did novel serialization. Not all novelists who published their work in contiguous installments in magazines and periodicals held the stature of Charles Dickens or Henry James or Herman Melville. Cantor points out that we forget about the thousands of bad novels from the Victorian era and extol only around one hundred novels from that period, which supposedly represents a zenith in culture. Among the thousands if not millions of films and television shows that have been produced over the past century, perhaps a few will rival the works of Dickens, James, and Melville.
If Cantor weren’t such a generous and careful scholar, he might have become the bête noire of sophisticates and lambasted in the pages of The New Criterion for his embrace of the purportedly lowbrow. His command of economics and literary history, however, has spared him from such condemnation and even gained him a devoted following. To do justice to his latest book would require a more comprehensive treatment of his arguments about the figure of the “maverick” in film and television or about the value of collaborative work and coauthorship in generating exceptional products. Yet these arguments demand more attention than a review can give.
The incomparable Cantor has blessed the libertarian movement with a literary voice. He has expanded the study of Austrian economics into the fields that need it most. He himself is a maverick, reading and writing industriously to break up the habits of thought and monopolies on ideology that mark literary scholarship. Would that we had more Cantors to show us how literature flowers when freedom flourishes. There is hope in the idea that artists can turn to the market to cultivate their talents and supply us with the arts we demand. No English department or cultural guardian can rob us of the entertainment that we enjoy.
The following excerpt first appeared as part of the Routledge Annotated Bibliography of English Studies series.
Machinic Modernism: The Deleuzian Literary Machines of Woolf, Lawrence and Joyce
This book investigates several modernist novels in light of the theories of Gilles Deleuze and, to a slightly lesser degree, Felix Guattari. The author is interested in how the “machine-like” work and style of Deleuze and Guattari facilitate pragmatic readings of texts. These pragmatic readings suggest that textual activity in several modernist novels reflects broader cultural activities, that the metaphysical movement of text corresponds to various social movements, and that text reproduces historical circumstances in signs and syntax.
The book seeks to depart from conventional forms of scholarship and to resist Deleuze-Guattarian paradigms that overemphasize pragmatism and empiricism at the expense of radical innovation. In a way this book is a Deleuze-Guattarian treatment of Deleuze and Guattarian with a focus on key modernist novels such as Virginia Woolf’s To the Lighthouse, D.H. Lawrence’s The Rainbow, and James Joyce’s Ulysses. Just as Deleuze and Guattari reframe seminal issues of philosophy in terms of pragmatism, so these modernist novels negotiate cultural and discursive phenomena with a bearing on then-current philosophy.
This book seeks to build a critical “machine” with which to interpret the machine in texts as well as to negotiate the so-called machine age; it also interrogates the organic-mechanic duality already interrogated by Deleuze. In so doing, it considers differences in literature in light of Deleuzian pragmatics to show that the philosophical moves taking place in Deleuze reflect similar moves taking place in modernist literature generally. The book argues that To the Lighthouse and The Rainbow implicate metaphysical structures in interesting ways but also in ways that are not entirely satisfactory without an understanding of Ulysses. In Ulysses the theories and mechanic imperatives of Deleuzian modernism find their fullest expression.
Kenneth Burke treats the constitution—or, in some cases, constitutions—as a dialectic, symbolic act that is representative of the tendencies and preferences of communities. Burke applies the elements of the pentad—act, agency, agent, scene, and purpose—to form what he calls paradigmatic anecdotes for understanding how constitutions apply to and interact with communities. The pentad, for Burke, is equipment for simplifying complex ideas into understandable categories or anecdotes. It provides, in that sense, what he calls an “idiom of reduction” for understanding human motives.
Humans are sign-using creatures motivated by different “grammars,” and it is a grammatical move to interpret human action in terms of the pentad. A constitution is not simply a tangible document—indeed, as Burke points out, there is no written constitution in Britain—but instead represents a symbol of the coordination of individuals that provides them with a calculus for determining not only how to act, but also how to know what motivates action.
Constitutions put forth general types, or principles, that can be considered ideals, and these types, principles, or ideals provide standards or criteria by which individuals in a community aspire to act. A constitution is therefore more of a symbol of that which coordinates human behavior within a given community than it is a top-down imposition of legislative fiat. A constitution, in short, is a communicative sign validated and made useful by its ability to induce cooperation among people.
This essay originally appeared here at Inquire: Journal of Comparative Literature (Issue 2.1, 2012)
Geoffrey of Monmouth’s The History of the Kings of Britain is a tale of the rise of law that suggests that there can be no Britain without law – indeed, that Britain, like all nation-state constructs, was law or at least a complex network of interrelated processes and procedures that we might call law. During an age with multiple sources of legal authority in Britain, The History treats law as sovereign unto itself in order to create a narrative of order and stability.1 This article examines the way Geoffrey establishes the primacy of law by using the language-based, utilitarian methodologies of John Austin, who treats law as an expression of a command issued by a sovereign and followed by a polis, and whose jurisprudence enables twenty-first-century readers to understand Geoffrey’s narrative as a response to monarchical succession and emerging common law. The first section of this article briefly explains Austin’s jurisprudence and provides historical context for The History. The second section considers The History in terms of uniform and rational justice in the twelfth century, situating Geoffrey’s jurisprudence alongside that of Ranulf de Glanvill and analyzing the complex relationships between sovereignty, law, polis and nation state.
The Jurisprudence of John Austin
Austin treats law as an expression of will that something be done or not done, coupled with the power to punish those who do not comply: “A command […] is a signification of desire […] distinguished from other significations of desire by this peculiarity: that the party to whom it is directed is liable to evil from the other, in case he not comply with the desire” (Province 6). Accordingly, law is a command that carries the power of sanction. Austin, who writes in the nineteenth century, is in many ways different from the twelfth-century Geoffrey. Whereas Geoffrey employs fiction to instruct his contemporaries in the official narrative of incipient nationalism, Austin proclaims that many “of the legal and moral rules which obtain in the most civilized communities, rest upon brute custom, and not upon manly reason” (Province 58). Austin adds that these legal and moral rules “have been taken from preceding generations without examination, and are deeply tinctured with barbarity,” and also that these takings are particularly harmful because the rules “arose in early ages” during “the infancy of the human mind” when people ruled based on “the caprices of fancy” (Province 58). Because The History is more mythology than fact, Austin probably would have accused Geoffrey of perpetuating “obstacles to the diffusion of ethical truth” and of “monstrous or crude productions of childish and imbecile intellect” that nonetheless “have been cherished […] through ages of advancing knowledge” (Province 58). Austin, in short, was skeptical of mythology and claims about absolute law, whereas Geoffrey embraced mythology and implied that law was a constant corrective.
Despite this disjuncture, or perhaps because of it, Austin’s theories provide an illuminating framework in which to consider The History. Austin’s proposition that laws are commands backed with the power to sanction stands in contradistinction to Geoffrey’s suggestion that law emerged out of an ancient precedent and achieved its fullest expression under the great King Arthur. The conception of law as merely language reinforced by the possibility of physical threat undercuts the idea that law is based in first principles discovered by the fathers of civilization. Austin’s proposition – that customary laws carry no threat of punishment and therefore are not laws at all unless a sovereign, who can punish, declares them to be laws – also contradicts Geoffrey’s suggestion that law is embedded in custom and represents a point of authority from which kings may or may not deviate. Finally, Austin’s proposition that “every law which obtains in all societies, is made by sovereign legislators” (Lectures 566), even if such law derives its lexicon from divine inspiration or religious texts, weakens Geoffrey’s suggestion that law is relatively fixed in custom and tradition despite the whims and fancies of a given age. To employ Austin’s jurisprudence is not to privilege Austin’s reading over Geoffrey’s or Geoffrey’s reading over Austin’s but to treat Austin as a lens through which to examine how Geoffrey navigates the legal terrain of his day and negotiates conflicts about law and monarchy that unsettled the harmony of the burgeoning state. Geoffrey uses myth both to validate law and British unity and to reassure the anxious polis of law’s ultimate supremacy over temporary ideological disruptions. He establishes models of behavior for both monarchs and the polis. Read the rest of this entry »