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Review of “Teaching Law and Literature”

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

Allen Mendenhall

Teaching Law and Literature.  Austin Sarat, Cathrine O. Frank, and Matthew Anderson, eds.  New York: Modern Language Association, 2011.  vii + 507 pp.  $25, paper.

What began as a coordinated, idiosyncratic project in American and British law schools has become a common component of curricula in English departments across the globe.  Law and literature as a subject and as a movement has gained purchase over the last three decades.  Inaugurated in 1973 with the publication of James Boyd White’s The Legal Imagination, which highlighted, among other things, the affinities between legal and literary rhetoric, law and literature has splintered into so many narrowed foci that today it is just as common to see courses like “Law in Late 19th Century American Literature” as it once was to see courses called, quite simply and broadly, “Law and Literature.”

To celebrate and explain this movement, The Modern Language Association (MLA) has released Teaching Law and Literature, an edition with forty-one essays by some of the most prominent scholars in the field, including none other than White himself.  Although law and literature has enjoyed ample funding and has become the subject of an increasing number of journals and conferences, not enough work has been done on the pedagogical aspects of the discipline.  Put another way, the discipline has yet adequately to address the question of how professors ought to teach the interplay of law and literature to students.

That is a gap that this book seeks to fill.  According to editors Austin Sarat, Cathrine O. Frank, and Matthew Anderson, Teaching Law and Literature  “provides a resource for teachers interested in learning about the field of law and literature and how to bring its insights to bear in their classrooms, both in the liberal arts and in law schools.”  Despite that stated goal, the book is weighted toward undergraduate education, and the editors admit as much in their introduction.

At a time when American law schools are under fire for admissions scandals and fabricated data, professors of law and literature—and law professors interested in humanistic and jurisprudential approaches to law teaching—would do well to turn their attention to undergraduates.  When budget cuts and faculty purging befall the legal academy, as they likely will, law and literature (and its various offshoots) will be the first curricular elective to suffer.  A discipline whose proponents struggle to articulate its purpose—will a course in law and literature help law students to pass a bar exam or to become better lawyers?—may not survive the institutional scrutiny of deans, administrators, and alumni associations.

Yet it is the urgent quest for validation that makes law and literature such an important subject.  At its core, law and literature is about grand questions: Why study literature at all?  What use do novels, plays, poems, and the like have for the general public and for the practical, workaday world in which lawyers serve a necessary function?  Might the recurring themes of justice, fairness, and equality expressed in canonized texts from disparate cultures and communities point to something recognizable and distinctive in the human condition?  And are there paralyzing limits to specialized knowledge of periods and genres when so many law and literature scholars, working out of different traditions and trained in supposedly autonomous disciplines, arrive at the same or similar generalizations regarding human experience?

One such generalization, interestingly enough, is that complicated relationships between people—whether based in race, gender, class, or whatever—ought to be understood in terms of ambiguity and contingency rather than certainty and absolutes, and that simple answers will hardly ever suffice to illuminate the nuances and contradictions of any given phenomenon, especially law.  That law is too often reduced to blackletter, blanket rules is not lost to writers of imaginative literature, who, many of them, have used law and legal institutions to enable critiques and explorations of complex social and philosophical problems.

It is little wonder, in light of the compatibility between literary and legal rhetoric or hermeneutics, that a Maryland appellate judge recently wrote in his concurrence that “[t]his case is E.M. Forster’s A Passage to India all over again.  Something happened up there at the Marabar Caves.  Was it an attempted rape?  Was it some form of hysteria triggered by strongly ambivalent emotions imploding violently in a dark and isolated catacomb?  Or was it some unmappable combination of the two as moods and signals shifted diametrically in mid-passage?  The outside world will never know.”  Here is a judge employing a work of literature to demonstrate a point about the limitations of human knowledge.  Law provides topoi in countless works of literature, and works of literature, as this judge apparently recognizes, can supply context and profundity to the deforming routines and desensitizing rituals of everyday law practice.  Without following the judge through to the end of his reasoning, one can sense in his lines a stark awareness of the incapacity of human faculties and hence the perspectival nature of what the philosophers call “justice.” Read the rest of this entry »

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The Oft-Ignored Mr. Turton: Part Three

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

Allen Mendenhall

The following originally appeared here at Libertarian Papers.  Full Works Cited below.

From Turton Towards a New Jurisprudence

For much of the novel, Turton tries to balance his allegiance to Britain and his duties toward Indians. He hosts bridge parties, for instance, and fraternizes with Indians. In the scene at the club, wherein the Englishmen discuss the charges against Aziz and what should be done about them, Turton tries to remain “scrupulously fair,” although he also wants to “avenge Miss Quested and punish Fielding,” who has, it seems, taken Aziz’s side over the British (164). Despite his anger, Turton resolves to go about “the old weary business of compromise and moderation” (164). He reminds himself that, “in the eyes of the law, Aziz was not yet guilty” (165). Yet the law does not matter in Chandrapore because Aziz has been found guilty in the court of British public opinion. Moreover, law in the colony amounts to public opinion. Justice may be blind, but injustice is not—it holds Aziz accountable for his foreignness and for the color of his skin.

Even if Turton discourages violence against Indians, telling the room, “Don’t start carrying arms about,” he can no longer occupy the space between the British and Indian binary (166). He comes down on the side of the English and thereby demonstrates that law is not merely a written text or a code of rules but a bundle of biases and personal preferences. British law rests on prejudices outside of the pure, divine law that is Brahman Hindu. Turton shows, in other words, that rule of law can never work in a society controlled by one group that is culturally distinct from the less powerful group.

Like a good utilitarian, Turton abides by rationality and logic. The result is a gross legalism that compels a segregated worldview. Turton supports one “simple rule” above all: Indians and English belong in separate societies (147). “I have had twenty-five years’ experience of this country,” he pontificates to Fielding,

and during those twenty-five years I have never known anything but disaster result when English people and Indians attempt to be intimate socially. Intercourse, yes. Courtesy, by all means. Intimacy—never, never. The whole weight of my authority is against it. I have been in charge at Chandrapore for six years, and if everything has gone smoothly, if there has been mutual respect and esteem, it is because both peoples kept to this simple rule. (147)

This rule anticipates the end of the novel when Fielding asks why he and Aziz cannot be friends and the land and sky seem to answer, “No, not yet,” and “No, not there” (293). One could argue that this vision of segregated society—which may not have been Forster’s vision—is offensive and against the all-inclusive Brahman Hindu spirit of the story. And yet it is a vision that Fielding and Aziz seem to share. It flies in the face of the “aesthetic of clutter and confusion” at the Gokul Astami festival (Singh 274). It denies the forces of nature that unite everyone as a marvelous energy. It therefore is not law at all but rather an unjust perversion of law. Not being true law, it is not morally binding. Assuming that Spencer’s thesis (above) is correct and Passage is a Hindu magnum opus, Turton’s segregated worldview gainsays the general oneness articulated in Brahman philosophy and privileges that British fiction—rule of law—that seeks to establish opposition structures rather than to embrace hybrid, transcultural unities.

Although English characters call for rule of law in the colonies, they go to great lengths to violate true law, unjustly prosecuting the innocent Aziz with shoddy evidence. Although they aspire to logic and calculation, they become like emotional herd animals with no ability to reason. Forster likens emotion, which always has to do with racial difference, to herd-like behavior. He employs this tactic when describing Fielding as having no racial feeling, “not because he was superior to his brother civilians, but because he had matured in a different atmosphere, where the herd-instinct does not flourish” (52, my italics).[1] If this sentence is representative of Fielding’s character, then Fielding’s racial enlightenment is the product of a distinct cultural system, an inherited behavior not necessarily chosen. More than Fielding, then, Turton straddles English and Indian societies, occupying an interstitial space and resisting “herdism” by asserting his individuality. Turton is, to that end, the only English character who invites “numerous Indian gentlemen in the neighbourhood” to his home,[2] an action that “caused much excitement” (35). Unlike Fielding, however, the conflictual Turton maintains a clear distance from these Indians, lending critical substance to Mahmoud Ali’s belief that “Turton would never [invite Indians to his house] unless compelled” (35). Turton’s hospitable gestures and high-minded aspirations to neutrality amount to little more than subtle, apologetic pleadings to and for existing social norms. Turton is, despite himself, a servant of British culture.

In contrast to Turton, McBryde, the District Superintendent of Police, stands for all that is absolute in British culture; he epitomizes the absurdity of English assumptions about the nature of Indian men, believing that “all unfortunate natives are criminals at heart, for the simple reason that they live south of latitude 30” (149). From this position, McBryde infers that Indians are guilty by nature, or, in Calvinistic terms, predestined for sin; therefore, he reasons, the English cannot hold Indians accountable for crimes because “[t]hey are not to blame, they have not a dog’s chance—we should be like them if we settled here” (149). This claim is both resonant and politically charged, rooted as it is in the belief that individuals are products of their environment. Such a belief would seem to further justify imposing colonial rule by suggesting that changing the environment would also change the people in the environment. If Indians are culturally conditioned subjects, their tendencies and behavior assigned them by their communities, then they lack the requisite mens rea for their crimes; they are blameless, having “transgressed” without mental fault. The irony, of course, is that McBryde himself was born in Karachi (south of latitude 30) and “would sometimes admit as much with a sad, quiet smile” (149).

A self-proclaimed paradox, McBryde reveals how Anglo-Indian relationships depend upon the signification of negative biological characteristics, how Englishmen presuppose an innate and unchanging origin for these characteristics, and how these presuppositions “justify” the double-standards of the English legal system—a prime example being Mrs. Turton’s acceptance of bribes. “When we poor blacks take bribes,” submits Mahmoud Ali, an Indian lawyer, “we perform what we are bribed to perform, and the law discovers us in consequence. The English take and do nothing. I admire them” (5). Ali realizes that law in Chandropore is a discursive construct and so mocks its purely notional grounds.

Isolated from the English in his supervising role as collector, Turton ruminates and forms judgments by process of logic; but among the English in his support for Adela, he grows irrational. At times the reason and emotion binaries collapse into each other in his ambivalence. For example, after Aziz is accused of raping Adela, Fielding approaches Turton to inquire about Adela’s condition. Frustrated with Fielding, Turton ends the interview and walks onto a platform overlooking the everyday goings-on of Chandrapore. He feels “his sense of justice function” even while he is “insane with rage” (149). Later, his emotion does seem to prevail over reason as he drives through the streets, seeing “the cookies asleep in the ditches or the shopkeepers rising to salute him on their little platforms,” and saying to himself, “‘I know what you’re like at last; you shall pay for this, you shall squeal’” (149). These passions call for a “justice” that is more like revenge than retribution.[3] But so far neither Turton’s passion (emotion) nor his reason fully coheres. His commitment to impartiality—or to the ideal of impartiality—sets him apart from the erratic, temperamental Englishmen who would mete out punishment swiftly and extra-judicially were it not for prescribed legal procedures—neutral in theory but discriminatory in practice—that putatively restrain emotion and compel rational adjudication. Yet after Adela’s rape and Turton’s abortive meeting with Fielding, Turton seems to exemplify English irrationality. Rather than ensuring justice or equality, Turton and the legal system formalize bigotry in that they do not fully realize the impartiality and non-arbitrariness so popularized by rule of law rhetoric.

Rational and polarized society fails Turton when the two worlds, English and Indian, become intimate vis-à-vis Aziz and Adela. When he suspects Aziz and Adela of becoming not just intimate but sexually intimate, he breaks down, “involved in his own emotions,” for he thinks it “impossible to regard a tragedy from two points of view” (148).[4] His inability to see society as anything but two isolated spheres causes a shift in the balance of power: he cannot “avenge the girl” and “save the man” and thus cannot occupy that space between binaries (148).[5] No longer the midpoint between reason and emotion, he surrenders to emotion and, as it were, tips the scales—becomes, at last, fully English. Completely disassociated from Indianness, having abandoned the principles of neutrality supposedly characteristic of all collectors, Turton appears in the final chapter in name only as Aziz declares, “Clear out, all you Turtons and Burtons. We wanted to know you ten years back—now it’s too late![6] […] Clear out, clear out, I say” (292). Like Fielding, and even like Forster himself,[7] Turton is a failed cultural intermediary whose increasing prejudice calls into question the equality and consistency of the entire legal system of Anglo-India. If only Turton had abided by the law of Brahman Hindu and obliterated vacant categories like English/Indian or reason/emotion, distinctions essential to the hegemony of British rule of law, the novel might have played out differently.

Turton’s failure to connect with Indians recalls the similarly failed connections of Mrs. Moore and Fielding. These three characters, taken together, suggest that hegemonic or colonial systems prevent the triumph of personal relations by injecting both colonizers and colonized with spite and contempt. The machinery of the system makes friendship improbable if not impossible. Forster’s firsthand knowledge of the colonial experience increases the likelihood that his satirizing extends far beyond the pages of the novel and into the schema of colonial law. Turton’s botched mediations implicate this schema in ways that Mrs. Moore’s and Fielding’s mediations cannot. That is because Turton, as district collector, holds the system in place. He is a linchpin. Without him, the structure, as it were, falls apart. Forster uses Turton to show not only that the system is doomed to fail, but also that the system is based on purely British behaviors, philosophies, and norms. The system is a function of the ideological needs of colonizers. As the British characters rehearse racial scripts and act superior to their Indian counterparts,[8] as they revise their cultural classifications, they demonstrate that the system is anything but universal. If it were universal, the Indians—Hindu, Muslim, or otherwise—would at least have some familiarity or appreciation for it. If it were universal, it would work. If it were universal, it would achieve, not deny, justice.

Turton’s role in exposing the inconsistencies and vagaries of British rule of law and its concomitant utilitarianism suggests that the Brahman Hindu philosophy celebrated by Forster provides a better starting point for governing and for mediating between cultures. The all-inclusive framework of Brahman Hindu better protects, or could better protect, basic rights. Put differently, Brahman Hindu could go some length towards establishing a system of polycentric law, a relatively new concept celebrated by philosophers and sociologists alike. Polycentric law refers to the overlapping and amalgamating of rules and jurisdictions in contrast to the legislating of a monolithic legal code that denies cultural particularities.[9] Polycentric law is not centrally planned. With the emergence of alternative dispute resolution, Internet law, transnational law, and private adoption and child kidnapping disputes, debates over polycentric law will become even more pressing. Novels like Passage can tell us a great deal about the social and political implications of a legal system—informed by jurisprudence in keeping with Brahman Hindu—whereby individuals and localities assert and defend their culturally specific rules and regulations. Such novels can dispel monopolistic claims on law and “de-universalize” repressive jurisprudence that arrogantly presumes the backwardness of other cultures. Read the rest of this entry »

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The Oft-Ignored Mr. Turton: Part Two

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

Allen Mendenhall

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

The Role of District Collector

Partly because of Lord Thomas Babington Macaulay’s codes, and partly because of the British need to establish powerful offices that would entice colonizers to remain in India rather than return to England, collectors gained extraordinary powers between 1857 and 1909 (Arora and Goyal 243). “In him [the Collector] was created a ‘little Napoleon,’” Ramesh Kumar Arora and Rajni Goyal explain, “who, being part and parcel of the steel-frame, made it possible for the British to govern and control the vast subcontinent” (244). It is fair to say that Mr. Turton is one of these little Napoleons—an official forced to countenance Indian interests while pledging ultimate allegiance to the British sovereign. In fact, Forster goes so far as to call Mr. and Mrs. Turton “little gods” (20).[1] Thus cast, Mr. Turton is problematic—for like other collectors he “had to adjust his autocratic rule and at times benevolent administration to a climate of representative politics” (Tummala 126).[2] In other words, he had to straddle two societies and to pander to multiple interests; but his loyalties were to remain unchanged. Turton is a conflicted, ambivalent character in part because his occupation is itself conflicted. He is a site and symbol of British power but also of British mercy and tolerance. As such, he is the perfect character through which to critique colonial programs in general and utilitarian jurisprudence in particular. Forster uses Turton to show that British rule of law is either a myth or a pretext for nation-building, and that Brahman Hindu philosophy is a jurisprudentially sound alternative to rule of law.

The district collector was a major locus of power in the centrally planned Indian Civil Service. Arora and Goyal describe the current office of district collector as “the kingpin of district administration in India” (243). “The office,” Arora and Goyal continue, “is the result of a long process of evolution of about two hundred years of the British rule” (243). Forster’s productions came about during the late stages of this British rule. Although the “administration of revenue, civil justice and magistracy was united in the office of District Collector,” thus making the District Collector “the executive machinery in the district,” District Collectors did not become “the symbol of imperial rule” until after the 1857 revolt (Sarkar 117). Before the revolt, also known as the Indian Mutiny or the First War of Independence, the district collector signified an “extremely powerful civil servant running the executive machinery in the district” (Sarkar 117). The causes of the Indian Rebellion are disputed,[3] but the ramifications seem to have been, in one contemporary’s words, “a persistent attempt to force Western ideas,” including Benthamite utilitarianism, “upon an Eastern people” (Malleson G. B. 412).

By the time Forster visited India,[4] the office of district collector would entail “powers of the magistrate and the judge too” (Tummala 126), the former power being limited to small claims and ceremonial rights (Brimnes 222). During Forster’s visit, district collectors would have spent “more time on the office desk and less on tours which provided [them] an opportunity to come in direct contact with people,” including tourists like Forster (Parashar 83). The prepositional phrase “on the office desk” seems suggestive of any number of activities (some sexual) besides simply work. Anyhow, district Collectors worked closely with District Magistrates (represented by the character Ronny in Passage) and District Police Superintendents (represented by McBryde) to keep local populations under constant surveillance as required by Macaulay’s legal codes (Kumar and Verma 66–67).

Macaulay was a British statesman and a man of letters who participated on the Supreme Council of India in the early 19th century. In this position, Macaulay advised George Lord Auckland, the Governor-General of India, regarding the laws of India. The best known of these efforts is probably the Indian Penal Code, the introductory footnote to which proclaims, “These papers […] are by no means merely of Indian interest, for, while they were the commencement of a new system of law for India, they chiefly relate to general principles of jurisprudence which are of universal application” (Macaulay, The Complete Works 551). This short footnote exemplifies the extent to which doctrinaire utilitarian paternalism had come to mark British administration in India. Indeed, Macaulay’s codes pivot on the assumption that British utilitarian jurisprudence is so enlightened as to be universal. By this logic, anything at odds with this jurisprudence would be unenlightened and backward and thus would require replacement.

Depicting Ronny as foolish and Turton as misguided, Forster rejects British utilitarianism and its assertion of consequentialism and legalism. Forster constantly refers to India as a muddle; he celebrates the chaos and confusion of the Gokul Astami festival, a rapturous Hindu “muddle” that is not only “the approaching triumph of India” but also “a frustration of reason and form” (258). During this festival, Godbole, a Brahman Hindu who teaches with Fielding, detaches “the tiny reverberation that was his soul” (258, 260). This scene reveals “a positive attitude toward chaos,” which is “completely un-Western” (Singh 272). It shows that the seemingly disordered is really spontaneously ordered. Chaos, here, recalls Brahman Hindu philosophy, which blends dualities into a single state and renders all things inclusive or unified. Forster portrays Hindu as organizing despite its inherent anarchy. It is the ultimate reality and thus the ultimate law. Forster, then, reverses the British utilitarian’s assumption about the universality of his jurisprudence. The truly universal system is Indian and, paradoxically, ordered by chaos. Read the rest of this entry »

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The Oft-Ignored Mr. Turton: Part One

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

 Allen Mendenhall

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

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

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

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

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

Rule of Law and Utilitarian Jurisprudence

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

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

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

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

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

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

Forster and District Collectors in India

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

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

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

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

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

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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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10 Literary Lawyers We Wish Were Real

In Arts & Letters, Fiction, Film, Humanities, Law, Law-and-Literature, Television, Wallace Stevens on February 22, 2012 at 8:10 am

Allen Mendenhall

A reader of this site has emailed me to point out a post at Criminaljusticedegreesguide.com.  The post, available here, is titled, “10 Literary Lawyers We Wish Were Real.”  Here’s the list:

1.  Atticus Finch

2.  Rudy Baylor

3.  Perry Mason

4.  Portia as Balthazar

5.  Joel Litvinoff

6.  Horace Rumpole

7.  The Man of Law

8.  Wallace Stevens (a strange selection indeed, since Stevens was real, but the author has put an interesting twist on Stevens)

9.  Henry Drummond

10.  Jake Brigance

Readers should view the article to see why the (unnamed) author believes that these figures “should be real.”

 

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Law and Literature at the Seventh Annual Meeting of the Property and Freedom Society

In Arts & Letters, Austrian Economics, Conservatism, Economics, Humane Economy, Humanities, Law, Law-and-Literature, Libertarianism, Literary Theory & Criticism, Literature, News and Current Events, News Release, Philosophy, Politics, Western Philosophy on January 14, 2012 at 9:55 am

Allen Mendenhall

The Seventh Annual Meeting of the Property and Freedom Society will take place in Bodrum, Turkey, at the Hotel Karia Princess, from Thursday, September 27, through Monday, October 1, 2012.  Readers of this site may be interested in some of the proposed talks for this event.

Hans-Hermann Hoppe and Stephan Kinsella will speak on Philosophy and Law.  Professor Hoppe’s paper is titled “The Nature of Man: Does Any Such Thing Exist?”  Mr. Kinsella’s paper is titled “The Market for Law.”

Sean Gabb and Benjamin Marks will speak on Literature and Literary Criticism.  Dr. Gabb’s paper is titled “On Literature and Liberty.”  Mr. Marks’s paper is titled “On H. L. Mencken as a Libertarian Model (and Some Romantic Libertarian Delusions).”

Other literati to speak include Jeffery Tucker, who interviewed me about literature and the economics of liberty and who now is the executive editor for Laissez Faire Books, and Theodore Dalrymple.

 

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Joyce Corrington Publishes New E-Books

In Arts & Letters, Creative Writing, Fiction, Humanities, John William Corrington, Law, Literature, News and Current Events, News Release, Novels, Writing on January 4, 2012 at 9:00 pm

Allen Mendenhall

Joyce Corrington, a long-term friend and supporter of this site whose interview with me appeared back in September, recently republished, in e-book format, the four New Orleans mysteries she wrote in a series with her late husband John William Corrington.  The books are available at the following links:

So Small a Carnival

A Project Named Desire

A Civil Death

The White Zone

Joyce’s latest novel, Fear of Dying, the fifth in the series, came out in 2011.

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2011 in Review

In America, Arts & Letters, Communication, Conservatism, Economics, Essays, History, Humanities, Justice, Law, Libertarianism, News and Current Events, News Release, Philosophy, Politics, Rhetoric, Television, Western Civilization, Western Philosophy on January 1, 2012 at 9:54 am
By Slade Mendenhall and Brian Underwood
 
 
Slade Mendenhall is a founding editor of themendenhall.com. He is a student at the University of Georgia majoring in Economics and Mass Communications. His writing interests include screenwriting, fiction and essays on the subjects of philosophy, capitalism, political thought, and aesthetics. His New Years resolution is to progress in the completion of an as-yet-untitled novel (his second).
 
Brian Underwood is a second-year student at the University of Georgia where he studies history and political science as majors and philosophy as a minor. Originally a strong supporter of the Republican Party, Brian moved away from allying himself with the Republicans in politics towards a more “policy over party” position following the 2008 election. As a result, he became an avid reader of historical, philosophical, and other academic works. Moving ever further towards the “libertarian” end of the Nolan Chart, he eventually joined the Objectivist Club and the Young Americans for Liberty after arriving at UGA. Now, he simply defines himself as a “Capitalist.” His main writing interests include philosophy, politics, history, and economics.
 
The following post originally appeared over at themendenhall.
 
An endeavor to measure the shifts and turns of a nation’s ideology can only be compared to an attempt at sensing the turning of the Earth beneath one’s feet. It is at once ubiquitous and elusive, all-encompassing and indistinguishable. Yet, there are, on occasion, times at which one is struck by sudden jolts of rapid motion and change so disruptive that it forbids all attempts at understanding what course or direction it is taking. Swept up, we must at once answer the questions of where we are, to where we are going, and how we are to get there. We must either repair our faulted ideologies or face the consequences of our own contradictions. It may well be that 2011 is to be remembered as such a year. True, it lacked the singular purposefulness of 2010’s drive to repudiate the health care legislation, rid Congress of its unrestrained desire for ever greater government controls, and nullify the Obama administration’s oppressive regulatory policies wherever possible. Different times, however, call for different spirits. 2011 was the time for the promises of the 2010 congressional elections to be put into act, the time to put that ideology to work. The result was often well-intended but imperfect, hindered by the lingering Democratic control of the Senate and complicated by a perpetual series of compromises that left no one satisfied and sent congressional approval ratings to all-time lows of 12.7% at year’s end. As the unemployment rate stagnated, Americans were given a grim look into the engine room of partisan politics where principle is so often held subordinate to considerations of loyalty and appearance.Though it has yet to reflect in our economic condition, things are, politically, better than they were twelve months ago. For the first time in generations, there is a growing sector of average Americans who believe, both practically and ethically, in the merits of political and economic freedom. The challenge now will be carrying the enthusiasm they have cultivated since 2010 forward, through the brutish struggles in Washington’s backrooms and the uncertainty of Iowa’s ballot boxes, toward the elections of 2012 and, with hope, an era of ever-greater victories for the principles upon which our nation was founded. As always, winning our future means understanding our past. It is with that consideration that we look back on the events of the last year as we say goodbye to 2011.
 
A year of trouble and turmoil, 2011 has been as much affected by conflicts abroad as it has by the struggle between the changing tides of American ideologies and the onerous traditions of politics past. Scarcely had the year begun when it was upended by a sudden explosion of conflicts in the Middle East, beginning with the public suicide of a young man in protest of the Tunisian government which transpired to an international wave of political uprisings now known as the Arab Spring. That movement would incite conflicts in nations from North Africa to Syria and bring about the fall of such corrupt dictators as Egypt’s Hosni Mubarak and Libya’s Muammar Ghaddafi. Though the movement wages on in the bloodied streets of Syria, where rebels come to blows daily with a brutal and oppressive regime, its ultimate results and effects on American interests are as yet undecided. Much will depend on the current and future political struggles within those now shaken nations, and history could as easily come to see these events as a vacuum from which emerged a newly energized and vindicated rise of Islamic Totalitarianism as it could the pure and heroic struggle for freedom that the Western media so actively portrayed it to be.
 
  One consideration in particular must be made in regard to that circumstance, however: the nature of those revolutions, the violence in Egypt against Coptic Christians, the presence of Al Qaeda factions among the ranks of Libyan rebels, and the recent political victories of the Muslim Brotherhood in Egypt portend a dark future for those nations. If popular revolutions can be divided among those most akin to the American Revolution and the French Revolution, that which has transpired in the Middle East this year is definitively the latter. They are not movements based primarily on principles of individual rights. Were they, groups such as the Muslim Brotherhood would have been ousted along with Mubarak. Instead, they are less a push for freedom than they are a push against an oppressor, complicated by the fact that this is a part of the world which has never been exposed to true political freedom or come to accept the philosophical principles which are prerequisite to its realization. Tragically, the American media proved in its coverage of these events its dire inability to make that distinction.
 
In this publication’s view, the Leftist elements of the media were motivated by a desire to vindicate their long-expressed views on America’s Middle East policy since the beginning of the Iraq war. Doubtless, there are a myriad of arguments against our having gone to war in Iraq — most reputably that which states that Iraq was not the greatest or most immediate threat to American security, that the very costly armed welfare mission into which that conflict devolved was in no way carried out in the best interests of American soldiers or citizens, that our efforts would have been better served elsewhere. However, this is not the logic or sentiment which is most fervently held by these advocates. Since the beginning of that war, there has been a considerable segment of the Left which has argued against it on the grounds that the principle of self-determination grants nations the right to practice any form of oppression and denial of individual rights they please, so long as they hold majority support; that political freedom is a Western product that we happen to have chosen, but that any other nation’s choice of tyranny is equally valid because they chose it. Fast-forwarding to this year’s Arab Spring, these same advocates are some of the movement’s most ardent supporters, on the grounds that it shows that, left to their own devices, the peoples of such nations will eventually throw off their own shackles and choose freedom without Western support or guidance. Were this the case, the nations of the Middle East which have undergone revolutions this year deserve our commendations. However, we remain dubious that this is the case. Those who believe that freedom and prosperity are the predestined results of these revolutions will, we fear, be demonstrably proven wrong by whatever variant of oppressive control emerges in these very fragile regions in the coming years. What future instability or, worse, stability under dangerous conditions will mean for America’s interests in the region remain to be seen, but it is a problem that should be carefully observed to maintain our security and best interests.Ironically, in their advocacy of these revolutions, the Left has inherited a trademark intellectual error from the Bush administration: the belief that popular elections and a system of democracy are the source and cause of freedom. This is a grievous inversion that leads man to the conclusion that institutions and their organization can effectively supplant the role of ideas in the guidance of his actions. Though popular elections are an integral part of a free political system, they are its product, not its cause. Only a rational political philosophy of individual rights can ever be the cause of true and lasting freedom. Returning to our previous comparison, in the case of America, its revolutionaries had inherited roughly a century of Enlightenment thought in which they were well-versed and whose principles they explicitly understood. That knowledge of the Enlightenment values of reason and individualism led those men to the design of a government meant to acknowledge and secure them. France’s exposure to Enlightenment thought was quite equal to England’s, but its revolution was driven less by intellectuals and more by a mob, inspired less by a circumspect outlook upon what could be than by the violent, angry rejection of what was. In short: less talk of ideas, more guillotines. To which do the current uprisings in the Middle East better compare and what does that suggest about the political future to be expected there? It is significant that those here in America, the nation of the Enlightenment, are today so unaware of the role of philosophy in its beginnings… and its future.Despite the rather grim prospects of revolutionaries in the Middle East to establish any long-term system of freedom and prosperity, the ideological struggles waged in America this year have proven that its intellectual foundations are alive and well here in the States. What’s more, there are signs that they could be experiencing a popular– and lasting– resurgence. The Tea Party candidates around the country were inaugurated to their congressional seats in January after having run their campaigns on the principles of a free market, fiscal responsibility, and constitutionally limited government. Joining them were welcomed conservative state officials throughout the nation in such volumes as had not been seen since before the Great Depression.  Their rallying cry: to oppose the unyielding growth of government and its power over the lives of private citizens. Their victories were numerous and significant (if as much for what they prevented as what they created), though it seemed, at times, that every victory had its casualties and every two steps forward saw one step back. Democratic power in the Senate made for unproductive compromises and grand-scale debates that evinced more in theatrics than tangible results.This was never more clearly displayed than in the summer debt and budgetary crises, with the tantalizing threat of government shut-down looming over our heads. Americans bore witness to the paltry efforts of Congressto wean itself from excessive outlays, where merely promising to increase spending at a decreasing rate was portrayed as “budget cuts” and an unwillingness to abolish or defund a single government bureaucracy left the fundamental problems of America’s  leviathan state firmly intact. Unsurprisingly, though shut-downs were averted and compromises reached, the political instability over so crucial an issue led to the first downgrade of America’s debt to below AAA. In ensuing months, as compensation, we were offered  another grand spectacle in the form of a “Super-Committee” convened to tackle the problem of America’s mounting foreign debt. Tragically, it was stacked with the most diametrically opposite representatives from Left and Right and, predictably, politics yet again trumped the interests of American citizens’ well-being. Read the rest of this entry »