Archive for the ‘Britain’ Category
Libertarianism and the Common Law
In Arts & Letters, Britain, Economics, History, Humanities, Law, Libertarianism, Philosophy on October 20, 2022 at 6:00 amWhat Austrian Economists Can Learn From Roger Scruton
In Arts & Letters, Austrian Economics, Britain, Conservatism, Economics, Essays, History, Humane Economy, Humanities, liberal arts, Libertarianism, Literature, Philosophy, Western Civilization, Western Philosophy on June 17, 2020 at 6:45 am
This piece originally appeared here in The Imaginative Conservative.
The room is alive with happy discussion, the clanking of plates and silverware, hearty laughter, and the pitter-patter of smartly dressed servers buzzing about the room. Wine flows. We’re on the final course, awaiting dessert and coffee, when suddenly the lights dim, leaving dancing candlelight on the tables and the illicit glow of cell phones. On an enormous screen behind the stage comes a loud, hoarse voice: “It is a great honor to be named Defender of Western Civilization.”
I look up, puzzled. There before me in magnified form, filling the screen, is Sir Roger Scruton, sitting beside a lamp, his face framed by a flux of flaxen hair, his chair squeaking as he readjusts himself. It’s evening, both here and in England, and the sun is down, so the faint light beaming on his face through an obscured window betrays the disappointing reality that we’re watching a recording, not a live feed. The moment, at any rate, is exciting. Scruton goes on to ask, “What is a civilization?” And to answer: “It is surely a form of connection between people, not just a way in which people understand their languages, their customs, their forms of behavior, but also the way in which they connect to each other, eye to eye, face to face, in the day-to-day life which they share.”
That, anyway, is how I recall the Intercollegiate Studies Institute’s 14th Annual Gala for Western Civilization that honored Scruton, who, because of his chemotherapy treatment, was unable to attend.
Sir Roger, as he’s affectionately known, departed from this world on January 12, 2020. This erudite philosopher of a bygone era raises grave questions about the compatibility between traditionalism and classical liberalism, custom and markets, the individual and the state, convention and innovation. From Scruton, we can, I think, learn the following. That a society of modest scope and scale functions optimally when its people are good and virtuous, when they voluntarily organize themselves into charitable communities, fearing the eternal consequences of wickedness. That free societies thrive where crime is rare and private property rights are both recognized and respected, where families work hard and support one another and leaders are classically and rigorously educated, having wrestled with the greatest thinkers and texts from across the ages. That lasting social harmony develops in cohesive communities where solidarity involves kindness and benevolence and members do not superciliously dismiss received wisdom and norms.
Scruton’s Fools, Frauds and Firebrands—first published in 1985 as Thinkers of the New Left, reworked and rereleased in 2015, produced in paperback in 2016, and reissued in 2019 as yet a newer edition—demonstrates that Scruton wasn’t tilting at windmills as conservative pundits and talking heads on television and popular media seem too often to do. Scruton’s chief targets were, not senseless and sycophantic politicians, but ideas. He traced these ideas to particular leftist luminaries: Eric Hobsbawm, E. P. Thompson, J.K. Galbraith, Ronald Dworkin, Jean-Paul Sartre, Michel Foucault, Jürgen Habermas, Louis Althusser, Jacques Lacan, Gilles Deleuze, Antonio Gramsci, Edward Said, Alain Badiou, and Slavoj Źižek. His concern was principally philosophical and cultural. He took ideas seriously and didn’t simplify or exploit them merely for entertainment value.
Scruton acknowledged that the term “Left,” referring to the object of his opprobrium, covers a wide range of intellectuals and ideological movements, but that all of these, to some degree, “illustrate an enduring outlook on the world, and one that has been a permanent feature of Western civilization at least since the Enlightenment, nourished by … elaborate social and political theories,”[1] namely those which hold “that the goods of this world are unjustly distributed, and that the fault lies not in human nature but in usurpations practiced by a dominant class.”[2] The word “Left” or “leftist,” then, suitably encompasses a multiplicity of views that, although singular in their particulars, hang together as a classifiable category at a certain level of generalization.
Scruton added that leftists “define themselves in opposition to established power, the champions of a new order that will rectify the ancient grievance of the oppressed,”[3] and that they pursue two abstract goals: liberation and social justice. The liberation Scruton refers to is not necessarily a libertarian version of personal autonomy; rather, it refers to “emancipation from …. ‘structures,’” e.g., from “the institutions, customs and conventions that shaped the ‘bourgeois’ order, and which established a shared system of norms and values at the heart of Western society.”[4] The Left seeks to deconstruct and dismantle historic associations (families, churches, clubs, sporting leagues, etc.) that provide order and stability in the absence of overarching government rules and regulations.
If that’s “the Left” in a nutshell, then what’s “the Right,” according to Scruton? In short, the Right is a community of individuals believing in the primacy of those personal relationships, prevailing norms, and controlling institutions that precede government, mediate between private actors and the State, and celebrate the intrinsic worth of every human being. “The right,” explains Scruton, “rests its case in representation and law,” advocating a “civil society that grows from below without asking permission of its rulers.”[5] The Right, accordingly, treats government as accountable to its citizens in light of its dangerous capacity for mischief and violence. The Right also recognizes the sinful, flawed nature of human beings and, therefore, attempts to offset or neutralize—rather than to amass or centralize—power.
By contrast, the Left promotes institutionalized coercion and centralized power. Its attempts to realize concretely the abstractions of social justice and equality necessitate the use of a forcible apparatus, controlled by a select group of people, to press resistant communities into compliance. “Who controls what and how in the realm of pure equality,” asks Scruton on this score, “and what is done to ensure that the ambitious, the attractive, the energetic and the intelligent do not upset whatever pattern it is that their wise masters might impose on them?”[6] No true and absolute equality of talent or wealth can ever be achieved in tangible reality because humans are wonderfully and brilliantly diverse, even as they are made, universally, in the image of God.
Given a binary choice between the Left and the Right so described, libertarians ought to side with the Right, cultivating a literate society characterized not only by self-ownership, free markets, and private property, but also by aesthetic appreciation, religious worship, obedience to successful and constructive customs, and concern for the souls and material wellbeing of the generations not yet born. Libertarians and conservatives can agree that everyone is plugged into vast networks of commerce and activity, however remote their neighborhoods or habitats. They can agree with Scruton that self-regulating, disciplined communities of caring individuals administer felt, proportional restraints more fairly and efficiently than do faraway government bureaucrats or impersonal agencies of mechanical functionaries who enjoy a compulsory monopoly on the implementation of force.
Scruton suggested that the Right, more than the Left, benevolently esteems the multiplying, bewildering variety of human behavior and interests. Whereas the Left reduces human beings to determined products of intractable systems and rigid social structures, the Right marvels in the mystery of quotidian experience, mining the past for evidence of good and bad decisions, prudent and imprudent courses of action, and workable and unworkable approaches to difficult challenges and exigent circumstances.
There can be no freedom, however, absent some authority. Conservatives and libertarians alike may locate that authority in mediating institutions of modest size, recognizing the importance of consent and localism, family and place, to good government. Scruton’s example shows that certain conservative cultural conditions enable market-based economies to flourish. Conservatives and libertarians may agree that, in Scruton’s words, “[Ludwig von] Mises and [Friedrich] Hayek between them destroyed the possibility of a socialist economy,” giving the “conclusive argument against it.” Mises’s and Hayek’s argument, a tenet of the Austrian School of Economics, involves the recognition that humans are fallible creatures with limited knowledge and perspective who prosper when society writ large values humility over hubris, and economic exchange over warfare or coercion.
Despite the rancor between them lately, conservatives and libertarians need each other. Dividing them unites the Left. Scruton was no libertarian, but his ideas, if thoughtfully considered by libertarians, could enable a more fruitful, contemplative, and beautiful libertarianism to emerge.
[1] Pg. 1.
[2] Pg. 3. Note: I have Americanized Scruton’s spelling so that, for instance, “practised” has become “practiced.”
[3] Pg. 3.
[4] Pg. 3.
[5] Pg. 286.
[6] Pg. 274.
What Is Magna Carta?
In Arts & Letters, Britain, History, Humanities, Jurisprudence, Law, liberal arts, Western Civilization, Western Philosophy on November 29, 2017 at 6:45 am
Redeeming the Debauched Falstaff
In Academia, Arts & Letters, Book Reviews, Books, Britain, British Literature, Creativity, Fiction, Humanities, liberal arts, Literary Theory & Criticism, Literature, Philosophy, Shakespeare, Western Civilization, Western Philosophy on November 15, 2017 at 6:45 am
This review originally appeared here in The American Conservative.
In The Daemon Knows, published in 2015, the heroic, boundless Harold Bloom claimed to have one more book left in him. If his contract with Simon & Schuster is any indication, he has more work than that to complete. The effusive 86-year-old has agreed to produce a sequence of five books on Shakespearean personalities, presumably those with whom he’s most enamored.
The first, recently released, is Falstaff: Give Me Life, which has been called an “extended essay” but reads more like 21 ponderous essay-fragments, as though Bloom has compiled his notes and reflections over the years.
The result is a solemn, exhilarating meditation on Sir John Falstaff, the cheerful, slovenly, degenerate knight whose unwavering and ultimately self-destructive loyalty to Henry of Monmouth, or Prince Hal, his companion in William Shakespeare’s Henry trilogy (“the Henriad”), redeems his otherwise debauched character.
Except Bloom doesn’t see the punning, name-calling Falstaff that way. He exalts this portly, subversive figure as the charming master of deception and rogue scheming, and more importantly as a courageous vitalist “unmatched in all of Western imaginative literature.” Bloom’s astounding reverence for this clever, corrupting, calculating, mischievous Bacchanalian—whose life-affirming zest is as delightful as it is disconcerting—reveals he’s capable of the same kind of strategic indulgence that animates his transgressive subject.
His opening lines establish an affectionate, worshipful tone: “I fell in love with Sir John Falstaff when I was a boy of twelve, almost seventy-five years ago. A rather plump and melancholy youth, I turned to him out of need, because I was lonely. Finding myself in him liberated me from a debilitating self-consciousness.”
This isn’t academic prose. Bloom doesn’t write scholarship in the sense in which English professors, who chase tenure and peer approval, understand that term. Could you imagine a graduate student in literature showing up at the Modern Language Association’s annual convention and pronouncing from behind a podium that “Falstaff wants us to love him”? Or that Falstaff “is the mortal god of our vitalism and of our capacity for joyous play of every kind”? That would end a career before it began.
To hold Bloom to professional academic standards is fundamentally to misunderstand the man. His criticism is art unto itself; it’s genre-defying literature: part memoir, part fiction, part psychoanalysis. He’s a character of his own creation, as imaginary as Falstaff, and yet real and alive. In his psyche, the mysteries of which he plumbs with Freudian apprehension, Falstaff, too, is alive—and more than that, he’s a deified “embassy of life.” Bloom calls him the “greatest wit in literature,” whose vices “are perfectly open and cheerfully self-acknowledged.”
Immediately objections spring to mind: Didn’t Falstaff take bribes from competent soldiers who wished to avoid battle, thereby dooming his innocent, rag-tag band of unready troops? Doesn’t this bawdy gambler fake his own death to avoid injury and then seek credit for Hal’s slaying of Hotspur? Isn’t he a compulsive liar and self-serving fabricator? Rather than earn his keep, doesn’t he mooch off borrowed and stolen money while fraternizing with lowly criminals in disreputable taverns? Doesn’t he find stealing entertaining? Doesn’t he fail miserably in his attempt to seduce married women? Doesn’t he thrive in the seedy underbelly of impolite society?
No matter. The venerating and visionary Bloom sees Falstaff’s flaws as part of his appeal. Falstaff, prefiguring Nietzsche and Sartre, stands outside ethical jurisdiction as the lovable übermensch, the seductive sum of his own deliberate actions and unbridled agency in a world without God. Falstaffianism can be reduced to an abrupt imperative: “do not moralize.” These are Bloom’s italics, emphasizing, perhaps, the enthusiasm with which Falstaff rebuffs normative codes and basic standards of decency, vivaciously embracing the self—the subjective, knowing, self-aware “I” that wills a future into being—with laughter and existential rapture.
Kate Havard argues in Commentary that “Bloom must actually reckon with the sorts of things Falstaff does that would seem monstrous in real life.” I’m not sure about this mandate. Everyone is susceptible to wickedness. We’re fallible. Yet the magnitude of our evil acts is proportionate only to our capacity and will for achieving them. Greater power over others has the potential to increase the enormity of our chosen wrongs. Two hearts, equally blameworthy, can enact varying degrees of harm. With our meanness and malevolence, depravity and double-dealing, we’re all like Falstaff at some instant, even if we “cannot say that we are Falstaff’’ (my italics this time) because Falstaff cannot be universal—he’s too shrewd, raucous, and riotously convivial to be an archetype.
That we haven’t occasioned rank violence or mass damage is only evidence of our own powerlessness to do so in our moment of darkness. Our minds have contemplated horrors that our bodies never brought to bear. Knowing this, one begins to appreciate Bloom’s melancholy voice in such an adoring account. “Falstaff is no everyman,” he intones, “[b]ut all of us, whatever our age or gender, participate in him.” This truth, if it is one, doesn’t excuse Falstaff; rather it makes his decisions disturbingly recognizable.
Falstaff stands for absolute freedom, challenging dogmatic pieties even as he uses them to his advantage. He signals human choice and authenticity, but he’s elusive and multifaceted. “There is no single Falstaff,” Bloom submits. “In my youth and middle years I thought I knew Falstaff. That Falstaff has vanished from me. The better I know Sir John the less I know him. He has become one of the lost vehemences my midnights hold.”
This tragicomic Falstaff is so complex and ambiguous that he undermines expectations, avoids patterned behavior, and escapes simple explanation. “Falstaff is as bewildering as Hamlet, as infinitely varied as Cleopatra,” says Bloom. “He can be apprehended but never fully comprehended. There is no end to Falstaff. His matrix is freedom but he dies for love.”
Falstaff is a more cunning and charismatic version of Chaucer’s drunkenly crass miller, whose hilarious tale of casual adultery lacks the stark intentionality that makes Falstaff so treacherously in control. He’s like a flatulent Santa Claus, without the meekness or mildness of Christian self-denial. He is, in a word, exuberant, and as Bloom opines, “Exuberance in itself is a shadowy virtue and can be dangerous to the self and to others, but in Falstaff it generates more life.”
Bloom commendably acknowledges the charges leveled against him: “I am weary of being accused of sentimentalizing Falstaff.” He says he’s “been chided for sentimentality when I observe Falstaff betrays and harms no one,” and he pleads with us to enjoy Shakespeare’s rendering of the Fat Knight, adding, “Do not moralize.” The point is not to elicit agreement but to move you emotionally, although his expressive mode is less sentimental than it is spiritual or mystical. He has a jovial appetite for living, thinking, and loving that resembles Falstaff’s in its sheer capaciousness—hence his aside that he’s a “lifelong Falstaffian.”
The Book of Genesis asserts that God made man in his image. One wonders whether Bloom’s ecstatic Bardolatry—he once called Shakespeare “a mortal god”—leads to a different but related conclusion: that Shakespeare, as God, created Bloom in Falstaff’s image. Although age has thinned his once corpulent physique, Bloom is, at times, the boastful embodiment of the bombastic, iconoclastic genius (Sir John) whose chief weakness is his fondness and devotion. At other times, he’s a prophetic seer haunted by the daemon, devoid of merry wit, laughter, or redemptive charm and enthused by ineffable forces to cry out with beautiful despair and angst. His gusto seems ever-present, as does his displayed interiority.
Yet there is no single Bloom. You may think you know him, but then he vanishes as a lost vehemence.
“He has never abandoned me for three-quarters of a century,” Bloom muses of Falstaff, “and I trust will be with me until the end. The true and perfect image of life abides with him: robustly, unforgettably, forever. He exposes what is counterfeit in me and in all others.” Perhaps that’s why Falstaff is so threatening: he lays bare that manipulative, liberated part of ourselves that we don’t acknowledge or even fathom, that’s alienated and estranged from other people, accessible only to the “I myself”—the only thing we know that we know.
A Brief History of Opinion-Writing Practices from Hale and Blackstone to the 20th Century
In American History, Britain, History, Law, Nineteenth-Century America, Oliver Wendell Holmes Jr. on August 9, 2017 at 6:45 am
This post is adapted from a law review article that may be downloaded here (citations available in the original).
Sir Matthew Hale and Sir William Blackstone explained that judicial opinions in England traditionally were a source of unwritten law, or lex non scripta, derived from custom and read from the bench but not transcribed in official reports or indexed in a formal corpus. Judicial opinions began as an oral medium, not a written record. They were considered evidence of what the law was, but not the law itself.
From the thirteenth to the fifteenth century, opinions were often written down, in French, and compiled in Year Books. Lawyers began citing opinions—some written, some unwritten—in their arguments before the courts, although there was no systematized mode of citation. As early as the fifteenth century, lawyers produced abridgements, or digests, to review the state of the law across England. These sketchy compilations summarized and classified opinions and could be referenced in the courtroom as authority for particular propositions. During the fifteenth and sixteenth centuries, a comprehensive scheme of methodical and widespread adherence to written precedent emerged gradually by slow degrees. However, not until the sixteenth and seventeenth centuries did judges and litigants treat opinions as authoritative and binding in a manner that resembled the modern sense of precedent. The publication of Sir Edward Coke’s Institutes of the Lawes of England over the course of nearly two decades during the early seventeenth century provided direction for both jurists and attorneys who wished to substantiate their arguments with concrete holdings. Still there were no certified court reporters or verbatim transcriptions; the enterprise of publishing reports or digests was often personal and selective, insofar as reporters often chose to record only cases they liked and to disregard cases they disliked.
From approximately 1600 to 1800, the British House of Lords enjoyed supreme appellate jurisdiction over cases in common-law and equity courts. During that time, the House of Lords did not publish reports of its decisions, seriatim or otherwise. Most cases were ultimately determined by intermediate appellate courts, including the Exchequer Chamber, the Court of Common Pleas, and the King’s Bench, which regularly issued seriatim opinions that were transcribed by reporters. Prior to American independence from Great Britain, appeals from colonial courts went before the Privy Council in England. The Privy Council reached decisions by majority vote but issued those decisions as unified pronouncements, regardless of dissenting views. Because all decisions of the Privy Council were subject to the King’s review, and the King, the site and symbol of the law or body politic, could not articulate simultaneous, contradictory positions, the appearance of unanimity within the Privy Council was paramount.
In its early years, after the adoption of the Judiciary Act of 1789, the United States Supreme Court (“the Court”), following the practice of English common-law courts—specifically the King’s Bench—typically rendered decisions in the form of per curiam and seriatim opinions. The near obligatory practice of rendering written opinions was an American innovation and a departure from the English custom of residual orality. The fact that the United States Constitution was written perhaps necessitated the textual documentation of judicial opinions in books, digests, and reports.
During the tenure of Chief Justice Oliver Ellsworth (1796–1800), the third Chief Justice of the Court, seriatim opinions became less common and were abandoned during the tenure of Chief Justice John Marshall (1801–1835), who orchestrated consolidated opinions among the justices, much to the chagrin of Thomas Jefferson. Justices who concurred with the prevailing rationale no longer authored a separate opinion to express their agreement. Justice William Johnson, a Jeffersonian Republican, was the notable exception, authoring nearly half of the dissents that were produced by members of the Court during his tenure on the bench. Chief Justice Marshall, for his part, authored most of the Court’s majority opinions, which were issued with the phrase “opinion of the Court” to lend the impression that the justices spoke with one voice. Collegiality and consensus-building must have been a high priority because, after work hours, the justices resided and dined together in a small boardinghouse on Capitol Hill, away from their families, where court conflicts could have incited personal quarrels. Abandoning the seriatim mode and dissenting opinions also quickened the publication process; over a quarter of the cases decided by opinion between 1815 and 1835 were published in no more than five days.
The period late in Chief Justice Marshall’s tenure to approximately 1905 involved the rise of dissenting justices. Chief Justice Marshall himself began to author dissents as the Court increasingly decided cases through majority rather than unanimous opinions. Dissents proliferated during the mid-nineteenth century and into the twentieth century. Justice John McLean and Justice Benjamin Curtis authored memorable dissents in Dred Scott v. Sandford. Forty-eight years later, Justice Oliver Wendell Holmes Jr.’s three-paragraph dissent in Lochner v. New York became one of the most influential legal writings in American history. Blackstone’s conviction that opinions were evidence of law but not actually law continued to some extent throughout the nineteenth century, yet it had been diminishing since the mid-eighteenth century. The notion of “caselaw,” or the idea that judicial opinions constituted law, did not gain currency until the twentieth century. Today it is mostly accepted without question or qualification.
The twentieth century ushered in the era of the “Great Dissenter,” a label that has been conferred on Justice Holmes and Justice John Marshall Harlan. By the 1940s, most cases involved separate opinions. Dissents and separate writings are now common. A jurist’s reasoning and argument typically enjoy precedential effect, but historically, under the English tradition of the common law, the judgment of the opinion was authoritative, and later courts could disregard the analysis from which that judgment followed. The results of an opinion, in other words, took priority over its reasoning.
A Conversation Between Terry Eagleton and Roger Scruton
In Academia, Arts & Letters, Books, Britain, British Literature, Communication, Conservatism, Creativity, Fiction, History, Humanities, Liberalism, Literary Theory & Criticism, Literature, Pedagogy, Philosophy, Politics, Rhetoric, Rhetoric & Communication, Scholarship, The Academy, Western Civilization on September 21, 2016 at 6:45 amIn 2012, the Royal Institution of Great Britain hosted Terry Eagleton and Roger Scruton for an evening of conversation and debate. Here is the footage of that event:
“Illegal Litigation”: Excerpt from “I am the Raleigh,” by F. L. Light
In Arts & Letters, Britain, British Literature, Creative Writing, History, Humanities, Poetry, Writing on March 2, 2016 at 8:45 am
A Shakespearean proficiency in meter and rhetoric may to F L Light be ascribed. Nearly forty of his dramas are now available on Amazon, and twenty have been produced for Audible. His Gouldium is a series of twenty four dramas on the life and times of Jay Gould which he followed with six plays on Henry Clay Frick. The whole first book of his translation of The Iliad was published serially in Sonnetto Poesia. He has also appeared in Classical Outlook and The Raintown Review. Most of his thirty five books of couplets are on economics, such as Shakespeare Versus Keynes and Upwards to Emptiness the State Expands.
For his defense in this part of the play, Raleigh asserts that two witnesses are required for the charge of treason.
Raleigh: The primacy in law is presence,
The testifying presence of a man
Where answers and rejoinders in a court
Proceed, procedurally set right in full
Protection of the truth. Not one but two
For treason are required. This case without
Accusers here illicit must become.
Illegal litigation the Attorney
General of England never should allow.
If no premeditated certitude
You mean in court, let my accusers come
Before me. The sheerest hearsay you assert
In court, if now unsifted inferences
Obtain without an oath, with no subscription,
Nothing demonstrable in testified
Exposure of the truth, simply enlarged
Upon a paper imputation by
A desperate man. How should unscrutinized
Reproaches credible remain unless
The Jesuit Inquisition you regard
As just? Were Cobham dead or gone abroad,
No case you’d have. But in this very house,
Winchester Castle, he abides. My lords,
Perpend how over-guessed assumptions are
Not rare in court, and lightless allegations,
Of darkling likelihood, have dazzled lawyers.
Why, Sir John Fortescue, of reverend estimation
As a Chief Justice in this realm, relates
How in his time a judge condemned a wife
At Salisbury for her husband’s death upon
Gratuitous prejudice to peasants or
On the suppositious sophistry of looks
Or likely baseness in the wife, whom one
Accuser had belied. But he that killed
Her husband was discovered after she
Was burned. The judge that had her die then told
Sir John the mordant penance of his mind
Would never pall in conscientious smart
With caustic memories. And you, Sir John
Popham, are too exultant in damnations
To regret my doom.
Popham: The damnedest imputations you
Deserve, far prouder to exalt prodition than
All traitors heretofore.
Raleigh: By fallible
Ferociousness your wisdom may default.
You’d proudly consummate your preconceptions.
And if you say the statutes I adduced
Before abide no longer in the courts,
Because religious mutability
Required removes, yet faultless equity
Remains in them, not failing reason. Now
Impartial exemplarity you lawyers find
In them, and for the common law they are
Considered sacred. Jurists never doubt
In Deuteronomy that one condemner shall
Not doom for his enormities a man,
But double attestations may suffice
Or triple for attesting treason to
A judge. There’s no dissentient scripture, old
Or new, thereon. Thus by the law of God
No men are immaterial nullities
In court. Untenable disgrace they need
Not suffer from one man.
Popham: Sir Walter Raleigh,
No statute you adduced can aid you now.
Those of Edward the Sixth no longer hold,
Too inconvenient for convictions, all
Repealed by Philip and Mary when their fires
Began. As the Chief Justice of this realm,
I know the common law’s commensurate
Extents to measure treason. Here in court
One requisite assertion that attests
To treason is enough. And, should one
Accomplice carry allegations how
The others were conjoined, that proof will hold.
But he that blames himself before he blames
Another cannot be denied in court,
For mouthed authority demonstrable.
Warburton: I muse, Sir Walter, measurably considerate
As you are, how you stretch yourself to stress
This point, for horse-thieves never could be judged
Thereby, requiring witnesses. By law
Upon deduced presumption we condemn
The guilty or on circumstantial presence
Or incidental revelation we
May judge events. Should regicidal gore
Not prove a swordsman guilty who had been
In covert presence with a king? He’d be
Too sanguinary for misjudgment, Sir.
No inquisition requisite therefore!
Raleigh: Yet by the common law, my lord, all trials
Of fact by juries and witnesses proceed.
Popham: No, sir, examination satisfies
The common law. Where traitors have confessed,
Redundant witnesses might not in court
Condemnatory tales unfold.
Raleigh: As you
Conceive the law therewith, I cannot grasp
The incongruity unknown to me.
Popham: Nay, Sir, the law is not conceived by us
But known in full.
Raleigh: My lord, so how so laws
Suffice in process, here I suffer life
Or death thereby. Not with insufferable
Exorbitance should English rigor be
Enforced. At his asserted coronation
King James to nurture equity in England
And not fixed rigor force has sworn. And as
Benignant furtherance he would effect
In law, so should his ministers and judges no
Less happy prove.
Popham: Procedural monarchy
Provides you equity. But our judicial course
Will be confined to justice.
The Literary Lawyer: A Forum for the Legal and Literary Communities 
American Government, An Introduction to the Constitutional Principles of American Government, Antonin Scalia, checks-and-balances, Commentaries on the Laws of England, Federalism, James McClellan, Jeff Sessions, Law and Liberty, Liberty Fund, Liberty Order and Justice, Natural Law, republicanism, Rule of Law, separation-of-powers, Sir William Blackstone
A Better Sort of Constitutional Learning: James McClellan’s Liberty, Order, and Justice
In American History, Arts & Letters, Books, Britain, History, Humanities, Law, Philosophy, Scholarship on July 25, 2018 at 6:45 amThis piece originally appeared here in Law & Liberty.
Attorney General Jeff Sessions not long ago characterized the office of sheriff as a “critical part of the Anglo-American heritage of law enforcement.” This plain statement of an incontrovertible fact should not have been controversial. Yet with clockwork predictability, social media activists began excoriating Sessions for his ethnocentrism.
Even those who should have known better—Bernice King (daughter of Martin Luther King, Jr.), the NAACP, college-educated personalities in the Twittersphere—piled on the criticism, accusing Sessions of racism and suggesting the term “Anglo-American” was a dog whistle for white nationalists and the alt-Right. It was another sign of how uninformed many in our society have become, and of how name-calling and crude labeling have replaced constructive dialogue and civil conversation in the political sphere.
Fortunately, there’s a good, levelheaded primer for understanding the basic framework of American government that teachers and other leaders should recommend and assign to our ignorant masses: James McClellan’s Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government, which the Liberty Fund published in 2000.
McClellan, who passed away in 2005, was a proud Virginian who taught at several universities, including the University of Virginia, and was, among other things, the James Bryce Visiting Fellow in American Studies at the Institute of United States Studies (University of London) and president of the Center for Judicial Studies at Claremont McKenna College in California. He was also for a time a senior resident scholar at Liberty Fund.
Liberty, Order, and Justice is McClellan’s best known work. It maps the history and philosophy that shaped the U.S. Constitution and its amendments and is separated into seven parts, each appended with primary sources that are reproduced in full or in part: Magna Carta, the Petition of Right, the English Bill of Rights, the Mayflower Compact, the Declaration of Independence, the Virginia Bill of Rights, the Federalist Papers, the Virginia Plan, the New Jersey Plan, the Northwest Ordinance, and many others.
As a straightforward overview of the seminal concepts that characterize American government—separation of powers, republicanism, federalism, checks and balances, rule of law—this volume could serve, and probably has served, as the principal textbook for a high school or college course. The “Suggested Reading” lists at the end of each of its sections provide more than enough supplemental material to round out a semester of comprehensive study.
A work of such breadth and scope is impossible to summarize. McClellan begins with British history, in particular the emergence of Parliament, the evolution of the common law, and the development of legal doctrines and principles that responded to changing circumstances. He discusses the differences between the French and American Revolutions, and their respective effects upon the imaginations of Americans who were alive at the time. He devotes an entire section to the Philadelphia Convention, which he says, perhaps overstating, was “often more like a gathering of polite friends than an assemblage of angry political zealots.”
McClellan’s chief concern is federalism, a principle that appears throughout. He highlights disagreements between the Federalists and the Anti-Federalists, warning that “we should not presume that the Anti-Federalists were wrong.” He adds: “The inquiring student, having examined the debates thoroughly and objectively, may well conclude that the Anti-Federalists were right about certain matters.”
Lest his readers get lost in the historical and conceptual details, McClellan prefaces each section with the heading “Points to Remember,” followed by numbered outlines of central facts and themes. This feature enables easy memorization and study—another reason the book is suited for the classroom.
For the most part, McClellan recounts historical events dispassionately, and lays out influential concepts with no personal pique or ideological bent. Only occasionally is he tendentious, and then only subtly so. For instance, his judicial hermeneutics seek out authorial intent, thereby rejecting textualism and signing on to a now passé version of originalism. “The basic interpretive task,” he submits, “is to determine the intent of the Constitution, laws, and treatises, and to construe all instruments according to the sense of the terms and the intentions of the parties.”
This statement might have made Justice Antonin Scalia unhappy.
He’s also skeptical of natural law, stating:
This statement would have made Justice Scalia happy.
McClellan calls Sir William Blackstone’s Commentaries on the Laws of England a “great compendium of learning,” a term of endearment that applies equally to Liberty, Order, and Justice. The two have a similar aim: to synthesize disparate principles into a coherent treatise and to explain the origins and foundations of the current legal and political order. In a different age, when information wasn’t immediately available and students couldn’t google their way to quick answers, this book might well have become as important as the Commentaries.
Its cheerful conclusion, at any rate, seems naïve in our present moment: “What we have offered you in this book is the basic structure of America’s constitutional order. It is up to you to preserve and improve that structure; and you have a lifetime in which to work at it.” Were he alive today, McClellan might not be so optimistic.
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