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To Educate in the Permanent Things

In Arts & Letters, Books, Essays, Fiction, History, Humanities, Literary Theory & Criticism, Literature, Politics, Walt Whitman, Western Philosophy, Writing on March 20, 2013 at 8:18 am

Allen Mendenhall

This article originally appeared here in The American Spectator.

In his State of the Union address last month, President Obama proposed changes to preschool, high school, and college education, respectively. His proposals generated praise and condemnation from the predictable cheerleaders and naysayers. Some celebrated his efforts to expand early childhood education; others suggested that he should have focused more on the student loan crisis; still others, not to be outdone, pointed to school funding, teacher salaries, grading, standardized testing, technology, and foreign study as the pressing issues that he neglected to address with sufficient detail.

Everyone, it seems, has an opinion about how to improve American education from the top down. But positive change rarely happens through centralized design; it arises spontaneously through the interaction of human agents operating within and among social groups. The State cannot plan and then promulgate a proper education, and legislative enactments cannot reflect the mores and traditions of local groups with differing standards and expectations. The most prudent and humble proposals for improving education are not couched in statist, Platonic terms about civic education and human perfection; instead, they approach learning modestly, on the individual level. They entail the everyday interactions between teachers and students. They are not stamped with the approval of politicians, unions, think tanks, or interest groups.  They take place in the classroom, not the public square. A teacher anywhere, whatever his station, school, or background, can implement them in his course without disrupting the pace or provoking the ire of the educational establishment. The best of these, because it is so easily executed, is simply to teach what T.S. Eliot, and Russell Kirk after him, called “permanent things.”

The permanent things are the inherited principles, mores, customs, and traditions that sustain humane thinking and preserve civilized existence for future generations; their canonization in literary, philosophical, religious, and historical texts happened and is happening in slow degrees. We can trace the permanent things through curricula that emphasize the ultimate values of prosperous societies. An informed, laborious study of the perennial themes and archetypal patterns in what are variously denominated as the Great Works, the Western Canon, or the Classics can help us to organize and make sense of the permanent things. There are those who would object that this approach seems too hopeful and ideal. But no one has suggested it as a panacea, of which there are none, and anyway, is there a proposal that could be simpler, more straightforward, and more workable than assigning and discussing the Great Works?

As early as 1948, Eliot remarked that “there is no doubt that in our headlong rush to educate everybody, we are lowering our standards, and more and more abandoning the study of those subjects by which the essentials of our culture—of that part of it which is transmittable by education—are transmitted; destroying our ancient edifices to make ready the ground upon which the barbarian nomads of the future will encamp in their mechanized caravans.” It might be asked just who these barbarian nomads are and why we ought not to welcome their cultural practices and assumptions. The barbarian nomads could be, I think, any group lacking in historical perspective and mostly ignorant of the illuminating continuities that have guided our weightiest and most imaginative thinkers. The practices and assumptions of these nomads are not grounded in lived experience but aimed at utopian projects such as ensuring equality, creating fundamental rights, or eliminating poverty, and, to the extent that these practices and assumptions deviate from enduring norms, they cannot be said to have flourished ever.

To study the permanent things, on the other hand, is to consider the prevailing and profound ideas from certain times and schools in relation to other such ideas from various times and schools throughout successive eras. It is to map the course of perennial ideas to examine how they apply to different settings and generations. It is both sequential and diachronic in its approach. Its chief benefit is to put ideas into context, which is to say that it is to make us aware of our own presuppositions and perspectives that necessarily arise from our social, cultural, and historical situation.  Each thinker lives in his own specific era and place and cannot gain knowledge in a vacuum outside of time; our era and place shape the manner in which we think and restrict our ability to imagine conditions beyond our immediate and tangible experience.

This is not to submit that our ideas are determined for us, only that we enter into experience with certain perceptions that we have no control over. They are there because of the conditions present at the time and space in which we exist.  A sustained study of the permanent things will show us that our perceptions are not totally alien from those of our predecessors, although the respective perceptions are different. It also teaches us to compensate for our prejudices and to avoid thinking that our necessarily limited perspectives are unconditionally true and universally acceptable, even if they have verifiable antecedents. It reveals, as well, that schools of thought cannot simply be deemed later versions of earlier schools just because the two are in agreement about certain points. Finally, although we cannot escape those presuppositions that are embedded in our thought and culture, being alert to their probable existence can counteract their possible effect.

A rigorous study of the permanent things provides a lodestar for evaluating particular ideas against that which has been tested and tried before. Ideas that seem new always have traceable antecedents, and individuals equipped with a fundamental knowledge of the permanent things are able to situate purportedly novel ideas alongside their forerunners. These individuals recognize that change is not always progress; sometimes it is decline, deterioration, or decay. Only a sense of the continuities of history and thought can demonstrate the difference. Our political pedants in general and President Obama in particular insist on recognizing and implementing new institutions as if a radical departure from historic standards and established customs is itself the mark of good and lasting policy. Yet the permanent things show that even the most exceptional thinkers, those who represent the spirit of their age, whatever that might have been or might be, are part of a greater tradition.

It may be true that to study a particular thinker’s cultural milieu and biography is requisite to placing his ideas into their proper context and to highlighting the unacceptable premises of his philosophy; nevertheless, cautious interpreters ought to consider whether his thoughts necessarily lead to certain consequences, or whether the events that seem related to his thoughts arose accidentally, apart from his philosophy. Put another way, the cautious interpreter must carefully consider causation: whether theories actually generate particular circumstances, or whether those circumstances would have come to pass regardless of what the thinker spoke or wrote. Mussolini, for instance, praised William James, but it does not follow that anything James said or wrote endorses or enables fascism. He who would suggest otherwise betrays an ignorance of James’s work. The permanent things can help us to distinguish the true forms and implications of an individual’s thought from their appropriations by hostile forces.

By studying the permanent things, moreover, we learn that we cannot achieve the proper education through mere funding; nor does the solution to schooling gridlock and setbacks come from student aid, dress codes, student evaluations, tuition, or whatever. These issues begin to seem fleeting and trivial to one with an historical sense. They are at most temporary struggles, and although they are important, as all struggles are important, we are not to subordinate liberal learning to them. The best way to achieve the liberal learning necessary to make important and meaningful distinctions about our complex world is, as I have suggested and as it bears repeating, through a holistic, painstaking exploration of the permanent things. This means not only reading the Great Works for their content, but analyzing them in light of their place in history.

The beauty of this approach is that anyone can carry it out; the wisdom of it lies in its civilizing effects. Whether one is a homeschooling parent, a public school teacher, the leader of a local book club, or simply a curious-minded autodidact, the permanent things are available to him in texts, waiting to be sifted through and analyzed. It is true that there is disagreement as to what constitutes a Great Work and by what criteria, but it does not take more than research and commonsense empiricism to discern which pre-twentieth century texts have withstood the test of time. Teaching the permanent things does not require a large-scale, bureaucratic, administrative overhaul. It does not demand central planning or the implementation of mass, curricular programs; it can be accomplished through decentralized networks of concerned individuals. If parents would teach their children, friends their friends, colleagues their colleagues, and so on, we would in the aggregate become a more literate, astute, and informed society. And as our politicians lecture us about our duties even as they demand our money, we can take comfort in the proverb that these things too shall pass.

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Žižek and Agamben’s Homo Sacer

In Arts & Letters, Books, Humanities, Law, Literary Theory & Criticism, Philosophy, Politics, Postmodernism, Western Philosophy on March 6, 2013 at 8:45 am

Allen Mendenhall

“The problem with Rumsfeld’s blunt statement [that the American goal was to kill as many Taliban soldiers and al-Qaeda members as possible], as with other similar phenomena like the uncertain status of the Afghan prisoners at Guantanamo Bay, is that they seem to point directly to Agamben’s distinction between the full citizen and Homo sacer who, although he or she is alive as a human being, is not part of the political community.”

                   —Slavoj Žižek, Welcome to the Desert of the Real

Whatever else it is, Giorgio Agamben’s philosophy is anti-authoritarian and anti-totalitarianism.  Slavoj Žižek draws from Agamben to round out Welcome to the Desert of the Real.  Specifically, Žižek draws from Agamben’s theories about homo sacer and “the state of exception,” the latter of which Agamben borrows from the German jurisprudent Carl Schmitt.  In his book Homo Sacer, Agamben adopts Pompeius Festus’ definition of homo sacer as “the one whom the people have judged on account of a crime,” and the one who cannot be sacrificed, but can be killed without legal consequence.[1]

Agamben suggests that homo sacer is bound up with notions of sovereignty.  Sovereignty is determined by what is included and what is excluded from the jurisdiction of a sovereign.  Although a sovereign has the power to suspend the validity of law and, therefore, to stand outside the law, the sovereign may lose that privilege and become the sacred man who no longer has rights granted and secured by the polis, and who may be killed, but not sacrificed.  According to this paradigm, the sovereign is a man—a king or a monarch—who embodies statehood and sovereignty.  The body of this man is itself the site of law so long as the man remains the sovereign; as soon as the man is no longer sovereign, his body ceases to be the site of the law.

Žižek seems less concerned with the idea of sovereignty implicated by the term homo sacer.  He focuses, instead, on the “outsider,” “fugitive,” or “noncitizen” aspect of homo sacer.  He defines today’s homo sacer as “the privileged object of humanitarian biopolitics: the one who is deprived of his or her full humanity being taken care of in a very patronizing way.”  Žižek’s examples of today’s homo sacer include John Walker, the American who fought with the Taliban; the sans papers in France; the inhabitants of the favelas in Brazil; people in the African-American ghettos in the United States; an American war plane flying above Afghanistan; and others.  None of these examples describes groups or persons who once enjoyed the power of a sovereign.  All of these groups or persons have in common an ambiguous status in relation to the law of the polis.

Žižek shares with Agamben the notion that homo sacer is, or can be, the embodiment of the state of exception: the one who is excluded from the polis, who neither makes laws nor enjoys the protection of laws.  By sidestepping Agamben’s proposition that the sovereign body is the constitution of sovereignty—a move that might have to do with Žižek’s criticism of Agamben as wedded to the dialectics of the Enlightenment and to Foucault’s disciplinary power or biopower—Žižek is able to raise profound and troubling questions about the status of every one of us regarding homo sacer.  He asks, for instance, “What if the true problem is not the fragile status of the excluded but, rather, the fact that, on the most elementary level, we are all ‘excluded’ in the sense that our most elementary, ‘zero’ position is that of an object of biopolitics, and that possible political and citizenship rights are given to us as a secondary gesture, in accordance with biopolitical strategic considerations?”  Žižek does not answer this question, but the answer, disturbing as it is, seems implied in the question.

[1] Giorgio Agamben.  Homo Sacer: Sovereign Power and Bare Life.  Stanford University Press, 1995.  Pg. 71.

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Cornel West’s Genealogical Approach

In Arts & Letters, History, Humanities, Literary Theory & Criticism, Philosophy, Politics, Western Philosophy on February 27, 2013 at 8:45 am

Allen Mendenhall

“My genealogical approach subscribes to a conception of power that is neither simply based on individual subjects—e.g., heroes or great personages as in traditional historiography—nor on collective subjects—e.g., groups, elites, or classes as in revisionist and vulgar Marxist historiography.  Therefore, I do not believe that the emergence of the idea of white supremacy in the modern West can be fully accounted for in terms of the psychological needs of white individuals and groups or the political and economic interests of a ruling class.” 

                             —Cornel West, “A Genealogy of Modern Racism”

Cornel West expressly borrows from Nietzsche and Foucault when he employs the methodology of genealogy.  Genealogy documents or tracks the development of ideas and their relation to human organization.  Genealogy traces knowledge to its systemic formations across networks of discourse.  Genealogy does not recover origins because origins are not recoverable.  Instead of recovering origins, or attempting to recover origins, genealogy describes the emergence and development of social structures and attitudes based on certain conditions for knowledge construction.  Genealogy is not about using history to legislate to the present or to validate contemporary attitudes and viewpoints.  It is about analyzing ways that attitudes and viewpoints arise and function.  It is about how systems of belief inscribe and imprint themselves on the human body, and how discourse bears a direct relation to individuals and their regulation by society.  Genealogy is not prescriptive; it is descriptive.  Rejecting a telos, it seeks to understand the function and not the merits of discourse formation.

West’s genealogy focuses on the emergence of white supremacy in Western discourse.  Because genealogy is not teleological, West rejects Marxism and its variants as starting-points for explaining “the complex configuration of metaphors, notions, categories, and norms which produces and promotes [objects] of discourse.”  The tendency of Marxism toward essentialism, class dualism, human reductionism, and grand narratives simply will not do for West, who indicts “[t]raditional, revisionist, and vulgar Marxist types of historiography” for focusing “primarily on powers within nondiscursive structures” (such as powers of “kings, presidents, elites, or classes”) and for reducing the “powers within discursive structures to mere means for achieving the intentions, aims, needs, interests, and objectives of subjects in nondiscursive structures.”  In short, West indicts Marxism and its variants for simplifying social and cultural phenomena that are highly complex.

To some extent, moreover, Marxism diminishes the importance of language and rhetoric to the actions of individuals, whose motivations are contingent upon the time or circumstance in which they were produced.  Although humans are acting agents with the capacity to follow their will, they are also limited by the vocabularies and knowledge available to them.  This conception of limitation on human agency does not correspond with the Marxist conception of limitation on human agency.  The Marxist conception of limitation on human agency has to do with the reduction of individual action to some collectivist cause or linear narrative determined by class.  Rather than coming into being because groups of people desired power and suppressed or marginalized their class competition, the discourse of white supremacy emerged because of several historical and discursive accidents.  Even those eighteenth and nineteenth century writers who were antislavery unwittingly contributed to and perpetuated the discourse of white supremacy by classifying human bodies in keeping with scientific schema.  For these reasons, among others, West suggests that Marxism and its variants wrongly deny “the relative autonomy of the powers in discursive structures” and hence reduce “the complexity of cultural phenomena.”

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Glory and Indignity

In America, American History, Arts & Letters, Book Reviews, Books, Conservatism, Historicism, History, Humanities, Politics, Southern History, The South on February 20, 2013 at 8:45 am

Allen Mendenhall

The following review first appeared here at The University Bookman.

John Randolph of Roanoke
by David Johnson.
Baton Rouge: Louisiana State University Press, 2012

“I am an aristocrat. I love liberty, I hate equality.” Thus spoke John Randolph of Roanoke (1773–1833), one of the most curious, animated figures ever to grace American soil. That David Johnson’s biography of Randolph is the first of its kind since Russell Kirk published John Randolph of Roanoke in 1951 suggests how deteriorated American memory and education have become. Randolph ought to be studied by all American schoolchildren, if not for his politics then for the vital role he played in shaping the nation’s polity. Dr. Kirk declared that in writing about Randolph, he was summoning him from the shades. If so, Johnson has gone a step farther and brought Randolph into the sunshine to reveal just how spectacular a man he really was.

Kirk’s biography of Randolph was in fact his first book. Kirk dubbed the colorful Virginian a “genius,” “the prophet of Southern nationalism,” and the “architect of Southern conservatism.” In The Conservative Mind, Kirk treats Randolph as a necessary link between George Mason and John C. Calhoun and proclaims that Randolph should be remembered for “the quality of his imagination.” Randolph enabled the proliferation and preservation of the conservative tradition in America. He became an icon for decentralization and localism.

Why would a scandalous, sickly, go-it-alone, riotous rabble-rouser appeal to the mild-mannered Dr. Kirk? The answer, in short, is that Randolph was as conservative a politician as America has ever produced, and he was, despite himself, a gentleman and a scholar. Eccentric though he appeared and often acted, Randolph celebrated and defended tradition, championed small government and agrarianism, sacrificed careerism and opportunism for unwavering standards, professed self-reliance and individualism, took pains to preserve the rights of the states against the federal government, delighted in aristocratic tastes and manners, read voraciously the great works of Western civilization, cultivated the image of a statesman even as he attended to the wants and needs of his yeomen constituents, discoursed on weighty topics with wit and vigor, and adhered to firm principles rather than to partisan pandering. Admired by many, friend to few, he made a prominent display of his wild personality and unconditional love for liberty, and he devoted himself, sometimes at great cost, to the ideals of the American Revolution, which had, he claimed, marked him since childhood.

Remembered chiefly (and, in the minds of some progressives, unfortunately) for his contributions to states’ rights doctrines and to the judicial hermeneutics of strict constructionism, Randolph was responsible for so much more. The son of a wealthy planter who died too young, Randolph became the stepson of St. George Tucker, a prominent lawyer who taught at the College of William and Mary and served as a judge on the Virginia General District Court and, eventually, on the Virginia Court of Appeals, the United States District Court for the District of Virginia, and the United States District Court for the Eastern District of Virginia. A cousin to Thomas Jefferson, Randolph studied under George Wythe and his cousin Edmond Randolph. A boy who was forced to flee his home from the army of Benedict Arnold, Randolph later played hooky from college to watch the orations of Fisher Ames, the stout Federalist from New York, and Madison. He served in the U.S. House of Representatives as well as the U.S. Senate, and was, for a brief time, Minister to Russia. A supporter of Jefferson before he became Jefferson’s tireless adversary, he criticized such individuals as Patrick Henry, Washington, Madison, Monroe, John Adams, Henry Clay, and Daniel Webster. He was sickened by the Yazoo Land Scandal, opposed the War of 1812 in addition to the Missouri Compromise, and promoted nullification.

Many conservatives, Kirk among them, have tended to overlook the more unpalatable aspects of Randolph’s life, whether personal or political. For instance, Randolph was, more than Jefferson, enthralled by the French Revolution and supportive of its cause. He manufactured a French accent, used a French calendar, and called his friends “Citizens.” In his twenties, he referred to himself as a deist “and by consequence an atheist,” and he acquired, in his own words, “a prejudice in favor of Mahomedanism,” going so far as to proclaim that he “rejoiced in all its [Islam’s] triumphs over the cross.” One might excuse these infelicities as symptoms of youthful indiscretion and impetuosity, but they do give one pause.

Not for lack of trying, Randolph could not grow a beard, and although he spoke well, his voice was, by most accounts, awkward, piping, off-putting, and high-pitched. His critics have painted him as a villain of the likes of Shakespeare’s Richard III: resentful, obstinate, loudmouthed, and as deformed in the mind as he was in the body. Yet Randolph cannot be made into a monster. More than others of his station in that time and place, Randolph was sensitive to the problems of slavery, which had only intensified rather than diminished since the Founding. He freed his slaves in his will, granted them landholdings in Ohio, and provided for their heirs. Slavery was incompatible with liberty, and Randolph, despite being a product of his time, appears to have worried much about the paradox of a nation conceived in liberty but protective of institutional bondage. Randolph asserted, in some way or another, over and over again, that his politics were based on a presumption of liberty, which was (and is) the opposite of slavery and governmental tyranny. Read the rest of this entry »

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Žižek’s Real Desert

In America, Arts & Letters, Book Reviews, Books, Humanities, Literary Theory & Criticism, Philosophy, Politics, Postmodernism, Western Civilization, Western Philosophy on February 13, 2013 at 8:45 am

Allen Mendenhall

In short, America should learn humbly to accept its own vulnerability as part of this world, enacting the punishment of those responsible as a sad duty, not as an exhilarating retaliation—what we are getting instead is the forceful reassertion of the exceptional role of the USA as a global policeman, as if what causes resentment against the USA is not its excess of power, but its lack of it. 

                             —Slavoj Žižek, Welcome to the Desert of the Real

Žižek does not overload his writing with normative statements.  Here, however, he clearly puts forth an “ought.”  He recommends that America accept its vulnerability.  What is not said in this sentence, but what is abundantly clear throughout the second chapter of Welcome to the Desert of the Real, is that accepting vulnerability represents, for Žižek, an alternate way between “the dialectical category of totality.”

Against the prevailing rhetoric that deludes Americans and other Western peoples into thinking that they have two choices—between “Them” or “Us,” “Capitalism” or “The Other,” “Inside” or “Outside,” “First World” or “Third World”—Žižek attempts more than merely to reveal a third-way between competing totalities.  He seeks instead to interrogate the competing totalities and to show how they are narrativized to mask the symptoms of our own desires.  He demonstrates that “We” have constructed our own fundamentalisms that oppose—yet mirror—the fundamentalisms of “The Other.”  There is an evil to both sides of whatever lies beneath constructed dualities; only by searching for that evil can we place 9/11 in its proper context.  The totalities of “Them” versus “Us,” for example, can be redefined such that Bush and Bin Laden “are both ‘Them’ against Us.”  The point of this recasting is to suggest that 9/11 and its aftermath do not represent grand moral narratives leading inexorably to a clear choice: for or against terrorism.  Rather, 9/11 and its aftermath are what upset America’s perception of itself as “an island exempt from this kind of violence, witnessing it only from the safe distance of the TV screen.”  9/11 was a wake-up to reality, not to morality.

For this reason, 9/11 and its aftermath ought to blur any simple claims to moral superiority as well as any ideological interpretation of the deaths of the victims.  9/11 did not bring about ethical or ideological clarity.  “Far from offering a case apropos of which we can adopt a clear ethical stance,” Žižek asserts, “we encounter here the limit of moral reasoning: from the moral standpoint, the victims are innocent, the act was an abominable crime.”

But few people are innocent, at least if innocence means completely removed from any system that is complicit in the rise of violence and extremism; nearly everyone is implicated in some system or another that contributed (and contributes) to the rise of fundamentalism.  To construct a crude “good guy” versus “bad guy” narrative is to create a false abstraction that validates the very behavior that generated the hostility motivating the crimes to begin with.  To construct that narrative is to placate personal guilt and to shield “Us” from identification with “The Problem.”

Because of these arguments, Welcome to the Desert of the Real disrupts the apparent unity of the dialectical categories that Americans and other Western peoples accept uncritically.  It challenges the images and stories that seem to have as their goal the legitimation of violence.  Whatever one thinks of Žižek—I am, for the record, not a fan—his arguments in this book deserve careful consideration.

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The Enduring Importance of Justice Holmes: A Brief Note

In America, American History, Arts & Letters, Conservatism, History, Humanities, Jurisprudence, Law, Liberalism, Oliver Wendell Holmes Jr., Philosophy, Politics, Pragmatism on December 19, 2012 at 9:00 am

Allen Mendenhall

There is an argument to be made that Oliver Wendell Holmes Jr. matters more today than he did in his own lifetime, even if he is, with a few exceptions, less understood.  He continues to be the most cited Supreme Court justice in United States history, and his pithy phrases, hard-hitting prose, and axiomatic opinions and dissents continue to obtain as law; even when they do not obtain as law, they almost always remain valid candidates for becoming law.

Holmes wrote his ambitious tome The Common Law to outline the history of the development of Anglo-American jurisprudence as it played out in the complex interactions among people down through the centuries.  In so doing, he showed that law is a meliorative process of applying and organizing—with mixed purposes and results—general principles in different ages.  Holmes’s attention to precedent as both a corrective heuristic and a systematic hermeneutic grounded in case patterns and practices demonstrates how common law systems work.  In recent Supreme Court cases, justices on both the putative “left” and “right” wing of the court have cited Holmes to authorize certain viewpoints, and Holmes’s writings are recycled so often by judges that they appear to have been central to ensuring the validity and viability of the very organism—the common law—that they sought to improve and describe.

Holmes was, and is, known for his deference to local legislatures; he did not think that unelected judges should be able to impose their viewpoints upon distinct, regional cultures and communities.  He resisted sprawling interpretations of words and principles, even if his hermeneutics brought about consequences he did not like.  He was open about his willingness to decide cases against his own interests.  As he wrote to his cousin John T. Morse, “It has given me great pleasure to sustain the Constitutionality of laws that I believe to be as bad as possible, because I thereby helped to mark the difference between what I would forbid and what the Constitution permits.”

Louis Menand, in The Metaphysical Club, asserts that “one thing that can be said with certainty about Holmes as a judge is that he almost never cared, in the cases he decided, about outcomes,” because he was “utterly, sometimes fantastically, indifferent to the real-world effects of his decisions.”  In other words, Holmes did not reach his decisions because they would produce results that he could applaud; he reached them because he thought they were conclusions he had to arrive at in light of facts, circumstances, precedents, and rules.  A common mistake is to take Holmes’s deference to the mores and traditions of states and localities as evidence of his shared belief in those mores and traditions.  For instance, David Bernstein’s Rehabilitating Lochner (University of Chicago Press, 2011) tickets Holmes’s dissent in Lochner v. New York as a denunciation of business interests, but that was not the case.  Holmes did not have to agree with states and localities to say that federal judges and Supreme Court justices should not inject their worldview (economic or otherwise) into the life of a community with an opposing worldview.  As Frankfurter said of Holmes, “He has ever been keenly conscious of the delicacy involved in reviewing other men’s judgment not as to its wisdom but as to their right to entertain the reasonableness of its wisdom.”

In this respect, Holmes is a pragmatic pluralist in the manner of William James, and his judicial outlook seems to enact a more political version of James’s religious masterpiece “Varieties of Religious Experience.”  Holmes’s jurisprudence might even be dubbed “Varieties of Political Experience.”  Holmes’s position on judging is analogous to James’s suggestion in “Varieties of Religious Experience” that a person is entitled to believe what he wants so long as the practice of his religious belief is verifiable in experience and does not infringe upon the opportunity of others to exercise their own legitimate religious practices.  James put forth the idea of a “pluralistic universe,” which he envisioned to be, in his words, “more like a federal republic than an empire or a kingdom.”  Holmes likewise contemplated the notion of a federal republic in his opinions and dissents, especially in his deference to the states and their legislatures.  Although countless biographers and historians have noted the relationship between Holmes and James, I have yet to see an article-length treatment of this federalist aspect of their commonalities.

Holmes is often harnessed in the service of some conservative or liberal position—the most polemical on this score is Albert W. Alschuler’s Law Without Values: The Life, Work, and Legacy of Justice Holmes (University of Chicago Press, 2001)—but it is a mistake to treat his writings as an endorsement of the politics they enabled.  The most recent article published on Holmes, “The House that Built Holmes” by Brad Snyder (Vol. 30 of the Law & History Review, 2012), argues that Holmes’s reputation is largely a product of the iconic status to which young progressives elevated him, even though, ironically, Holmes disagreed with their politics.  In fact, Holmes did not support many of the projects that his decisions made possible; nor did he consider his own views unconditionally right; he therefore refused to insert his ideas into places where a faraway, federal judge’s opinion did not belong.  Menand seems to suggest that Holmes’s experiences as a soldier in the 20th Massachusetts, during the Civil War, shaped Holmes’s views about law, particularly with regard to regional particularities and idiosyncrasies.  His entire life, Holmes would couch his catchy rhetoric in the vocabularies of war, and he insisted that certitude, such as it was, could lead only to violence.

Absolute, uncompromising certitude is precisely what Holmes had against natural law jurisprudence.  Holmes saw natural law as an excuse for those who thought their worldview was correct to impose their politics onto others with different ideas.  Holmes defined truth as the system of his own limitations and as whatever it was that he could not help but believe.  Truth, for him, was no grounds for policy; it was simply what one does with what one knows.

In “The Path of the Law,” Holmes put forth the bad man theory or prediction theory of law, which holds that we should not view the law as an abstract statement about morals, but as those consequences which a bad man predicts will obtain if he chooses one course of action instead of another.  The law is, accordingly, a prediction about what will happen if one performs certain acts.  Such informed, calculated guessing—a habit acquired and refined by experience—is the way most of us decide to do one thing or another.  Most of us do not, when we stop at a traffic light, for example, consider the morality of the action we are performing, but instead consider the ramifications of our potential act should we actually carry it out.

That Holmes continues to be such a hotly contested figure, that his writings continue to be cited by judges at all levels, state and federal, suggests that his legacy remains important and that his ideas, however misunderstood, continue to figure the direction of American law and government.

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My Reading List for 2013

In Arts & Letters, Books, Creativity, Fiction, History, Humanities, Law, Literature, Novels, Philosophy, Politics, Western Civilization, Western Philosophy, Writing on December 12, 2012 at 8:45 am

Allen Mendenhall

Editorial Note (April 15, 2013):  At this point in the year, I have already discovered flaws in this list. For instance, I gave myself two weeks to read Augustine’s Confessions and one week to read Aquinas’s Summa Theologica.  I should have done the reverse.  Summa Theologica may have required more than two weeks to read, since I found myself rushing through it, and it is not a book through which one should rush.  My schedule has forced me to speed read some texts in order to avoid taking shortcuts.  Some of the texts on this list will therefore appear on my list for next year, so that they get the treatment and consideration they deserve.

2013 will be a good year for reading.  I’ve made a list of the books I’m going to undertake, and I hope you’ll consider reading along with me.  As you can see, I’ll be enjoying many canonical works of Western Civilization.  Some I’ve read before; some I haven’t.  My goal is to reacquaint myself with the great works I fell in love with years ago and to read some of the great works that I’ve always wanted to read but haven’t.  I wouldn’t go so far as to say that everybody ought to read these works, but I do think that by reading them, a person will gain a fundamental understanding of the essential questions and problems that have faced humans for generations.

Some works are conspicuous in their absence; the list betrays my preferences.  Notably missing are the works of Shakespeare and the canonical texts that make up the Old and New Testament.  There’s a reason for that.  I’ve developed a morning habit of reading the scriptures as well as Shakespeare before I go to work.  If I’m reading these already, there’s no need to add them to the list, which is designed to establish a healthy routine.  What’s more, the list comes with tight deadlines, and I’m inclined to relish rather than rush through the Bible or Shakespeare.

Lists provide order and clarity; we make them to reduce options or enumerate measurable, targeted goals.  Lists rescue us from what has been called the “tyranny of choice.”  Benjamin Franklin made a list of the 13 virtues he wished to live by.  What motivated him is perhaps what’s motivating me: a sense of purpose and direction and edification.

At first I wanted to assign myself a book a week, but realizing that some works are longer or more challenging than others, that as a matter of obligation I will have other books to read and review, that I have a doctoral dissertation to write, that the legal profession is time consuming, and that unforeseen circumstances could arise, I decided that I might need more time than a week per book depending on the complexity of the particular selection or the busyness of the season.  Although I hope to stick to schedule, I own that I might have to permit myself flexibility.  We’ll see.

For variety—and respite—I have chosen to alternate between a pre-20th century text and a 20th century text.  In other words, one week I might read Milton, the next Heidegger.  For the pre-20th century texts, I will advance more or less chronologically; there is no method or sequence for the 20th century texts, which I listed as they came to mind (“oh, I’ve always wanted to read more Oakeshott—I should add him.  And isn’t my knowledge of Proust severely limited?—I’ll add him as well.”).  It’s too early to say what lasting and significant effects these latter texts will have, so I hesitate to number them among the demonstrably great pre-20th century texts, but a general consensus has, I think, established these 20th century texts as at least among the candidates for canonicity.

I have dated some of the texts in the list below.  Not all dates are known with certainty, by me or anyone else.  Some texts were revised multiple times after their initial publication; others were written in installments.  Therefore, I have noted the time span for those works produced over the course of many years.

One would be justified in wondering why I’ve selected these texts over others.  The answer, I suppose, pertains to something Harold Bloom once said: that there are many books but only one lifetime, so why not read the best and most enduring?  I paraphrase because I can’t remember precisely what he said or where he said it, but the point is clear enough: read the most important books before you run out of time.

Making this list, I learned that one can read only so many great works by picking them off one week at a time.  The initial disheartenment I felt at this realization quickly gave way to motivation: if I want to understand the human condition as the most talented and creative of our predecessors understood it, I will have to make a new list every year, and I will have to squeeze in time for additional texts whenever possible.  I am shocked at the number of books that I wanted to include in this list, but that didn’t make it in.  I ran out of weeks.  What a shame.

Here is my list.  I hope you enjoy. Read the rest of this entry »

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The Oft-Ignored Mr. Turton: Part Three

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

Allen Mendenhall

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

From Turton Towards a New Jurisprudence

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

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

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

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

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

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

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

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

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

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

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

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

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The Oft-Ignored Mr. Turton: Part Two

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

Allen Mendenhall

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

The Role of District Collector

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

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

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

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

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

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The Oft-Ignored Mr. Turton: Part One

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

 Allen Mendenhall

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

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

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

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

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

Rule of Law and Utilitarian Jurisprudence

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

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

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

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

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

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

Forster and District Collectors in India

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

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

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

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

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