Allen Porter Mendenhall

Posts Tagged ‘law’

Lines to Holmes

In America, Arts & Letters, Creative Writing, Humanities, Jurisprudence, Law, Law-and-Literature, Literature, Oliver Wendell Holmes Jr., Poetry, Writing on May 14, 2014 at 8:45 am

Allen 2

Lines to Holmes

A canon of rules and principles,

embodied in individual cases,

aggregated by judges

from different courts

and with different ranks,

makes up the common law system.

Perhaps the better way to put it

is that the common law is a canon

unto itself.

Rules and principles

that regulate people

are always engaged in a struggle for existence,

always subject to challenge and subversion

by the trends and movements of culture.

Tested by their ability

to obtain to society

and to yield constructive results,

they compete with one another

and become canonized

only if they prove

fit to survive the test of time,

the onslaught of new technologies,

which necessitate new approaches

to lawyering.

This is the law of the law

today as always.

What Crisis? Law as the Marriage of Science and the Humanities

In Academia, Arts & Letters, Humanities, Jurisprudence, Law, Law-and-Literature, Legal Education & Pedagogy, News and Current Events, Oliver Wendell Holmes Jr., Philosophy, Scholarship, The Academy on March 12, 2014 at 8:45 am

Allen 2

This week the Association for the Study of Law, Culture & the Humanities convened to consider this question: “How will law and humanities scholarship fare against the pressure of the science and technology paradigm that has now permeated the institutional frameworks of academia?”  The question implies an adversarial relationship between science and the humanities, or law-and-humanities.  The division between science and the humanities as academic disciplines, however, is not yet 150 years old; it is misguided to pit “law-and-humanities” (a signifier that did not exist a few decades ago) against the “science and technology paradigm that has now permeated the institutional frameworks of academia” (another quotation from the conference program).  We do not have to go back to Plato or Aristotle or Galileo or Descartes or Spinoza or Da Vinci or Locke or Hume or Rousseau or Kant or Newton or Adam Smith or Benjamin Franklin or Thomas Jefferson or Thoreau to see that what we call the humanities has not, traditionally, been divorced from the sciences—that, in fact, the humanities and the sciences are mutually illuminating, not mutually exclusive.

In America, more recently, the classical pragmatists—in particular C.S. Peirce and William James—sought to make philosophy more scientific, and in this endeavor they were mimicking the logical positivists in Britain.  Some of the most famous minds of the 20th century worked at the intersection of the humanities and science: Freud, Einstein, Michael Polanyi, Karl Popper, Jacques Lacan, F. A. Hayek, and Noam Chomsky, to name a few.  Lately we have seen scientific thinkers as wide-ranging as Steven Pinker, E. O. Wilson, Jared Diamond, and Leon Kass celebrate or draw from the humanities.

A review of the conference abstracts suggests that most presenters will be considering this question from the political left, but their concerns are shared by many on the right, such as Roger Scruton, who recently took to the pages of The New Atlantis to address this topic in his article “Scientism in the Arts and Humanities.”  Nevertheless, forcing the separation of science and the humanities does not strike me as prudent.

By encouraging the humanities to recognize its scientific heritage and to recover its scientific methodologies, the academy would be correcting decades of wandering.  Science is indispensable to the humanities, and vice versa; the two work in concert.  The findings in one influence the findings in the other.  Evidence of this reciprocity in the context of legal studies is especially striking in America during the late 19th and early 20th century, when the law often was associated with scientific disciplines rather than with the humanities.  At this time, the theories of Charles Darwin and his progeny helped to explain the common law tradition while influencing the way that law was taught in law schools and examined by judges and most notably by Oliver Wendell Holmes, Jr.

The scientific paradigms in vogue among legal thinkers at the turn of that century were neither uniform nor monolithic.  For instance, Christopher Columbus Langdell’s push to make legal education more scientific was different from Holmes’s use of Darwinism to describe the common law.  Rather than teasing out the distinctions between various scientific approaches to the law during the late 19th and early 20th century America, however, I would look at these scientific approaches as part of the same general project and as a reminder of how the humanities and the sciences can participate to bring about theoretical and practical insights.  It might be that, of all disciplines, law is the most revealing of the participatory nature of science and the humanities and, therefore, provides the best justification for instrumental and scientific approaches to humane studies.

There are groups within the humanities that resent the scientific disciplines for the funding and privilege those disciplines enjoy in the academic marketplace, but at least part of this resentment is misplaced.  The fault lies partially with the scientists who mistake merit for value: it is not that the sciences enjoy more funding and privilege because they have more merit—the academy is not a meritocracy—but it is that they have more value to consumers and the public writ large.  It may well be that the humanities have more merit, but unless consumers begin to value merit, the meritorious will not necessarily prevail in the market.  

Shakespeare and the Law

In Arts & Letters, History, Humanities, Law, Law-and-Literature, Legal Education & Pedagogy, Literary Theory & Criticism, Literature, Pedagogy, Shakespeare, Western Civilization on January 30, 2014 at 8:45 am


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.

A Reminder from Augustine: Sin and the Law

In Arts & Letters, Books, Christianity, Humanities, Jurisprudence, Justice, Law, Philosophy, Western Philosophy on November 29, 2013 at 8:45 am

Allen 2

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.”[1]

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.”[2]  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.

[1] St. Augustine, The Confessions of St. Augustine, edited by J. G. Pilkington (New York: Horace Liveright, 1927), p. 33.

[2] St. Augustine, The Confessions of St. Augustine, edited by J. G. Pilkington (New York: Horace Liveright, 1927), p. 40.

“Constructing a Canon of Law-Related Poetry,” by Alexandra J. Roberts

In Arts & Letters, Creative Writing, Humanities, Law, Law-and-Literature, Literary Theory & Criticism, Literature, Poetry, Writing on November 15, 2013 at 8:45 am

Alexandra J. Roberts has published “Constructing a Canon of Law-Related Poetry” in the Texas Law Review (Vol. 90).  Her abstract reads as follows:

Law and poetry make a potent, if surprising, pair.  Poetry thrives on simultaneity and open-endedness, while legal writing aspires to resolve issues decisively, whether it advocates or adjudges.  The law and literature movement has traditionally focused either on law as literature, applying literary theory and techniques to legal texts such as judicial opinions and legislation, or law in literature, i.e., law as portrayed in literary and artistic works.  Poetry and poetics have garnered relatively little attention under either approach.  While some scholars blame that omission on a supposed dearth of law-related poetry, the poems collected in Kader and Stanford’s Poetry of the Law: From Chaucer to the Present belie that claim.  This essay considers the place of poetry in legal studies and advocates incorporating it into both the dialogue and the curriculum of the law and literature movement.  It identifies themes that emerge from the juxtaposition of the poems in the anthology, examines the relationship of fixed-verse forms to law in the poems, and draws attention to those voices that are underrepresented in the collection and the movement.  It relies primarily on the process of close reading several of the hundred poems included in Poetry of the Law and, in so doing, it practices law in literature while it models precisely the type of critical approach that would serve those participating in the study of law as literature.  It prescribes a canon of law-related poetry and illustrates how the inclusion of poems and techniques of poetic interpretation stand to benefit students, lawyers, and theorists alike.

The paper may be downloaded here at the Texas Law Review website or here at SSRN.

Law as a Seed

In Arts & Letters, Humanities, Law, Literary Theory & Criticism on May 1, 2013 at 8:45 am

Allen Mendenhall

Jesus of Nazareth delivered the parable of the growing seed,[1] 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.

[1] Mark 4:26-28.

The Lawyer as Rationalist

In Arts & Letters, Conservatism, History, Law, Philosophy on April 17, 2013 at 8:45 am

Allen Mendenhall

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.”[1]  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.”[2]  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.

[1] Michael Oakeshott, Rationalism in Politics and Other Essays (Indianapolis: Liberty Fund, 1991), p. 6.

[2] Id. at 7.

Plato and Natural Law Theory

In Arts & Letters, Communism, Humanities, Jurisprudence, Law, Literary Theory & Criticism, Literature, Philosophy, Western Philosophy on March 27, 2013 at 8:45 am

Allen Mendenhall

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,[1] 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.

[1] 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.

Žižek and Agamben’s Homo Sacer

In Arts & Letters, Books, Humanities, Law, Literary Theory & Criticism, Philosophy, Politics, Postmodernism, Western Philosophy on March 6, 2013 at 8:45 am

Allen Mendenhall

“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.[1]

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.

[1] Giorgio Agamben.  Homo Sacer: Sovereign Power and Bare Life.  Stanford University Press, 1995.  Pg. 71.

Law and the Sum of Particulars

In Arts & Letters, Humanities, Jurisprudence, Law on January 17, 2013 at 8:45 am

Allen Mendenhall

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.


Get every new post delivered to your Inbox.

Join 6,113 other followers

%d bloggers like this: