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Archive for the ‘Historicism’ Category

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Lack of Intellectual Preparation?

In American History, Arts & Letters, Book Reviews, Historicism, History, Humanities, Law on May 25, 2012 at 9:03 am

Allen Mendenhall

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

I have attended conferences of law professors doggedly determined to be interdisciplinary, and I have been appalled at the lack of intellectual preparation that many of them had for such work. They would talk blithely about bringing the insights of, say, game theory to the law-with only the vaguest idea of what game theory was all about. (Indeed, how could they have had more than a vague idea? After a general undergraduate training, they went to the law schools, then to the courts as clerks, then back to the law schools.) So one must, perforce, have a lurking fear that some of the new interdisciplinary efforts will be so inadequate as to prompt law professors to decide to do well what they can do, rather than to do badly what they should do. And law schools may well continue to perpetuate half-knowledge. They remain torn between serving as trade schools to the profession and graduate schools to the scholars. This compromise may turn out to be less and less tenable over the next years.
 
Does Rothman’s claim remain true when the “new interdisciplinary efforts” aren’t so new anymore?  Today many law professors hold Ph.D.s in various disciplines, and these professors use their unique, specialized training to enhance legal scholarship in their respective sub-disciplines.  But does “extra” graduate work or a specialized degree necessarily signal a superior skill set, or is Rothman’s view elitist?   These questions will be the subject of a future post on this site, and potentially of a future article, so I would like to hear back from readers.  Please email your responses to me or, if you’d prefer, post them in the comment box below.    

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A Tale of the Rise of Law (Part Two of Two)

In Arts & Letters, Britain, Fiction, Historicism, History, Humanities, Jurisprudence, Justice, Law, Law-and-Literature, Liberalism, Literary Theory & Criticism, Literature, Politics, Western Civilization, Writing on March 13, 2012 at 1:00 am

Allen Mendenhall

This essay originally appeared here at Inquire: Journal of Comparative Literature (Issue 2.1, 2012)

As the sovereign, or king, was never fixed in Geoffrey’s lifetime, even if the idea of sovereignty was, The History treats law as transcending any particular human sovereign. Geoffrey creates a need for law by portraying it as sovereign, anchored in a classical past and cloaked in religious terms. Austin works as a functional lens through which to view The History’s suggestion that law is necessary to provide shape to the nation-state. Geoffrey’s text signals what Mooers calls the “outgrowth” of twelfth-century legal principles that enabled coercive, nationalist projects and agendas before people could speak of concepts like nation-states. Put another way, Geoffrey was an originator of and a participator in twelfth-century jurisprudence not necessarily a transcriber of an ancient corpus juris.5 This claim is not to reduce Geoffrey’s text to the grade of propaganda but rather to adduce jurisprudence from The History to support a claim that Geoffrey champions legal theory instead of simply documenting it. Because the term “uniform and rational justice” does not admit ready definition, I defer to Mooers’s clarifying focus on the comprehensive systemization of law manufactured by royal writs and other like instruments (341). Uniform and rational justice had to do with the proliferation of court systems whereby centralized authorities could begin to impose and enforce sets of common, consistent rules. The twelfth century was, after all, the age laying the institutional structures of the Anglo common law.6 The common law was the distillation of custom (a claim made by its iconic protagonists such as Bracton, Fortescue, and St. German) and thus was of time immemorial, beyond the memory of man. But the solidification of the common law as a mass system enforceable by a centralized body – the precursor to the modern state – began in the twelfth century. Roman law may have influenced these common, consistent rules and inspired Henry I, Matilda, Henry II, Geoffrey and their contemporaries, but tracing the concept of uniform and rational justice back to pre-Britain is not my aim, for that would entail looking beyond Britain in a way that Geoffrey refuses (or fails) to do. Medieval and early modern common law derived its authority from religion, and medieval jurists claimed unequivocally that common law was derived from God.7

Geoffrey’s first sustained treatment of law and the sovereign and their relationship to uniform and rational justice appears at the end of Brutus’ section. Here, Geoffrey submits that when Brutus built his capital on the River Thames, Brutus not only presented the city “to the citizens by right of inheritance,” but also gave those citizens “a code of laws by which they might live peacefully together” (74). Coming as they do after Brutus’ many battles and conquests, these laws suggest peace and order befitting a civilization prophesied by a goddess: Diana. No sooner is this putative history of a nation professed in terms of law than it is consumed in mythology and institutional legend. That Brutus, the eminent Trojan, would establish this city (“Troia Nova” or “New Troy”) suggests that the British legal system had the proper pedigree, according to Geoffrey and his contemporaries. 

Authored during the reign of Henry II in the late 1180s, roughly half a century after the publication of The History, Ranulf de Glanvill’s landmark legal treatise, The Treatise on the Laws and Customs of the Realm of England Commonly Called Glanvill, is important as it suggests that The History reflects ideas common to the period, showing the workaday application of various strands of jurisprudence. Moreover, like The History, The Treatise anchors law in history and tradition, asserting that the “laws and customs of the realm had their origin in reason and have long prevailed,” and as if to neutralize anxieties about the fact that many of these laws remained unwritten, Glanvill adds that if “merely for lack of writing, they were not deemed to be laws, then surely writing would seem to supply to written laws a force of greater authority than either the justice of him who decrees them or the reason of him who establishes them” (2). The epigram preceding the prologue of Glanvill, apparently affixed to the text after Glanvill’s death, adds to this invocation of history and celebrates Glanvill himself as “the most learned of that time in the law and ancient customs of the realm” (1). Foregrounding custom and tradition seems like a strategy for both Geoffrey and Glanvill as well as other contemporary writers who sought to anticipate objections to law or to mobilize support for legal mechanisms currently in flux (because the monarchy is in flux).     

The History is thus a model for government and for those subject to government. It mythologizes what law can be – derivations of divine prophesy couched in terms of Roman mythology and not Christian truth – and so inspires readers to ensure that law realizes its full potential. From Geoffrey’s attention to Brutus, for instance, readers are supposed to learn that law corresponds with peace and that the king initiates and sanctions law. It is Brutus, after all, who drives away the giants from the caves of Britain into the mountains and who commands the populace to “divide the land among themselves,” “cultivate the fields,” and “build houses” (72). Geoffrey uses Brutus to establish the image of an authoritative king and, more specifically, a glorified body as a site of sanctified authority.8   

Glanvill underscores the centrality of peace to law and even suggests that law, which vests in the king, endeavours primarily toward peace and harmony. Glanvill opens by rendering law as the sovereign’s decorative yet lethal façade: “Not only must royal power be furnished with arms against rebels and nations which rise up against the king and the realm, but it is also fitting that it should be adorned with laws for the governance of subject and peaceful peoples” (1). Like Geoffrey, Glanvill does not put a name on the sovereign; he merely extols law and its utility to the king. These lines suggest that peace cannot exist without war and that law obtains in the jurisdiction not to make peace or war but to assist the king in the functioning of his office. Uniform and rational justice does not arise for its own sake but for the service of the sovereign so that he “may so successfully perform his office that, crushing the pride of the unbridled and ungovernable with the right hand of strength and tempering justice for the humble and meek with the rod of equity, he may both be always victorious in wars with his enemies and also show himself continually impartial in dealing with his subjects” (1). For Glanvill and for Geoffrey, law is mostly about utility to the king in that it sanctions sovereign violence and centralizes power such that one individual, the sovereign, can issue commands to his subjects, demand the submission of his subjects to his authority by visiting punishment upon those who violate his commands and, therefore, ensure the habitual obedience of multiple subjects across a vast territory.

The lack of a centralized authority or definite sovereign is the reason that Britain falls into disarray when, after Brutus’ death, Brutus’ sons Locrinus, Kamber, and Albanactus divide the kingdom of Britain into thirds (Geoffrey 75). As a result of this partition, the brothers are unable to maintain the military presence necessary to preserve the polis and its laws, and therefore the island suffers from foreign invasion and bloodshed. Likewise, Maddan’s sons quarrel over the crown upon Maddan’s death, and as a result, law becomes something oppressive as one son, Mempricius, given to sodomy and other “vices,” murders the other son, Malin, and “by force and by treachery” does away with “anyone who he feared might succeed him in the kingship” (78). Unlike Brutus, Mempricius exercised “so great a tyranny over the people that he encompassed the death of almost all the more distinguished men” (78). Geoffrey redeems law by giving Mempricius the fate of being devoured by wolves, presumably due to his despotism (78). The suggestion here is that although laws are, as Austin claims, the commands of a sovereign, a sovereign like Mempricius will forfeit sovereignty if his commands take on forms that the polis cannot or will not habitually obey. God or Nature will destroy him for that failing, since the devouring by wolves seems to have some kind of divine justice. Such bodily mutilation signifies destruction of law itself; as Goodrich points out, law and the body are interactive in religious terms:

[The annunciation] is logos, the word as incarnation of divine presence, the spirit made flesh. For the law, the spirit made flesh takes the form of a text, vellum or skin in which is inscribed the form of the institution, of society and its subjects as the unified members and membrane of a body, the corpus iuris civilis or civilised body, the corpus mysticum or body politic, Leviathan or law. (248-49) Read the rest of this entry »

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A Tale of the Rise of Law (Part One of Two)

In Arts & Letters, Britain, Christianity, Fiction, Historicism, History, Humanities, Imagination, Jurisprudence, Justice, Law, Law-and-Literature, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Politics, Rhetoric, Rhetoric & Communication, Western Civilization on March 9, 2012 at 10:09 pm

Allen Mendenhall

This essay originally appeared here at Inquire: Journal of Comparative Literature (Issue 2.1, 2012)

Geoffrey of Monmouth’s The History of the Kings of Britain is a tale of the rise of law that suggests that there can be no Britain without law – indeed, that Britain, like all nation-state constructs, was law or at least a complex network of interrelated processes and procedures that we might call law. During an age with multiple sources of legal authority in Britain, The History treats law as sovereign unto itself in order to create a narrative of order and stability.1 This article examines the way Geoffrey establishes the primacy of law by using the language-based, utilitarian methodologies of John Austin, who treats law as an expression of a command issued by a sovereign and followed by a polis, and whose jurisprudence enables twenty-first-century readers to understand Geoffrey’s narrative as a response to monarchical succession and emerging common law. The first section of this article briefly explains Austin’s jurisprudence and provides historical context for The History. The second section considers The History in terms of uniform and rational justice in the twelfth century, situating Geoffrey’s jurisprudence alongside that of Ranulf de Glanvill and analyzing the complex relationships between sovereignty, law, polis and nation state.

 The Jurisprudence of John Austin

Austin treats law as an expression of will that something be done or not done, coupled with the power to punish those who do not comply: “A command […] is a signification of desire […] distinguished from other significations of desire by this peculiarity: that the party to whom it is directed is liable to evil from the other, in case he not comply with the desire” (Province 6).  Accordingly, law is a command that carries the power of sanction. Austin, who writes in the nineteenth century, is in many ways different from the twelfth-century Geoffrey. Whereas Geoffrey employs fiction to instruct his contemporaries in the official narrative of incipient nationalism, Austin proclaims that many “of the legal and moral rules which obtain in the most civilized communities, rest upon brute custom, and not upon manly reason” (Province 58). Austin adds that these legal and moral rules “have been taken from preceding generations without examination, and are deeply tinctured with barbarity,” and also that these takings are particularly harmful because the rules “arose in early ages” during “the infancy of the human mind” when people ruled based on “the caprices of fancy” (Province 58). Because The History is more mythology than fact, Austin probably would have accused Geoffrey of perpetuating “obstacles to the diffusion of ethical truth” and of “monstrous or crude productions of childish and imbecile intellect” that nonetheless “have been cherished […] through ages of advancing knowledge” (Province 58). Austin, in short, was skeptical of mythology and claims about absolute law, whereas Geoffrey embraced mythology and implied that law was a constant corrective.

Despite this disjuncture, or perhaps because of it, Austin’s theories provide an illuminating framework in which to consider The History. Austin’s proposition that laws are commands backed with the power to sanction stands in contradistinction to Geoffrey’s suggestion that law emerged out of an ancient precedent and achieved its fullest expression under the great King Arthur. The conception of law as merely language reinforced by the possibility of physical threat undercuts the idea that law is based in first principles discovered by the fathers of civilization. Austin’s proposition – that customary laws carry no threat of punishment and therefore are not laws at all unless a sovereign, who can punish, declares them to be laws – also contradicts Geoffrey’s suggestion that law is embedded in custom and represents a point of authority from which kings may or may not deviate. Finally, Austin’s proposition that “every law which obtains in all societies, is made by sovereign legislators” (Lectures 566), even if such law derives its lexicon from divine inspiration or religious texts, weakens Geoffrey’s suggestion that law is relatively fixed in custom and tradition despite the whims and fancies of a given age. To employ Austin’s jurisprudence is not to privilege Austin’s reading over Geoffrey’s or Geoffrey’s reading over Austin’s but to treat Austin as a lens through which to examine how Geoffrey navigates the legal terrain of his day and negotiates conflicts about law and monarchy that unsettled the harmony of the burgeoning state. Geoffrey uses myth both to validate law and British unity and to reassure the anxious polis of law’s ultimate supremacy over temporary ideological disruptions. He establishes models of behavior for both monarchs and the polis. Read the rest of this entry »

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Bogus on Buckley

In America, American History, Arts & Letters, Book Reviews, Communism, Conservatism, Historicism, History, Humanities, Libertarianism, Politics, Writing on February 9, 2012 at 8:34 am

Allen Mendenhall

It was customary practice in my family to gather at my grandparents’ house for Sunday dinner after church.  Loyal to our Southern traditions, we would, after eating, divide company: men into the living room, women into the kitchen or den.  My brother and I, still children, would sit silently, for the most part, while my grandfather, father and uncles bandied about the names of politicians and discussed the day’s sermon or newspaper headlines. 

I first learned of William F. Buckley Jr. during these Sunday afternoons, as he was often the topic of conversation.  I was too young to know much, but young enough to learn a lot quickly, so I began to follow this man, this Buckley, to the extent that I could, from those days until the day that he died in February 2008.  

Overcommitted to supposedly universal political ideals and to the spread of American liberal democracy throughout the world, Buckley was not my kind of conservative.  He could be tactless and cruel, as when he violated the ancient maxim de mortuis nil nisi bonum (“Of the dead, speak no evil”) in an obituary to Murray Rothbard wherein he wrote that “Rothbard had defective judgment” and “couldn’t handle moral priorities.”  Buckley then trumpeted some unflattering anecdotes about Rothbard before likening Rothbard to David Koresh. 

Despite such tantrums and vendettas, I always liked Buckley.  Something in the way he conducted himself—his showy decorum, flaunted manners and sophisticated rhetoric—appealed to me.

Carl T. Bogus, an American law professor and author of the biography Buckley, seems to share my qualified respect for Buckley, despite disagreeing with Buckley on important political and theoretical issues.  “I should tell the reader up front,” Bogus warns, “that I am a liberal and thus critical—in some instances, highly critical—of Buckley’s ideology.”  Yet, adds Bogus, “I admire William F. Buckley Jr. enormously.”     

Unlike bobble-headed television personalities and think tank sycophants, Bogus does justice to his subject, treating Buckley’s ideas evenhandedly on the grounds that he (Bogus) is “disheartened by the present state of partisan animosity,” one solution to which, he says, “is to take opposing ideas seriously.”  Bogus not only takes Buckley’s ideas seriously, but credits them for changing America’s political realities.    Read the rest of this entry »

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Review of Lions of the West by Robert Morgan

In America, American History, Arts & Letters, Book Reviews, Historicism, History, Humanities, Nineteenth-Century America, Politics, Southern History, The South, Writing on January 31, 2012 at 6:46 am

Allen Mendenhall

This review originally appeared here at the Southern Literary Review.

Good histories don’t just tell stories; they make arguments.  Robert Morgan’s arguments in Lions of the West, subtle though they are, run as follows: historians and storytellers cannot help but view dramatic shifts of history as products of the actions of famous individuals; nevertheless, what happens in the course of history is attributable to numerous common folk acting independently and with disparate motivations.  Even the most comprehensive history cannot tell the stories of all these individuals, each of whom, in the narrative of the American West, could be numbered among the great “lions.” 

“While it is understandable,” Morgan explains, “that we see history mostly in terms of the deeds of a few, our grasp of what actually happened will be flawed and limited if we do not consider the story of the almost invisible many who made the notable deeds possible, even inevitable.”  Despite this claim, Morgan seems taken by the Great Man theory of history, and one of the epigrams to his book, which gets repeated in the Prologue, is Emerson’s remark that there is “properly no history; only biography.”

Morgan’s stated purpose is to “create a living sense of the westward expansion of the United States through brief biographies of some of the men involved.”  In realizing this goal, he offers a nod to other popular historians and storytellers such as Joseph J. Ellis, Gordon S. Wood, and David McCullough.  Each of these men writes histories free of the monotony and tendentious urgency of academic historians, yet each is also committed to facts and small details as indicia of greater narrative patterns. 

Morgan admits, as he must, that Lions of the West is, at best, “only a partial story.”  That’s not a shortcoming peculiar to Morgan’s narrative but a reality of human experience: all histories, like all memories, are partial.  Morgan himself submits that “written history is distortion through selection,” and that by its nature “narrative can represent only by implication, explicit about some parts, suggesting the many.”  No history could recount all the constituent parts that make up the whole; no history, in other words, could recreate the past.  For that reason, an author’s values and priorities are reflected in the subjects he or she chooses to undertake. 

Morgan’s values and priorities can be gleaned from his decision to profile ten individuals whose lives and toils characterize the American West in all its outlandishness and glory: Thomas Jefferson, Andrew Jackson, John Chapman (“Johnny Appleseed”), David (“Davy”) Crockett, Sam Houston, James K. Polk, Winfield Scott, Kit Carson, Nicholas Trist, and John Quincy Adams.  Of these, all but Chapman and Adams maintained significant ties to the South or would have considered themselves, or by others would have been considered, Southerners. Read the rest of this entry »

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Additional Thoughts on Gary W. Gallagher’s The Union War

In American History, Arts & Letters, Book Reviews, Historicism, History, Nineteenth-Century America, Slavery, Southern History, The South, Western Civilization on December 23, 2011 at 10:50 am

Allen Mendenhall

Recently I reviewed Gary W. Gallagher’s The Union War (Harvard University Press, 2011) for The University Bookman.  The review (“Why the Union Soldiers Fought”) is available here.  I have not said all I mean to say about Gallagher’s book, so this post records some additional thoughts.

I began my review with the tale of the “Lost Women and Children of Roswell.”  It was difficult as a child, knowing this story and others like it, to view the Union Army as completely righteous and pure, or to justify the eradication of certain evils like slavery with other widespread and destructive evils like war.  Despite being a Southerner with ancestors who fought for the Confederacy, I’m ambivalent about the War because of the various and totalizing perspectives that were thrust upon me when I was young, and because of my general opposition to war and nationalism, to say nothing of the complex figuring of race that played a defining role in bringing about the conflict.

As I went from middle school to high school, and then college to graduate school, the less likely I was to reduce the causes of the War to one or two factors, and the more likely I was to believe that anyone’s view of the War is already tainted by biases and assumptions.  Over time, I learned never to rule out alternate ways of viewing the War or the Confederacy.  I decided that no one would ever discover the intellectual trump card that would prevail over other viewpoints about the War that killed more men than all other wars in American history, combined.

There’s always more than one way of looking at a conflict, be it this War or some other one.  And our imperfect understanding of conflicts—of anything, really—always consists of generalizations based on the confines of personal experience.  We can read about the events encompassing the War, and we can guess at the logic and beliefs that explain those events.  But we can never relive the War or experience it in real time; and if we are honest, we must say that we can never read all there is to read about the period, never fully know the way a nineteenth-century mind thought, never entirely understand the quotidian realities of the men and women of all races at those times and in those places.  Being human, moreover, we make mistakes and assumptions.  Most of us revise our errors when we notice them.  But some don’t.  Some try to rationalize the logic of the unrealities to which they cling.  Read the rest of this entry »

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Foucault’s Nietzschean Genealogy

In Art, Arts & Letters, Historicism, History, Humanities, Literary Theory & Criticism, Philosophy, Politics, Rhetoric, Western Philosophy, Writing on September 17, 2011 at 10:02 am

Allen Mendenhall

“Genealogy […] requires patience and knowledge of details, and it depends on a vast accumulation of source material.  Its ‘cyclopean monuments’ are constructed from ‘discreet and apparently insignificant truths and according to a rigorous method’; they cannot be the product of ‘large and well-meaning errors.’  In short, genealogy demands relentless erudition.  Genealogy does not oppose itself to history as the lofty and profound gaze of the philosopher might compare to the molelike perspective of the scholar; on the contrary, it rejects the metahistorical deployment of ideal significations and indefinite teleologies.  It opposes itself to the search for ‘origins.’”

                                      —Michel Foucault, from “Nietzsche, Genealogy, History”

This brief passage by Foucault has three references to Nietzsche.  The essay from which the passage is drawn demonstrates Foucault’s immense debt to Nietzsche, citing as it does no other thinker but Nietzsche (save for a fleeting reference to Paul Ree, whose term “Ursprung,” or “origin,” Nietzsche adopts).  Of all Nietzsche’s ideas and practices, genealogy is the one that Foucault cultivates most impressively.  Genealogy is a methodology by and with which one documents or tracks the development of ideas and their relation to human organization.  In other words, genealogy traces knowledge to its systemic formations across various networks of discourse.  That is why genealogy “requires patience” and “depends on a vast accumulation of source material.”  It is a process, and processes take time to work out. 

Genealogy does not recover origins because origins are not recoverable.  Origins are fluid, not fixed; they are not, strictly speaking, origins at all—if, that is, “origins” is taken to mean single, absolute causes or definite, immutable sources.  Rather, for Foucault, “origins” is a term of convenience—perhaps strategically essentialized—referring to sets of beliefs and activities that constitute discursive structures mobilized by numerous truth claims.  That is why Foucault can employ the term “origins” in one sentence and then, in a subsequent sentence, seemingly reverse course by calling origins “chimeras.”  The point is not to define or explain origins; the point is to discredit the idea of origins as self-evident and immanently knowable. 

Origins themselves are inaccessible; the emergence and development of structures based on ideas, however, are not only accessible, but also edifying.  Foucault’s genealogy, therefore, seeks to collect data about numerous truth claims and then to explain how these data form and shape culture.  As Foucault says of genealogy, “It opposes itself to the search for ‘origins.’”  Note the quotation marks around “origins.”  Those marks suggest an intent to divest that term of its expressive purchase.  Origins are knowable only as points of loss or complication, only as intricate and multifaceted constructs that, when examined closely, signify multiple and heterogeneous phenomena and that thus enable and sustain further inquiry.     Read the rest of this entry »