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Archive for the ‘History’ Category

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Legal Positivism and the Common Law

In Britain, History, Humanities, Jurisprudence, Law, Oliver Wendell Holmes Jr., Philosophy, Western Philosophy on April 30, 2014 at 8:45 am

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Legal positivism, in the most basic sense, holds that laws are the manifestation of sovereign commands. It stands in contradistinction to natural law or the judicial conformity with human reason that supposedly defines the common law.[i] Legal positivism generally rebuffs the premise that law and morals are necessarily or even customarily united. Legal positivists from Jeremy Bentham to John Austin to H.L.A. Hart maintained or implied that the formal source of the law was human promulgation, not nature or divine decree; theirs was an analytical jurisprudence that treated the normative function of the law as imposing rules and duties upon the subjects of the sovereign. Positivism generally holds that law is logical and analytical and made up of legislative policies with a linear history that can be understood through utilitarian calculation. To comprehend the law in the positivist paradigm requires analyzing the signification of words as grammatical imperatives—as “commands,” in Austin’s lexicon.

The common law, on the other hand, traditionally was seen as the vast accumulation of judicial decisions as against the commands of legislatures or the unbinding whims of equity courts; a legislative code announces rules whereas judicial decisions follow, clarify, and sustain them. The common law is a body of cases, a growing organism representing the general rules and inherited customs of the jurisdiction. It is simultaneously conservative and progressive. It comes together over time as innumerable judges and justices struggle with and against precedent to apply longstanding rules to new and unique situations. It responds and reacts to cultural norms rather than making them.

What distinguishes the common law from a civil law system is the doctrine of stare decisis (“let the decision stand”), which requires judges to follow precedents established by prior decisions or to distinguish the facts of new cases from the facts of previous cases in order to reach an applicable rule. Certain rules persevere because they triumph over lesser practices that have not worked. Oliver Wendell Holmes, Jr., explained that this process of creating and sustaining laws in graduated stages does not always make sense or produce the perfect outcome: “In form its growth is logical. The official theory is that each new decision follows syllogistically from existing precedents. But just as the clavicle in the cat only tells of the existence of some earlier creature to which a collar-bone was useful, precedents survive in the law long after the use they once served is at an end and the reason for them has been forgotten.” If some laws seem to be artifacts, Holmes qualifies, they are not likely to burden the people subject to them, for their effect is in their use, and anyway it is only a matter of time before they are overgrown by the “secret root from which the law draws all the juices of life,” which is to say the legislature.

 

Note

[i] The literature on this subject is enormous. The distinction between legal positivism, natural law, and the common law has been the object of discussion among so many jurists and jurisprudents over centuries that it is impossible to recommend a single text on the topic that would clarify all competing views. The most authoritative voice on matters of positivism today is probably Joseph Raz.

 

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Thomas Jefferson, George Wythe, and the Case of Howell v. Netherland

In America, American History, Historicism, History, Humanities, Jurisprudence, Law, Laws of Slavery, Slavery, Southern History, Thomas Jefferson on April 23, 2014 at 8:45 am

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Howell v. Netherland was a Virginia case about the child of an interracial sexual union. Decided in April 1770, Howell opens with the account of the plaintiff’s grandmother, “a mulatto, begotten on a white woman by a negro man, after the year 1705, and bound by the churchwardens, under the law of that date, to serve to the age of thirty-one.”[1] The plaintiff, Howell, sued Netherland for his freedom. Netherland had purchased Howell from a previous owner, who had also owned Howell’s mother and grandfather.

A twenty-seven-year-old Thomas Jefferson served as Howell’s attorney. He argued inter alia that Howell’s grandmother was white, but more importantly that “under the law of nature, all men are born free.”[2] This position makes Howell a precursor to the landmark Somerset case in 1772.[3] “This is what is called personal liberty,” Jefferson says of freedom under the law of nature, “and is given him by the author of nature, because necessary for his own sustenance.”[4] Jefferson adds that “every one comes into the world with a right to his own person, which includes the liberty of moving and using it at his own will.”[5] Such language, coming six years before the Declaration of Independence and eleven years before the first edition of Notes on the State of Virginia, is striking for its seeming emphasis on equality under the natural law.

Jefferson’s opposing counsel in this case was George Wythe, the man who had trained Jefferson in legal practice and who arguably did more during his lifetime than Jefferson to oppose the institution of slavery. In this case, however, Wythe remains the steadfast defender of a slave owner. This fact should remind us of the contingencies of lawyering and the conditions and qualifications that attach to any line of reasoning or rhetoric appearing in court documents about slavery.

When we review archives from the era of slavery in America, we must remember that a lawyer’s words cannot be taken as representative of his thoughts or worldview: he is a participant in a legal contest and advocating for the interests of his client. What Jefferson or Wythe thought about slavery cannot be deduced from this case, so attempts at such deduction should not be made.

[1] Howell v. Netherland, Jefferson 90, April 1770, available in Helen Tunnicliff Catterall, ed., Judicial Cases Concerning American Slavery and the Negro, Vol. 1 (New York: Octagon Books, Inc., 1968) at 90-91.

[2] Ibid., my italics.

[3] William G. Merkel, “Jefferson’s Failed Anti-Slavery Proviso of 1784 and the Nascence of Free Soil Constitutionalism,” 38 Seton Hall L. Rev. 555 (2008) at 559.

[4] Ibid.

[5] Ibid.

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The American Founders and Natural Law Jurisprudence

In America, American History, American Literature, Arts & Letters, Books, Britain, Christianity, Historicism, History, Humanities, Jurisprudence, Law, Laws of Slavery, Liberalism, Literature, Philosophy, Slavery, Southern History, Thomas Jefferson, Western Civilization, Western Philosophy on April 9, 2014 at 8:45 am

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The American founders, many of them, validated their political cause and secession from Britain by resorting to natural law theories and paradigms.[i] Thomas Jefferson memorialized these theories and paradigms in the Declaration of Independence.[ii] While studying nature and the physical world, Jefferson extended natural law jurisprudence while revising it to fit the needs and settings of the New World.[iii] Rather than looking to divine or moral prescription to ground his natural law theories, Jefferson looked to nature. He borrowed from Newtonian ideas about the laws of the universe and applied them to the laws of man.[iv] A human law was, by this logic, akin to the law of gravity.

The American insistence on natural law was a reaction to the analytical positivism gaining credence in Britain.[v] This school of jurisprudence found its fullest expression in the utilitarianism of Jeremy Bentham and John Austin. These men treated laws as linguistic constructs: commands that attained the status of law because people followed them, not because they reflected a priori or transcendent rules of the cosmos. American founders such as Jefferson saw natural law as a way to distinguish themselves from their British counterparts and to define what it meant to be American. William Blackstone, one of the few British jurists still clinging to natural law principles,[vi] enjoyed vast success from American purchases of Commentaries on the Laws of England.[vii] The popularity of this treatise in America had to do with Blackstone’s support for ideals that, from the colonials’ perspective, affirmed Revolutionary rhetoric and philosophical principles.[viii] Blackstone died in 1780. His death ushered in the age of positive law jurisprudence in England.[ix]

In America, however, natural law picked up momentum in the wake of the Revolution and American independence.[x] That ideas of natural law flourished during the Enlightenment, especially in America where institutions were supposed to reflect—indeed embody—Enlightenment principles, is curious because the Enlightenment glorified reason and humanism: progressive concepts seemingly incongruous with a moral theory derived from ancient church teachings and philosophical orthodoxies. This disjuncture reveals the extent to which colonials sought to divorce their culture and communities from the British. Á la Blackstone, colonials would go great lengths to “prove” their natural law theories through application of the scientific method and appeals to reason.[xi] Natural law jurisprudence did, in fact, fit within a scientific and rational framework in many important respects. For instance, natural law, like laws of the natural world putatively discoverable by reason, logic, and experiment, were by definition universal. Just as truths about the external world allegedly were deduced through sustained study of specimens and species, so truths about the human condition were, natural theorists argued, deduced through sustained study of human behavior and the history of the races.[xii] In this sense, colonial jurists viewed natural law not as retrograde, superstitious, or religious, but as cutting-edge and scientific. Americans were not alone in their attention to the scientific elements of law. In Western and Central Europe during the mid-to-late eighteenth century, rulers and leaders “sought to rationalize their legal systems, to make law scientific, to extend it in a vernacular language evenly over their territories, and to put an end to the earlier jumble of customs, privileges, and local rights.”[xiii] Save for Blackstone’s efforts, however, this scientific trend did not gain much traction in England.[xiv]

Early Americans, particularly northerners[xv] but also Virginians such as Jefferson and George Mason, celebrated the ideals of natural law and natural rights appearing in the Declaration, but they found those ideals difficult to implement in everyday practice. Although staunchly committed to the principles of natural law, the colonials, at least those with representation or voice in the political sphere, discovered that abstract philosophy did not readily translate into workaday rules and regulations.[xvi] “It was one thing,” submits David Brion Davis, “to state abstract propositions, and quite another to decide how the law applied to a particular case.”[xvii] Above all, the “peculiar institution” of American slavery called into question the Enlightenment values upon which American natural law jurisprudence depended. Cries of freedom and liberty rang hollow once Americans were no longer up against an oppressive British Empire. These cries began to sound hypocritical—if they did not seem so already—as the institution of slavery became a mainstay of the economy of the fledgling nation.[xviii] How could colonists extol freedom, liberty, and equality yet enslave masses of people? This American philosophical “inconsistency pinched harder when slaves began to speak the language of natural rights.”[xix] As Samuel Johnson, the eminent British Tory and man of letters, quipped, “How is it that we hear the loudest yelps for liberty among the drivers of negroes?”[xx]

 

NOTES

[i] “The American Revolution, as it ran its course from 1764 to 1776—from the first beginnings of resistance down to the Declaration of Independence and the creation of new colonial constitutions—was inspired by the doctrines of Natural Law.” Ernest Baker, in Natural Law and the Theory of Society: 1500-1800, ed. Otto Gierke (Cambridge, England: Cambridge University Press, 1934) at I, xlvi. See generally Clarence Manion, “The Natural Law Philosophy of the Founding Fathers,” University of Notre Dame Natural Law Institute Proceedings (Notre Dame, Indiana: University of Notre Dame Press, 1949). See also Raymond Whiting, “The American Interpretation of Natural Law,” A Natural Right to Die: Twenty-Three Centuries of Debate (Westport, CT: Greenwood Press, 2002) 109-118.

[ii] “[T]he argument of the Declaration is a subtle, if ambiguous, blending of empirical historical analysis and the metaphysics of Natural Law. To prove its central contention—that the revolution was made necessary by British policies—the document enumerates twenty-seven specific events in recent history which reveal precisely how Britain acted to establish despotism. […] But the revolutionaries meant to transcend arguments of expediency, for such arguments were always subject to the vicissitudes of opinion and opinion might lead one to conclude that a revolution was in fact unnecessary and therefore unjustifiable. To remove their claims from the arena of opinion and to ground them with certainty, the revolutionaries felt constrained to found the argument for justification on the principle of Natural Rights which was rooted in the theory of Natural Law as applied to politics and society. Thus the grievances enumerated in the Declaration, weighty in themselves for some readers, were for others concrete examples of how one nation attempted to subordinate another to an ‘absolute despotism.’ The grievances, taken together, demonstrated that British policies had violated the fundamental principles of Natural Law itself.” Lester H. Cohen, “The American Revolution and Natural Law Theory,” Journal of the History of Ideas, Vol. 39, No. 3 (1978) at 491-92.

[iii] See generally Allen Mendenhall, “Jefferson’s ‘Laws of Nature’: Newtonian Influence and the Dual Valence of Jurisprudence and Science,” Canadian Journal of Law and Jurisprudence, Vol. 23, No. 2 (2010).

[iv] See generally Mendenhall, “Jefferson’s Laws of Nature.”

[v] See generally David Lieberman, “Mapping criminal law: Blackstone and the categories of English jurisprudence,” in Law, Crime and English Society, 1660-1830, ed. Norma Landau(Cambridge, England: Cambridge University Press, 2002 ) at 159-162. See also David Brion Davis, The Problem of Slavery in the Age of Revolution, 1770-1823 (Ithaca and London: Cornell University Press, 1975) at 343-385. Davis explains this English phenomenon as follows: “In England there was no ‘fundamental shift in values’ that mobilized the society into revolution. There was no counterpart to the American need for self-justification. No new hopes or obligations arose from an attempt to build a virtuous republic. Such phrases as ‘created equal,’ ‘inalienable rights,’ and ‘the pursuit of happiness’—all of which appeared in classic liberal texts—were qualified by a reverent constitutionalism that looked to Saxon precedent to legitimize ideals of freedom. The notion of man’s inherent rights, when assimilated to the historical concept of British ‘liberty,’ implied little challenge to traditional laws and authorities. And by the 1790s the very idea of inherent rights was giving way to radical and conservative forms Utilitarianism.” Davis, The Problem of Slavery in the Age of Revolution at 343.

[vi] In short, Blackstone believed that the common law reflected natural law principles and that any law contradicting natural law was invalid. Consider, e.g., the following quotation: “This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding all over the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original. […] Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these.” Sir William Blackstone, Commentaries on the Laws of England, Book I at 41-42.

[vii] See Russell Kirk, America’s British Culture (New Brunswick, New Jersey: Transaction Publishers, 1993) 36-40.

[viii] See Albert W. Alschuler, “Rediscovering Blackstone,” 145 University of Pennsylvania L. Rev. (1996) at 4-19. See also David Schultz, “Political Theory and Legal History: Conflicting Depictions of Property in the American Political Founding,” 37 American Journal of Legal History (1993) at 483-486.

[ix] The jurisprudential split between Blackstone and Bentham, while stark, was not as hostile as some first considered: “Until recently Bentham’s claim to have made a sharp break with Blackstone has won wide acceptance, and that fact, combined with Bentham’s ascendancy, was chiefly responsible for consigning Blackstone to obscurity. […] No doubt this outcome resulted in part from Bentham’s mastery of invective, and in part from the fact that the elderly Blackstone did not deign to notice the attacks of an upstart critic, much less reply to them. Even the strongest partisans of Bentham have conceded that much of his criticism directed at Blackstone was misplaced[…]. In spite of Bentham’s efforts, most historians of the relationship have acknowledged that Bentham, despite his implacable hostility, combined relentless criticism with passages of praise that became as famous as some of his barbs.” Richard A. Cosgrove, Scholars of the Law: English Jurisprudence from Blackstone to Hart (New York University Press, 1996) at 52.

[x] See generally George W. Casey, “Natural Rights, Equality, and the Declaration of Independence,” 3 Ave Maria Law Review 45 (2005). See also Philip A. Hamburger, “Natural Rights, Natural Law, and American Constitutions,” 102 Yale Law Journal 907 (1993). See also James Lanshe, “Morality and the Rule of Law in American Jurisprudence,” 11 Rutgers Journal of Law & Religion 1 (2009) at 11-15. See also Kevin F. Ryan, “We Hold These Truths,” 31-WTR Vermont Bar Journal 9 (2005-06) at 11-16.

[xi] “[Blackstone] presented law as a science, a ‘rational science,’ that included an extensive discussion of natural law. To Blackstone, the principles of natural law are universal and superior to positive law, including the common law. […] Natural law, according to Blackstone, is either revealed by God or discoverable through human reason. […] American jurisprudents readily accepted Blackstone’s natural law orientation. […] [N]atural law provided a convenient and useful justification for the adoption of English common law in the various states of the burgeoning nation. Especially in the decades following soon after the Revolutionary War, if the common law had been understood merely as an English institution distinctive to Britain itself, then an American reliance on the common law would have seemed impolitic or even treasonous. If, however, the common law arose from universal principles of the law of nature, which were revealed by God or discovered through human reason, then the common law would be legitimate everywhere, including in America.” Stephen M. Feldman, “From Premodern to Modern American Jurisprudence: The Onset of Positivism,” 50 Vanderbilt Law Review 1387 (1997) at 1396-97.

[xii] Thomas R. R. Cobb, a jurist from Georgia and an expert on slave laws, took pains to show how science validated the idea of slaves as naturally inferior and in need of white supervision. Consider this quote by Cobb: “The history of the negro race then confirms the conclusion to which an inquiry into the negro character had brought us: that a state of bondage, so far from doing violence to the law of his nature, develops and perfects it; and that, in that state, he enjoys the greatest amount of happiness, and arrives at the greatest degree of perfection of which his nature is capable. And, consequently, that negro slaver, as it exists in the United States, is not contrary to the law of nature.” Thomas R. R. Cobb, An Inquiry into the Law of Negro Slavery in the United States of America (Philadelphia: T. & J. W. Johnson & Co., 1858) at 51.

[xiii] Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 1789-1815 (Oxford University Press, 2009) at 403.

[xiv] Ibid. at 403-404.

[xv] “Southerners considered themselves law-abiding and considered northerners lawless. After all, southerners did not assert higher-law doctrines and broad interpretations of the Constitution. Rather, as Charles S. Sydnor has argued, they understood the law in a much different way and professed to see no contradiction between their code of honor, with its appeal to extralegal personal force, and a respect for the law itself.” Eugene Genovese, Roll, Jordan, Roll (New York: Pantheon Books, 1974) at 44.

[xvi] See Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 1789-1815 (Oxford University Press, 2009) at 405-408.

[xvii] David Brion Davis, The Problem of Slavery in the Age of Revolution (Ithaca and London: Cornell University Press, 1975) at 470.

[xviii] See generally David Brion Davis, The Problem of Slavery in Western Culture (Ithaca, New York: Cornell University Press, 1966) at 3-28. For a synthesis of the historical scholarship on this point, see Peter Kolchin, American Slavery, 1619-1877 (New York: Hill and Wang, 1993) at 63-92.

[xix] David Brion Davis, The Problem of Slavery in the Age of Revolution (Ithaca and London: Cornell University Press, 1975) at 276.

[xx] See James Boswell, The Life of Samuel Johnson, LL.D. (New York: George Dearborn, 1833) at 132.

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Outposts of Culture: Gerald Russello Reviews Jason Harding’s The Criterion

In Academia, Arts & Letters, Book Reviews, Books, Britain, British Literature, Communication, Essays, History, Humanities, Literary Theory & Criticism, Literature, Scholarship, Writing on April 2, 2014 at 8:45 am
Gerald Russello
 
Gerald Russello practices law in New York and edits The University Bookman. He is the author of The Postmodern Imagination of Russell Kirk (University of Missouri Press, 2007).  His articles, essays, and reviews have appeared in The National Review, The New Criterion, Crisis Magazine, The American Conservative, Chronicles, The Imaginative Conservative, The American Spectator, City Journal, The Intercollegiate Review, Modern Age, First Things, and many other publications.
 
This review originally appeared here in The University Bookman in 2003.  It is republished here with the express permission of The University Bookman.  The book under review is Jason Harding’s The Criterion: Cultural Politics and Periodical Networks in Inter-War Britain (New York, New York: Oxford University Press, 2002).

 

In the final issue of the Criterion, which appeared in January 1939, T. S. Eliot wrote that “continuity of culture” was the primary responsibility of “the small and obscure papers and reviews.” It was they that would “keep critical thought alive” amidst troubled times. And so it has been, for a century and more. The vitality of the “little magazines” is one of the strongest indicators of a culture’s intellectual level. These journals, typically of small circulation and little revenue, serve a crucial function as the medium for the transmission of ideas among scholars, elites, and the larger population. it is perhaps a sign of our times that so many of our Masters of the Universe choose to endow business schools or fund independent films rather than to support the written word. Many of the journals themselves, unfortunately, have become so obscure and inward-minded that they may no longer be worth the trouble.

The British aptitude for starting small associations of like-minded folk was well expressed by the profusion of little magazines, especially in the nineteenth and early twentieth centuries. This proclivity was to bear further fruit across the Atlantic, where Americans followed the British model. Up until the Second World War, America had a thriving culture of little magazines that tradition survives, in a somewhat anemic form, in the independent so-called “zines” that clutter the bookshops of progressive enclaves like Manhattan or Berkeley. There have been two recent examples of the differing fates of such journals here in the United States. Lingua Franca was an energetic journal devoted to academic life, which it chronicled in a sharp, intelligent style. After less than four years of publication it went bankrupt and ceased publication, only to be partially revived in an Internet incarnation after being acquired by the Chronicle of Higher Education. On the other end of the scale is Poetry, which recently received a gift of $100 million from a philanthropist whose own poems it had rejected. The gift instantly made the small journal one of the best-endowed cultural institutions in the country.

The Criterion was perhaps the most important of the journals of the last century. The first issue, which appeared in October 1922 and contained (without epigraph or notes) Eliot’s poem The Waste Land, changed Western intellectual life, and it continues to define what an intellectual journal should be. However, study of the Criterion has been subsumed by the focus on Eliot’s development as a poet and thinker. The larger cultural importance of the journal has received insufficient attention. That has now changed. From such an improbable place as the department of foreign languages and literature in Feng Chia University in Taiwan, where Jason Harding is assistant director, comes The Criterion: Cultural Politics and Periodical Networks in Inter-War Britain. It is a work of polished scholarship on the role of the Criterion in British intellectual life.

Harding divides his analysis into three parts. Part I, “Cultural Networks,” deals with the Criterion as one of a number of small intellectual periodicals, such as the Adelphi and New Verse, which appeared in this period. The second section, titled “The Politics of Book Reviewing,” focuses on a number of regular Criterion contributors, and their relationship with, and treatment by, Eliot as their editor. The chapters include studies of almost forgotten figures like Bonamy Dobrée and Montgomery Belgion as well as more well-known figures such as John Maynard Keynes and the difficult but brilliant Ezra Pound. Harding shows that, while Eliot directed and organized every aspect of the journal, each of the contributors played their own part in establishing the Criterion’s preeminent position.

The final section, “Cultural Politics,” focuses on the purpose of the Criterion as Eliot came to see it in the dark days of the 1930s. As the influence of the journal increased, it became known not only as a showcase of modernism but also as a conduit for what Eliot called “the mind of all Europe” and a defense of the West. The author discusses Eliot’s attempts to persuade major Continental intellectual figures such as Ernst Robert Curtius to contribute to the journal, and his efforts consistently to review foreign periodicals for his British readership.

Harding presents a complex cultural picture in service of his goal of establishing the Criterion as part of “an ongoing cultural conversation, most immediately a dialogue with a shifting set of interlocking periodical structures and networks.” Eliot, as an editor, had to deal not only with his rival journals, but also with his sensitive patron, Lady Rothermere. There were also those occasionally truculent contributors, such as Wyndham Lewis or D. H. Lawrence, who sometimes abandoned the Criterion for other, better-paying reviews.

Among a number of fascinating episodes, Harding recounts here the controversy over classicism and romanticism between Eliot and John Middleton Murry, founder of the Adelphi. Murry launched the first salvo in 1923, claiming that there was no tradition of classicism in England. Although not the subject of the attack, Eliot felt obliged to respond and published in the Criterion the following month his famous defense of classicism, “The Function of Criticism.” Murry and Eliot were to have a limited rematch at the end of the decade over the humanism of Irving Babbitt. Other scholars have examined the substantive merits of their respective positions. Harding’s purpose is rather to show that the literary rivalries among serious journals spurred Eliot, as a writer and editor, to set out his critical and literary vision. They necessarily shaped the kind of journal Eliot was creating.

In his final sections, Harding examines the evidence for Eliot’s supposed anti-Semitic or fascist sympathies and finds them wanting. Under Eliot’s editorship, several writers documented the rise of Nazism in Germany, and the final issue contained a condemnation of Nazi racial theories. Harding concludes that: “Given the Criterion’s record on these matters, it is remarkable that recent critics have stigmatized the journal by suggesting that Eliot was sympathetic to the aims and methods of Nazism.” Harding realizes that Eliot’s conversion to Anglicanism and his efforts to “stitch together into some kind of unity the Latin-Christian elements of the otherwise diverse cultures of Western Europe” meant his rejection of the Nazi regime. And even though Eliot was somewhat sympathetic to fascism, that sympathy, as Harding demonstrates, was attenuated and did not cause him to suppress other viewpoints in the Criterion.

Drawing on a wealth of previously unexamined materials and private collections, Harding expands upon our knowledge of Eliot as a major twentieth-century figure. His careful research adds a new dimension not only to Eliot as a thinker and editor, but also to the entire period of British literary journalism.

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Paul H. Fry’s Introduction to Theory of Literature (continued)

In American Literature, Arts & Letters, Books, History, Humanities, Literary Theory & Criticism, Literature, Pedagogy, Philosophy, Teaching, Western Civilization, Western Philosophy on March 19, 2014 at 8:45 am

On February 19, I announced that I would run several lectures by Yale literary scholar Paul H. Fry.  In keeping with that promise, I post here the remainder of Fry’s introductory lecture on literary theory.

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Faulkner Studies in Japan, edited by Thomas L. McHaney; compiled by Kenzaburo Ohashi and Kiyoyuki Ono

In Arts & Letters, Book Reviews, Books, Fiction, History, Humanities, Japan, Literature, Southern History, Southern Literary Review, Southern Literature, The South on February 5, 2014 at 8:45 am

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The following review appeared here in Southern Literary Review in 2009.

It was with great interest—and, perhaps, skepticism, for I myself taught English in Japan—that I read Faulkner Studies in Japan, an assemblage of critical essays written and translated by Japanese academics and edited by American Thomas L. McHaney, professor of literature at Georgia State University. Whisking eagerly through the pages of this significant, insightful book, I learned, to my surprise, that Faulkner’s reputation in Japan has been, for six decades, mostly favorable, despite that his “works are difficult to read, even in his own country.”

Though my brief stint as sensei didn’t lend itself to instruction in unconventional, stream-of-consciousness fiction—just getting my pre-teen students to pronounce “Yoknapatawpha” would’ve been inconceivable—other sensei have taught Faulkner with relative if not outright success.

According to McHaney, the Japanese have enjoyed a longstanding admiration for the short, mustachioed Mississippian, who once affectionately remarked, “The Japanese people really and actually wanted to see and to know me—the man, the human being.” Under the auspices of the U.S. State Department, Faulkner visited Japan in 1955, roughly ten years after the American bombings of Hiroshima and Nagasaki and fourteen years after the Japanese bombing of Pearl Harbor. Faulkner’s sojourn, particularly his appearance at a summer seminar in Nagano, resulted in probably the most fruitful give-and-take he ever allowed as public speaker. “By virtue of their interest and their sincere questions,” McHaney explains, “Faulkner’s Japanese audiences also seemed to have received a higher percentage of clear and meaningful answers from him than almost anyone who ever asked him to explain himself.”

McHaney divides the book into three sections: General Studies, Studies of Individual Works, and Faulkner and the Japanese Writer. Topics addressed in General Studies include, among others, Faulkner’s style, his echoes of T.S. Eliot, his repetition or self-parody (he enriched and diversified fictional worlds he created in previous works), and his resemblance to—and difference from—Joaquim Maria Machado de Assis and John Barth. Only three novels—As I Lay Dying, Light in August, and Go Down, Moses—receive individualized treatment in the second section, though one could register little complaint about their exegeses.

The final section, peppered with “several reflections by distinguished Japanese novelists,” reveals, in McHaney’s words, “not only a profound response to Faulkner’s mysteries but also the deliberate intellectual appropriation of his techniques as both a Modernist and post-Modernist writer.”

Readers interested in either Faulkner or Japan, to say nothing of American literature enthusiasts generally, will find much here that’s appealing and constructive, but might, I suspect, find the editor’s selectivity wanting. The nearly random assortment of topics gives the impression that inclusion in the work depended on Japanese nationality and not, say, thematic coherence. Nevertheless, Faulkner Studies in Japan will sustain many re-readings and is essential for any Faulkner aficionado.

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Shakespeare and the Law

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

Shakespeare

Below is footage of a panel discussion between Justice Stephen Breyer, Professor Martha Nussbaum, Judge Richard Posner, and Professor Richard Strier that took place at the University of Chicago in 2009.  The subject of the discussion is “Shakespeare and the Law,” and the purpose of the panel was to counteract what was perceived as growing complacency and unoriginality in the law-and-literature movement.  That these four figures are on the same panel is reason enough to watch the video.

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Transcendental Liberty

In America, American History, Arts & Letters, Creativity, Emerson, Essays, Ethics, History, Humane Economy, Humanities, Libertarianism, Literary Theory & Criticism, Literature, Nineteenth-Century America, Philosophy, Poetry, Politics, Property, Rhetoric, Western Philosophy, Writing on January 15, 2014 at 8:45 am

Allen 2

This essay originally appeared here in The Freeman.

“The less government we have, the better.” So declared Ralph Waldo Emerson, a  man not usually treated as a classical liberal. Yet this man—the Sage of  Concord—held views that cannot be described as anything but classical liberal or  libertarian.

None other than Cornel West, no friend of the free market, has said that  “Emerson is neither a liberal nor a conservative and certainly not a socialist  or even a civic republican. Rather he is a petit bourgeois libertarian, with at  times anarchist tendencies and limited yet genuine democratic sentiments.” An  abundance of evidence supports this view. Emerson was, after all, the man who  extolled the “infinitude of the private man.” One need only look at one of  Emerson’s most famous essays, “Self Reliance,” for evidence of his  libertarianism.

“Self-Reliance” is perhaps the most exhilarating expression of individualism  ever written, premised as it is on the idea that each of us possesses a degree  of genius that can be realized through confidence, intuition, and nonconformity.  “To believe your own thought, to believe that what is true for you in your  private heart is true for all men,” Emerson proclaims, “that is genius.”

Genius, then, is a belief in the awesome power of the human mind and in its  ability to divine truths that, although comprehended differently by each  individual, are common to everyone. Not all genius, on this view, is necessarily  or universally right, since genius is, by definition, a belief only, not a  definite reality. Yet it is a belief that leads individuals to “trust thyself”  and thereby to realize their fullest potential and to energize their most  creative faculties. Such self-realization has a spiritual component insofar as  “nothing is at last sacred but the integrity of your own mind” and “no law can  be sacred to me but that of my nature.”

According to Emerson, genius precedes society and the State, which corrupt  rather than clarify reasoning and which thwart rather than generate  productivity. History shows that great minds have challenged the conventions and  authority of society and the State and that “great works of art have no more  affecting lesson for us than this. They teach us to abide by our spontaneous  impression with good-humored inflexibility then most when the whole cry of  voices is on the other side.” Accordingly, we ought to refuse to “capitulate to  badges and names, to large societies and dead institutions.” We ought, that is,  to be deliberate, nonconformist pursuers of truth rather than of mere  apprehensions of truth prescribed for us by others. “Whoso would be a man,”  Emerson says, “must be a noncomformist.”

Self-Interest and Conviction

For Emerson, as for Ayn Rand, rational agents act morally by pursuing their  self-interests, including self-interests in the well-being of family, friends,  and neighbors, who are known and tangible companions rather than abstract  political concepts. In Emerson’s words, “The only right is what is after my  constitution, the only wrong what is against it.” Or: “Few and mean as my gifts  may be, I actually am, and do not need for my own assurance or the assurance of  my fellows any secondary testimony.”

It is not that self-assurance equates with rightness, or that stubbornness  is a virtue; it is that confidence in what one knows and believes is a condition  precedent to achieving one’s goals. Failures are inevitable, as are setbacks;  only by exerting one’s will may one overcome the failures and setbacks that are  needed to achieve success.

If, as Emerson suggests, a “man is to carry himself in the presence of all  opposition, as if everything were titular and ephemeral but he,” how should he  treat the poor?  Emerson supplies this answer:

Do not tell me, as a good man did to-day, of my  obligation to put all poor men in good situations. Are they my poor? I tell  thee, thou foolish philanthropist, that I grudge the dollar, the dime, the cent,  I give to such men as do not belong to me and to whom I do not belong. There is  a class of persons to whom by all spiritual affinity I am bought and sold; for  them I will go to prison, if need be; but your miscellaneous popular charities;  the education at college of fools; the building of meeting-houses to the vain  end to which many now stand; alms to sots; and the thousandfold Relief  Societies;—though I confess with shame I sometimes succumb and give the dollar,  it is a wicked dollar which by and by I shall have the manhood to withhold.

These lines require qualification. Emerson is not damning philanthropy or  charity categorically or unconditionally; after all, he will, he says, go to  prison for certain individuals with whom he shares a special relationship. He  is, instead, pointing out, with much exhibition, that one does not act morally  simply by giving away money without conviction or to subsidize irresponsible,  unsustainable, or exploitative business activities. It is not moral to give away  a little money that you do not care to part with, or to fund an abstract cause  when you lack knowledge of, and have no stake in, its outcome. Only when you  give money to people or causes with which you are familiar, and with whom or  which you have something at stake, is your gift meaningful; and it is never  moral to give for show or merely to please society. To give morally, you must  mean to give morally—and have something to lose.

Dissent

Emerson famously remarks that a “foolish consistency is the hobgoblin of  little minds, adored by little statesmen and philosophers and divines.” Much ink  has been spilled to explain (or explain away) these lines. I take them to mean,  in context, that although servile flattery and showy sycophancy may gain a  person recognition and popularity, they will not make that person moral or great  but, instead, weak and dependent. There is no goodness or greatness in a  consistency imposed from the outside and against one’s better judgment; many  ideas and practices have been consistently bad and made worse by their very  consistency. “With consistency,” therefore, as Emerson warns, “a great soul has  simply nothing to do.”

Ludwig von Mises seems to have adopted the animating, affirming  individualism of Emerson, and even, perhaps, Emerson’s dictum of nonconformity.  Troping Emerson, Mises remarks that “literature is not conformism, but dissent.”  “Those authors,” he adds, “who merely repeat what everybody approves and wants  to hear are of no importance. What counts alone is the innovator, the dissenter,  the harbinger of things unheard of, the man who rejects the traditional  standards and aims at substituting new values and ideas for old ones.” This man  does not mindlessly stand for society and the State and their compulsive  institutions; he is “by necessity anti-authoritarian and anti-governmental,  irreconcilably opposed to the immense majority of his contemporaries. He is  precisely the author whose books the greater part of the public does not buy.”  He is, in short, an Emersonian, as Mises himself was.

The Marketplace of Ideas

To be truly Emersonian, you may not accept the endorsements and propositions  in this article as unconditional truth, but must, instead, read Emerson and  Mises and Rand for yourself to see whether their individualism is alike in its  affirmation of human agency resulting from inspirational nonconformity. If you  do so with an inquiring seriousness, while trusting the integrity of your own  impressions, you will, I suspect, arrive at the same conclusion I have  reached.

There is an understandable and powerful tendency among libertarians to  consider themselves part of a unit, a movement, a party, or a coalition, and of  course it is fine and necessary to celebrate the ways in which economic freedom  facilitates cooperation and harmony among groups or communities; nevertheless,  there is also a danger in shutting down debate and in eliminating competition  among different ideas, which is to say, a danger in groupthink or compromise, in  treating the market as an undifferentiated mass divorced from the innumerable  transactions of voluntarily acting agents. There is, too, the tendency to become  what Emerson called a “retained attorney” who is able to recite talking points  and to argue predictable “airs of opinion” without engaging the opposition in a  meaningful debate.

Emerson teaches not only to follow your convictions but to engage and  interact with others, lest your convictions be kept to yourself and deprived of  any utility. It is the free play of competing ideas that filters the good from  the bad; your ideas aren’t worth a lick until you’ve submitted them to the test  of the marketplace.

“It is easy in the world,” Emerson reminds us, “to live after the world’s  opinion; it is easy in solitude to live after our own; but the great man is he  who in the midst of the crowd keeps with perfect sweetness the independence of  solitude.” Let us stand together by standing alone.

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Burglary at Common Law

In American History, History, Humanities, Jurisprudence, Law on December 12, 2013 at 8:45 am

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At common law, burglary was defined as the “breaking and entering into the dwelling of another, at night, with the intent to commit a felony therein.” Nearly all jurisdictions in the United States today punish as burglary conduct that does not meet one or more of the elements of that definition; those elements, however, continue to be recognized, in some jurisdictions and under particular circumstances.

At common law, a person could become a “burglar” (i.e., one guilty of burglary) if he had but an intent to commit a different crime (i.e., not just breaking into the dwelling) and yet, having broken into the dwelling, had not committed that intended crime. The intent to break into the dwelling was not relevant to an evaluation of the elements of the crime of burglary; what was relevant was the reason (i.e., the person’s intent) for doing something criminal within the dwelling. Even before a person entered the house unlawfully, he could have been, according to the elements of the crime, guilty of attempted burglary. Burglary is inchoate to a theft or to other crimes that the person committing the burglary also intends to commit inside the dwelling.  In other words, the classification of “burglary” obtains if a person breaks into a house but does not actually commit the felony he intends to commit inside the house.

To be convicted of burglary at common law, one had to actually break into the house; the burglar had to create an opening through which to pass. It was not enough that the owner of the home left open a door or a window through which the burglar crawled.  If person X saw the door to person Y’s home left wide open, or if person Y invited person X into the home, and person X then entered through the door intending to steal silverware, then person X could not be guilty of burglary. And if the door were closed, but it was daytime, and person X busted through the door, he could not be guilty of burglary because it was not nighttime.  It was once apparently believed that the greatest danger to homeowners was during the night, and although statistics may suggest that is still the case, there is no longer a “nighttime” element to burglary.

In most states within the United States, if not all of them, the “breaking” element of burglary has been done away with; instead, if a person’s presence on the property of another is unlawful, and the person satisfies the other elements of burglary, with the exceptions mentioned above, then that person may be guilty of burglary.  Most states still retain the “entry” element of burglary, and this element is satisfied if any part of the body enters the structure, if only for a moment.

No states in the United States retain the “dwelling” requirement.  At common law, a “dwelling” was, more or less, a house; a place of business didn’t qualify.  Therefore, someone could break into your office, steal your equipment, and not be guilty of burglary.  Most states in the United States no longer require an “intent to commit a felony”; rather, the word “felony” has been dropped and replaced with “crime.”  Therefore, a person could be guilty of burglary for breaking into a home with the intent to commit any crime, even a misdemeanor.  This is not true in all jurisdictions, however, as some states still provide that, to be guilty of burglary, a person breaking into the home must do so with the intent to commit either a felony or some other theft crime.

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Literature and Liberty: Essays in Libertarian Literary Criticism

In Arts & Letters, Austrian Economics, Books, Economics, Emerson, Fiction, History, Humane Economy, Humanities, Imagination, Justice, Law-and-Literature, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, News and Current Events, News Release, Novels, Philosophy, Politics, Property, Rhetoric, Shakespeare, The Novel, Transnational Law, Western Civilization, Western Philosophy, Writing on November 15, 2013 at 8:46 am

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My forthcoming book, Literature and Liberty: Essays in Libertarian Literary Criticism, is now available for pre-order here at Amazon.com or here at Rowman & Littlefield’s website.  From the cover:

The economic theories of Karl Marx and his disciples continue to be anthologized in books of literary theory and criticism and taught in humanities classrooms to the exclusion of other, competing economic paradigms. Marxism is collectivist, predictable, monolithic, impersonal, linear, reductive — in short, wholly inadequate as an instrument for good in an era when we know better than to reduce the variety of human experience to simplistic formulae. A person’s creative and intellectual energies are never completely the products of culture or class. People are rational agents who choose between different courses of action based on their reason, knowledge, and experience. A person’s choices affect lives, circumstances, and communities. Even literary scholars who reject pure Marxism are still motivated by it, because nearly all economic literary theory derives from Marxism or advocates for vast economic interventionism as a solution to social problems.

Such interventionism, however, has a track-record of mass murder, war, taxation, colonization, pollution, imprisonment, espionage, and enslavement — things most scholars of imaginative literature deplore. Yet most scholars of imaginative literature remain interventionists. Literature and Liberty offers these scholars an alternative economic paradigm, one that over the course of human history has eliminated more generic bads than any other system. It argues that free market or libertarian literary theory is more humane than any variety of Marxism or interventionism. Just as Marxist historiography can be identified in the use of structuralism and materialist literary theory, so should free-market libertarianism be identifiable in all sorts of literary theory. Literature and Liberty disrupts the near monopolistic control of economic ideas in literary studies and offers a new mode of thinking for those who believe that arts and literature should play a role in discussions about law, politics, government, and economics. Drawing from authors as wide-ranging as Emerson, Shakespeare, E.M. Forster, Geoffrey of Monmouth, Henry Hazlitt, and Mark Twain, Literature and Liberty is a significant contribution to libertarianism and literary studies.