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Part Two: Allen Mendenhall Interviews Mark Zunac about his new edition, “Literature and the Conservative Ideal”

In Academia, American Literature, Arts & Letters, Books, British Literature, Conservatism, Fiction, Humanities, liberal arts, Liberalism, Literary Theory & Criticism, Literature, Novels, Pedagogy, Philosophy, Politics, Scholarship, Teaching, The Academy, Western Civilization, Western Philosophy on November 16, 2016 at 7:00 am
Mark Zunac

Mark Zunac

Mark Zunac is associate professor in the Department of Languages and Literatures at the University of Wisconsin-Whitewater.  Editor of Literature and the Conservative Ideal, he researches revolution, writing, and the rise of intellectual conservatism in Britain following the French Revolution. He received his Ph.D. from Marquette University in 2008.

AM:  In your essay “Conservatism, Liberal Education, and the Promise of the Humanities,” one of two essays you contributed to the edition, you state, “There is a broader philosophical conflict at hand between the very principle of academic freedom, encompassing the rights of individuals to engage in scholarly inquiry and espouse contrarian views, and policies currently governing campus discourse.”  What do you mean by this?

MZ: Quite simply, the state of campus discourse is, by its very essence, incompatible with the rights of faculty – and students themselves – to engage in the search for truth. When conduct, particularly verbal conduct, can be reported and penalized through mechanisms designed to “protect” students, we might sense that something much greater is afoot. If such fundamental rights as speech and due process are curtailed – as I feel they have systematically been on today’s campus – then we are no longer interested in educating an informed and responsible citizenry. The great irony in this is that even as faculty and administrators maintain the conceit that students must confront dissonant viewpoints, the viewpoints that qualify are limited and selective. Therefore, I think the fear of faculty to approach teaching or research from a conservative angle, or even to introduce conservative arguments in the context of intellectual debate, is very real. Some things are better left unsaid, especially when tenure, promotion, or funding are on the line.

On the other hand, the concept of academic freedom has been so narrowed as to apply almost exclusively to members of the faculty. The dearth of conservative faculty in the humanities and social sciences makes it difficult to determine the degree to which this privilege might be invoked as a defense against charges of offending progressive student sensibilities. The case of Marquette professor John McAdams that I discuss in the book is not promising. It is fortuitous that the demands of students to be protected from certain ideas are often in harmony with the ideological makeup of the faculty. Nevertheless, it can be argued that the freedom claimed by a largely progressive professoriate is not afforded to the student body, which labors more under the onerous regulations governing speech and conduct.

Aside from being able to report the utterance of harmful words, students have very little stake in academic freedom’s fundamental premise, and their rights have ceased to be part of the conversation on classroom conduct. I don’t count the imposition of trigger warnings and the creation of safe spaces as really striking a blow for freedom or the intellectual pursuit. Faculty might be able to proselytize under the banner of academic freedom, but students have little recourse when scholarly inquiry descends into partisan demagoguery. It speaks volumes that today’s campus will often charge conservative student groups for added security at their events in anticipation of disruption and unrest. The campus in this case is refusing to guarantee what is essentially the safety of free expression. It has been said that the greatest beneficiaries of a political and ideological monoculture are conservative students, who are consistently challenged to refine their arguments and confront opposing viewpoints. But that’s perhaps little compensation when those arguments are preemptively dismissed and delegitimized by an institution unwilling to entertain them. Some critics have been ambivalent about either the extent of curricular politicization that exists on today’s campus or its impact on students. I don’t think either can be overstated.

AM:  The question I hear a lot—and in different contexts—is “what can be done?”  Do you have an answer to that question in light of what you’ve just said? 

MZ:  To answer that important question I would probably qualify some rejections to otherwise bad ideas. Federal funding should not be tied to the amount of money students can be expected to earn upon graduation. However, at some point students must be expected to see some material returns from the meteoric rise of tuition and administrative costs. We have seen an intense regulatory push directed exclusively at for-profit colleges over the last eight years. The question of value in higher education is a good one, and perhaps it shouldn’t only be asked of these for-profits.

Also, while the idea has been floated, I do not believe in any kind of affirmative action for conservative professors. However, departments conspicuously lacking in conservative faculty members might take steps to acknowledge the intellectual costs of such insularity and promote viewpoint diversity, a concept propounded by groups like Heterodox Academy, the National Association of Scholars, and the John William Pope Center. These are not conservative organizations but rather ones that care deeply about the state of discourse on today’s campus and how it adversely affects learning.

Furthermore, while we must heed Michael Oakeshott’s warning not to “suspend conversationality for a politicizing counterrevolution,” a more robust rejection of identity’s preeminent place in in the classroom might restore some dignity to the learning process. It is not atypical for composition students, for example, to be assigned anthologies that are promoted as much for the racial, ethnic, and gender identifications of their authors as the dynamism of their prose or the enduring legacy of their ideas. No doubt many of the essays in these collections are worth modeling and are deserving of study, but not because of predetermined genetic variables. Having students read essays by Max Beerbohm, John Ruskin, or Evelyn Waugh – all the while ignoring their “privilege” – might inadvertently put the focus of the class on prose style, rhetoric, and stylistic precision.

Finally, it should remain up to students to choose their colleges carefully. There are a lot of alternative institutions that have placed the pursuit of knowledge above all else. The market for this kind of place is strong, and those charged with administering higher education could do very well to take notice.

AM:  At one point in the book you mention a “multicultural canon.”  I’m interested in this phrase because I’m interested in canonicity and the idea that there are certain works that are more influential and important than others within a given tradition, and even that certain traditions may produce works that are more influential and important than works produced by other traditions.  You often here people dismiss the idea of a canon but urge the reading of certain texts.  It seems that any support for a program of reading necessarily entails a view of the canon, however different that might be from prevailing consensus.  At a time when English departments are struggling to maintain stable and uniform curricula, and the notion of a canon has become unpopular, what does it mean for a work to be canonical? 

MZ:  While the idea of a canon has become unpopular, it still exists in every department that embraces the multicultural ethos of the university. And it is equally as narrow as the one it sought to replace and far more intransigent. Like so many revolutions, the spirit of canon reform was swept away by a radical zeal to destroy foundations necessary for, in this case, literature’s survival as part of a college curriculum. To me, literature is universal and it has the potential to speak to a common humanity. In short, it should be valued for its own sake and for its cultural status as an expression of artistic endeavor. It has intrinsic value, and its success lies in part on historical continuity – on its relationship to what came before it. In the book, I mention T.S. Eliot’s “historical sense,” the idea that tradition must be defended against forces that would destroy it out of hand. I think that in many ways this has happened. Today’s literature has become so balkanized as to render impossible the continuance of any sort of shared cultural value system. To that point, I would also argue that an English curriculum consisting predominantly of identity-based literature (African-American, Native American, Women’s, Latinx, etc.) can in no real way be considered diverse. As it is, those who might turn to literature for the truth it tells, for its contemplation of ideas, or for its linguistic execution have been in retreat.

I’m not sure anyone would make the case that the traditional canon was never fluid or that it hasn’t contained glaring omissions. It has, and they should be rectified. But whereas critics in the past denounced the traditional canon as the product of “institutional tastemaking,” today’s demands for courses that aim to represent some unique, singular experience are guilty of the same thing. A canon is necessarily foundational. It isn’t, however, necessarily exclusionary, and an inclusive canon should be exactly that. This is a very long way of saying that a canonical work might be one that embodies an idea or an epoch, or one that masterfully portrays the psychological depth of a character in crisis. There are many divergent opinions as to this question, and I don’t consider myself an authority. But my vision is this: surely others have treated the same subjects as, say, Edith Wharton, Ralph Ellison, and Saul Bellow. We just have to be able to say that few have perhaps done it better. The reader may take his (or her) pick as to what authors deserve special consideration. The point is that the literature’s function and its success as a work of art are what we consider first and foremost. I think that case can be made, and reinforcing the idea of great literature – asserting its very existence – may benefit our discipline greatly.

AM:  If a student were to ask you for 10 writers you believed every person must read before he or she dies, who would they be?

MZ:  This is a question every literature person longs for, and at the risk of inevitably short-changing some, here is my list, in absolutely no particular order: Ernest Hemingway, George Eliot, Martin Amis, Evelyn Waugh, Charles Dickens, Jane Austen, Fyodor Dostoevsky, Thomas Hardy, Saul Bellow, and Vladamir Nabakov.

 

Part Three coming soon….

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Part One: Allen Mendenhall Interviews Mark Zunac about his new edition, “Literature and the Conservative Ideal”

In Academia, American History, American Literature, Arts & Letters, Books, British Literature, Conservatism, Creativity, Fiction, History, Humanities, liberal arts, Liberalism, Literary Theory & Criticism, Literature, Novels, Philosophy, Poetry, Politics, Postmodernism, Scholarship, Western Civilization, Western Philosophy on November 9, 2016 at 6:45 am
Mark Zunac

Mark Zunac

Mark Zunac is associate professor in the Department of Languages and Literatures at the University of Wisconsin-Whitewater.  Editor of Literature and the Conservative Ideal, he researches revolution, writing, and the rise of intellectual conservatism in Britain following the French Revolution. He received his Ph.D. from Marquette University in 2008.

 

AM:  Thank you for this interview, Mark.  Your recent edition is titled Literature and the Conservative Ideal.  What, in your view, is the conservative ideal?

MZ:  In my mind the conservative ideal reflects what Michael Oakeshott calls a “disposition” rather than something that can be expressed by a singular identifiable creed. Nevertheless, I would say that it is in many ways an intuitive and practical view of the world, one that privileges human freedom, acknowledges a common humanity, and maintains a healthy regard for the accumulated wisdom of ages.

In today’s context, it is also uniquely defined by what it is not, since the very idea of an intellectual conservatism is often met with condescension or, perhaps in some cases, preemptive disdain. This invariably reflects a reductive and fundamental – and often deliberate – misunderstanding. Contra its critics, the conservative ideal does not demand a blind allegiance to the status quo, nor does it entail uncritical nostalgia for some heroic past. Such willful obtuseness I think would have its present-day parallel in the relentless deconstruction of nearly everything that we as citizens in a liberal democracy have taken for granted.

It is too easy to characterize the conservative disposition as a product of an unenlightened past or, more nefariously, deep-rooted prejudices. The destruction of a civil order grown out of its past has become reflexive and impulsive, and there is seldom any careful reflection as to what, practically speaking, a society unmoored from its historical roots will look like. Thus, the conservative ideal is grounded in the enduring presence of civilizational standards that, while not immune to scrutiny or change, are nevertheless prerequisites for a stable and ordered society.

Of course, as an intellectual exercise, it is more difficult, or at least less exciting, to make a case against earthly utopias, particularly when they have been peddled as some moral zenith. In a word, the conservative ideal encompasses a respect for the past and a deep skepticism for any social innovations that might jeopardize its influence on what may rightly be called culture.

AM:  After the turf wars over canon and curriculum in the 1980s and 1990s, did any expositors of the conservative ideal come out alive? 

MZ:  There have indeed been some survivors, but the side was badly damaged. As English departments became wholly owned subsidiaries of the multicultural program, literature became simply one more vehicle through which victimization and oppression became the sole standard for assigning value.

The study of literature as an artistic endeavor, one subject to critical judgment and the recognition of a work’s place within literary history, was supplanted by the idea that value is situational and that any search for truth or beauty must necessarily be futile. The most significant casualties of the English turf wars have been works of the West, useful now only for their iteration of or complicity in historical cruelties.

Unfortunately, approaches to literature that privilege the text over the identity of its author or characters have become associated with political conservatism, itself a byproduct of the contemporary university’s tendency to hold politics as an individual’s highest calling. Thus, when it comes to literary criticism, a conservative ideal has less to do with promoting certain ideologies than with a dispassionate return to literature as a form of high art. Doubly unfortunate, and perhaps a bit ironic, is that as students of English literature continue to flock to other areas of study, we in the field have doubled-down on curricular approaches that are now not only stale but increasingly obsolete.

AM:  Can anything be done to save the field at this point, or is it doomed for failure? I realize these are strong words, and perhaps premature, but there do seem to be trends and data that suggest that at least English departments will face serious budgetary and enrollment problems in the years to come.

MZ:  Yes, I suppose we shouldn’t be too fatalistic at this point, even though in many cases the situation is nearing critical. I don’t much doubt that English departments will continue to exist, and perhaps even thrive, in the future. They just might have to take on a new identity, as it were. It might ultimately be fortuitous that as fewer people read, the less aptitude there seems to be for writing well. Thus, the rise of professional writing programs and the continuance of rudimentary instruction in composition may throw us a lifeline.

Departments have not, for the most part, adapted to the current climate. In some regard, there will always be a case for literature’s place within the educational landscape, and we should not stop making it. I completely sympathize with certain laments over the decline of literature and the humanities more broadly, indicated, as you suggest, by certain unpropitious trends. Many of them I will grant fall outside of our purview.

I think the liberal arts, even in their purest form, are threatened by the credentialist attitude currently infusing higher education. In addition, the heavy emphasis on STEM fields in primary and secondary education, combined with the turn toward “fact-based” texts, is both a capitulation to market demands and a nod to the reality that slow reading as an intrinsically rewarding enterprise can’t compete in the digital world.

So, despite our own malfeasance, there are certainly many other cultural trends causing our decline. Though I cannot help thinking how the complete dominance of Theory within literary criticism over the last number of decades has left would-be readers wondering how a text can possibly be relevant to their personal lives or how it might provide insights into the human condition. This is to say nothing of how that text might not be so predictably subservient to the social and cultural forces that informed it.

AM:  You mention this in your introduction, but for the sake of readers of the blog, I’ll ask how you chose the contributors to this edition.  

It wasn’t until well after graduate school that I encountered intellectual viewpoints from within my discipline that were congenial to both my own political predilections and my preferred approach to literature. The idea that these could coexist, or even work in concert, hadn’t really occurred to me. I remember feeling somewhat liberated by the presence of literary scholars in opinion and public affairs journals that I avidly read. I realized that while scholarship had its place, questions surrounding the study of literature and its implications for our culture deserved a place in a much wider realm of ideas. In a way, I found an intellectual home outside of the university, which, in my case, proved salutary.

The roster for Literature and the Conservative Ideal was assembled by individual cold calling. I had compiled a fairly short list of scholars whose work I had come across in these popular venues and who I thought might at least be able to consider conservatism’s role in literary study as well as its various formulations in selective literary works. The response to my initial proposal was very positive, and I remain infinitely grateful to the contributors for their generosity.

What I have come to understand over the years is that genuine concern over the state of literature today is not bounded by party affiliations or directed by a singular ideological framework. As I mention in the book, personal politics did not figure in discussions with contributors, nor did I harbor any assumptions about them. I think it is a testament to dispassionate scholarship and the contributors’ dedication to their craft that the volume came together the way that it did.

AM:  What critics do you consider representative of the conservative tradition?

MZ:  I think in this case it is once again useful to detach what might be considered a conservative approach to literature from the more freighted use of the term in a distinctly political context. In so doing, a critic such as Lionel Trilling, known for his oft-repeated equation of conservatism with “irritable mental gestures,” might be classified as an exemplar of a conservative literary tradition. His emphasis on literature as an embodiment of culture cut against the grain of scholarship that valued texts primarily for their reflection of bourgeois society. Close reading and moral judgment are at the center of Trilling’s critiques, and his skepticism of a literature that “pets and dandles its underprivileged characters” might be sustained as a rebuke to today’s critical environment.

Writing also in what might be called the conservative tradition is of course F.R. Leavis, whose concern for literature’s essential role within civilized life is discussed by Thomas Jeffers in the book. I would also include T.S. Eliot and other contributors to Scrutiny, a publication whose critical acumen and attention to literature’s artistic expression is in many ways lacking today. It is, however, still found in the pages of such eminent publications as Commentary, the Claremont Review of Books, The New Criterion, and others. So, as readers of The Literary Lawyer are keenly aware, the humanistic tradition, which stands athwart today’s prevailing postmodernist ethos, is very much alive. It just isn’t generally in vogue in those places where literature is taught.

 

Part Two coming soon….

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Deidre McCloskey and the Enrichment of the World

In Arts & Letters, Austrian Economics, Book Reviews, Books, Creativity, Economics, Fiction, Historicism, History, Humane Economy, Humanities, liberal arts, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Philosophy, Politics, Property, Scholarship, Western Civilization, Western Philosophy on October 26, 2016 at 6:45 am

Allen 2

The following excerpt is adapted from my review of Deirdre McCloskey’s book Bourgeois Equality; the original review, which appeared in the Quarterly Journal of Austrian Economics, is available here.

If it’s true that Wayne Booth inspired Deirdre McCloskey’s interest in the study of rhetoric, then it’s also true—happily, in my view—that McCloskey has refused to mimic Booth’s programmatic, formulaic methods and boorish insistence on prosaic succinctness. Bourgeois Equality is McCloskey’s third volume in a monumental trilogy that began with The Bourgeois Virtues (2006) and Bourgeois Dignity (2010), each published by the University of Chicago Press. This latest volume is a Big Book, alike in kind but not in theme to Jacques Barzun’s From Dawn to Decadence (2000), Camille Paglia’s Sexual Personae (1990), or Herald Berman’s Law and Revolution (1983) and Law and Revolution II (2006). It’s meandering and personal, blending scholarship with an essayistic style that recalls Montaigne or Emerson.

McCloskey’s elastic arguments are shaped by informal narrative and enlivened by her plain and playful voice. At times humorous, rambling, and deliberately erratic, she gives the distinct impression that she’s simply telling a story, one that happens to validate a thesis. She’s having fun. Imagine Phillip Lopate articulating economic history. McCloskey is, in this regard, a latter-day Edward Gibbon, adopting a mode and persona that’s currently unfashionable among mainstream historians, except that she’s more lighthearted than Gibbon, and unashamedly optimistic.

Writing with an air of confidence, McCloskey submits, contra Thomas Piketty, that ideas and ideology—not capital accumulation or material resources—have caused widespread economic development. Since 1800, worldwide material wealth has increased and proliferated; the quality of life in poor countries has risen—even if it remains unequal to that of more prosperous countries—and the typical human being now enjoys access to the food, goods, services, medicine, and healthcare that, in earlier centuries, were available to only a select few in the richest parts of the globe. The transition from poverty to wealth was occasioned by shifting rhetoric that reflected an emerging ethical consensus. The rhetorical-ethical change involved people’s “attitudes toward other humans” (p. xxiii), namely, the recognition of shared experience and “sympathy,” as Adam Smith stated in The Theory of Moral Sentiments. Attributing human progress to ideas enables McCloskey to advocate the norms and principles that facilitated economic growth and social improvement (e.g., class mobility and fluidity) while generating extensive prosperity. Thus, her project is at once scholarly and tendentious: a study of the conditions and principles that, in turn, she promotes.

She argues that commercialism flourished in the eighteenth century under the influence of ideas—such as “human equality of liberty in law and of dignity and esteem” (p. xxix)—that were packaged in memorable rhetoric and aesthetics. “Not matter, mainly, but ideas” caused the Great Enrichment (p. 643). In other words, “[t]he original and sustaining causes of the modern world […] were ethical, not material,” and they included “the new and liberal economic idea of liberty for ordinary people and the new and democratic social idea of dignity for them” (p. xxxi). This thesis about liberty and dignity is clear and unmistakable if only because it is repetitive. McCloskey has a habit of reminding readers—in case you missed her point the first, second, or fifty-seventh time around—that the causes of the Industrial Revolution and the Great Enrichment were ideas, not “narrowly economic or political or legal changes” (p. 470). She maintains, to this end, that the Scottish Enlightenment succeeded in combining the concepts of liberty and dignity into a desirable form of equality—not equality of outcomes, of course, but of opportunity and treatment under the law. And the Scottish model, to her mind, stands in contradistinction to the French example of centralized, top-down codification, command, planning, and design.

A perennial villain lurks in the pages of her history: the “clerisy,” which is an “appendage of the bourgeoisie” (p. 597) and often dubbed “the elite” in regular parlance. McCloskey calls the clerisy “the sons of bourgeois fathers” (p. xvii) and “neo-aristocratic” (p. 440). The clerisy includes those “artists, intellectuals, journalists, professionals, and bureaucrats” who resent “the commercial and bettering bourgeoisie” (p. xvi). The clerisy seeks, in different ways at different times, to extinguish unfettered competition with exclusive, illiberal, irrevocable grants and privileges that are odious to free society and offensive to the rights of average consumers. “Early on,” says McCloskey, referring to the period in Europe after the revolutionary year 1848, “the clerisy began to declare that ordinary people are misled in trading, and so require expert protection and supervision” (p. 609). The clerisy since then has been characterized by paternalism and a sense of superiority.

Because the clerisy is shape-shifting, assuming various forms from time to time and place to place, it’s a tough concept to pin down. The word “clerisy” does not appear in the book’s index to permit further scrutiny. By contrast, McCloskey’s general arguments are easy to follow because the book is separated into parts with questions as their titles; subparts consisting of onesentence headings answer those questions.

In a massive tour de force such as this, readers are bound to take issue with certain interpretive claims. Historians will find McCloskey’s summaries to be too breezy. Even libertarians will accuse her of overlooking manifest wrongs that occurred during the periods she surveys. My complaints are few but severe. For instance, McCloskey is, I believe, either careless or mistaken to announce that, during the nineteenth and early twentieth century, “under the influence of a version of science,” in a territory that’s never specifically identified, “the right seized upon social Darwinism and eugenics to devalue the liberty and dignity of ordinary people, and to elevate the nation’s mission above the mere individual person, recommending, for example, colonialism and compulsory sterilization and the cleansing power of war” (p. xviii).

Let’s hope that it’s innocent negligence rather than willful distortion that underlies this odd, unqualified, categorical assertion. Adam Cohen’s Imbeciles (2016) and Thomas C. Leonard’s Illiberal Reformers (2016) describe how, in the United States, social Darwinism and eugenics were adopted primarily, though not exclusively, by the Left, not the Right. These recent books come on the heels of several scholarly treatments of this subject: Thomas M. Shapiro’s Population Control Politics (1985), Philip R. Reilly’s The Surgical Solution (1991), Joel Braslow’s Mental Ills and Bodily Cures (1997), Wendy Kline’s Building a Better Race (2001), Stefan Kuhl’s The Nazi Connection (2002), Nancy Ordover’s American Eugenics (2003), Christine Rosen’s Preaching Eugenics (2004), Christina Cogdell’s Eugenic Design (2004), Gregory Michael Dorr’s Segregation’s Science (2008), Paul A. Lombardo’s edition A Century of Eugenics in America (2011), and Alexander Minna Stern’s Eugenic Nation (2016). These represent only a small sampling.

Is McCloskey unware of these texts? Probably not: she reviewed Leonard’s book for Reason, although she did so after her own book reached press. At any rate, would she have us believe that Emma Goldman, George Bernard Shaw, Eugene Debs, Marie Stopes, Margaret Sanger, John Maynard Keynes, Lester Ward, and W. E. B. Du Bois were eugenicist agitators for the political Right? If so, she should supply her definition of “Right,” since it would go against commonly accepted meanings. On the matter of colonialism and war, self-identified members of the Old Right such as Albert Jay Nock, John Flynn, and Senator Robert Taft advocated precisely the opposite of what McCloskey characterizes as “Right.” These men opposed, among other things, military interventionism and adventurism. The trouble is that McCloskey’s muddying of the signifiers “Left” and “Right” comes so early in the book—in the “Exordium”— that readers may lose trust in her, question her credibility, and begin to suspect the labels and arguments in her later chapters.

Other undefined terms only make matters worse, ensuring that McCloskey will alienate many academics, who, as a class, are already inclined to reject her libertarian premises. She throws around the term “Romanticism” as if its referent were eminently clear and uncontested: “a conservative and Romantic vision” (p. xviii); “science fiction and horror fiction [are] … offshoots of Romanticism” (p. 30); “[Jane Austen] is not a Romantic novelist … [because] [s]he does not take Art as a model for life, and does not elevate the Artist to a lonely pinnacle of heroism, or worship of the Middle Ages, or adopt any of the other, antibourgeois themes of Novalis, [Franz] Brentano, Sir Walter Scott, and later Romantics” (p. 170); “Romanticism around 1800 revived talk of hope and faith and a love for Art or Nature or the Revolution as a necessary transcendent in people’s lives” (p. 171); “Romantic candor” (p. 242); “the late eighteenth-century Romantic literary critics in England had no idea what John Milton was on about [sic], because they had set aside the rigorously Calvinist theology that structured his poetry” (p. 334); “the nationalist tradition of Romantic writing of history” (p. 353); “Romantic … hostilities to … democratic rhetoric” (p. 510); “[i]n the eighteenth century … the idea of autonomy triumphed, at any rate among the progressive clerisy, and then became a leading Romantic idea, á la Victor Hugo” (p. 636); and “the Romantic conservative Thomas Carlyle” (p. 643).

To allege that the clerisy was “thrilled by the Romantic radicalism of books like Mein Kampf or What Is to Be Done” (p. xviii) is also recklessly to associate the philosophies of, say, Keats or Coleridge or Wordsworth with the exterminatory fantasies of Hitler and Lenin. McCloskey might have guarded against this misleading conflation by distinguishing German idealism or contextualizing Hegel or by being more vigilant with diction and definition. Her loose language will leave some experts (I do not profess to be one) scratching or shaking their heads and, more problematic, some non-experts with misconceptions and misplaced targets of enmity. One imagines the overeager and well-meaning undergraduate, having read Bourgeois Equality, setting out to demonize William Blake or destroy the reputation of Percy Shelly, about whom Paul Cantor has written judiciously.2 Wouldn’t originality, imagination, creativity, and individualism—widely accepted markers of Romanticism—appeal to McCloskey? Yet her unconditionally derogatory treatment of Romanticism—which she portrays as a fixed, monolithic, self-evident thing—undermines aspects of that fluctuating movement, period, style, culture, and attitude that are, or seem to be, consistent with her Weltanschauung.

But I protest too much. These complaints should not diminish what McCloskey has accomplished. Would that we had more grand studies that mapped ideas and traced influences across cultures, communities, and eras. McCloskey takes the long view, as we all should. Her focus on rhetoric is crucial to the future of liberty if, given the technological advances we have made, the “work we do will be more and more about decisions and persuading others to agree, changing minds, and less and less about implementation by hand” (p. 498). Equally significant is her embrace of humanomics—defined as “the story [of] a complete human being, with her ethics and language and upbringing” (p. xx)—which materializes in casual references to Henrik Ibsen’s plays, challenges to the depiction of John Milton “as a lonely poet in a garret writing merely to the starry heavens” (p. 393), analyses of Jane Austen’s novels, and portrayals of Elizabethan England. Her historical and narrative arc enables us to contextualize our own moment, with all of its troubles and possibilities.

Best of all, her book is inspiring and exhilarating and brimming with rousing imperatives and moving calls to action. “Let us, then,” she says at one point, “not reject the blessings of economic growth on account of planning or pessimism, the busybody if wellintentioned rationalism of some voices of the French Enlightenment or the adolescent if charming doubts of some voices of the German Romantic movement, fashionable though both attitudes have long been among the clerisy. As rational optimists, let us celebrate the Great Enrichment, and the rhetorical changes in freer societies that caused it” (p. 146). At another point she encourages her audience to guard against “both cynicism and utopianism” (p. 540), and elsewhere to heed “trade-tested cooperation, competition, and conservation in the right mix” (p. 523). These little nudges lend her credibility insofar as they reveal her true colors, as it were, and demonstrate that she is not attempting—as is the academic wont—to hide her prejudices and conceal her beliefs behind pretended objectivities.

Poverty is relative and, hence, permanent and ineradicable, despite McCloskey’s claim that we can “end poverty” (p. 8). If, tomorrow, we woke up and the wealth of each living person were magically to multiply twentyfold—even fiftyfold—there would still be people at the bottom. The quality of life at the bottom, however, would be vastly improved. The current manifestation of global poverty shows how far we as a species have advanced in the last few centuries. McCloskey is right: We should pursue the ideas that accelerated and achieved human flourishing, that demonstrably brought people out of distress and destitution. Hard sciences and mathematical models are insufficient in themselves to convey the magnitude and splendor of these ideas and their accomplishments. Hence we should welcome and produce more books like McCloskey’s that undertake a “rhetorical-ethical Revaluation” to both examine and celebrate “a society of open inquiry,” one which not only “depends on rhetoric in its politics and in its science and in its economy,” but which also yields intellectual creativity and political freedom (p. 650). In McCloskey’s approach, economics and the humanities are not mutually exclusive; rather, they are mutually illuminating and, in fact, indispensably and inextricably tied. An economics that forsakes the dignity of the human person and his capacity for creativity and aesthetics does so at its own peril and to its own disgrace. All economics is, at its core, humanomics. We could do without the latter term if we understood the former.

REFERENCES

Barzun, Jacques. 2000. From Dawn to Decadence: 500 Years of Western Cultural Life, 1500 to the Present. New York: HarperCollins.

Berman, Harold J. 1983. Law and Revolution: The Formation of the Western Legal Tradition. Cambridge, Mass.: Harvard University Press, 2003.

——. 2006. Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Tradition. Cambridge, Mass.: Harvard University Press.

Braslow, Joel. 1997. Mental Ills and Bodily Cures: Psychiatric Treatment in the First Half of the Twentieth Century. Berkeley and Los Angeles: University of California Press.

Cantor, Paul. 1997. “The Poet as Economist: Shelley’s Critique of Paper Money and the British National Debt,” Journal of Libertarian Studies 13, no. 1: 21–44.

Cantor, Paul, and Stephen Cox, eds. 2009. Literature and the Economics of Liberty. Auburn, Ala.: Ludwig von Mises Institute.

Cogdell, Christina. 2004. Eugenic Design. Philadelphia: University of Pennsylvania Press.

Cohen, Adam. 2016. Imbeciles. London: Penguin Press.

Dorr, Gregory M. 2008. Segregation’s Science. Charlottesville, Va.: University of Virginia Press.

Kline, Wendy. 2001. Building a Better Race. Berkeley and Los Angeles: University of California Press.

Kuhl, Stefan. 2002. The Nazi Connection. Oxford: Oxford University Press.

Leonard, Thomas C. 2016. Illiberal Reformers. Princeton: Princeton University Press.

Lombardo, Paul A. 2011. A Century of Eugenics in America. Bloomington, Ind.: Indiana University Press.

McCloskey, Deirdre. 2006. The Bourgeois Virtues. Chicago: University of Chicago Press.

——. 2010. Bourgeois Dignity. Chicago: University of Chicago Press.

Ordover, Nancy. 2003. American Eugenics. Minneapolis: University of Minnesota Press.

Paglia, Camille. 1990. Sexual Personae: Art and Decadence from Nefertiti to Emily Dickinson. New Haven, Conn.: Yale University Press.

Reilly, Philip R. 1991. The Surgical Solution. Baltimore: Johns Hopkins University Press.

Rosen, Christine. 2004. Preaching Eugenics. Oxford: Oxford University Press.

Shapiro, Thomas M. 1985. Population Control Politics. Philadelphia: Temple University Press.

Stern, Alexander Minna. 2016. Eugenic Nation. Berkeley and Los Angeles: University of California Press.

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A Conversation Between Terry Eagleton and Roger Scruton

In Academia, Arts & Letters, Books, Britain, British Literature, Communication, Conservatism, Creativity, Fiction, History, Humanities, Liberalism, Literary Theory & Criticism, Literature, Pedagogy, Philosophy, Politics, Rhetoric, Rhetoric & Communication, Scholarship, The Academy, Western Civilization on September 21, 2016 at 6:45 am

In 2012, the Royal Institution of Great Britain hosted Terry Eagleton and Roger Scruton for an evening of conversation and debate.  Here is the footage of that event:

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Bond and Bonding in Shakespeare’s Merchant of Venice

In Arts & Letters, Austrian Economics, Books, British Literature, Economics, Essays, Fiction, History, Humane Economy, Humanities, Law, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Philosophy, Politics, Scholarship, Shakespeare, Western Civilization, Western Philosophy on April 6, 2016 at 6:45 am

Allen 2

A bond is an agreement, the unification of individuals or groups under mutual terms. Parents may bond affectionately with their children just as friends may bond affectionately with one another. Marital bonds join spouses in a sacred contract that confers conjugal rights and duties.

A bond is also a security for a debt. Banks may issue and underwrite bonds with fixed interest rates or correlative maturity dates in exchange for the promise of repayment. Bonds may be defeasible, high-yield, low-yield, covered, subordinated, or perpetual. They may be backed by liens or mortgages. There are government bonds, municipal bonds, fiduciary bonds, war bonds. A bond may be an instrument or the name for a type of covenant between persons. Love is not just a bond but something within a bond, if we believe the Countess in Shakespeare’s All’s Well That Ends Well.

In light of this rich multiplicity of meaning, the referent for the isolated term bond is not immediately clear but, instead, contextual. Serviceable explanations for bond depend upon the situation in which it is employed and the circumstances with which it is surrounded. The diverse meanings for bond have in common a reciprocal obligation or indebtedness that is voluntarily undertaken: a bond, whatever else it does, secures a promise or duty.

Sometimes that promise or duty is implicit, as with romantic bonds between monogamous lovers. The term bond is thus pregnant with possibility, yielding manifold associations. “The word itself,” submits Frederick Turner, “contains a fascinating amalgam of positive and negative connotations.”

My essay “A Time for Bonding: Commerce, Love, and Law in The Merchant of Venice,” which may be downloaded at this link, considers the role of bonds and bonding in William Shakespeare’s The Merchant of Venice to undermine the notion that Shakespeare was, to employ a term by Ian Ward, “anti-market” in the play. The Merchant of Venice is instead as multifaceted and polysemous as the term bond and open to an array of interpretations favorable to commerce and business. This essay is part of this collection of essays edited by Edward W. Younkins titled Capitalism and Commerce in Imaginative Literature (2016).

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The Moral Case for Property Rights

In Arts & Letters, Books, Conservatism, Economics, Ethics, History, Humane Economy, Humanities, Jurisprudence, Law, Liberalism, Philosophy, Property, Scholarship, Western Civilization, Western Philosophy on March 9, 2016 at 8:45 am

Allen 2

This review originally appeared here at the Library of Law and Liberty.

The James Madison Program in American Ideals and Institutions at Princeton University has become a hub of conservative constitutionalism and natural law theory, a forum where mostly likeminded scholars and public intellectuals can come together for constructive dialogue and critique. Directed by Robert P. George, the McCormick Professor of Jurisprudence at Princeton, the program has hosted established and emerging scholars alike. Adam MacLeod is one of the latter—a figure to watch, a fresh and tempered voice in the increasingly ideological field of jurisprudence and legal theory. During his James Madison fellowship, with the support and advice of his colleagues, MacLeod wrote Property and Practical Reason, his first book.

MacLeod frames his normative claims and pleas within the common law context. And he gives us his thesis in his crisp opening sentence: “This book makes a moral case for private property.” He adds that “institutions of private ownership are justified.”

That institutions of private ownership are now jeopardized is upsetting. Before the 18th century, it was simply taken for granted in most Western societies that private property rights incentivized both work and custodianship and served moral ends. Leaders of advanced nations understood that the opportunity to own land or goods motivated people to work; that work, in turn, contributed to the aggregate health of the community; and that once ownership was attained, owners preserved the fruits of their labor and likewise respected the fruits of others’ labor as having been dutifully earned. There were, of course, violations of these principles in Western societies, which is why the law protected and promoted private ownership.

Even absolute monarchs across Europe centuries ago understood the instinctual drive for personal ownership and, consequently, allowed their subjects to obtain at least qualified possession of land and real property. During the Enlightenment, however, philosophers such as John Locke awakened the Western intellect to the stark reality that private property rights were routinely violated or compromised by monarchs and sovereigns at the expense of morality and at odds with the natural law. Because humans own their bodies, Locke maintained, any object or land they removed or procured from nature, which God had provided humanity in common, was joined to those people, who, so long as no one else had a legitimate claim to such object or land, could freely enjoy a right of possession exclusive of the common rights of others.

It’s surprising that Locke isn’t mentioned in MacLeod’s defense of reason and private property, since Locke more than any other figure in the Western tradition—let alone the British tradition in which the common law emerged—made the reason-based case for the morality of private property ownership. “God,” Locke said, “who hath given the world to men in common, hath also given them reason to make use of it to the best advantage of life and convenience.” On this score MacLeod echoes Locke without giving him attention.

MacLeod advocates the type of mediated dominion of private ownership that, he says, existed at common law. Under the common law, he argues, dominion was mediated because it was restrained by the normative guides of “practical reasonableness.” He does not fully delineate what unmediated dominion looks like. But presumably it has something to do with “many contemporary accounts” that, he claims, “view property as an individual right” and facilitate an “atomization of private property” that’s “unnecessary and unhelpful.” An example might have polished off this point, since in the opening chapters it’s not always obvious to which property arrangement mediated dominion is allegedly superior.

He does, however, supply helpful examples of mediating private institutions under the common law: families and family businesses, religious associations such as churches or synagogues, civic associations, and other such cooperative forms that exercise modest control or otherwise influence a person’s claim to outright ownership. For instance, one’s community may reasonably insist that my absolute ownership of a weapon does not permit one’s use of that weapon to threaten or injure another except in self-defense. It may likewise restrict the profligate use of scarce resources, or the reckless use of intrinsically dangerous resources to the manifest detriment of one’s immediate neighbors.

The author submits that, under the common law, which illustrates constructive administration of property rights, private ownership is never total or unqualified but always subject to reasonable restraint as prescribed by custom and community. He intimates that one thing that makes private ownership reasonable is its promotion of reasonable behavior; the very reasonableness of private property is self-perpetuating. The owner of property who’s confident his ownership is legally honored and enforced will pursue future gain; as the number of such owners multiplies, the corporate prosperity of society increases.

MacLeod rejects consequentialist arguments for private property and seeks to justify private ownership on the basis of morality. He shows that private ownership is not just optimal by utilitarian standards but is practically reasonable and morally good.

In so arguing, he navigates around two anticipated criticisms: first that his defense of private property and promotion of common law standards and conditions are remedies in search of an illness, and second that beneath his proposed remedy is the sickness he wants to cure.

By discussing the work of Pierre-Joseph Proudhon, Jeremy Waldron, J. E. Penner, and Larissa Katz, among others, MacLeod proves he’s not remonstrating against straw men but engaging actual thinkers with real influence on our working perceptions of property rights. The problems he confronts are palpable: regulatory takings, trespass, taxation, riparian-right disputes, adverse possession, and waste, among others.

In depicting mediated dominion as a form of voluntary “plural ownership” that excludes state coercion, moreover, he reassures readers that a common law property regime does not contravene private ordering, despite the fact that the common law dates back to periods when English monarchs retained total and ultimate control of the land within their jurisdiction under the Doctrine of the Crown; forced owners to hold property rights in socage; confiscated property from rivals and dissidents; redistributed property in exchange for loyalty and political favors; and permitted and at times approved of slavery and villainy.

These unreasonable elements of the common law tradition do not square with the case that MacLeod makes for practical reasonableness; yet the common law tradition he invokes is sufficiently flexible and adaptive to modify or eradicate rules that perpetuate unreasonable practices and behaviors. He reminds us, too, that “slavery was for a long time unknown at common law, and its rise in positive law derogated common law rights and duties.” In other words, the rise of the English slave trade “is a story of lawmakers first departing from, then returning to, common law norms.”

Following if not synthesizing John Finnis and Joseph Raz, MacLeod recommends in the property-law context something akin to perfectionist liberalism and value pluralism. The pluralism championed by MacLeod involves multiplying the options for deliberating agents: the more room there is for rational choice, the more diverse and numerous are the opportunities to exercise human reason. These opportunities may be circumscribed by the morality of the community that is inherent in the rules that reflect basic values. The law is by nature coercive, but it is good to the extent it enables practical reason and restricts bad behavior, as determined by the net, collaborative efforts of non-state actors. MacLeod calls these combined actors members of “intermediary communities.”

The trope of individualism and community is for MacLeod a framing device for advocating mediated dominion as an incentivizing force for moral action. He skillfully and meticulously affirms that private ownership, which is conditional on the reasonable limitations established by collective norms, is reasonable not only for instrumental purposes (because it works well and facilitates constructive social relations) but also because it is good in itself. Summoning the commentary of Thomas Aquinas, William Blackstone, James Madison, Alexis de Tocqueville, Joseph Story, Georg Friedrich Hegel, F.A. Hayek, Neil MacCormick, Ronald Dworkin, Richard Epstein, and Robert P. George, MacLeod also manages to work in unexpected references to writers who do not immediately spring to mind as jurisprudents: Richard Weaver, Wendell Berry, Charles Murray, John Tomasi, and Milton Friedman. This range demonstrates the importance of property law across disciplines and in broad contexts.

To profit from this book you must, I think, hold in abeyance any assumptions or readymade generalizations you have about the nature and function of private property. You’d benefit as well from a prior familiarity with the field and discourse of property jurisprudence, not to mention the new natural law theories. I make this observation as an outsider myself. If you can’t immediately define terms like “usufruct,” either because you’ve never heard of them or because it’s been too long since you studied for a bar examination, you’ll likely need Black’s Law Dictionary and other resources close at hand as you piece through MacLeod’s rationale. Readers in other disciplines might find that the chapters presuppose an awareness of, say, the essentialist debate over whether exclusion or use defines property norms, or might question the meaning and import of “personalist” approaches to private property that emphasize the doctrines of positive liberty and personal autonomy.

Such disciplinary specificity isn’t a bad thing. One hopes, in fact, that it would motivate curious readers to undertake further study and inquiry. Yet specialization limits what a book can accomplish.

MacLeod exhibits a disposition to be philosophical rather than sociological, adopting as he does a neutral, academic tone free of animus and personal pique, arguing from logical deduction rather than concrete data or statistics. Whether this approach redounds to his advantage depends on what he wants to achieve. If he’s writing only for an academic audience of philosophers and political theorists, he’s succeeded admirably, but if his goal is to reach beyond the narrow confines of the academy, spreading his influence as widely as possible, he has fallen short. The prose is accessible to scholars and advanced graduate students, but the average lawyer will find no practical instruction in the book and might even question the at times challenging syntax and vocabulary that can obscure basic points. If economists ignore the book for its rejection of consequentialist arguments, however, it’s to their disadvantage.

No common reader, I’m afraid, will read this book from cover to cover, and that’s a pity because the subject is important, especially given the spread of eminent-domain abuse and the general embrace of egalitarianism, redistributivism, and Rawlsian notions of social justice by Americans today. The desire for private ownership is a primordial fact. We need more books and treatises that examine at a fundamental level how and why we alienate, possess, and exchange property. At around $100, Property and Practical Reason is prohibitively expensive for curious undergraduates, and also for courses in graduate studies. Moreover, the law schools may well ignore it due to its focus on abstract jurisprudence.

All that said, this book should be read—and will be, by the people who know about and are sympathetic to the work of the James Madison Program. Unfortunately, that’s not many people. Not enough, anyway. There’s no cottage industry for the philosophy of practical reasonableness. Yet there ought to be, and the reception of MacLeod’s work might tell us whether there can be. Those of a philosophical bent will delight not just in the conclusions MacLeod reaches, but in the way he reaches them: framing and reframing his sinuous arguments until his central theses become refrains. This reviewer found it a delightfully industrious, hard-won defense of private property, and well worth the high sticker price.

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Razing the Bar

In American History, History, Humane Economy, Law, Legal Education & Pedagogy, Liberalism on June 17, 2015 at 8:45 am

Allen 2

This piece originally appeared here in The Freeman.

The bar exam was designed and continues to operate as a mechanism for excluding the lower classes from participation in the legal services market. Elizabeth Olson of the New York Times reports that the bar exam as a professional standard “is facing a new round of scrutiny — not just from the test takers but from law school deans and some state legal establishments.”

This is a welcome development.

Testing what, exactly?

The dean of the University of San Diego School of Law, Stephen C. Ferrulo, complains to the Times that the bar exam “is an unpredictable and unacceptable impediment for accessibility to the legal profession.” Ferrulo is right: the bar exam is a barrier to entry, a form of occupational licensure that restricts access to a particular vocation and reduces market competition.

The bar exam tests the ability to take tests, not the ability to practice law. The best way to learn the legal profession is through tried experience and practical training, which, under our current system, are delayed for years, first by the requirement that would-be lawyers graduate from accredited law schools and second by the bar exam and its accompanying exam for professional fitness.

Freedom of contract

The 19th-century libertarian writer Lysander Spooner, himself a lawyer, opposed occupational licensure as a violation of the freedom of contract, arguing that, once memorialized, all agreements between mutually consenting parties “should not be subjects of legislative caprice or discretion.”

“Men may exercise at discretion their natural rights to enter into all contracts whatsoever that are in their nature obligatory,” he wrote, adding that this principle would prohibit all laws “forbidding men to make contracts by auction without license.”

In more recent decades, Milton Friedman disparaged occupational licensure as “another example of governmentally created and supported monopoly on the state level.” For Friedman, occupational licensure was no small matter. “The overthrow of the medieval guild system,” he said,

was an indispensable early step in the rise of freedom in the Western world. It was a sign of the triumph of liberal ideas.… In more recent decades, there has been a retrogression, an increasing tendency for particular occupations to be restricted to individuals licensed to practice them by the state.

The bar exam is one of the most notorious examples of this “increasing tendency.”

Protecting lawyers from the poor

The burden of the bar exam falls disproportionately on low-income earners and ethnic minorities who lack the ability to pay for law school or to assume heavy debts to earn a law degree. Passing a bar exam requires expensive bar-exam study courses and exam fees, to say nothing of the costly applications and paperwork that must be completed in order to be eligible to sit for the exam. The average student-loan debt for graduates of many American law schools now exceeds $150,000, while half of all lawyers make less than $62,000 per year, a significant drop since a decade ago.

Recent law-school graduates do not have the privilege of reducing this debt after they receive their diploma; they must first spend three to four months studying for a bar exam and then, having taken the exam, must wait another three to four months for their exam results. More than half a year is lost on spending and waiting rather than earning, or at least earning the salary of a licensed attorney (some graduates work under the direction of lawyers pending the results of their bar exam).

When an individual learns that he or she has passed the bar exam, the congratulations begin with an invitation to pay a licensing fee and, in some states, a fee for a mandatory legal-education course for newly admitted attorneys. These fees must be paid before the individual can begin practicing law.

The exam is working — but for whom?

What’s most disturbing about this system is that it works precisely as it was designed to operate.  State bar associations and bar exams are products of big-city politics during the Progressive Era. Such exams existed long before the Progressive Era — Delaware’s bar exam dates back to 1763 — but not until the Progressive Era were they increasingly formalized and institutionalized and backed by the enforcement power of various states.

Threatened by immigrant workers and entrepreneurs who were determined to earn their way out of poverty and obscurity, lawyers with connections to high-level government officials in their states sought to form guilds to prohibit advertising and contingency fees and other creative methods for gaining clients and driving down the costs of legal services. Establishment lawyers felt the entrepreneurial up-and-comers were demeaning the profession and degrading the reputation of lawyers by transforming the practice of law into a business industry that admitted ethnic minorities and others who lacked rank and class. Implementing the bar exam allowed these lawyers to keep allegedly unsavory people and practices out of the legal community and to maintain the high costs of fees and services.

Protecting the consumer

In light of this ugly history, the paternalistic response of Erica Moeser to the New York Times is particularly disheartening. Moeser is the president of the National Conference of Bar Examiners. She says that the bar exam is “a basic test of fundamentals” that is justified by “protecting the consumer.” But isn’t it the consumer above all who is harmed by the high costs of legal services that are a net result of the bar exam and other anticompetitive practices among lawyers? To ask the question is to answer it. It’s also unclear how memorizing often-archaic rules to prepare for standardized, high-stakes multiple-choice tests that are administered under stressful conditions will in any way improve one’s ability to competently practice law.

The legal community and consumers of legal services would be better served by the apprenticeship model that prevailed long before the rise of the bar exam. Under this model, an aspiring attorney was tutored by experienced lawyers until he or she mastered the basics and demonstrated his or her readiness to represent clients. The high cost of law school was not a precondition; young people spent their most energetic years doing real work and gaining practical knowledge. Developing attorneys had to establish a good reputation and keep their costs and fees to a minimum to attract clients, gain trust, and maintain a living.

The rise in technology and social connectivity in our present era also means that reputation markets have improved since the early 20th century, when consumers would have had a more difficult time learning by word-of-mouth and secondhand report that one lawyer or group of lawyers consistently failed their clients — or ripped them off. Today, with services like Amazon, eBay, Uber, and Airbnb, consumers are accustomed to evaluating products and service providers online and for wide audiences.  Learning about lawyers’ professional reputations should be quick and easy, a matter of a simple Internet search.  With no bar exam, the sheer ubiquity and immediacy of reputation markets could weed out the good lawyers from the bad, thereby transferring the mode of social control from the legal cartel to the consumers themselves.

Criticism of the high costs of legal bills has not gone away in recent years, despite the drop in lawyers’ salaries and the saturation of the legal market with too many attorneys. The quickest and easiest step toward reducing legal costs is to eliminate bar exams. The public would see no marked difference in the quality of legal services if the bar exam were eliminated, because, among other things, the bar exam doesn’t teach or test how to deliver those legal services effectively.

It will take more than just the grumbling of anxious, aspiring attorneys to end bar-exam hazing rituals. That law school deans are realizing the drawbacks of the bar exam is a step in the right direction. But it will require protests from outside the legal community — from the consumers of legal services — to effect any meaningful change.

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Es buena la Decimocuarta Enmienda?

In America, American History, Arts & Letters, Austrian Economics, Historicism, History, Humanities, Jurisprudence, Law, Liberalism, Libertarianism, Nineteenth-Century America, Philosophy, The Supreme Court on February 18, 2015 at 8:45 am

Allen 2

El artículo original se encuentra aquí. Traducido del inglés por Mariano Bas Uribe.

Pocas cosas dividen a los libertarios como la Decimocuarta Enmienda de la Constitución de Estados Unidos. Gene Healy ha observado que “Liberales clásicos de buena fe se han encontrado en ambos lados de la discusión”.

Por un lado están los que alaban la enmienda por evitar el poder de los estados para prejuzgar, dirigir, regular o usar fuerza de cualquier tipo para imponer leyes discriminatorias sobre sus ciudadanos. Por el otro están los que, aunque reconozcan la naturaleza problemática de las malas conductas y los actos inmorales del estado, no están dispuestos a consentir la transferencia de poder de los estados al gobierno federal, y en particular al poder judicial federal.

La división se reduce a las visiones del federalismo, es decir, al equilibrio o separación de los gobiernos estatales y nacional.

Las secciones primera y quinta de la Decimocuarta Enmienda son las más polémicas. La Sección Uno incluya la Cláusula de Ciudadanía, la Cláusula de Privilegios o Inmunidades, la Cláusula de Proceso Debido y la Cláusula de Igual Protección y la Sección Cinco otorga al Congreso la autoridad para aplicar legislativamente la enmienda. Estas disposiciones han dado mayores poderes al gobierno nacional, permitiendo a los tribunales federales a hacer que los estados cumplan las leyes federales con respecto a ciertos derechos (o supuestos derechos) individuales.

El Tribunal Supremo de Estados Unidos, en Barron v. Baltimore (1833), sostuvo que la Declaración de Derechos (las primeras diez enmiendas a la Constitución de EEUU) obligaban solo al gobierno federal y no a los gobiernos estatales. Mediante la Decimocuarta Enmienda, que fue ratificada oficialmente en 1868, el Tribunal Supremo de Estados Unidos y los tribunales federales inferiores han “incorporado” gradualmente la mayoría de las disposiciones de la Declaración de Derechos para aplicarlas contra los estados. Así que el gobierno federal se ha empoderado para hacer que los gobiernos estatales cumplan disposiciones que originalmente solo pretendían restringir los abusos federales.

Si el gobierno federal fuera el único o el mejor mecanismo para reducir el tipo de discriminación y violaciones de derechos prohibidos por la Decimocuarta Enmienda, esta sería bienvenida y aceptada. Pero no es el único correctivo concebible y, aparte, ¿no es contraintuitivo para los libertarios aplaudir y defender un aumento tanto en el ámbito como en el grado del poder federal, incluso si ese poder, en algunas ocasiones, haya producidos resultados admirables?

En contextos no relacionados con la Decimocuarta Enmienda, casi nunca resulta polémico para los libertarios promover remedios no gubernamentales, locales o descentralizados, para leyes y prácticas injustas y discriminatorias. A menudo se alega que la industria y el comercio y la simple economía son mejores mecanismos para reducir el comportamiento discriminatorio, ya se base en raza, clase, sexo, género o lo que sea, que la fuerza del gobierno. Aun así, frecuentemente esos libertarios que hacen sonar las alarmas acerca de las aproximaciones gubernamental, federal y centralizada de la Decimocuarta Enmienda a las leyes y prácticas discriminatorias son tratados de forma poco sincera, en lugar de con argumentos, como defensores de aquellas leyes y prácticas, en lugar de como oponentes por principio de las reparaciones federales centralizadas para daños sociales.

Cualquier debate sobre la Decimocuarta Enmienda debe ocuparse de la validez de esta aprobación. Durante la Reconstrucción, la ratificación de la Decimocuarta Enmienda se convirtió en una condición previa para la readmisión en la Unión de los antiguos estados confederados. Healy ha llamado a esto “ratificación a punta de bayoneta”, porque, dice, “para acabar con el gobierno militar, se obligó a los estados sureños a ratificar la Decimocuarta Enmienda”. La condición natural de esta reunificación contradice la afirmación de que la Decimocuarta Enmienda fue ratificada por un pacto mutuo entre los estados.

Los jueces federales consideran irrelevante el propósito de la enmienda

En 1873, el juez Samuel F. Miller, junto con otros cuatro jueces, sostuvo que la Decimocuarta Enmienda protegía los privilegios e inmunidades de la ciudadanía nacional, no la estatal. El caso afectaba a regulaciones estatales de mataderos para ocuparse de las emergencias sanitarias que derivaban de sangre animal que se filtraba en el suministro de agua. El juez Miller opinaba que la Decimocuarta Enmienda estaba pensada para ocuparse de la discriminación racial contra los antiguos esclavos en lugar de para la regulación de los carniceros:

Al acabar la guerra [de Secesión], los que habían conseguido restablecer la autoridad del gobierno federal no se contentaron con permitir que esta gran ley de emancipación se basara en los resultados reales de la contienda o la proclamación del ejecutivo [la Declaración de Emancipación], ya que ambos podían ser cuestionados en tiempos posteriores, y determinaron poner estos resultado principal y más valioso en la Constitución de la unión restaurada como uno de sus artículos fundamentales.

Lo que dice el juez Miller es que el significado y propósito de la Decimocuarta Enmienda (proteger y preservar los derechos de los esclavos liberados) se desacredita cuando se usa para justificar la intervención federal en los asuntos económicos cotidianos de un sector estatal concreto. La regulación estatal de los mataderos de animales no es una opresión del mismo tipo o grado que la esclavitud de gente basada en su raza. Argumentar otra cosa es minimizar la gravedad de la ideología racista.

El juez Miller reconocía que la regulación estatal en cuestión era “denunciada no solo por crear un monopolio y conferir privilegios odiosos y exclusivos a un pequeño número de personas a costa de una buena parte de la comunidad de Nueva Orleáns”, la ciudad afectada por los mataderos en cuestión, sino asimismo como una privación del derechos de los carniceros a ejercitar su profesión. Sin embargo, el juez Miller no creía que el gobierno federal tuviera derecho bajo la Constitución a interferir con una autoridad que siempre se había concedido a gobiernos estatales y locales.

Habiendo establecido al alcance limitado de la cláusula de privilegios o inmunidades en los Casos de los mataderos, el Tribunal Supremo acudió posteriormente a la Cláusula de Igual Protección y la Cláusula del Proceso Debido para echar abajo leyes bajo la Decimocuarta Enmienda. Pero el Tribunal Supremo no se ha detenido ante las leyes estatales: ha usado la Cláusula de Igual Protección y la Cláusula del Proceso Debido como pretexto para regular a ciudadanos y empresas privadas. La Decimocuarta Enmienda, que pretendía reducir la discriminación, se ha usado, paradójicamente, para defender programas de acción afirmativa que discriminan a ciertas clases de personas.

Ceder el poder a los jueces federales no les predispone a la libertad. Como la Sección Cinco de la Decimocuarta Enmienda permite al Congreso aprobar enmiendas o leyes que traten de infracciones estatales a la libertad individual, no es necesario ni constitucionalmente sensato que el poder judicial federal asuma ese papel. Los miembros del Congreso, al contrario que los jueces federales que disfrutan del cargo vitaliciamente, son responsables ante los votantes en sus estados y por tanto es más probable que sufran por su infidelidad a la Constitución.

A nivel conceptual, además, parece extraño que los libertarios defiendan internamente lo que condenan en relaciones exteriores, a saber, la doctrina paternalista de que un gobierno central más poderoso tendría que usar su músculo para obligar a cumplir a unidades políticas más pequeñas.

El legado de la enmienda

¿Ha generado resultados constructivos la Decimocuarta Enmienda? En muchas áreas, sí. ¿Son deplorables algunas de las ideologías contra las que se ha dirigido? En muchos casos, sí. ¿Eran malas las normas contra el mestizaje, las normas de segregación escolar y las normas prohibiendo a los afro-americanos actuar como jurados? Sí, por supuesto. Sin embargo no se deduce que solo porque algunos casos bajo la Decimocuarta Enmienda hayan invalidado estas malas leyes, esta sea necesaria o incondicionalmente buena, especialmente a la vista de la pendiente resbaladiza de precedentes que con el tiempo distancian a las normas de su aplicación pretendida. “Si los tribunales empiezan a usar la Decimocuarta Enmienda para aplicar derechos naturales libertarios”, advierte Jacob Huebert en Libertarianism Today, “no sería más que un pequeño paso para que empezaran a usarla para aplicar derechos positivos no libertarios”.

Intelectuales de la izquierda como Erwin Chemerinsky, Charles Black, Peter Edelman y Frank Michelman han defendido la protección y aplicación de “derechos de subsistencia” bajo la Decimocuarta Enmienda. Estos incluirían los derechos a comida, atención sanitaria y salario mínimo proporcionados por el gobierno. Las leyes estatales que evitaran estos derechos (que no proporcionaran estas prestaciones sociales) se considerarían inconstitucionales; el ejecutivo federal aseguraría así que todo ciudadano de los estados transgresores reciba atención sanitaria, alimentos y una renta básica, todo subvencionado por los contribuyentes.

Estoy dispuesto a admitir no solo que en la práctica yo litigaría bajo las disposiciones de la Decimocuarta Enmienda para representar competente y éticamente a mi cliente (imaginar un sistema en el que el poder federal no esté tan atrincherado es inútil para litigantes en un sistema real en que el poder federal está profundamente arraigado), pero también que, en un mundo más ideal, podría haber otras formas menos deletéreas de luchar contra discriminación y violaciones de derechos que la Decimocuarta Enmienda. El taller de la actividad diaria no atiende abstracciones esperanzadas. No se puede deshacer un sistema de la noche a la mañana: los abogados deben actuar con las leyes que tienen disponibles y no pueden inventar otras nuevas para sus casos o agarrarse a una mera política. No si quieren tener éxito.

En ausencia de la Decimocuarta Enmienda, muchas personas y empresas con quejas válidas podrían no tener soluciones constitucionales. Sin embargo eso no significa que los términos y efectos de la Decimocuarta Enmienda sean incuestionablemente deseables o categóricamente buenos. Se pueden celebrar las victorias logradas mediante la Decimocuarta Enmienda mientras se reconoce que debe haber un modo mejor.

La Decimocuarta Enmienda no es en sí misma un bien positivo sino un animal peligroso a manejar con cuidado. Los libertarios como clase tienen una devoción manifiesta impropia a su funcionamiento. Necesitamos en su lugar un debate, abierto, honrado y colegiado acerca de los méritos y la función de esta enmienda, no sea que otras criaturas similares miren al futuro y a costa de nuestras amadas libertades.

 

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The Classical Liberalism of Ralph Waldo Emerson

In America, American History, American Literature, Arts & Letters, Austrian Economics, Books, Economics, Emerson, Essays, Ethics, Historicism, History, Humane Economy, Humanities, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Nineteenth-Century America, Philosophy, Poetry, Politics, Property, Western Philosophy on January 7, 2015 at 8:45 am

Allen 2

“The less government we have, the better.”[1] 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. His is a pastoral libertarianism that glorifies nature as a source of insight and inspiration for those with a poetical sense and a prophetic vision.

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.”[2] “Throughout his career,” Neal Dolan adds, “Emerson remained fully committed to the Scottish-inflected Lockean-libertarian liberalism whose influence we have traced to his earliest notebooks.”[3] An abundance of evidence supports this view. Dolan himself has written an entire book on the subject: Emerson’s Liberalism (University of Wisconsin Press, 2009). Emerson extolled the “infinitude of the private man”[4] and projected a “strong libertarian-liberal emphasis”[5] in his essays and speeches. He was not an anarchist: he believed that “[p]ersonal rights, universally the same, demand a government framed on the ratio of the census” because “property demands a government framed on the ratio of owners and of owning.”[6] Nevertheless, he opined that “[e]very actual State is corrupt”[7] and that, if the people in a given territory were wise, no government would be necessary: “[W]ith the appearance of the wise man, the State expires. The appearance of character makes the State unnecessary.”[8] One need only look to one of Emerson’s most famous essays, “Self Reliance,” for proof 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.”[9]

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”[10] 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”[11] and “no law can be sacred to me but that of my nature.”[12]

According to Emerson, genius precedes society and the State, which corrupt rather than clarify reasoning and which thwart rather than generate productivity. “Wild liberty develops iron conscience” whereas a “[w]ant of liberty […] stupefies conscience.”[13] 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.”[14] Accordingly, we ought to refuse to “capitulate to badges and names, to large societies and dead institutions.”[15] 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.”[16]

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.”[17] 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.”[18] It is in everyone’s best interest that each individual resides in his own truth without selling off his liberty.[19] “It is,” in other words, “easy to see that a greater self-reliance must work a revolution in all the offices and relations of men.”[20]

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. Because “man’s nature is a sufficient advertisement to him of the character of his fellows,”[21] self-reliance enables cooperative enterprise: “Whilst I do what is fit for me, and abstain from what is unfit, my neighbor and I shall often agree in our means, and work together for a time to one end.”[22] Counterintuitively, only in total isolation and autonomy does “all mean egotism vanish.”[23]

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,”[24] 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.[25]

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. “I shall endeavor to nourish my parents, to support my family, to be the chaste husband of one wife,” he elaborates.[26] Emerson 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,[27] 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. The best thing one can do for the poor is to help them to empower themselves to achieve their own ends and to utilize their own skills—to put “them once more in communication with their own reason.”[28] “A man is fed,” Emerson says, not that he may be fed, but that he may work.”[29] Emerson’s work ethic does not demean the poor; it builds up the poor. It is good and right to enable a poor man to overcome his conditions and to elevate his station in life, but there is no point in trying to establish absolute equality among people, for only the “foolish […] suppose every man is as every other man.”[30] The wise man, by contrast, “shows his wisdom in separation, in gradation, and his scale of creatures and of merits as wide as nature.”[31] Such separation and gradation are elements of the beautiful variety and complexity of the natural, phenomenal world in which man pursues his aims and accomplishes what he wills.

Dissent

Emerson famously remarks that a “foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.”[32] 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.”[33]

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.”[34] “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.”[35] 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.”[36] 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 here 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”[37] who is able to recite talking points and to argue the predictable “airs of the bench”[38] 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.”[39] We can stand together only by first standing alone. Thus, “[w]e must go alone.”[40] You must “[i]nsist on yourself”[41] and “[s]peak the truth.”[42] You must channel your knowledge and originality to enable others to empower themselves. All collectives are made up of constituent parts; the unit benefits from the aggregate constructive action of motivated individuals. Emerson teaches us that if we all, each one of us, endeavor to excel at our favorite preoccupations and to expand the reach of our talent and industry, we will better the lives of those around us and pass along our prosperity to our posterity.

[1] Ralph Waldo Emerson, “Politics,” in Emerson: Essays & Poems (The Library of America, 1996), p. 567.

[2] Cornel West, The American Evasion of Philosophy (University of Wisconsin Press, 1989), p. 40.

[3] Neal Dolan, “Property in Being,” in A Political Companion to Ralph Waldo Emerson, edited by Alan M. Levine and Daniel S. Malachuk (The University Press of Kentucky, 2011), p. 371.

[4] Ralph Waldo Emerson, correspondence in The Journals and Miscellaneous Notebooks of Ralph Waldo Emerson, 16 vols., ed. William H. Gilman, Ralph H. Orth, et al. (Cambridge: Harvard University Press, 1960-1982). This quote comes from Vol. 7, p. 342.

[5] Neal Dolan, Emerson’s Liberalism (University of Wisconsin Press, 2009), p. 182.

[6] Emerson, “Politics,” at 560.

[7] Emerson, “Politics,” at 563.

[8] Emerson, “Politics,” at 568.

[9] Ralph Waldo Emerson, “Self-Reliance,” in Emerson: Essays & Poems (The Library of America, 1996), p. 259.

[10] Emerson, “Self-Reliance,” at 260.

[11] Emerson, “Self-Reliance,” at 261.

[12] Emerson, “Self-Reliance,” at 262.

[13] Emerson, “Politics” at 565-566.

[14] Emerson, “Self-Reliance,” at 259.

[15] Emerson, “Self-Reliance,” at 262.

[16] Emerson, “Self-Reliance,” at 261.

[17] Emerson, “Self-Reliance,” at 262.

[18] Emerson, “Self-Reliance,” at 263.

[19] Emerson, “Self-Reliance,” at 274.

[20] Emerson, “Self-Reliance,” at 275.

[21] Emerson, “Politics,” at 566.

[22] Emerson, “Politics,” at 567.

[23] Emerson, “Nature,” in Emerson: Essays and Poems, p. 10. The original reads “all mean egotism vanishes” rather than “vanish.”

[24] Emerson, “Self-Reliance,” at 262.

[25] Emerson, “Self-Reliance,” at 262-63.

[26] Emerson, “Self-Reliance,” at 273.

[27] “Consider whether you have satisfied your relations to father, mother, cousin, neighbor, town, cat, and dog,” Emerson says. Emerson, “Self Reliance,” at 274.

[28] Emerson, “Self-Reliance,” at 276.

[29] Emerson, “Nature,” at 13.

[30] Emerson, “Nature,” at 27.

[31] Emerson, “Nature,” at 27.

[32] Emerson, “Self-Reliance,” at 265.

[33] Emerson, “Self-Reliance,” at 265.

[34] Ludwig von Mises, The Anti-Capitalistic Mentality (Auburn: The Ludwig von Mises Institute, 2008), p. 51.

[35] Mises, The Anti-Capitalistic Mentality, at 51.

[36] Mises, The Anti-Capitalistic Mentality, at 51.

[37] Emerson, “Self-Reliance,” at 264.

[38] Emerson, “Self-Reliance,” at 264.

[39] Emerson, “Self-Reliance,” at 263.

[40] Emerson, “Self-Reliance,” at 272.

[41] Emerson, “Self-Reliance,” at 278.

[42] Ralph Waldo Emerson, “The Divinity School Address,” in Emerson: Essays & Poems (The Library of America, 1996), p. 77.

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Literature and Liberty: Essays in Libertarian Literary Criticism

In Arts & Letters, Books, Economics, Essays, Humane Economy, Humanities, Law-and-Literature, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, News Release, Philosophy, Politics, Western Civilization, Western Philosophy on December 17, 2014 at 8:45 am

Literature and Liberty

A Christmas gift available here at Rowman & Littlefield’s website, here at Amazon, here at ebay, and here at Barnes & Noble.   

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.

Here’s what others are saying about Literature and Liberty:

By subtitling his book “Essays in Libertarian Literary Criticism,” Allen Mendenhall situates his work within an exciting methodological approach that is still off the radar screens of most academicians.  Not since the appearance of Edward Said’s Orientalism has a new literary approach invited us to read texts from a vantage point that jolts us into recognition of deep-seated ideological undercurrents that had previously remained unnoticed, or were simply passed over in silence. … It is a pleasure to now add Mendenhall’s deftly argued and passionately engaged volume to my list of recommended readings in libertarian scholarship.— Jo Ann Cavallo, Professor of Italian and Director of Undergraduate Studies, Columbia University

The much celebrated interdisciplinarity of contemporary criticism often amounts to nothing more than the absence of grounding in any traditional intellectual discipline, literary or otherwise. By contrast, Allen Mendenhall’s book is genuinely interdisciplinary. With solid credentials in law, economics, and literature, he moves seamlessly and productively among the fields. Covering a wide range of topics—from medieval history to postcolonial studies—Mendenhall opens up fresh perspectives on long-debated critical issues and raises new questions of his own.— Paul A. Cantor, Clifton Waller Barrett Professor of English, University of Virginia

Freedom is all around us, but we sometimes need expert guides to help us see it. This is exactly what the brilliant Allen Mendenhall has done with his outstanding collection of essays on the way great literary fiction interacts with the themes of human liberty. In taking this approach, he is turning certain academic conventions on their heads, finding individualism and property rights where others look for social forces and collectivist imperatives. He helps us to have a rich and deeper appreciation of the libertarian tradition and its expanse beyond economics and politics.— Jeffrey Tucker, CEO of Liberty.me, Distinguished Fellow at the Foundation for Economic Education, executive editor of Laissez-Faire Books, and Research Fellow at the Acton Institute

In Literature and Liberty, Allen Mendenhall aims to expand the marketplace of ideas in literary studies to include the entire spectrum of free-market theories. His goal is to break Marxism’s monopolistic hold over economic ideas in the study of imaginative literature. In his diverse chapters, he convincingly offers multiple transdisciplinary approaches to libertarian theory that literature scholars could adopt and build upon. Celebrating individualism and freedom in place of collectivism and determinism, Mendenhall focuses on commonalities and areas of agreement with respect to free-market theories. This approach increases the probability that the ideas in this ground-breaking volume will be widely embraced by thinkers from various schools of pro-capitalist thought, including, but not limited to Classical Liberalism, the Austrian School, the Judeo-Christian perspective, the Public Choice School, the Chicago School, the Human Flourishing School, and Objectivism.— Edward W. Younkins, Professor of Accountancy and Business Administration and Executive Director of the Institute for the Study of Capitalism and Morality, Wheeling Jesuit University

Allen Mendenhall is both an attorney and an advanced student of literature. He also has an excellent knowledge of modern economics. … [A]s Mendenhall notes, non-Marxist treatments of economics and literature have been slow to develop. His new book, Literature and Liberty, goes far toward supplying this lack. It shows how much work can be done, and good work too, when law and literature are studied from the perspectives offered by a real competence in economic ideas. … Every part of the book shows the fully interdisciplinary character of Mendenhall’s understanding of his subjects and his large knowledge of the historical periods he treats. Only the rare reader will be unable to learn from Mendenhall. … The kind of interdisciplinary work that Mendenhall advocates is an exciting enterprise, and one hopes that he will have much more to do with it.— Stephen Cox, Professor of Literature, University of California, San Diego, and Editor in Chief, Liberty