Below is footage of a panel discussion between Justice Stephen Breyer, Professor Martha Nussbaum, Judge Richard Posner, and Professor Richard Strier that took place at the University of Chicago in 2009. The subject of the discussion is “Shakespeare and the Law,” and the purpose of the panel was to counteract what was perceived as growing complacency and unoriginality in the law-and-literature movement. That these four figures are on the same panel is reason enough to watch the video.
Posts Tagged ‘law’
We do well to remember the consequences visited upon Augustine when, as a teenager, he succumbed to sin and shook a person’s pear tree in order to steal the fallen pears—not because he was hungry or in need, but because he delighted in the sin. “To shake and rob,” he said, “some of us wanton young fellows went, late one night (having, according to our disgraceful habit, prolonged our games in the streets until then), and carried away great loads, not to eat ourselves, but to fling to the very swine, having only eaten some of them; and to do this pleased us all the more because it was not permitted.”
The mature Augustine, looking back on this event, acknowledged that theft violates and is punished by law—not just human law, he adds, pursuant to the teachings of Jesus, but the law written on men’s hearts. He relates that he suffered (and suffers) from shame and regret as a result of this sin, and his shame or regret is punishment that humans cannot implement ourselves; it is punishment that we must rely on God to summon forth in our hearts and minds. “It is foul,” Augustine says of his sin, adding, “I hate to reflect on it. I hate to look on it.” One wonders whether human punishment based on human law can ever have the same long-lasting effect as divine punishment for violating the law written on human hearts.
Augustine does suggest that there is a law of man and a law of God and that he violated both; the consequences for violating man’s law would have been different from the consequences of violating God’s law, especially insofar as his punishment may not be of this world, although the Christian believer in the triune God must acknowledge that God’s sovereignty and sovereign law precede and have jurisdiction over all men’s actions, for God does not let anything come to pass that he does not know about or have control over.
Jesus of Nazareth delivered the parable of the growing seed, which referred to the kingdom of God and its capacity for organic growth. The principle from that parable carries over into the legal realm. For the law evolves from the scattered seeds of human conduct; ripens as a result of human care; and then, on its own, apart from human care, imperceptivity and spontaneously sprouts grain, which, in turn, spreads into abundant crops for the nourishment of the human and animal bodies that, one by one, enable the flourishing of the seeds to begin with. Growth is cyclical in the sense that it consists of these stages, but linear in the sense that the stages are not exactly alike; each stage is different depending upon the conditions present during its lifespan. Yeats’s gyre is a helpful interpretive parallel in this regard.
Just as the polis cultivating the Word of God will bear cultural and spiritual fruit for itself and its progeny, so the polis prioritizing law will bear cultural and economic fruit for itself and its progeny. This analogy is not intended to endow human law with spiritual qualities or sacrilegiously to equate human law with divine purpose; it is intended to suggest that law should be treated with high seriousness rather than casual interest, although the law is not a savior and ought not to be celebrated or glorified as such. The laws of human relations remain primarily secular. That is not a normative statement about what the laws ought to be, merely a comment on what the laws as a human construct are at present. If we are to be governed by divine law, we can be sure that it precedes human law and that no human law could mirror it.
 Mark 4:26-28.
The rationalist lawyer does not disparage an ideal on the grounds that it does not work or cannot be tried. “He has no sense of the cumulation of experience,” Michael Oakeshott bemoaned of the rationalist, “only of the readiness of experience when it has been converted into a formula: the past is significant to him only as an encumbrance.” The lawyer is a rationalist insofar as he is interested in a past that supplies him with the precedents and procedures that steer his practice and win his battles; such a past is an encumbrance because it never exists in the pure form that the lawyer seeks and needs. Therefore, the lawyer must push against the past, reinvent it, stretch it, mold it into a usable form; the past, for him, is a religion of malleability: to be faithful to it is to rewrite or reinterpret it.
The lawyer, being a rationalist, minces words and retards conventions to achieve the goals that benefit him and his client, paying little regard to whether his chosen grammar and syntax will impair the harmony of the community. He is trained, not educated; progressive, not conservative. His aim is to innovate in the service of short-lived victories. To be a good lawyer is not necessarily or even usually to be a moral or thoughtful person; it is to zealously represent the client by aligning the law with the facts of the case as they have been filtered through the minds and mouths of the parties. It is to prevail by fusing abstract rules with secondhand information. The lawyer, accordingly, is intelligent—highly so—but not honorable or ethical. He is, in short, a repository into which filtered discourse flows, and through which discourse is enunciated into the machine of the system for further processing.
“[H]aving cut himself off from the traditional knowledge of his society, and denied the value of education more extensive than a training in a technique of analysis,” Oakeshott persists of the rationalist—or, for my purposes, the lawyer—“is apt to attribute to mankind a necessary inexperience in all the critical moments of life.” Hence the trouble with the lawyer: his ambition is rarely tempered by his inadequacies, his analytic mind seeks out models for the mastery of human behavior, his poise in the face of adversity betrays his naiveté, his reliance on his own intents and purposes for action (rather than on those of his ancestors or immediate community) reveals a grave shortsightedness that can lead only to subtle and progressive harm.
Do not misunderstand me: what I call “the lawyer” is an archetype, not a group of named individuals. The common legal practitioner is not an Iago bent on weaving webs of wickedness with motives only sinister. But the lawyer archetype, like all archetypes, contains truth. It is because Atticus Finch is so unlike the typical lawyer that he stands out in our memory and is said to have redeemed the law. Lawyer jokes did not arise in a vacuum; and the rules of ethics and professional responsibility did not come about because the public considered lawyers to be noble and upright. So, when I refer to “the lawyer,” I do not mean any one man or woman, nor each and every lawyer, but I do mean to signal (1) the symbol of the lawyer that is based on real patterns of behavior, which are passed from one generation of lawyers to the next; (2) a personality type that can and has been observed in lawyers in different times and places; and (3) a model that lawyers have emulated and perpetuated to their own detriment.
Natural law theory, at its essence, is not far removed, conceptually at least, from Plato’s theory of forms. According to Plato, only the philosopher kings are equipped and trained intellectually to comprehend the true forms as opposed to the sensible forms that are readily understandable in the phenomenal world. These philosopher kings can grasp the Form of the Good, for instance, which is the fountainhead from which flow all true forms, including knowledge, truth, and beauty. But how are we to know who these philosopher kings are? How are we to distinguish them from charlatans? And why should the polis uncritically accept the supposedly sound judgments and determinations of those who cannot prove to us their purportedly superior faculties?
There is no ideal city, no Platonic Utopia, nor even a realm approaching the character of Magnesia. Plato’s communistic fantasies have never been achieved, and the disenchantment one senses in The Laws differs markedly from the tone and confidence exuded in The Republic. It is as if Plato, having aged, realized the dreaminess of his younger vision in The Republic and wished to correct the record, even though he did not go far enough. At least in The Laws he acknowledged that the first principle of politics is to attain peace; the absence of military conflict ought to be the chief aim of the legislator; judges are another matter.
Plato seems to have continued to admire tyranny, despite his criticism of tyrants in The Laws, for elsewhere in that work he discusses how leaders ought to create an obedient disposition among the citizens. Commonplace though that proposition may sound, it suggests that the State and its politicians should condition citizens to act for the good of the State. The problem is that the State is made up of those who live off the citizens, so unchecked obedience to the State means that the citizens ensure their perpetual subordination to those who exploit citizen labor. It is little wonder that the Platonic State devotes itself to educating the young, for the State must guarantee that there are future generations of uncritical followers to take advantage of.
This is not to suggest that Plato’s works are without truth, only that they are underdeveloped and often misguided. Aristotle seems to have thought so, too. The free polis is a multifaceted collection of networks bound together by the voluntary acts of free agents whose rules of habit and exchange exist separately from legislative fiat.
 Aristotle himself recognizes that Plato lacks a proper understanding of unity because Plato treats it in terms of property ownership because it is contracted by experience. “[A]though there is a sense in which property ought to be common,” says Aristotle, “it should in general be private. When everyone has his own separate sphere of interest, there will not be the same ground for quarrels; and they will make more effort, because each man will feel that he is applying himself to what is his own.” Aristotle, The Politics (Translated by Ernest Barker; Revised with an Introduction by R. F. Stanley). Oxford and New York: Oxford University Press, 1995. P. 47.
“The problem with Rumsfeld’s blunt statement [that the American goal was to kill as many Taliban soldiers and al-Qaeda members as possible], as with other similar phenomena like the uncertain status of the Afghan prisoners at Guantanamo Bay, is that they seem to point directly to Agamben’s distinction between the full citizen and Homo sacer who, although he or she is alive as a human being, is not part of the political community.”
—Slavoj Žižek, Welcome to the Desert of the Real
Whatever else it is, Giorgio Agamben’s philosophy is anti-authoritarian and anti-totalitarianism. Slavoj Žižek draws from Agamben to round out Welcome to the Desert of the Real. Specifically, Žižek draws from Agamben’s theories about homo sacer and “the state of exception,” the latter of which Agamben borrows from the German jurisprudent Carl Schmitt. In his book Homo Sacer, Agamben adopts Pompeius Festus’ definition of homo sacer as “the one whom the people have judged on account of a crime,” and the one who cannot be sacrificed, but can be killed without legal consequence.
Agamben suggests that homo sacer is bound up with notions of sovereignty. Sovereignty is determined by what is included and what is excluded from the jurisdiction of a sovereign. Although a sovereign has the power to suspend the validity of law and, therefore, to stand outside the law, the sovereign may lose that privilege and become the sacred man who no longer has rights granted and secured by the polis, and who may be killed, but not sacrificed. According to this paradigm, the sovereign is a man—a king or a monarch—who embodies statehood and sovereignty. The body of this man is itself the site of law so long as the man remains the sovereign; as soon as the man is no longer sovereign, his body ceases to be the site of the law.
Žižek seems less concerned with the idea of sovereignty implicated by the term homo sacer. He focuses, instead, on the “outsider,” “fugitive,” or “noncitizen” aspect of homo sacer. He defines today’s homo sacer as “the privileged object of humanitarian biopolitics: the one who is deprived of his or her full humanity being taken care of in a very patronizing way.” Žižek’s examples of today’s homo sacer include John Walker, the American who fought with the Taliban; the sans papers in France; the inhabitants of the favelas in Brazil; people in the African-American ghettos in the United States; an American war plane flying above Afghanistan; and others. None of these examples describes groups or persons who once enjoyed the power of a sovereign. All of these groups or persons have in common an ambiguous status in relation to the law of the polis.
Žižek shares with Agamben the notion that homo sacer is, or can be, the embodiment of the state of exception: the one who is excluded from the polis, who neither makes laws nor enjoys the protection of laws. By sidestepping Agamben’s proposition that the sovereign body is the constitution of sovereignty—a move that might have to do with Žižek’s criticism of Agamben as wedded to the dialectics of the Enlightenment and to Foucault’s disciplinary power or biopower—Žižek is able to raise profound and troubling questions about the status of every one of us regarding homo sacer. He asks, for instance, “What if the true problem is not the fragile status of the excluded but, rather, the fact that, on the most elementary level, we are all ‘excluded’ in the sense that our most elementary, ‘zero’ position is that of an object of biopolitics, and that possible political and citizenship rights are given to us as a secondary gesture, in accordance with biopolitical strategic considerations?” Žižek does not answer this question, but the answer, disturbing as it is, seems implied in the question.
 Giorgio Agamben. Homo Sacer: Sovereign Power and Bare Life. Stanford University Press, 1995. Pg. 71.
It is the lawyer’s errand to analyze complicated texts, ferret out details, argue fine points, and consider the facts of experience in light of their implications for and because of rules and regulations. The task of the lawyer is to scrutinize and produce particulars. Rarely is the lawyer afforded the time and privilege to contemplate the sum of the particulars. That is unfortunate because tasks and particulars necessarily interact to produce the law, and the lawyer ought to know something of the fundamental bases of his profession.
If the lawyer were to add up all of his activities in a single workday—reading his email, drafting his motions, calling his clients, billing his time—the result would not be “the law” as such, but at most a police description of the constituent elements of legal practice. From these elements he can infer some generalizations about the law as an ontological and epistemological category, but he cannot name or describe the law as a clear concept that will make sense to future lawyers or that would have made sense to lawyers long ago.
Most lawyers are like the prisoners in Plato’s allegory of the cave: bound by their daily routines and habits of mind and looking forward at the shadows, those sensible particulars that are merely images of copies of the true forms. There are a few philosopher lawyers—very few, I might add, for the lawyer is, as Plato indicates, part of the auxiliary class, beneath the philosopher kings—who look beyond the quotidian operations of the workaday world, or the fashionable legislation that temporarily passes for authoritative rules and regulations, or the administrative systems that seek short term solutions to minor and momentary problems, or the endless monotony of calendars and deadlines to see the real objects of sensation and to achieve a higher, more holistic stage of cognition. These few philosopher lawyers know what the law is despite what the statutes or the judges proclaim it to be.
The following excerpt first appeared as part of the Routledge Annotated Bibliography of English Studies series.
This book is a compilation of literary essays that at first blush seem to have no through line save for an attention to law in the abstract. Nevertheless, each chapter is connected by the theme of justice and the relation of language to both law and literature.
Á la Flaubert, the book treats justice as the supreme literary value, and it distinguishes between the justice of literature and the literariness of justice. Language has its own jurisdiction and can be used judiciously, and the author seems to believe that signifiers can represent the phenomenal world in ways that have a practical bearing in law. By the same token, language itself is regulated by laws even as it enacts laws. The author discusses literary justice as a poetic expression of the material world.
The phrase “poetic justice” refers to the possibility that poetry might offer something better than truth in order to bring about justice; the truly poetic is just. Genre and jurisdiction resemble one another in their conceptual claims to authority or law.
Beginning with judicial discourse in comedies, more specifically with the operas of Gilbert and Sullivan, the book moves through Nietzsche, Baudrillard, Disgrace, Huckleberry Finn, The African Queen, Billy Budd, the poetry of Wallace Stevens, Anil’s Ghost, and other works. The book therefore does not limit itself to discussion of a particular historical period, a fixed geography, or a specific genre. Rather, it weaves together a wide range of novelists, theorists, and historical figures, many of whom are unlikely to be categorized together were it not for their interests (some longstanding, some fleeting) in law.
What allows the book to read as a unified whole is its analysis at the intersections of justice, law, and literary forms.
The following piece first appeared here at LewRockwell.com.
Every year in July, thousands of anxious men and women, in different states across America, take a bar exam in hopes that they will become licensed attorneys. Having memorized hundreds if not thousands of rules and counter-rules – also known as black letter law – these men and women come to the exam equipped with their pens, laptops, and government-issued forms of identification. Nothing is more remote from their minds than that the ideological currents that brought about this horrifying ritual were fundamentally statist and unquestionably bad for the American economy.
The bar exam is a barrier to entry, as are all forms of professional licensure. Today the federal government regulates thousands of occupations and excludes millions of capable workers from the workforce by means of expensive tests and certifications; likewise various state governments restrict upward mobility and economic progress by mandating that workers obtain costly degrees and undergo routinized assessments that have little to do with the practical, everyday dealings of the professional world.
As a practicing attorney, I can say with confidence that many paralegals I know can do the job of an attorney better than some attorneys, and that is because the practice of law is perfected not by abstract education but lived experience.
So why does our society require bar exams that bear little relation to the ability of a person to understand legal technicalities, manage case loads, and satisfy clients? The answer harkens back to the Progressive Era when elites used government strings and influence to prevent hardworking and entrepreneurial individuals from climbing the social ladder.
Lawyers were part of two important groups that Murray Rothbard blamed for spreading statism during the Progressive Era: the first was “a growing legion of educated (and often overeducated) intellectuals, technocrats, and the ‘helping professions’ who sought power, prestige, subsidies, contracts, cushy jobs from the welfare state, and restrictions of entry into their field via forms of licensing,” and the second was “groups of businessmen who, after failing to achieve monopoly power on the free market, turned to government – local, state, and federal – to gain it for them.”
The bar exam was merely one aspect of the growth of the legal system and its concomitant centralization in the early twentieth century. Bar associations began cropping up in the 1870s, but they were, at first, more like professional societies than state-sponsored machines. By 1900, all of that changed, and bar associations became a fraternity of elites opposed to any economic development that might threaten their social status.
The elites who formed the American Bar Association (ABA), concerned that smart and savvy yet poor and entrepreneurial men might gain control of the legal system, sought to establish a monopoly on the field by forbidding advertising, regulating the “unauthorized” practice of law, restricting legal fees to a designated minimum or maximum, and scaling back contingency fees. The elitist progressives pushing these reforms also forbade qualified women from joining their ranks.
The American Bar Association was far from the only body of elites generating this trend. State bars began to rise and spread, but only small percentages of lawyers in any given state were members. The elites were reaching to squeeze some justification out of their blatant discrimination and to strike a delicate balance between exclusivity on the one hand, and an appearance of propriety on the other. They made short shrift of the American Dream and began to require expensive degrees and education as a prerequisite for bar admission. It was at this time that American law schools proliferated and the American Association of Law Schools (AALS) was created to evaluate the quality of new law schools as well as to hold them to uniform standards.
At one time lawyers learned on the job; now law schools were tasked with training new lawyers, but the result was that lawyers’ real training was merely delayed until the date they could practice, and aspiring attorneys had to be wealthy enough to afford this delay if they wanted to practice at all.
Entrepreneurial forces attempted to fight back by establishing night schools to ensure a more competitive market, but the various bar associations, backed by the power of the government, simply dictated that law school was not enough: one had to first earn a college degree before entering law school if one were to be admitted to practice. Then two degrees were not enough: one had to pass a restructured, formalized bar exam as well. Read the rest of this entry »