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Review of “Teaching Law and Literature”

In Arts & Letters, Book Reviews, Fiction, Humanities, Jurisprudence, Law, Law-and-Literature, Literary Theory & Criticism, Literature, News and Current Events, Novels, Pedagogy, Teaching, Writing on April 24, 2012 at 8:33 am

Allen Mendenhall

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 19th 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.” Read the rest of this entry »

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The Oft-Ignored Mr. Turton: Part Three

In Arts & Letters, Britain, Fiction, Humanities, Jurisprudence, Law, Law-and-Literature, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Philosophy, Politics on April 20, 2012 at 7:10 am

Allen Mendenhall

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. Read the rest of this entry »

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The Oft-Ignored Mr. Turton: Part Two

In Arts & Letters, Britain, Conservatism, Eastern Civilizaton, Fiction, History, Humanities, Jurisprudence, Law, Law-and-Literature, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Philosophy, Politics on April 16, 2012 at 7:55 am

Allen Mendenhall

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. Read the rest of this entry »

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The Oft-Ignored Mr. Turton: Part One

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

 Allen Mendenhall

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

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

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

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

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

Rule of Law and Utilitarian Jurisprudence

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

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

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

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

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

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

Forster and District Collectors in India

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

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

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

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

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

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Emersonian Individualism

In America, American History, Art, Arts & Letters, Creativity, Emerson, Epistemology, Essays, Humanities, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Nineteenth-Century America, Philosophy, Poetry, Politics, Pragmatism, Rhetoric, Santayana, Western Civilization, Western Philosophy, Writing on April 4, 2012 at 6:48 am

Allen Mendenhall

The following essay originally appeared here at Mises Daily.

Ralph Waldo Emerson is politically elusive. He’s so elusive that thinkers from various schools and with various agendas have appropriated his ideas to validate some activity or another. Harold Bloom once wrote, “In the United States, we continue to have Emersonians of the Left (the post-Pragmatist Richard Rorty) and of the Right (a swarm of libertarian Republicans, who exalt President Bush the Second).”[1] We’ll have to excuse Bloom’s ignorance of political movements and signifiers — libertarians who exalt President Bush, really? — and focus instead on Bloom’s point that Emerson’s influence is evident in a wide array of contemporary thinkers and causes.

Bloom is right that what “matters most about Emerson is that he is the theologian of the American religion of Self-Reliance.”[2] Indeed, the essay “Self-Reliance” remains the most cited of Emerson’s works, and American politicians and intellectuals selectively recycle ideas of self-reliance in the service of often disparate goals.

Emerson doesn’t use the term “individualism” in “Self-Reliance,” which was published in 1841, when the term “individualism” was just beginning to gain traction. Tocqueville unintentionally popularized the signifier “individualism” with the publication of Democracy in America. He used a French term that had no counterpart in English. Translators of Tocqueville labored over this French term because its signification wasn’t part of the English lexicon. Emerson’s first mention of “individualism” was not until 1843.

It is clear, though, that Emerson’s notion of self-reliance was tied to what later would be called “individualism.” Emerson’s individualism was so radical that it bordered on self-deification. Only through personal will could one realize the majesty of God. Nature for Emerson was like the handwriting of God, and individuals with a poetical sense — those who had the desire and capability to “read” nature — could understand nature’s universal, divine teachings.

Lakes, streams, meadows, forests — these and other phenomena were, according to Emerson, sources of mental and spiritual pleasure or unity. They were what allowed one to become “part and parcel with God,” if only one had or could become a “transparent eyeball.” “Nothing at last is sacred,” Emerson said, “but the integrity of your own mind.” That’s because a person’s intellect translates shapes and forms into spiritual insights.

We cannot judge Emerson exclusively on the basis of his actions. Emerson didn’t always seem self-reliant or individualistic. His politics, to the extent that they are knowable, could not be called libertarian. We’re better off judging Emerson on the basis of his words, which could be called libertarian, even if they endow individualism with a religiosity that would make some people uncomfortable.

Emerson suggests in “Self-Reliance” that the spontaneous expression of thought or feeling is more in keeping with personal will, and hence with the natural world as constituted by human faculties, than that which is passively assumed or accepted as right or good, or that which conforms to social norms. Emerson’s individualism or self-reliance exalted human intuition, which precedes reflection, and it privileged the will over the intellect. Feeling and sensation are antecedent to reason, and Emerson believed that they registered moral truths more important than anything cognition could summon forth.

Emerson’s transcendentalism was, as George Santayana pointed out in 1911, a method conducive to the 19-century American mindset.[3] As a relatively new nation seeking to define itself, America was split between two mentalities, or two sources of what Santayana called the “genteel tradition”: Calvinism and transcendentalism.

The American philosophical tradition somehow managed to reconcile these seeming dualities. On the one hand, Calvinism taught that the self was bad, that man was depraved by nature and saved only by the grace of God. On the other hand, transcendentalism taught that the self was good, that man was equipped with creative faculties that could divine the presence of God in the world. The Calvinist distrusted impulses and urges as sprung from an inner evil. The transcendentalist trusted impulses and urges as moral intuition preceding society’s baseless judgments and prevailing conventions.

What these two philosophies had in common was an abiding awareness of sensation and perception: a belief that the human mind registers external data in meaningful and potentially spiritual ways. The Calvinist notion of limited disclosure — that God reveals his glory through the natural world — played into the transcendentalists’ conviction that the natural world supplied instruments for piecing together divinity.

The problem for Santayana is that transcendentalism was just a method, a way of tapping into one’s poetical sense. What one did after that was unclear. Santayana thought that transcendentalism was the right method, but he felt that Emerson didn’t use that method to instruct us in practical living. Transcendentalism was a means to an end, but not an end itself.

According to Santayana, Emerson “had no system” because he merely “opened his eyes on the world every morning with a fresh sincerity, marking how things seemed to him then, or what they suggested to his spontaneous fancy.”[4] Emerson did not seek to group all senses and impressions into a synthetic whole. Nor did he suggest a politics toward which senses and impressions ought to lead. Santayana stops short of accusing Emerson of advancing an “anything-goes” metaphysics. But Santayana does suggest that Emerson failed to advance a set of principles; instead, Emerson gave us a technique for arriving at a set of principles. Emerson provided transportation, but gave no direction. This shortcoming — if it is a shortcoming — might explain why Bloom speaks of the “paradox of Emerson’s influence,” namely, that “Peace Marchers and Bushians alike are Emerson’s heirs in his dialectics of power.”[5]

For Emerson, human will is paramount. It moves the intellect to create. It is immediate, not mediate. In other words, it is the sense or subjectivity that is not yet processed by the human mind. We ought to trust the integrity of will and intuition and avoid the dictates and decorum of society.

“Society,” Emerson says, “everywhere is in conspiracy against the manhood of every one of its members.” Society corrupts the purity of the will by forcing individuals to second-guess their impulses and to look to others for moral guidance. Against this socialization, Emerson declares, “Whoso would be a man, must be a nonconformist.”

Emerson’s nonconformist ethic opposed habits of thinking, which society influenced but did not determine. Emerson famously stated that a foolish consistency is the hobgoblin of little minds. What he meant, I think, is that humans ought to improve themselves by tapping into intuitive truths. Nature, with her figures, forms, and outlines, provides images that the individual can harness to create beauty and energize the self. Beauty therefore does not exist in the world; rather, the human mind makes beauty out of the externalities it has internalized. Beauty, accordingly, resides within us, but only after we create it.

Here we see something similar to Ayn Rand’s Objectivism stripped of its appeals to divinity. Rand believed that reality existed apart from the thinking subject, that the thinking subject employs reason and logic to make sense of experience and perception, and that the self or will is instrumental in generating meaning from the phenomenal world. Read the rest of this entry »