Last week I was reading several old reviews of Lawrence Friedman’s landmark work, A History of American Law.  I came across a 1974 review by David J. Rothman in Reviews in American History.  Rothman made the following point, which, despite being made 34 years ago, is bound to offend some readers of this site, especially those who are lawyers or law professors:

I have attended conferences of law professors doggedly determined to be interdisciplinary, and I have been appalled at the lack of intellectual preparation that many of them had for such work. They would talk blithely about bringing the insights of, say, game theory to the law-with only the vaguest idea of what game theory was all about. (Indeed, how could they have had more than a vague idea? After a general undergraduate training, they went to the law schools, then to the courts as clerks, then back to the law schools.) So one must, perforce, have a lurking fear that some of the new interdisciplinary efforts will be so inadequate as to prompt law professors to decide to do well what they can do, rather than to do badly what they should do. And law schools may well continue to perpetuate half-knowledge. They remain torn between serving as trade schools to the profession and graduate schools to the scholars. This compromise may turn out to be less and less tenable over the next years.

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:

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.

In light of these false starts, it is no wonder that Richard Posner famously declares, “The biggest danger in any interdisciplinary field is amateurism.… The danger is particularly acute in the case of the lawyer who writes about literature.”[36] One of the greatest and most embarrassing ironies of the whole law-and-literature movement is that Posner’s well-known book Law and Literature[37] has outsold any other law-and-literature work despite being highly critical if not downright dismissive of law and literature in particular and perhaps even imaginative literature in general. For Posner, a pragmatist, literature is hardly more than therapy or consolation and has more often than not led humanity down a precarious rather than a moral path (consider art’s role in the rise of Nazi Germany). It bears noting in passing that law-and-literature work on Shakespeare tended, and tends, to be more sensationalist than law-and-literature work on other authors, so Posner’s claim has particular resonance in the Shakespeare context.

With the publication of Ian Ward’s Shakespeare and the Legal Imagination (1999)[38] and Craig Bernthal’s The Trial of Man (2003),[39] sound scholarship (as opposed to enthusiastic appropriation) made its way into the Shakespeare law-and-literature canon. Ward took up concepts and theories far more complicated than those of his predecessors — specifically, methodologies rooted in rhetoric, phenomenology, hermeneutics, and historicism. Ward’s book implies that an underlying purpose for cross-pollinating two disciplines is to reinvest community politics with epistemic rhetoric and democratic constitutionalism. Ward attempts to describe a Shakespearean politics by openly championing political ideology while acknowledging the limitations of that approach — namely, that any appropriation of Shakespeare reflects on the interpreter more than Shakespeare.

“We cannot,” Ward declares, “make Shakespeare a Marxist, unless we are a Marxist; a patriot, unless we are a patriot; or a postmodern deconstructionist, a new historicist and so on, unless we already are persuaded by postmodernism or new historicism or whatever.”[40] Accordingly, the “Marxist Shakespeare or the postmodern Shakespeare describes the interpreter, not Shakespeare.”[41] Ward does not pretend disinterestedness or otherwise try to mask his tendentiousness, but rather delights in his politically charged call for a communitarian constitutionalism extracted from Shakespeare. He turns to presentism, in particular modern constitutional theory, to advocate for a “contemporary political morality” based on and enacted by Shakespearean paradigms.[42] His presentist flair is in keeping with the presentist flair of contemporary Shakespeare studies, except that his presentism eschews references to contemporary popular culture and instead interrogates the philosophy or jurisprudence of figures like Karl Llewellyn, Michel Foucault, Ronald Dworkin, and Robin West. Ward’s attention to several notables of the Shakespeare-studies movement — Stephan Greenblatt, Michael Bristol, Derek Cohen, and Jonathan Dollimore — props up his scholarship and demonstrates his versatility.

Bernthal is more interested in the concepts of judgment and justice, particularly as they concern Christian mores and traditions. For him, judgment is an archetype. Examining the theological foundations of law, Bernthal uncovers rituals and stories informing Shakespeare’s trial scenes. Shakespeare’s texts are, Bernthal claims, profound responses to the spiritual landscape of Elizabethan and Jacobean England in which religious beliefs poured over and into civil institutions. Shakespeare’s allusions and analogies are often biblical, and Christianity frames Shakespeare’s notions of sin, guilt, natural law, trials, and verdicts. Bernthal brings to light the theological bases for Shakespeare’s legal themes and metaphors. He does so with grace and wit and without burdening readers by over-referencing popular legal culture.

Not all recent law-and-literature work on Shakespeare has come from career academics. Daniel J. Kornstein, a founding partner of the law firm Kornstein, Veisz, Wexler & Poland, LLP, in New York City, recently published Kill All the Lawyers?,[43] a book that is enthusiastic but that refuses to succumb to mawkish celebration of Shakespeare’s life or legacy, the possible exception being the opening paragraphs about Kornstein’s relationship to the New York Shakespeare Festival. Kornstein acknowledges that he practices law “as a profession,” but that “when it comes to Shakespeare,” he is “only an amateur.”[44] He quickly follows, however, with the defensive-seeming statement “The Bard … belongs most of all to the educated amateur, and we need more amateurs.”[45]

Kornstein appears all too conscious of his outsider status. Although not an academic in the popular sense of the term, Kornstein did manage to publish his book with a university press — not necessarily an indication of high-quality scholarship — and to attract back-cover blurbs by such renowned literary journals as Virginia Quarterly Review, Times Literary Supplement, and Renaissance Quarterly. His detailed analyses of figures, events, and places like Joseph Papp, John Shakespeare, the Inns of Court, the Alien Statute (c.f. Merchant of Venice), oral advocacy, classical republicanism, genre, slander, and civil procedure — all in light of Shakespeare’s plays — suggest that his self-derogatory tag of amateurism is excessive humility, possibly even facetiousness. Kornstein appears to know more about Shakespeare than the average literature professor not specializing in Shakespeare. That does not make him an expert, but it does seem to suggest that his self-criticism is tongue-in-cheek if not downright deflective (right off the bat, he has an excuse for any shortcomings).

Like Ward, Kornstein is in lockstep with current Shakespeare studies in its turn to presentism. Rather than investigating contemporary philosophy, however, Kornstein analyzes milestone figures and events from popular legal culture. Although impressively researched, Kornstein’s book is burdened with these forced attempts to relate Shakespeare’s texts to present day, or near-present-day, affairs — among them, Oliver Stone’s film JFK, the Supreme Court decision in Bowers v. Hardwick,[46] the Fourteenth Amendment, or the Senate Judiciary Committee. Kornstein does not buttress his attempts with many references to critical theorists or prominent figures of the cultural-studies movement. His analyses seem desperate to demonstrate that Shakespeare is relevant to contemporary audiences. His interrogation of Bowers vis-à-vis Shakespeare leads to a sweeping conclusion that the “problem of law and morality is complex and divisive,” that law “reflects and advances the prevailing moral values of society,” and that “laws have a moral dimension, and judges are necessarily influenced by the spirit of the age.”[47] Although these statements are probably true, they are also general to the point of counterproductivity. Generality notwithstanding, one might also criticize Kornstein for trying to make Shakespeare sexier to contemporary audiences by relating Shakespeare to only the most exciting legal phenomena. Shakespeare’s contemporary relevance would be better shown by exploring the mundane aspects of law — like fee tail and fee simple — that Shakespeare’s texts clearly implicate.

If Kornstein cannot help but view Shakespeare through the lens of an early-21st-century American lawyer, we should not indict him for it. After all, his views enable future examinations of oft-overlooked aspects of Shakespeare’s plays: statutes, trials, rights, duties, taxes, and so on. Kornstein also reveals a compelling synergy between law and literature even as he disclaims any sort of expertise and even as he purports to jettison politicized schema of race, gender, and identity:

I hope I — as a lawyer — am not simply projecting or adopting a strained, partial, single-minded interpretation. To be sure, it is a common observation that whoever writes about Shakespeare no doubt writes about him or herself. Lawyers, Marxists, Freudians, feminists, and others often yield to the temptation to put the role of their special interest above all else, and end up sifting through Shakespeare’s plays in search of echoes of their own preoccupation. In the process, such readers often ignore a great deal of contrary evidence supporting a different notion of Shakespeare. They make the mistake of seeing both in the plays and in Shakespeare’s own attitudes only those elements that accord with their wishes.[48]

If anything, this quote recalls a phenomenon to which I have already referred: Shakespeare’s constant “appropriability.” That Kornstein acknowledges this phenomenon suggests that he is aware of the culture wars so often marking Shakespeare studies. Kornstein’s conclusions may seem general, but they are never unfounded. His presentist tactics demonstrate an awareness of contemporary Shakespeare studies while his rejection of race and gender theory reveals his disenchantment with contemporary Shakespeare studies.

The Big Picture

Lawyers do have something significant to offer Shakespeare studies, and law professors, especially those with literary training or a sustained familiarity with Shakespeare, are invaluable resources for literary scholars and can even be literary scholars in their own right. If we heeded the call of the Cade’s Rebellion conspirators (c.f., King Henry VI) and killed all of the lawyers, we would, I suspect, miss out on some unique points of view. Worse, we might become careless in our scholarship, particularly when situating Shakespeare’s plays in contemporary legal contexts.

As a case in point, consider Ayanna Thompson’s essay “The Blackfaced Bard,”[49] which attends to various sites of audience reception of Othello productions performed in blackface. What sets Thompson’s essay apart from other, similar essays is its turn to legal texts to investigate the ways that judges codify, authorize, or manage codes of speech and performance by assessing audience interpolation. Thompson’s abrupt transition to legal theory on blackface is both interesting and unusual. She seems to acknowledge that her move is problematic. She refers to “these seemingly disparate points of analysis”[50] and later declares that while “it may seem as if I have taken us far from the debate about blackface performances of Othello, I am interested in these recent legal findings because they offer a fascinating discussion about the tension between intention, practice, and reception.”[51] Strangely, Thompson’s recognition of a disjuncture seems to alleviate that disjuncture. On the other hand, the disjuncture is there, glaring and obtrusive. Thompson does a nice job — far better than most law students — briefing three cases: Berger v. Battaglia, In re Ellender, and Locurto v.Giuliani.[52] Her point about these cases is that judges weigh communal receptions of blackface more heavily than they weigh performers’ intent in donning blackface. More to the point, judges privilege negative media attention over any factoring of authorial intent.

Most practicing lawyers probably would prefer to see Thompson tease out the balancing test used to weigh certain First Amendment rights, but she glosses over that issue (“While debates about the balancing mechanism used to weigh the plaintiff’s First Amendment rights against their ability to perform their public-service positions efficiently is a fascinating area of legal debate, I am more interested in the way this balancing mechanism privileges discussions of reception over intention”).[53] In fact, she glosses over several legal issues, jumping from various federal circuit decisions to a Supreme Court decision in just three pages,[54] and from hate-speech issues (“group libel” or “fighting words”) about which entire books have been written, to related but still very different obscenity cases.[55] She also provides no countercases — cases with opposite holdings — which almost always exist and which often split the circuits. At the very least, she could have differentiated between content regulations, which limit the communication of specific ideas, and conduct regulations, which limit such things as the time, place, and manner in which speech is conveyed.

Lawyers will no doubt appreciate Thompson’s overarching theories, even if she does not adequately untangle the legal specificities on which they rely. She is at her best when arguing, “I do not believe that reception is static when it is ‘collectivist,’” and that “intention, practice, and reception cannot be disentangled” because “they inform and challenge each other.”[56] Here she takes on some fairly prominent legal thinkers in a critical way, but her efforts, unfortunately, are abortive and therefore merely beg the question. Had Thompson collaborated with a professor of constitutional law or an expert on the First Amendment, her article would have been extraordinary. As it is, her article leaves much to be desired — it is a perfect example of why interdisciplinary collaboration is valuable to academics, especially academics in disciplines traditionally classified under the rubric of the humanities.

In the humanities, collaborative texts, or at least coauthored texts, are more the exception than the rule, unlike in scientific and economic disciplines — the so-called hard sciences — in which collaborative or coauthored texts are standard. I would venture to say that by resisting interdisciplinarity, conservative literary critics have allowed ideologues and fanatics to take over literary studies and to embarrass the literary profession by embracing Marxism and its triumphalist teleology. The demise of literary studies may have something to do with this takeover. For who in his right mind would major in a discipline that celebrates teachings that have caused such destruction and tyranny when applied to the workaday world? Rather than avoiding law or economics, perhaps literature professors should avoid bad law and bad economics.

In no other nonscientific field has interdisciplinarity been accomplished so smoothly as in law and literature. Shakespeare studies would benefit from a similar integration and diversification of information. Over time, so much has been written about Shakespeare that his works have become merely pretext for literary scholars to opine about more systemic problems and to negotiate any number of cultural challenges. This article itself uses Shakespeare as an entrance into other, broader issues. For various reasons, conservative literary critics decry this shift in focus because they view the resulting criticism as belonging to practitioners of separate fields of study. Too often, though, their response is to divorce literature from the cultures and communities that shape it — to treat economics or law as beside the point. Economics and law are not beside the point. They inform literary studies and enable insightful readings of literary texts.

What we need is an economic approach to literary criticism that will undo the damage of Marxism and its variants. Law and literature may be the most promising field for such an approach. Without unfixing the privilege of literature, law-and-literature scholars demonstrate literature’s relevance and importance to society. The success of law and literature should inspire literary theorists to team up with experts from other fields — economics, law, political science — to produce criticism that incorporates knowledge and know-how from multiple perspectives. With the notable exception of Paul Cantor, a Shakespearean who has applied Austrian-economic theory to literary texts, and Stephen Cox, who recently coedited Literature and the Economics of Liberty[57] with Cantor, only a few literary scholars work out of non-Marxian economic paradigms. Conversely, few economists view Marxian economics favorably. It would therefore seem that economists would dismiss a great deal of materialist criticism in Shakespeare studies, if only because its analyses pivot on Marxism or quasi Marxism and ignore the broad spectrum of alternate economic schools.

The fact that Marxism remains the dominant mode of economic literary theory suggests that literature professors have become completely out of touch with scholarship in fields like politics, economics, and law. The fact that Marxist critics celebrate ideology critique as if their approaches were above and beyond ideology suggests a tunnel vision and closed-mindedness that threaten the credibility of literary studies. Posner’s argument that literature is irrelevant except as therapy will gain currency if literature professors do not reverse course and reconsider their treatment of economics, and possibly even their appropriations and adaptations of Freud.

If literature professors are going to treat political activism or economic theory as a starting point for criticism, they must become apprised of the political economy of thinkers beyond Marx, Althusser, Jameson, and the like, whose several ideas — which pervade materialist criticism — have not in practice helped the plight of the poor or disenfranchised the way that capitalism has. Few if any professors do “Smithian” or “Misesian” or even “Keynesian”[58] analyses of literary texts, even though these perspectives recall sounder and more consensus-based economic theories. Literature professors must deal with the possibility that literature itself is totally incompatible with the Marxist school of historiography. Reading, producing, and studying literature requires time, money, leisure, and luxury. The genealogy of literature is fraught just as the study of literature is fraught. To realize a utopian Marxian vision might require abandoning literature altogether. Is that the ends towards which materialist criticism aspires?

I will conclude by sharing my enthusiasm about interdisciplinary scholarship such as that which appears in law-and-literature journals. This kind of scholarship often rejects the single-author model, perhaps because there are too many journals and books for one person to read them all and to retain more than a superficial understanding of multiple areas of research. The future of the humanities may involve more joint-authorship ventures. The mass proliferation of literacy, knowledge, and texts has made a working familiarity with multiple and differing fields nearly impossible.

For better or worse, the age of the Renaissance man is over. One individual cannot produce informed scholarship in several fields without the help of others. Coauthorship is not a panacea for information overload. It may create new problems. Good writers with distinct voices might have their voices diluted by coauthors. And how is scholar A, a nonexpert in field X, going to choose collaborators in field X without working in that field himself? How will scholar A judge the final efforts of his collaborators? These questions suggest that coauthorship is not the solution to various problems afflicting the humanities, although it is an option that could reverse leftist and Marxist trends.

If the aim of scholarship and the university is the pursuit of knowledge, then knowledge should not be stifled by monopolistic claims of ownership over ideas, historical figures, genres, or disciplines. Perhaps the time is ripe for a reevaluation of the university mission. As angst about the putative death of the humanities grows, humanities scholars might ask themselves whether they are writing themselves into extinction by undertaking projects on law, economics, science, and so on, without the cooperation of experts who work in those fields and who have devoted entire lifetimes to those critical paradigms. Likewise, professors of law, economics, science, and so on, should not grow defensive when humanities scholars point out the often fatal limitations of an experimental foray into texts to which humanities scholars have devoted entire lifetimes.

We can no longer hide behind the security of disciplinary barriers. We must step outside of our comfort zones. Disciplinary impediments serve to restrain intellectual production by blocking channels of communication and by shutting down access to much needed resources — most notably, experts in other fields. The future of law and literature and perhaps all of the humanities depends on the traversing of road blocks, the negotiation of conflicts, and, to once again mix metaphors, the substitution of certain players when other players become tired or winded. The humanities are probably not going to die any time soon. But they might find a new expression in professional schools where interdisciplinarity and coauthorship are more commonplace, and where Marxism is not the default and dominant paradigm.

[29] White, supra note 23.

[30] With apologies for the references to academic pedigree. I am of the mind that the works of a scholar either stand up or do not, pedigree notwithstanding. I mention the various academic degrees simply to show that these scholars have professional training in both law and literature.

[31] Michael L. Richmond, “Can Shakespeare Make You a Partner?” St. Mary’s Law Journal, volume 20 (1989), pp. 885–896.

[32] I base this observation on the online working bibliography of Professor Daniel J. Solove.

[33] See, e.g., “John Paul Stevens, The Shakespeare Canon of Statutory Construction,” University of Pennsylvania Law Review 140 (1992), pp. 1373–1387.

[34] Jess Bravin, “Justice Stevens Renders an Opinion on Who Wrote Shakespeare’s Plays: It Wasn’t the Bard of Avon, He Says; ‘Evidence Is Beyond a Reasonable Doubt,’” the Wall Street Journal, April 18, 2009.

[35] James Boyle, The Shakespeare Chronicles (Lulu Press, 2006).

[36] Richard Posner, Law and Literature: A Misunderstood Relation (Cambridge, Mass.: Harvard University Press, 1988) p. 363.

[37] Idem.

[38] Ian Ward, Shakespeare and the Legal Imagination (London, Edinburgh, Dublin: Butterworths, 1999).

[39] Craig Bernthal, Trial of Man: Christianity and Judgment in the World of Shakespeare (Wilmington, Delaware: ISI Books, 2003).

[40] Ward, supra note 38, at 17.

[41] Idem.

[42] Idem, pp. 18–19.

[43] Daniel J. Kornstein, Kill All the Lawyers?: Shakespeare’s Legal Appeal (Princeton University Press,1994).

[44] Idem, pp. xiii–xiv.

[45] Idem, p. xiv.

[46] 478 US 186 (1986).

[47] Kornstein, supra note 43, at 41.

[48] Idem, p. xiii.

[49] Ayanna Thompson, “The Blackfaced Bard: Returning to Shakespeare or Leaving Him?,” Shakespeare Bulletin 27 (2009), pp. 437–456.

[50] Idem, p. 440.

[51] Idem, p. 446.

[52] Idem, p. 445.

[53] Idem, p. 447.

[54] Idem, pp. 446–448.

[55] Idem, p. 448.

[56] Idem, p. 449.

[57] Paul A. Cantor and Stephen Cox, eds., Literature and the Economics of Liberty: Spontaneous Order in Culture (Ludwig Von Mises Institute, 2009).

[58] I must emphatically register that I do not endorse Keynesian economics, but I use this example because it is more mainstream than Marxism.

The following essay originally appeared here on Mises Daily.

In an October 2002 article in the New York Times, “Next on the Syllabus, Romeo v. Juliet,” Adam Liptak investigates the curious if questionable move to install literary texts in law-school curricula. Liptak’s opening lines betray his skepticism:

The fact [that Kafka was a lawyer] got the discussion started on a recent afternoon in a sunny seminar room at the New York University School of Law, where 17 law students and 2 professors gather every week for a sort of book club, for credit, in a class called Law and Literature.”[1]

Liptak’s likening of the class to a book club, quickly followed by his strategic comma usage setting off the phrase “for credit,” implies that, in effect, the course is more about enthusiasm than scholarship. How could the activities of book clubbers, Liptak seems to suggest, merit course credit in professional school? Liptak implicitly raises an even greater question: Does literature matter to the so-called “real” world?

In arguing for the inclusion of humanities courses in law school curricula, law-and-literature professors have had to answer that question. They have convinced professional school deans and administrators that literature is important and relevant to actual problems. The turn to political criticism among English faculty is also a move to show that literature has some practical bearing beyond entertainment or leisure. As humanities programs lose funding and students while law-and-literature faculty, courses, conferences, and journals proliferate, it bears asking whether law-and-literature adherents have done a better job persuading university officials that literature is socially significant.

Nearly every Anglo-American law school offers a course called Law & Literature. Nearly all of these courses assign one or more readings from Shakespeare’s oeuvre. Why study Shakespeare in law school? That is the question at the heart of these courses. Some law professors answer the question in terms of cultivating moral sensitivity, fine-tuning close-reading skills, or practicing interpretive strategies on literary rather than legal texts. Most of these professors insist on an illuminating nexus between two supposedly autonomous disciplines. The history of how Shakespeare became part of the legal canon is more complicated than these often defensive, syllabus-justifying declarations allow.

This essay examines the history of Shakespeare studies vis-à-vis legal education. It begins with early law-and-literature scholarship, which focused on Shakespeare’s history or biography — speculating as it did about whether Shakespeare received legal training or became a lawyer — and concludes with recent law-and-literature scholarship treating Shakespeare as a source of insight for law students and lawyers. Early law-and-literature scholarship on Shakespeare anticipated new-historicist theory. More recent law-and-literature work, with its turn to presentism, seems in lockstep with current Shakespeare studies. In law-and-literature classrooms, Shakespeare is more fashionable (like a hobby) than scholarly (like a profession). But law-and-literature scholarship on Shakespeare represents high-caliber work based on interdisciplinary research and sustained engagement with legal and literary texts.

This essay concludes with a note about the direction of the university in general and of the law-and-literature movement in particular. My closing argument is, I admit, tendentious. It raises issues usually raised by confrontational academics and suggests remedies for what William M. Chace has called “the decline of the English Department”[2] or what Harold Bloom has called “Groupthink” in “our obsolete academic institutions, whose long suicide since 1967 continues.”[3] If Chace and Bloom are right about a decline in academic standards — evidence shows that they are at least right about a decline in the number of English majors — then the fate of literary studies seems grim. Nevertheless, Chace and Bloom overlook the migration of literature professors into American law schools, a phenomenon that has not received enough attention.

One aspect of this phenomenon is the migration of students from the humanities to professional schools. I have known students who hoped to attend graduate school in the humanities but quite understandably viewed that route as impractical and went to law school instead. A positive result of this trend is that many law students are open to the idea of law and literature and find luminaries like George Anastaplo or Stanley Fish more interesting than other law professors. The final comments of this essay will address the strange exodus of literary scholars into professional schools, which pay more money and arguably provide vaster audiences and readership, more generous funding opportunities, and reduced teaching loads.

Perhaps more than other literary disciplines, save for cultural studies, Shakespeare studies has moved into the realm of interdisciplinarity, albeit without large contributions from scholars outside of literature departments. The law-and-literature field would have perished without the expertise of literature professors; likewise, Shakespeare studies, if it continues down the path of politics and cultural criticism, will perish without the expertise of economists, political scientists, and law professors, whose mostly non-Marxist ideas, when pooled with the ideas of the literature scholars, might fill out a space for interesting scholarship and redeem the interdisciplinary label. Information sharing is especially crucial for literature scholars who, in order to examine the history of Shakespeare in American culture, have turned to practices and methods traditionally reserved for other disciplines. In this respect, the direction of Shakespeare studies is representative of the direction of the humanities in general.

It may be possible to overcome disciplinary boundaries while recognizing the importance of disciplinary expertise. For understandable reasons, conservative literary critics decry political trends in current literary theory. What these critics ought to decry, though, is the nature of the political trends rather than political trends themselves. What if, instead of Marxist or quasi-Marxist paradigms, literary critics adopted the theories of free-market economics?

Adherents of law and literature unwittingly have carved out an approach to literary studies that jettisons Marxism and quasi Marxism but that retains civic goals. Law and literature cuts across labels like “conservative” and “liberal.” It demonstrates how professional or vocational studies are incomplete without teachings in liberal arts. At a time when antitraditional, quasi-Marxist ideologies have taken over graduate programs in literature, and when humanities funding and enrollment are wanting, the burgeoning law-and-literature courses offer an avenue for restoration of literary study with a civic focus.

The Early Works

If early law-and-literature work on Shakespeare is any indication, the methods of new historicism are actually quite old. This early work attempted to explain Shakespeare’s sophisticated engagement with the law by examining significant cultural documents (most notably legal documents) that might have influenced Shakespeare. As Cushman Kellogg Davis, the seventh governor of Minnesota and a longstanding senator from that state, opined in 1883,

We seem to have here something more than a sciolist’s temerity of indulgence in the terms of an unfamiliar art. No legal solecisms will be found. The abstrusest elements of the common law are impressed into a disciplined service with every evidence of the right and knowledge of commanding. Over and over again, where such knowledge is unexampled in writers unlearned in the law, Shakespeare appears in perfect possession of it. In the law of real property, its rules of tenure and descents, its entails, its fines and recoveries, and their vouchers and double vouchers; in the procedure of the courts, the methods of bringing suits and of arrests, the nature of actions, the rules of pleading, the law of escapes, and of contempt of court; in the principles of evidence, both technical and philosophical; in the distinction between the temporal and the spiritual tribunals; in the law of attainder and forfeiture; in the requisites of a valid marriage; in the presumption of legitimacy; in the learning of the law of prerogative; in the inalienable character of the crown, — this mastership appears with surprising authority.[4]

This statement smacks of hopefulness and Bardolotry at once. It seeks to enlist Shakespeare in the ranks of lawyers everywhere while celebrating Shakespeare’s apparent ability not just to undertake but master multiple fields (literature and law). Simply put, it seeks to appropriate the ever-”appropriable” Shakespeare. Materialist critics are quick to point out that privileged groups have succeeded in appropriating Shakespeare. In so doing, these critics ignore the irony that their approach is itself an appropriation. The best starting point for criticism on Shakespeare is an acknowledgement that Shakespeare’s works are highly complex and irreducible to cookie-cutter appropriations that seek to enlist the Bard in the ranks of contemporary political causes.

Davis was not alone in his belief that Shakespeare was a lawyer or else a person with legal training. Consider the following lines from a September 1858 letter from Lord Chief Justice John Campbell to an attorney named J. Payne Collier:

Were an issue tried before me as Chief Justice at the Warwick assizes, “whether William Shakespeare, late of Stratford-upon-Avon, gentleman, ever was clerk in an attorney’s office in Stratford-upon-Avon aforesaid,” I should hold that there is evidence to go to the jury in support of the affirmative.[5]

Echoing these sentiments, Richard Grant White, a Shakespearean scholar who studied law at New York University, adopts a more sober tone. White argues that Shakespeare displays no more legal knowledge than other Elizabethan literati. White’s grand and hyperbolic claim is that all the Elizabethan literati therefore must have been lawyers:

There are … considerable grounds for the opinion that Shakespeare had more than a layman’s acquaintance with the technical language of the law. For it must be admitted … that he exhibits a remarkable acquaintance with it. That other playwrights and poets of his day manifest a like familiarity … precludes us … from regarding the mere occurrence of law-terms in his works as indications of early training proper to him alone.[6]

White takes Bardolotry to a whole new level, shamelessly glorifying the entire legal community. What these various quotations show us is that early law-and-literature work on Shakespeare was made up of both informed and wishful speculations about Shakespeare’s legal background. One might venture to argue that this work anticipated the move to philology that ultimately secured Shakespeare’s place in literary education. Although it tended towards overstatement and exaggeration, this work nevertheless considered various texts, primary and secondary, and couched its inquiries in terms of measurable evidence. Little archival research appears to have taken place, however, and the hypotheses of early law-and-literature Shakespeareans seem to pivot on secondary sources collected and classified by nonlegal scholars.

Not all legal scholars believed that Shakespeare was a lawyer; some swiftly dismissed the idea, but instead of dismissing all fancy, these naysayers attributed Shakespeare’s legal knowledge to his extraordinary genius:

Some of the admirers of our great dramatist may assert that the universality of his genius, the strength, vigour, and magnitude of his intellectual faculties and powers of investigation, enabled him to acquire a more profound knowledge of a greater variety of subjects than ever yet seems to have been possessed by the same individual, and that the legal knowledge he has displayed in the correct use of law terms is not more remarkable than his intimate acquaintance with human nature, and accurate observation of the habits and customs of mankind, or than the knowledge of seamanship, and the correct use of nautical terms he has displayed in the Tempest.[7]

This quote by William Lowes Rushton, a Shakespearean and a barrister of Gray’s Inn, does not treat Shakespeare’s familiarity with law as anything less than the workings of a brilliant mind. By Rushton’s account, Shakespeare’s legal knowledge is really a reference point for demonstrating Shakespeare’s worldly knowledge (i.e., his knowledge about everything).

Despite its unchecked enthusiasm, the work of scholars like Davis, Hartrigge, White, and Rushton is far from formulaic. Anticipating objections to his project, Davis is quick to point out that isolating Shakespeare’s legal lexica into individualized compartments — as if one legal reference had no bearing on another despite the overall prevalence of legal terminology in any given play — is to overlook the aggregate importance of law to Shakespeare’s individual plays if not his complete oeuvre. “Some of the quotations, taken alone,” he submits, “are doubtless of trifling probative force. They are given because, in cumulative testimony, each independent fact is a multiplier.”[8]

As Davis penned his conjectures, English departments began popping up across America, solidifying literature as a discipline in itself. It was not unusual, then, for a man of letters like Davis to undertake prolonged literary research projects while maintaining a separate career in politics. It would be anachronistic to suggest that these early law-and-literature scholars thought of themselves as professional academics of either law or literature, since neither law nor literature had congealed into an institutional disciplinary body in America. Nevertheless, these scholars employed techniques that were in many respects ahead of their time and that anticipated later theoretical movements not as novel, perhaps, as we suppose.

Unlike the work of contemporary cultural materialists, whom these early scholars anticipate, the work of early law-and-literature adherents did not seek to recover the lost histories of lower-class peoples or to shed light on lowbrow activities, but instead to demonstrate how statutes, trials, common law precedents and the like might have informed Shakespeare’s law-saturated texts. The early Shakespeare law-and-literature proponents were like new historicists without openly political agendas — which of course does not foreclose the possibility that they had concealed political agendas.

Davis provides numerous examples of new-historicist techniques. He compares the legal proceedings of Mary Stuart with those of Shylock,[9] the drama of the Inns of Court with the drama of the stage,[10] and the diction of Shakespeare’s plays with the nomenclature of the common law.[11] Davis’s goals are not to show that Shakespeare was an ideological product of his era, so Davis cannot have written pure new historicism. Yet his methodology does resemble the new historicism of the late 20th century.

Davis was not alone in his critical methodology. As early as 1859, Campbell wrote about Shakespeare’s “frequent use of law-phrases” and “the strict propriety with which he always applied them.”[12] Campbell appears to have sparked the debate over Shakespeare’s legal training and qualifications. In 1883, Franklin Fiske Heard, a lawyer, jurist, and Shakespearean scholar, published a book titled Shakespeare as a Lawyer,[13] which extends Campbell’s analysis. In 1899, responding directly to Campbell, William C. Devecmon, a lawyer from Maryland, authored In re Shakespeare’s “Legal Acquirements,”[14] which argued that, contrary to popular opinion, Shakespeare often misapplied legal diction. To bolster his point, Devecmon cites 14 errors ranging from Shakespeare’s use of “replication” in Hamlet to his use of “indenture” in Pericles. In 1911, Edward J. White, a practicing lawyer from Baltimore, compiled Commentaries on the Law in Shakespeare,[15] a beast of a book that spells out explanations for each of Shakespeare’s legal designations in all of the plays and eight of the sonnets. “It does not follow,” White cautions, “the law of the plays can furnish any basis for the sensationalist to build up a claim of title to the plays in favor of a lawyer, instead of a poet, for the law is merely incidental in the plays, whereas, the poetry is that of the master poet of all time.”[16]

White rejects a certain kind of romanticism (Shakespeare as lawyer) while embracing another kind (Shakespeare’s immortality). In a second edition,[17] picking up where Davis left off, White adds a chapter on the “Bacon-Shakespeare” controversy. Shortly thereafter two books by British lawyer, politician, and Shakespearean scholar, Sir Granville George Greenwood, followed: Shakespeare’s Law and Latin (1916)[18] and Shakespeare’s Law (1920).[19] These works built on Campbell’s book and attempted to rebut the works (too many to list) of refuters of the Shakespeare-as-lawyer hypothesis. Supportive of Greenwood’s conjectures, Sir Dunbar Plunket Barton, an Anglo-Irish statesman who served for two years as Ireland’s solicitor general, penned Links Between Shakespeare and the Law.[20] Later, in 1936, George W. Keeton, a barrister of Gray’s Inn and a law professor, published Shakespeare and His Legal Problems.[21]

Like a new historicist, Keeton begins his chapters by situating readers in the everyday sites and scenes of Shakespeare’s time and only afterwards making sense of the time-traveling experience. In 1967, Keeton expanded his project in Shakespeare’s Legal and Political Background,[22] the latest of what I call the “early works.” I include this text as an early work because it predates James Boyd White’s publication of The Legal Imagination in 1973,[23] and because it appears late in Keeton’s career but addresses topics that Keeton had considered earlier. It is fair to say, at any rate, that these early law-and-literature scholars were steeped in Anglo-American legal traditions and that they therefore gleaned inferences and meaning from Shakespeare’s works that scholars without legal training may have missed. That does not mean that they always arrived at sound conclusions or made reliable and consistent claims. It does, however, suggest that a person with legal training can tell us a great deal about Shakespeare’s texts that a person without legal training might not.

These examples demonstrate the value of a law-and-literature approach to Shakespeare studies. A new-historicist analysis of Shakespeare’s legal references is not possible without a more-than-passing knowledge of law, legal history, or the common-law tradition. Even though some of Shakespeare’s legal language is inaccessible to American lawyers and law students — whose legal education does not include studies of Gray’s Inn or of the differences between solicitors and barristers — many legal terms used by Shakespeare are quickly recognizable even to first-year American law students. These students, forced to read “old” English cases in contracts and property-law courses, will make out many terms or concepts in Shakespeare that a reader without legal training, or a lawyer who has been practicing in one field so long that he no longer is familiar with working paradigms of other fields, might overlook. The concepts of “fee tail” and “fee simple,” for instance, may mean nothing to graduate literature students, but for lawyers or law students who work with these concepts every day, Shakespeare’s references to them will seem strikingly relevant.

The term “fee tail” refers to an almost obsolete estate that limits inheritability to lineal heirs.[24] This present possessory interest, abolished in most US jurisdictions, passes to a grantee’s heirs until those heirs die without issue. By contrast, the term “fee simple” refers to a full and total interest in a particular piece of property. This interest has a potentially infinite duration, and a holder of a fee simple may sell or devise his interest as he pleases. There are various subcategories of fee tail and fee simple that are not worth mentioning here. The point is that although Shakespeare employs the term fee simple in Merry Wives of Windsor; All’s Well That Ends Well; Henry VI, Part II; Troilus and Cressida; Romeo & Juliet; and Lover’s Complaint (a poem usually attributed to Shakespeare) — all works published around the turn of the 16th and 17th centuries — the term itself is hardly archaic. A present-day lawyer cannot draft a will, let alone pass a bar examination, without understanding the word’s meaning and application.[25]

A new historicist could benefit from these early forays that extract legal topoi from Shakespeare and then examine them in light of connections to popular legal culture. So, for instance, a new historicist might borrow from Davis’s notes about “party verdict,” a term appearing in Richard III. Davis relates this term to the 1631 impeachment of David Ramsay. Ramsay’s trial occurred well after the publication (let alone production) of Richard III, a First Folio work. It does not follow, however, that the trial cannot shed light on the methods by which impeachment trials were conducted at the time of Shakespeare’s writing.[26]

A new historicist might also benefit from Davis’s comparison of act 1, scene 2, of Henry V with Bacon’s Apophthegms, number 184, in which Bacon describes French and German codifications of “law salique,” a measure excluding females from the throne.[27] Works like Davis’s are useful and significant despite their zeal and lofty rhetoric. They tell us as much about Shakespeare’s moment and milieu as they do about the scholars’ moment and milieu. So many law-and-literature scholars currently work out of these early paradigms that an exhaustive list would be impossible to compile in this space. There is now a whole dictionary, edited by B.J. and Mary Sokol, devoted to Shakespeare’s legal language.[28] Suffice it to say that these early works are worthy of attention in their own right.

Notes

[1] Adam Liptak, “Next on the Syllabus, Romeo and Juliet,” the New York Times, October 30, 2002.

[2] William M. Chace, “The Decline of the English Department,” the American Scholar (2009).

[3] Harold Bloom, Genius (New York: Warner Books, 2002), p. ix.

[4] Cushman K. Davis, The Law in Shakespeare (Washington, D.C.: Washington Law Book Co.,1883), p. 4–5. One might quibble that this passage represents “old historicism” rather than ”new historicism” because the latter usually entails the practice of showing that works of literature are products of economic and cultural hegemonies and thus in need of deconstruction along the lines of ideological filiations. See, e.g., R.V. Young, At War with the Word (Wilmington, Delaware: ISI Books, 1999), p. 87.

[5] N.B. Jedburgh Hartrigge, Preface, in Shakespeare’s Legal Acquirements (John Lord Campbell, ed., New York: D. Appleteon and Co., 1859), p. 9.

[6] Richard Grant White, “William Shakespeare Attorney at Law and Solicitor in Chancery,” Atlantic Monthly, volume 4 (1859), p. 99.

[7] William Lowes Rushton, Shakespeare as Lawyer (London: Longman Brown Green Longmans and Roberts, 1858) p. 3.

[8] Davis, supra note 4, p. 4.

[9] Idem, p. 17.

[10] Idem, p. 56.

[11] Idem, pp. 117–285.

[12] Lord Baron John Campbell, Shakespeare’s Legal Acquirements Considered (London: John Murray, 1859), p. 5.

[13] Franklin Fiske Heard, Shakespeare as a Lawyer (Boston: Little, Brown, and Company, 1883).

[14] William C. Devecmon, In re Shakespeare’s “Legal Acquirements”: Notes By an Unbeliever Therein (London: Kegan Paul, Trench, Trubner & Co., Ltd., 1899).

[15] Edward J. White, Commentaries on the Law in Shakespeare (St. Louis: The F.H. Thomas Law Book Co., 1911).

[16] Idem, p. 1.

[17] Edward J. White, Commentaries on the Law in Shakespeare, volume II. (St. Louis: The F.H. Thomas Law Book Co., 1913).

[18] Sir Granville George Greenwood, Shakespeare’s Law and Latin (Watts & Co., 1916).

[19] Sir Granville George Greenwood. Shakespeare’s Law (London: Cecil Palmer, 1920).

[20] Sir Dunbar Plunket Barton, Links Between Shakespeare and the Law (Boston: Houghton Mifflin, 1929).

[21] George W. Keeton, Shakespeare and His Legal Problems (London: A. & C. Black, Ltd., 1930).

[22] George W. Keeton, Shakespeare’s Legal and Political Background (London: Barnes & Noble, Inc., 1967).

[23] James Boyd White, The Legal Imagination (University of Chicago Press, 1985 [Updated edition of the 1973 version]).

[24] Fee tails serve as a staple plot device of Victorian novels such as Jane Austin’s Sense and Sensibility.

[25] Interestingly enough, Shakespeare himself left the bulk of his will in fee tail to his daughter Susanna. See Samuel Schoenbaum, William Shakespeare: A Compact Documentary Life (Oxford: Clarendon Press, 1977), pp. 292–297.

[26] Davis, supra note 4, pp. 156–58.

[27] Idem, p. 184.

[28] B.J. and Mary Sokol, Shakespeare’s Legal Language (London and New Brunswick, NJ: The Athlone Press, 2000).

]]> http://allenmendenhallblog.com/2012/05/17/liberty-and-shakespeare-part-one/feed/ 0 allenmendenhall Allen Mendenhall http://allenmendenhallblog.com/2012/05/09/gone-edited-with-photography-by-nell-dickerson/ http://allenmendenhallblog.com/2012/05/09/gone-edited-with-photography-by-nell-dickerson/#comments Wed, 09 May 2012 11:45:27 +0000 Allen Porter Mendenhall http://allenmendenhallblog.com/?p=1244 ]]>

The following review originally appeared here in the Southern Literary Review.

I’ve always maintained a spectator’s curiosity in the rituals and practices of photography.  I can’t take a good picture, no matter which side of the camera I’m on, but I appreciate the idea of reducing the world to a more manageable form, something I can look at and admire without getting overwhelmed by the sheer magnitude and kinetics of it all.

I used to have a friend who was a photographer, and I would watch her take pictures.  She tried, once or twice, to teach me the nuances and particulars of photography, but I’m too proud to fail at new activities, so I strive never to undertake them.

Photographs are, folks say, moments stuck in time.  That makes them especially melancholy if their subjects, as it were, are decaying, rotting, or dying.  That’s what I realized when I leafed through the pages of Gone, a brilliant, conversation-starting, coffee-table book bearing the subtitle “A Heartbreaking Story of the Civil War,” and the sub-sub-title “A Photographic Plea for Preservation.”

Gone makes history even as it documents history.  Its images of antebellum Southern churches, plantations, and homes—some dilapidated, some just barely restored—ought to remind Southerners of the need for preserving the finest monuments of, and to, our complicated history.

That the photographer is Nell Dickerson, cousin to the late, great historian and novelist Shelby Foote, who needs no introduction to readers of this publication—although we editors have given him one—only adds a sense of authenticity to this project.  It’s as if in image and word and authorial kin, the book is tied to a past that struggles, and fails, to remain present; and it’s in that failing that the book achieves its most meaningful and poignant expression.

We Southerners place a premium on the fixed, the immutable, the known, perhaps because we understand that the things we value—family, hearth, home, community, place, religion—are bound to change.  We mourn change as we mourn loss, because all change entails loss, and it’s our tendency to mourn that gives us a unique, constructive identity.

We define ourselves as a people who have lost, or have lost something.  It’s a position that doesn’t survive interrogation, but there it is, a tragic ethos (and, for that matter, pathos) that we hope will stay the same when all else is, if not different, then almost unfamiliar.  Almost.

Any review of Gone that neglects to mention the powerful introduction by Robert Hicks, or the bleak but beautiful short story by Foote, both of which appear alongside Dickerson’s photographs, would be inadequate.  The strength of this book, however, comes not from its prose but from its visual reproductions of reality, which is, as every Southerner knows, sometimes a harsh reality.

A book of stark, sad images of things bound to end.  I could leave this review at that.  Yet doing so would neglect the positive tones—the calls to action—that Dickerson seeks to inspire.  She, like Hicks, is a preservationist, and she makes no secret of her desire to “honor and preserve the reflections of our collective past that continue to make us a great nation.”  Dickerson’s camera is her means for shouting, “Save this place before it’s too late!”

And so I’m reminded once again of my photographer friend, and of a spring day when we rode bikes together into a grassy field so she could capture images of swaying wheat stalks.  As usual, I declined her offer to hold the camera or to take a picture of my own.  “You’re funny,” she said.  When I asked why, she answered, “Because you’re always wanting to slow down and sit still, to make time stop, but you won’t do the one thing that would give you the illusion that you can.”

There is, I suspect, something in that statement that explains why Gone is so touching and provoking.  I’m not sure what it is.

Whatever it is, it affects me strangely.

The following lines come from two dissents by Oliver Wendell Holmes, Jr.  I have rendered the lines in poetic form to suggest that Holmes’s writing is poetic, perhaps even inspired by Modern American poets such as William Carlos Williams.

Black & White Taxi & Transfer Co. v. Brown & Yellow Taxi & Transfer Co.[1]

A Poem[2] (1928)

It is very hard to resist the impression

that there is one august corpus

to understand which clearly is the only task

of any Court concerned.

If there were such a transcendental body of law

outside of any particular State

but obligatory within it unless and until changed by statute,

the Courts of the United States might be right in using

their independent judgment

as to what it was.

But there is no such body of law.

The fallacy and illusion that I think exist

consist in supposing that there is this outside thing to be found.

Law is a word used with different meanings,

but law in the sense in which courts speak of it today

does not exist

without some definite authority

behind it.

Gitlow v. New York[3]

A Poem[4] (1925)

Every idea

is an incitement.

It offers itself for belief

and if believed

it is acted on

unless some other belief

outweighs it

or some failure of energy

stifles the movement

at its birth.

The only difference

between the expression

of an opinion and an incitement

in the narrower sense

is the speaker’s enthusiasm

for the result.

Eloquence may set fire

to reason.

But whatever may be thought

of the redundant discourse

before us

it had no chance of starting

a present conflagration.

Teaching Law and Literature.  Austin Sarat, Cathrine O. Frank, and Matthew Anderson, eds.  New York: Modern Language Association, 2011.  vii + 507 pp.  $25, paper.

What began as a coordinated, idiosyncratic project in American and British law schools has become a common component of curricula in English departments across the globe.  Law and literature as a subject and as a movement has gained purchase over the last three decades.  Inaugurated in 1973 with the publication of James Boyd White’s The Legal Imagination, which highlighted, among other things, the affinities between legal and literary rhetoric, law and literature has splintered into so many narrowed foci that today it is just as common to see courses like “Law in Late 19^th Century American Literature” as it once was to see courses called, quite simply and broadly, “Law and Literature.”

To celebrate and explain this movement, The Modern Language Association (MLA) has released Teaching Law and Literature, an edition with forty-one essays by some of the most prominent scholars in the field, including none other than White himself.  Although law and literature has enjoyed ample funding and has become the subject of an increasing number of journals and conferences, not enough work has been done on the pedagogical aspects of the discipline.  Put another way, the discipline has yet adequately to address the question of how professors ought to teach the interplay of law and literature to students.

That is a gap that this book seeks to fill.  According to editors Austin Sarat, Cathrine O. Frank, and Matthew Anderson, Teaching Law and Literature  “provides a resource for teachers interested in learning about the field of law and literature and how to bring its insights to bear in their classrooms, both in the liberal arts and in law schools.”  Despite that stated goal, the book is weighted toward undergraduate education, and the editors admit as much in their introduction.

At a time when American law schools are under fire for admissions scandals and fabricated data, professors of law and literature—and law professors interested in humanistic and jurisprudential approaches to law teaching—would do well to turn their attention to undergraduates.  When budget cuts and faculty purging befall the legal academy, as they likely will, law and literature (and its various offshoots) will be the first curricular elective to suffer.  A discipline whose proponents struggle to articulate its purpose—will a course in law and literature help law students to pass a bar exam or to become better lawyers?—may not survive the institutional scrutiny of deans, administrators, and alumni associations.

Yet it is the urgent quest for validation that makes law and literature such an important subject.  At its core, law and literature is about grand questions: Why study literature at all?  What use do novels, plays, poems, and the like have for the general public and for the practical, workaday world in which lawyers serve a necessary function?  Might the recurring themes of justice, fairness, and equality expressed in canonized texts from disparate cultures and communities point to something recognizable and distinctive in the human condition?  And are there paralyzing limits to specialized knowledge of periods and genres when so many law and literature scholars, working out of different traditions and trained in supposedly autonomous disciplines, arrive at the same or similar generalizations regarding human experience?

One such generalization, interestingly enough, is that complicated relationships between people—whether based in race, gender, class, or whatever—ought to be understood in terms of ambiguity and contingency rather than certainty and absolutes, and that simple answers will hardly ever suffice to illuminate the nuances and contradictions of any given phenomenon, especially law.  That law is too often reduced to blackletter, blanket rules is not lost to writers of imaginative literature, who, many of them, have used law and legal institutions to enable critiques and explorations of complex social and philosophical problems.

It is little wonder, in light of the compatibility between literary and legal rhetoric or hermeneutics, that a Maryland appellate judge recently wrote in his concurrence that “[t]his case is E.M. Forster’s A Passage to India all over again.  Something happened up there at the Marabar Caves.  Was it an attempted rape?  Was it some form of hysteria triggered by strongly ambivalent emotions imploding violently in a dark and isolated catacomb?  Or was it some unmappable combination of the two as moods and signals shifted diametrically in mid-passage?  The outside world will never know.”  Here is a judge employing a work of literature to demonstrate a point about the limitations of human knowledge.  Law provides topoi in countless works of literature, and works of literature, as this judge apparently recognizes, can supply context and profundity to the deforming routines and desensitizing rituals of everyday law practice.  Without following the judge through to the end of his reasoning, one can sense in his lines a stark awareness of the incapacity of human faculties and hence the perspectival nature of what the philosophers call “justice.”

No review could touch upon all of the essays in this volume; the book defies summary but is broken into three categorical parts: “Theory and History of the Movement,” “Model Courses,” and “Texts.”  The first part introduces newcomers to key terms and conceptual rubrics, in particular the distinction between “law and literature” and “law as literature.”  The editors, à la Robin West, explain that “‘law and’ and ‘law as’ offer a foundational nomenclature that has become useful, both in its export and in its deconstruction, for conceptualizing other law and humanities fields.”

Since I mentioned West, I should also note that this section features essays by other founders of the movement such as White, Richard H. Weisberg, Peter Brooks, Julie Stone Peters, and Robert Weisberg (no relation to Richard).  The order in which these names appear suggests a deliberate move by the editors to structure this section chronologically: White is the founder, and each successive author revised and extended the discipline in significant ways.

“Model Courses” supplies resources for teachers seeking “to create a course, integrate new readings into an existing syllabus, and learn how to negotiate the challenges of interdisciplinary teaching by seeing what has worked, as well as what hasn’t.”  The authors of imaginative literature addressed in “Model Courses” are as diverse as those addressed in “Texts,” the third and final section whose subjects range from the Bible to Chaucer to Shakespeare to Conrad to Dostoevsky.  Lest readers suspect that the movement is but academic cover for a Bloomian-styled treatment of the Western Canon, one essay in this section encourages us to “broaden the canon with new texts” reflecting the perspectives of so-called “outsiders.”

Taken together, the essays in this volume present a refreshingly cogent evaluation of the law and literature movement in all of its manifestations.  As the movement proceeds apace, a work such as this that steps back to reassess, clarify, and reappraise is welcome indeed.  It is not too much to say that Teaching Law and Literature is indispensable to those entering into the field, and of immense value to those who have made the field what it is.  MLA deserves praise and support for making this book possible, and the editors, for their work and commitment, ought to be applauded.  Law and literature is proof that interdisciplinarity in the academy can be achieved and, more importantly, can flourish.

The following originally appeared here at Libertarian Papers.  Full Works Cited below.

From Turton Towards a New Jurisprudence

For much of the novel, Turton tries to balance his allegiance to Britain and his duties toward Indians. He hosts bridge parties, for instance, and fraternizes with Indians. In the scene at the club, wherein the Englishmen discuss the charges against Aziz and what should be done about them, Turton tries to remain “scrupulously fair,” although he also wants to “avenge Miss Quested and punish Fielding,” who has, it seems, taken Aziz’s side over the British (164). Despite his anger, Turton resolves to go about “the old weary business of compromise and moderation” (164). He reminds himself that, “in the eyes of the law, Aziz was not yet guilty” (165). Yet the law does not matter in Chandrapore because Aziz has been found guilty in the court of British public opinion. Moreover, law in the colony amounts to public opinion. Justice may be blind, but injustice is not—it holds Aziz accountable for his foreignness and for the color of his skin.

Even if Turton discourages violence against Indians, telling the room, “Don’t start carrying arms about,” he can no longer occupy the space between the British and Indian binary (166). He comes down on the side of the English and thereby demonstrates that law is not merely a written text or a code of rules but a bundle of biases and personal preferences. British law rests on prejudices outside of the pure, divine law that is Brahman Hindu. Turton shows, in other words, that rule of law can never work in a society controlled by one group that is culturally distinct from the less powerful group.

Like a good utilitarian, Turton abides by rationality and logic. The result is a gross legalism that compels a segregated worldview. Turton supports one “simple rule” above all: Indians and English belong in separate societies (147). “I have had twenty-five years’ experience of this country,” he pontificates to Fielding,

and during those twenty-five years I have never known anything but disaster result when English people and Indians attempt to be intimate socially. Intercourse, yes. Courtesy, by all means. Intimacy—never, never. The whole weight of my authority is against it. I have been in charge at Chandrapore for six years, and if everything has gone smoothly, if there has been mutual respect and esteem, it is because both peoples kept to this simple rule. (147)

This rule anticipates the end of the novel when Fielding asks why he and Aziz cannot be friends and the land and sky seem to answer, “No, not yet,” and “No, not there” (293). One could argue that this vision of segregated society—which may not have been Forster’s vision—is offensive and against the all-inclusive Brahman Hindu spirit of the story. And yet it is a vision that Fielding and Aziz seem to share. It flies in the face of the “aesthetic of clutter and confusion” at the Gokul Astami festival (Singh 274). It denies the forces of nature that unite everyone as a marvelous energy. It therefore is not law at all but rather an unjust perversion of law. Not being true law, it is not morally binding. Assuming that Spencer’s thesis (above) is correct and Passage is a Hindu magnum opus, Turton’s segregated worldview gainsays the general oneness articulated in Brahman philosophy and privileges that British fiction—rule of law—that seeks to establish opposition structures rather than to embrace hybrid, transcultural unities.

Although English characters call for rule of law in the colonies, they go to great lengths to violate true law, unjustly prosecuting the innocent Aziz with shoddy evidence. Although they aspire to logic and calculation, they become like emotional herd animals with no ability to reason. Forster likens emotion, which always has to do with racial difference, to herd-like behavior. He employs this tactic when describing Fielding as having no racial feeling, “not because he was superior to his brother civilians, but because he had matured in a different atmosphere, where the herd-instinct does not flourish” (52, my italics).[1] If this sentence is representative of Fielding’s character, then Fielding’s racial enlightenment is the product of a distinct cultural system, an inherited behavior not necessarily chosen. More than Fielding, then, Turton straddles English and Indian societies, occupying an interstitial space and resisting “herdism” by asserting his individuality. Turton is, to that end, the only English character who invites “numerous Indian gentlemen in the neighbourhood” to his home,[2] an action that “caused much excitement” (35). Unlike Fielding, however, the conflictual Turton maintains a clear distance from these Indians, lending critical substance to Mahmoud Ali’s belief that “Turton would never [invite Indians to his house] unless compelled” (35). Turton’s hospitable gestures and high-minded aspirations to neutrality amount to little more than subtle, apologetic pleadings to and for existing social norms. Turton is, despite himself, a servant of British culture.

In contrast to Turton, McBryde, the District Superintendent of Police, stands for all that is absolute in British culture; he epitomizes the absurdity of English assumptions about the nature of Indian men, believing that “all unfortunate natives are criminals at heart, for the simple reason that they live south of latitude 30” (149). From this position, McBryde infers that Indians are guilty by nature, or, in Calvinistic terms, predestined for sin; therefore, he reasons, the English cannot hold Indians accountable for crimes because “[t]hey are not to blame, they have not a dog’s chance—we should be like them if we settled here” (149). This claim is both resonant and politically charged, rooted as it is in the belief that individuals are products of their environment. Such a belief would seem to further justify imposing colonial rule by suggesting that changing the environment would also change the people in the environment. If Indians are culturally conditioned subjects, their tendencies and behavior assigned them by their communities, then they lack the requisite mens rea for their crimes; they are blameless, having “transgressed” without mental fault. The irony, of course, is that McBryde himself was born in Karachi (south of latitude 30) and “would sometimes admit as much with a sad, quiet smile” (149).

A self-proclaimed paradox, McBryde reveals how Anglo-Indian relationships depend upon the signification of negative biological characteristics, how Englishmen presuppose an innate and unchanging origin for these characteristics, and how these presuppositions “justify” the double-standards of the English legal system—a prime example being Mrs. Turton’s acceptance of bribes. “When we poor blacks take bribes,” submits Mahmoud Ali, an Indian lawyer, “we perform what we are bribed to perform, and the law discovers us in consequence. The English take and do nothing. I admire them” (5). Ali realizes that law in Chandropore is a discursive construct and so mocks its purely notional grounds.

Isolated from the English in his supervising role as collector, Turton ruminates and forms judgments by process of logic; but among the English in his support for Adela, he grows irrational. At times the reason and emotion binaries collapse into each other in his ambivalence. For example, after Aziz is accused of raping Adela, Fielding approaches Turton to inquire about Adela’s condition. Frustrated with Fielding, Turton ends the interview and walks onto a platform overlooking the everyday goings-on of Chandrapore. He feels “his sense of justice function” even while he is “insane with rage” (149). Later, his emotion does seem to prevail over reason as he drives through the streets, seeing “the cookies asleep in the ditches or the shopkeepers rising to salute him on their little platforms,” and saying to himself, “‘I know what you’re like at last; you shall pay for this, you shall squeal’” (149). These passions call for a “justice” that is more like revenge than retribution.[3] But so far neither Turton’s passion (emotion) nor his reason fully coheres. His commitment to impartiality—or to the ideal of impartiality—sets him apart from the erratic, temperamental Englishmen who would mete out punishment swiftly and extra-judicially were it not for prescribed legal procedures—neutral in theory but discriminatory in practice—that putatively restrain emotion and compel rational adjudication. Yet after Adela’s rape and Turton’s abortive meeting with Fielding, Turton seems to exemplify English irrationality. Rather than ensuring justice or equality, Turton and the legal system formalize bigotry in that they do not fully realize the impartiality and non-arbitrariness so popularized by rule of law rhetoric.

Rational and polarized society fails Turton when the two worlds, English and Indian, become intimate vis-à-vis Aziz and Adela. When he suspects Aziz and Adela of becoming not just intimate but sexually intimate, he breaks down, “involved in his own emotions,” for he thinks it “impossible to regard a tragedy from two points of view” (148).[4] His inability to see society as anything but two isolated spheres causes a shift in the balance of power: he cannot “avenge the girl” and “save the man” and thus cannot occupy that space between binaries (148).[5] No longer the midpoint between reason and emotion, he surrenders to emotion and, as it were, tips the scales—becomes, at last, fully English. Completely disassociated from Indianness, having abandoned the principles of neutrality supposedly characteristic of all collectors, Turton appears in the final chapter in name only as Aziz declares, “Clear out, all you Turtons and Burtons. We wanted to know you ten years back—now it’s too late![6] […] Clear out, clear out, I say” (292). Like Fielding, and even like Forster himself,[7] Turton is a failed cultural intermediary whose increasing prejudice calls into question the equality and consistency of the entire legal system of Anglo-India. If only Turton had abided by the law of Brahman Hindu and obliterated vacant categories like English/Indian or reason/emotion, distinctions essential to the hegemony of British rule of law, the novel might have played out differently.

Turton’s failure to connect with Indians recalls the similarly failed connections of Mrs. Moore and Fielding. These three characters, taken together, suggest that hegemonic or colonial systems prevent the triumph of personal relations by injecting both colonizers and colonized with spite and contempt. The machinery of the system makes friendship improbable if not impossible. Forster’s firsthand knowledge of the colonial experience increases the likelihood that his satirizing extends far beyond the pages of the novel and into the schema of colonial law. Turton’s botched mediations implicate this schema in ways that Mrs. Moore’s and Fielding’s mediations cannot. That is because Turton, as district collector, holds the system in place. He is a linchpin. Without him, the structure, as it were, falls apart. Forster uses Turton to show not only that the system is doomed to fail, but also that the system is based on purely British behaviors, philosophies, and norms. The system is a function of the ideological needs of colonizers. As the British characters rehearse racial scripts and act superior to their Indian counterparts,[8] as they revise their cultural classifications, they demonstrate that the system is anything but universal. If it were universal, the Indians—Hindu, Muslim, or otherwise—would at least have some familiarity or appreciation for it. If it were universal, it would work. If it were universal, it would achieve, not deny, justice.

Turton’s role in exposing the inconsistencies and vagaries of British rule of law and its concomitant utilitarianism suggests that the Brahman Hindu philosophy celebrated by Forster provides a better starting point for governing and for mediating between cultures. The all-inclusive framework of Brahman Hindu better protects, or could better protect, basic rights. Put differently, Brahman Hindu could go some length towards establishing a system of polycentric law, a relatively new concept celebrated by philosophers and sociologists alike. Polycentric law refers to the overlapping and amalgamating of rules and jurisdictions in contrast to the legislating of a monolithic legal code that denies cultural particularities.[9] Polycentric law is not centrally planned. With the emergence of alternative dispute resolution, Internet law, transnational law, and private adoption and child kidnapping disputes, debates over polycentric law will become even more pressing. Novels like Passage can tell us a great deal about the social and political implications of a legal system—informed by jurisprudence in keeping with Brahman Hindu—whereby individuals and localities assert and defend their culturally specific rules and regulations. Such novels can dispel monopolistic claims on law and “de-universalize” repressive jurisprudence that arrogantly presumes the backwardness of other cultures.

Works Cited

Allen, Glen O.  “Structure, Symbol, and Theme in E.M. Forster’s A Passage to India.”  PMLA, Vol. 70, No. 5 (1955).

Arora, Ramesh Kumar and Rajni Goyal. Indian Public Administration: Institutions and Issues. New Age International, 1995.

Baken, Robert Jan. Plotting, Squatting, Public Purpose, and Politics. Ashgate Publishing, Ltd., 2003.

Bell, Tom W.  “Polycentric Law.”  Humane Studies Review.  Vol. 7, No. 1 (1991–92).

Benson, Bruce.  “Enforcement of Private Property Rights in Primitive Societies: Law without Government.” The Journal of Libertarian Studies.  Vol. 9, No. 1 (Winter 1989).

Bentham, Jeremy. The Principles of Morals and Legislation. Amherst, New York: Prometheus Books, 1998.

Brimnes, Niels. Constructing the Colonial Encounter: Right and Left Hand Castes in Early Colonial South India. Curzon Press, 1999.

Dicey, Albert Venn. Introduction to the Study of the Law of the Constitution. 8th ed. London: Macmillan and Co., Ltd., 1915.

Ellickson, Robert.  Order without Law: How Neighbors Settle Disputes.  Cambridge: Harvard University Press, 1991).

Fisch, Jory.  Cheap Lives and Dear Limbs: The British Transformation of the Bengal Criminal Law 1769-1817.  Wiesbaden: Fraz Steiner Verlag, 1983.

Forster, E.M. “Reflections in India, I: Too Late?” The Nation and the Athenaeum, 21 January 1922, p. 625.

Fremont-Barnes, Gregory. The Indian Mutiny 1857–58. Westminster, MD, and Welingborough, UK: Osprey Publishing, 2007.

Furbank, P.N. E.M. Forster: A Life. Harcourt Brace Jovanovich, 1978.

Halévy, Élie. The Growth of Philosophic Radicalism. Translated by Mary Morris. Boston: Beacon Press, 1955.

Harden, Ian and Norman Lewis. The Noble Lie: The British Constitution and the Rule of Law. Hutchinson, 1986.

Hasnas, John. “The Myth of the Rule of Law.” 1995 Wisconsin Law Review 199 (1995: 1–39).

Hitchens, Christopher. “Victoria’s Secret.” January/February 2008. The Atlantic. [Available at

www.theatlantic.com/magazine/archive/2008/01/victoria-8217-s-secret/6565/] [last accessed Tuesday, July 20, 2010].

Iyer, Raghavan Narasimhan. Utilitarianism and All That. London: Concord Grove Press, 1983.

Kumar, T. K. Vinod and Arvind Verma. “Hegemony, Discipline and Control in the Administration of Police in Colonial India.” Asian Criminology. Vol. 4, No. 1 (2009: 61–78).

Lottieri, Carlo.  “European Unification as the New Frontier of Collectivism: The Case for Competitive Federalism and Polycentric Law.”  Journal of Libertarian Studies.  Vol. 16, No. 1 (Winter 1992).

Macaulay, Lord Thomas Babington. Speeches of Lord Macaulay corrected by himself. London: Longmans, Green, and Co., 1877.

———. The Complete Works of Thomas Babington Macaulay, Vol. 9. Boston and New York: Houghton, Mifflin & Co., 1900.

Malleson, G. B. The Indian Mutiny of 1857. Longmans, Green, and Co., 1896.

McCormick, John P. Carl Schmitt’s Critique of Liberalism: Against Politics as Technology. Cambridge University Press, 1997.

Mehta, Uday Singh. Liberalism and Empire. Chicago and London: University of Chicago Press, 1999.

Metcalf, Thomas R. Ideologies of the Raj, Vol. III. Cambridge University Press, 1995.

Moffat, Wendy. A Great Unrecorded History: A New Life of E.M. Forster. New York: Farrar, Straus & Giroux, 2010.

Morriss, Andrew P.  “Hayek & Cowboys: Customary Law in the American West.”  NYU Journal of Law & Liberty.  1:1 (January 2005).

Parashar, P. N. History and Problems of Civil Services in India, Vol. II. New Delhi, India: Sarup & Sons, 2003.

Pitts, Jennifer. A Turn to Empire: The Rise of Imperial Liberalism in Britain and France. Princeton and Oxford: Princeton University Press, 2005.

Posner, Richard. “Cultural Studies and the Law.” Raritan, Vol. 19, Issue 2 (1999: 42–53).

Rothbard, Murray. Classical Economics: An Austrian Perspective on the History of Economic Thought, Vol. II. Auburn, Alabama: Ludwig Von Mises Institute, 2006.

Sarkar, Siuli. Public Administration In India. New Delhi: PHI Learning Private Limited, 2010.

Sarker, Sunil Kumar. A Companion to E.M. Forster: Volume I. New Delhi: Atlantic Publishers & Distributors, Ltd., 2007.

Shklar, Judith and Stanley Hoffman. Political Thought and Political Thinkers. University of Chicago Press, 1998.

Singh, Francis B. “A Passage to India, the National Movement, and Independence,” Twentieth Century Literature, Vol. 32, No. 2/3 (1985: 265–78).

Singha, Radhika.  A Despotism of Law: Crime and Justice in Early Colonial India.  Oxford: Oxford University Press, 1998.

Spencer, Michael. “Hinduism in E.M. Forster’s A Passage to India,” The Journal of Asian Studies, Vol. 27, No. 2 (Feb., 1968), pp. 281–95.

Stephen, Sir Leslie. The English Utilitarians. London: Duckworth and Co., 1900.

Stokes, Eric. The English Utilitarians and India. Oxford University Press, 1989.

Tummala, Krishna K. Public Administration in India. Allied Publishers, 1905.

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

The Role of District Collector

Partly because of Lord Thomas Babington Macaulay’s codes, and partly because of the British need to establish powerful offices that would entice colonizers to remain in India rather than return to England, collectors gained extraordinary powers between 1857 and 1909 (Arora and Goyal 243). “In him [the Collector] was created a ‘little Napoleon,’” Ramesh Kumar Arora and Rajni Goyal explain, “who, being part and parcel of the steel-frame, made it possible for the British to govern and control the vast subcontinent” (244). It is fair to say that Mr. Turton is one of these little Napoleons—an official forced to countenance Indian interests while pledging ultimate allegiance to the British sovereign. In fact, Forster goes so far as to call Mr. and Mrs. Turton “little gods” (20).[1] Thus cast, Mr. Turton is problematic—for like other collectors he “had to adjust his autocratic rule and at times benevolent administration to a climate of representative politics” (Tummala 126).[2] In other words, he had to straddle two societies and to pander to multiple interests; but his loyalties were to remain unchanged. Turton is a conflicted, ambivalent character in part because his occupation is itself conflicted. He is a site and symbol of British power but also of British mercy and tolerance. As such, he is the perfect character through which to critique colonial programs in general and utilitarian jurisprudence in particular. Forster uses Turton to show that British rule of law is either a myth or a pretext for nation-building, and that Brahman Hindu philosophy is a jurisprudentially sound alternative to rule of law.

The district collector was a major locus of power in the centrally planned Indian Civil Service. Arora and Goyal describe the current office of district collector as “the kingpin of district administration in India” (243). “The office,” Arora and Goyal continue, “is the result of a long process of evolution of about two hundred years of the British rule” (243). Forster’s productions came about during the late stages of this British rule. Although the “administration of revenue, civil justice and magistracy was united in the office of District Collector,” thus making the District Collector “the executive machinery in the district,” District Collectors did not become “the symbol of imperial rule” until after the 1857 revolt (Sarkar 117). Before the revolt, also known as the Indian Mutiny or the First War of Independence, the district collector signified an “extremely powerful civil servant running the executive machinery in the district” (Sarkar 117). The causes of the Indian Rebellion are disputed,[3] but the ramifications seem to have been, in one contemporary’s words, “a persistent attempt to force Western ideas,” including Benthamite utilitarianism, “upon an Eastern people” (Malleson G. B. 412).

By the time Forster visited India,[4] the office of district collector would entail “powers of the magistrate and the judge too” (Tummala 126), the former power being limited to small claims and ceremonial rights (Brimnes 222). During Forster’s visit, district collectors would have spent “more time on the office desk and less on tours which provided [them] an opportunity to come in direct contact with people,” including tourists like Forster (Parashar 83). The prepositional phrase “on the office desk” seems suggestive of any number of activities (some sexual) besides simply work. Anyhow, district Collectors worked closely with District Magistrates (represented by the character Ronny in Passage) and District Police Superintendents (represented by McBryde) to keep local populations under constant surveillance as required by Macaulay’s legal codes (Kumar and Verma 66–67).

Macaulay was a British statesman and a man of letters who participated on the Supreme Council of India in the early 19th century. In this position, Macaulay advised George Lord Auckland, the Governor-General of India, regarding the laws of India. The best known of these efforts is probably the Indian Penal Code, the introductory footnote to which proclaims, “These papers […] are by no means merely of Indian interest, for, while they were the commencement of a new system of law for India, they chiefly relate to general principles of jurisprudence which are of universal application” (Macaulay, The Complete Works 551). This short footnote exemplifies the extent to which doctrinaire utilitarian paternalism had come to mark British administration in India. Indeed, Macaulay’s codes pivot on the assumption that British utilitarian jurisprudence is so enlightened as to be universal. By this logic, anything at odds with this jurisprudence would be unenlightened and backward and thus would require replacement.

Depicting Ronny as foolish and Turton as misguided, Forster rejects British utilitarianism and its assertion of consequentialism and legalism. Forster constantly refers to India as a muddle; he celebrates the chaos and confusion of the Gokul Astami festival, a rapturous Hindu “muddle” that is not only “the approaching triumph of India” but also “a frustration of reason and form” (258). During this festival, Godbole, a Brahman Hindu who teaches with Fielding, detaches “the tiny reverberation that was his soul” (258, 260). This scene reveals “a positive attitude toward chaos,” which is “completely un-Western” (Singh 272). It shows that the seemingly disordered is really spontaneously ordered. Chaos, here, recalls Brahman Hindu philosophy, which blends dualities into a single state and renders all things inclusive or unified. Forster portrays Hindu as organizing despite its inherent anarchy. It is the ultimate reality and thus the ultimate law. Forster, then, reverses the British utilitarian’s assumption about the universality of his jurisprudence. The truly universal system is Indian and, paradoxically, ordered by chaos.

Roughly half a century before Forster’s experiences in India, Macaulay and others would see in these Hindu or Indian forms of lawlessness an excuse for imposing and implementing centrally planned British rule of law in India. “[I]f we had found India in possession of a system of criminal law which the people regarded with partiality,” Macaulay claims in his introduction to the penal code, “we should have been inclined rather to ascertain it, to digest it, and moderately to correct it, than to propose a system fundamentally different” (Macaulay, The Complete Works 553). Both Hindu and Muslim laws existed, but Macaulay appears to downplay them in his introduction to the penal code, saying that the “criminal law of the Hindoos was long ago superseded” (553), and likewise that the “Mahomedan criminal law has in its turn been superseded, to a great extent, by the British Regulations” (553). Because India’s existing laws lacked uniformity and consistency, Macaulay sought to reshape Indian society within a British-drawn grid that squashed pluralistic complexities and local subtleties.

Interestingly enough, the office of district collector was supposed to embody something different from rule of law. Law was the province of district judges, for whom “the rule of law, though built on English ideas, was presumed to embody universal principles of justice, and assumed as well that men everywhere would, unless checked, abuse power to their own advantage” (Metcalf 27). For the district collectors, however, “India was a different kind of place from England, so much so that even despotism, so long as it was exercised by enlightened rulers, might properly flourish” (Metcalf 27). The district collector seems to have been an English official with interests in Indian ways.

Turton embodies this tension in the novel. While Forster shows his readers that rule of law is but a farce in Chandrapore because it completely fails to secure justice for Aziz and others, Forster also implies that the office of district collector is bound to fail because there are too many contradictions at its core. Aziz is not convicted, but that is because the courtroom is not British-controlled but rather presided over by an Indian judge. Although Turton tries to straddle English and Indian societies, he ultimately throws in his lot with the British, his own kind. Supplanting the laws and offices of the land with the laws and offices of the colonizer turns out to be disastrous for both the British and Indian characters. Even the office of district collector, which is supposed to pander to Indian interests, cannot endure for too long because it is bound up with empire. Although the office is a rare anti-utilitarian icon of the British raj, it is nevertheless part of the utilitarian system; therefore, Turton succumbs to utilitarian values, which is to say that he succumbs to the negation of all values save for utility, happiness, and pleasure.

Macaulay’s codes signify these “values” of utilitarianism. They enable paternalistic beliefs and assumptions about native lawlessness because they are meant as a newer and better system. The operation of these codes “depended not on the execution of one chapter but on all with equal importance” (Kumar and Verma 67). Nothing if not panoptic, in the Foucaultian sense of the term,[5] these codes also “provided a degree of security to life and property of the natives, but at the same time introduced [previously] unknown legal concepts that deterred resistance against the colonial state” (Kumar and Verma 67). These legal concepts[6] sought to achieve consistency and uniformity in law, since Macaulay believed that Indian law, particularly the Hindu variety celebrated by Forster, was inconsistent and disordered. One example of Macaulay’s belief that Hindu law was inadequate is his approving citation of Sir Francis Macnaghten, who proclaims that “it is a delusion to fancy that there is any known and fixed law under which the Hindoo people live; that texts may be produced on any side of any question; that expositors equal in authority perpetually contradict each other; that the obsolete law is perpetually confounded with the law actually in force; and that the first lesson to be impressed on a functionary who has to administer Hindoo law is that it is vain to think of extracting certainty from the books of the jurist” (Macaulay 76). These perceived shortcomings lead Macaulay to conclude that Hindu laws are “arbitrary” and not actually law but a “kind of rude and capricious equity” (Macaulay 76). For Forster, however, the Hindu arbitrariness is a good thing precisely because of its equity, its rejection of general rules in favor of case-by-case approaches, and its denial of legal clichés.

Although Forster never details specific Hindu laws, he establishes Hindu as a spiritual force that signifies order and justice—things that the British administrators purport to seek. In Chandrapore, though, the British system merely bungles justice. Brahman Hindu and its mystical appearances in the novel seem to unify people and groups and to be profoundly present whenever justice is served. Before Adela retracts her false accusation, the courtroom crowds deify Mrs. Moore as a Hindu goddess. This scene is ironic and perhaps even farcical. It casts British characters as buffoons compared to the rational Indians whose legal system works despite the British claims otherwise. When collectivized to achieve governmental and legal objectives, British characters act herd-like, but collectivized Indian characters, uninterested in government as such, harmonize in spiritual communion. After Aziz’s innocence is established at trial, the punkah-wallah becomes deified in the courtroom. It seems that Forster constantly flips the statement of the Nawab Bahadur, who remarks to Adela and Ronny, “I have little experience of Hindu States […] yet I cannot imagine that they have been as successful as British India, where we see reason and orderliness spreading in every direction” (80). In fact, reason and orderliness never come about by the British system but instead by emotive and disordered Hindu worship and celebration.

Macaulay’s codes derived from Benthamite jurisprudence. Sir Leslie Stephen indicates that “The ‘Penal Code’ drawn by Macaulay […] was the first actual attempt to carry out Bentham’s favourite schemes under British rule, and the influence of the chief of Bentham’s disciples [James Mill] at the India House may have had something to do with its imitation” (36). As if to bolster this claim, Stephen adds that “Macaulay’s chief subordinate […] Charles Hay Cameron, was one of the Benthamites” (36). Benthamite jurisprudence is hard to summarize simply. Eric Stokes’s landmark work The English Utilitarians in India remains the most definitive and detailed account of this workaday jurisprudence. Two recent books, Liberalism and Empire (1999) by Uday Singh Mehta and A Turn to Empire (2005) by Jennifer Pitts, pick up on Stokes’s precedent and explain how the liberal legacy of utilitarianism—and its jurisprudential significations—led to empire and British domination. Inherent in liberalism and its utilitarian manifestations, Mehta and Pitts argue, is the paternalistic assumption that one worldview is more advanced than another and that therefore those who do not share that worldview require conversion or updating. J. S. Mill’s nuanced utilitarianism in On Liberty would add complexity to this understanding, but it falls outside the scope of this essay.

Mehta in particular holds up Edmund Burke’s conservatism as being reluctant toward empire and also the “most sensitive to the complexities of imperial links and to the strengths and vulnerabilities upon which they draw at both ends” (2). Burke was an Irishman; he understood the evils of imperialism and foreign occupation. Mehta adds that “no thinker or statesman of the eighteenth or nineteenth century expresses anything like the moral and political indignation that Burke voiced against the injustices, cruelty, caprice, and exploitation of empire” (3). For Mehta, then, Burke represents not conservatism per se but a resistance to foreign intervention[7] and universalistic dogma. The conservatism of Burke, in short, stands in contradistinction to Benthamite utilitarianism.

The liberal universalism of Bethamite utilitarianism treats Indians as monolithic and their society as fixed. On this score, it bears noting that the universalities contemplated by Brahman Hindu are more like natural law theories than the universalities contemplated by Bentham’s analytical positivism. Brahman Hindu is above all spiritual, and natural law theories derive their lexicon from divine law and the belief that rules are immanent in nature.

Brahman Hindu technically does not espouse a particular jurisprudence at all. When I speak of Brahman jurisprudence, I speak of the motifs in Passage rather than of Brahman philosophy as understood outside of Forster’s appropriation of it. Brahman jurisprudence is mostly Forster’s revision of Brahman ideas about an infinite consciousness and infinite truth. Forster may or may not have fully understood Brahman. Nevertheless, Brahman served, on a rhetorical or metaphorical level, to challenge the Benthamite system that celebrated a different variety of inclusion: one with prerequisites for admission—adherence to British rules, submission to British centralized authority, and participation with British mercantilism. Brahman is universal in that every person or idea, however different, is already part of the Brahman conception of the cosmos; Benthamite utilitarianism is therefore universal in a way that refuses differences and assumes an intersection of all philosophical paths.

Brahman adheres to the belief in transcendent reality. Law, for Forster, is an element of this transcendent reality. Only the Indian judge, Das, and the punka wallah subaltern, who lends the courtroom an air of spirituality and divinity, bring about the kind of justice that the utilitarian schema fails to bring about. Even if Das applies British law—a possibility not made clear in Forster’s portrayal of the Anglo-Indian legal system—his oversight in the courtroom allows the spectators to chant uncontrollably and to force Adela to retract her accusation. Unlike Brahman Hindu, British views on law are calculated and mathematical. Moments before the Muslim Aziz resolves to become a doctor and a poet in a Hindu state, Hamidullah points out that the British legal system leads to occasional disaster and even reveals the “secret thoughts” that British people maintain against Indian character (and characters) (299). A system of “true” law would not perpetuate bias or pander to majority interests. It would be a form of natural law such as that exposited in Forster’s appropriation of Brahaman. Nevertheless, Bentham despises natural law and fumes against natural law thinkers like William Blackstone.[8] Therefore, Bentham’s system does not result in justice in India. That is why Hamidullah remarks to Aziz, “If God himself descended from heaven into their [the English] club and said you were innocent, they would disbelieve him” (299). A system based on utility and happiness simply manufactures law into uniformity consonant with majority whim and preference. Law based on moral and divine prescription, however, is not so petty as to assimilate local laws into the laws of England; thus, it will not decimate the customs of a foreign and less powerful populace. Being immanent and a priori, it will not permit a group to suffer at the hands of legal administrators—district collectors, district superintendents, and the like—for whom general happiness means general British happiness.

For all of its emphasis on equity and fair play, the British system only solidifies inequality and unfairness. This irony is at the heart of Benthamite imperialism. Pitt lists three defining characteristics of utilitarians in this Benthamite tradition: a “narrow and hierarchical understanding of progress,” a belief “that British rule of ‘backward’ peoples was both morally justified (even a moral duty) and good for the conquered nations,” and a “conviction that certain peoples were unfit for self-government” (104).[9] Utilitarianism is predicated on “exclusionary conventions” pivoting on universal principles that necessarily delegitimize those constituents whose customs and conventions differ from the supposedly universal principles (Mehta 47–48). The thrust of utilitarianism is therefore bound up in awkward, self-serving logic: principle A is right and universal; people X recognize the rightness and universality of principle A; people Y fail to recognize the rightness and universality of principle A; therefore, people X need to civilize and educate people Y, lest people Y self-destruct by adhering to wrong principles. The problem, of course, is that people X are not motivated by a purely humane desire to civilize and educate, but instead are motivated, economically or otherwise, by the process of civilizing and educating. Altruism becomes part of the rationale for colonizing.

In the nineteenth and early twentieth century, district collectors played vital roles in transforming this rationale into actual practice. Tasked with countenancing Indian interests, district collectors like Mr. Turton were nevertheless agents of the British utilitarian system. Like Fielding, a schoolteacher, Turton fails to occupy the space between the British and Indian binaries, despite his desire to do so. No matter how hard he tries or how many bridge parties he hosts, Turton is unconditionally wedded to British ideas of ethnic and cultural superiority. He fails to recognize the follies of rule of law and misses the grave and healing import of Brahman Hindu.

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.

Turton materializes for the second time as a host (of sorts) for Mrs. Moore and Adela Quested, who are fresh off the boat from England. Turton—who will arrange an outing for the women to see the “real” India—proposes a “Bridge Party,” by which he means not the card game but “a party to bridge the gulf between East and West” (20). That Turton is fond of bridge parties is not coincidental: he himself is attempting to be a bridge between cultures, seeking out qualities both Indian and British. As if to satirize the utilitarianism that “is self-refuting in violating its own axiom of not going beyond given emotions and valuations” (Rothbard 74), Forster takes pains to portray the English as unreasonable and herdlike and the Indians, both Hindu and Muslim, as reasonable.

Unlike the other English figures who “gush” with “exalted emotion” (161), Turton seems separate from the British herd. Neither is he Indian. He seems torn between his sense of law on the one hand and unfettered passion on the other: “He was still after facts, though the [English] herd had decided on emotion” (148). Seasoned in the “business of compromise and moderation,” a man normally “brave” and “unselfish,” he vacillates between reason (he is “after the facts,” not feelings) and herd-like emotion: that “fanatical” quality “fused by some white and generous heat” (164, 146). The narrator submits that Turton’s “mind whirled with contradictory impulses” (164). Turton’s oscillations between one polarity or another signal the overarching societal behaviors—reasonable and herd-like—that Forster uses to distinguish Indians from the British. Turton’s ambivalence points, in short, to the formative oppositions dividing the fictional city of Chandrapore.

Having spent time observing colonial law in India, and having corresponded with Malcolm Darling and Masood, Forster was familiar with the colonial legal system imposed upon India. Forster might well have read James Fitzjames Stephen’s legal tracts because, besides being familiar with the popular works of his day, Forster was a close friend of fellow Bloomsbury author Virginia Woolf, Stephen’s niece and the publisher of Forster’s Alexandria, which was released two years before Passage. That Forster embellished and mocked the colonial legal system in Passage suggests that he was writing a political novel, despite his claims to the contrary. Forster was too smart and his depictions too outrageous to warrant the claim that he accidentally distorted colonial law or that his depictions of law were the result of carelessness or laziness instead of calculated design. Even if Passage is not a “political” novel, it had and has political ramifications. Forster’s portrayal of Turton satirizes the office of district collector and undermines the jurisprudence buttressing Benthamite colonial legal structures that still remain in place in India.

Some scholars have argued that Passage is a Hindu manifesto.[9] Brahman Hindu differs markedly from the organizing principles of utilitarianism that “sought to reduce all human desires and values from the qualitative to the quantitative” and to reduce all “seemingly different values,” such as “pushpin and poetry,” to “mere differences in quantity and degree” (Rothbard 74). Contra this British-made system that treats individuals as “unmotivated objects always describing a quantitative path” (Rothbard 74), Brahman Hindu fuses all knowledge and matter into a single, transcendent unity. Brahman Hindu is at odds with a system whose legislative pretensions emphasize exclusion and classification. As early Forster scholars such as Michael Spencer have suggested, Forster sets up Brahmin Hindu as an alternative to reforming utilitarianism, with its rigid methodology of labeling and grouping. Spencer argues that Hinduism is “fused into the development of the plot,” determines “the character of at least one important figure in the novel,” and “can be seen to be involved in his [Forster’s] purposes and his [Forster’s] use of symbols in the book” (281). What Spencer does not do is relate this Hindu influence to British rule of law discourse. But it follows from Spencer’s research that Forster creates a Hindu jurisprudence that challenges the grouping and divisions insisted on by utilitarian jurisprudents.

According to Bentham, “a man may pretend to abjure their empire: but in reality he will remain subject to it [the empire] all the while. The principle of utility recognizes this subjection, and assumes it for the foundation of that system, the object of which is to rear the fabric of felicity in the hands of reason and law” (Bentham 1–2). Assuming that the highest aim of any political or legal system is to maximize happiness, Bentham insists on utility as the common denominator by which to calculate the overall social pleasure from which general happiness emanates. Systems that question utility, claims Bentham, “deal in sounds instead of sense, in caprice instead of reason, in darkness instead of light” (2). Accordingly, Bentham would have despised a legal system based on the elation of religious experience.

Nevertheless, Brahman Hindu and its attendant order and beauty are, for Forster at least, endemic to a spiritual legal system that disregards utility and mathematical equation. Forster takes pains to portray Brahman Hindu as above and beyond reason, as a state of spiritual ecstasy and liberation that nevertheless remains structured. Forster even likens the Gokul Astami festival to a passage—a reference, perhaps, to the title of the novel. “[T]he singers,” Forster’s narrator explains, “sounding every note but terror, and preparing to throw God away, God Himself (not that God can be thrown), into the storm” with the other emblems of passage: “little images of Ganpetti,” “baskets of ten-day corn,” and “tiny tazias after Mohurram” (286). Such a passage is “not easy, not now, not here, not to be apprehended except when it is unattainable: the God to be thrown was an emblem of that” (286). Therefore, the passage reflects the mystery and confusion of Brahman Hindu, from which meaning and order spring forth. Forster seems to elevate these mystic elements of Brahman Hindu over the logic-laden strictures of British-controlled Chandrapore. With fresh, spontaneous-seeming diction, he portrays the festival as the celebrants’ intense communion with the social and natural order of things. Transcending human reason, this order is true law. It is, in short, God. And God and His law cannot be superseded.

The jurisprudence of Bentham is not so stirring. It erases individuals and localities and gauges the happiness and pleasure of the majority. It is, in short, “a social felicific calculus in which each man counts for one, no more and no less” (Rothbard 76). Not so with Brahman Hindu, which celebrates complexity, mystery, and curiosity as shared in the essence of all, not just some, peoples and cultures. Benthamite utilitarians would wipe away the histories, mores, and customs of foreign peoples and replace them with a consolidated government bent on the dictates of the majority. Little wonder that Forster extols Brahman Hindu as a viable and vibrant alternative.

Many if not most of the English administrators in India adopted Bentham’s jurisprudence,[10] a fact that is less important than the fact that utilitarianism inspired legislators in India. Élie Halévy and Raghavan Narasimhan Iyer have written extensively about this utilitarian influence on Indian administration.[11] Both men conclude that utilitarianism is both liberal and imperial by nature. For Forster, whose motto “only connect” applauded personal relations, categorizing individuals and engineering human behavior simply would not do. Forster saw in Brahman Hindu a jurisprudence that emphasized contingency, variability, and deferral—a jurisprudence whose refusal of organizing binaries countermanded British rule of law discourse. Brahman Hindu and its emphases on inclusiveness and muddle clash with and undermine British rule of law discourse. Forster presents confusion and ambiguity as alternatives to rule of law.

It is not the case that ambiguity is what the law contends with, because order itself emerges not from law, which is a government creation, but from the voluntary association of individuals, which is, if not a spiritual creation in the Brahman sense, then at least a state of peace and harmony that reflects Brahman teachings. British rule of law was a rhetorical justification for liberal empire; it became a tactic for establishing legal structures that distinguished among groups (British, Hindu, Muslim) and that ossified mores of inclusion and exclusion. Therefore, Forster, humanist that he was, would have nothing to do with it.

Forster is hard to pin down politically. His writing cuts across party and ideological divisions. The man who gave “two cheers for democracy” defied political labels. In his personal philosophy, Forster resisted colonialism but nevertheless participated in colonialism. He decried the exploitation of local Indian peoples and cultures yet exploited those peoples and cultures, most notably by taking part in the sexual trafficking of young boys.[12] If Passage is a political novel, it is not one that champions an abstract cause. Instead, it is one that seeks to unite individuals despite their fragmented societies.