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

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

Allen Mendenhall

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

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

 The Jurisprudence of John Austin

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

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

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How I Taught Sustainability

In Arts & Letters, Communication, Emerson, Fiction, Humanities, Literature, Nineteenth-Century America, Pedagogy, Rhetoric, Rhetoric & Communication, Teaching, Writing on January 9, 2012 at 1:12 am

Allen Mendenhall

Last spring I learned that I had been assigned to teach a freshman writing course on sustainability.  I don’t know much about sustainability, at least not in the currently popular sense of that term, and for many other reasons I was not thrilled about having to teach this course.  So I decided to put a spin on the subject.  What follows is an abridged version of my syllabus.  I owe more than a little gratitude to John Hasnas for the sections called “The Classroom Experience,” “Present and Prepared Policy,” and “Ground Rules for Discussion.”  He created these policies, and, with a few exceptions, the language from these policies is taken from a syllabus he provided during a workshop at a July 2011 Institute for Humane Studies conference on teaching and pedagogy.

Sustainability and American Communities

What is sustainability?  You have registered for this course about sustainability, so presumably you have some notion of what sustainability means.  The Oxford English Dictionary treats “sustainability” as a derivative of “sustainable,” which is defined as

  1. Capable of being borne or endured; supportable, bearable.
  2. Capable of being upheld or defended; maintainable.
  3. Capable of being maintained at a certain rate or level.

Recently, though, sustainability has become associated with ecology and the environment.  The OED dates this development as beginning in 1980 and trending during the 1990s.  The OED also defines “sustainability” in the ecological context as follows: “Of, relating to, or designating forms of human economic activity and culture that do not lead to environmental degradation, esp. avoiding the long-term depletion of natural resources.”  With this definition in mind, we will examine landmark American authors and texts and discuss their relationship to sustainability.  You will read William Bartram, Thomas Jefferson, Emerson, Thoreau, Hawthorne, Whitman, Mark Twain, and others.  Our readings will address nature, community, place, stewardship, husbandry, and other concepts related to sustainability.  By the end of the course, you will have refined your understanding of sustainability through the study of literary texts. 

Course Objectives

I have designed this course to help you improve your reading, writing, and thinking skills.  In this course, you will learn to write prose for general, academic, and professional audiences.  ENGL 1120 is a writing course, not a lecture course.  Plan to work on your writing every night.  You will have writing assignments every week. Read the rest of this entry »

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2011 in Review

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

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Review of Forensic Fictions by Jay Watson

In Arts & Letters, Book Reviews, Fiction, Georgia, Humanities, Jurisprudence, Justice, Law, Law-and-Literature, Literary Theory & Criticism, Literature, Novels, Rhetoric, Rhetoric & Communication, Southern History, Southern Literary Review, The South, Writing on December 5, 2011 at 10:56 pm

Allen Mendenhall

The following review originally appeared here at the Southern Literary Review.  If you enjoy this review, please consider subscribing to the Southern Literary Review.  I became the managing editor of the Southern Literary Review in November.

 

Kudos to the University of Georgia Press for this recent reprint of Jay Watson’s Forensic Fictions, which has become something of a classic among law-and-literature scholars.  A pioneering project, Forensic Fictions stands as the first critical work to interrogate the lawyer figure in Faulkner’s oeuvre.

Watson submits that law is vast and multidimensional, “at once a deeply normative cultural system, a vehicle of ideology (in its constructive and destructive manifestations), a force of social stability and control, an entrenched and often blindly self-interested institution, and not least of all a human vocation, a form of practice that in some instances achieves the status of a calling.” 

In Faulkner’s fiction, law helps to highlight the complexity, sometimes liberating and sometimes disorienting, of the “everyday” aspects of Southern culture, institutions, and traditions.  Law is more than bills, statutes, judge-made opinions, codes, and the like.  Law isn’t a monolithic animal but a multiplicity of people and institutions; a product of self-serving performances by lawyers, judges, and politicians; and an accumulation of arguments couched in topoi of guilt and innocence, right and wrong, justice and equality.  Law is, simply put, a network of human relations and a collection of stories. 

Watson’s book examines how lawyers and laws constitute and presuppose authority in the microcosm of Yoknapatawpha.  “Lawyers of course advocate by narrating,” Watson explains, “by telling their clients’ stories in the language of the law.”  Lawyers, then, are raconteurs, and laws are products of language, even as they institute language.

Watson suggests that Faulkner internalized the “conspicuous and complicated presence” of real-life lawyers—Dean R.J. Farley, Governor Lee M. Russell, General James Stone, Ben Wasson, Jim Kyle Hudson, and Lucy Somerville Howorth, to name just a few—and then expressed mixed feelings about lawyers and the legal community in his writings.  Although not a lawyer himself, Faulkner could boast of a legal pedigree, having been born into a family and a society overflowing with attorneys.  Faulkner’s multifaceted and often contradictory ideas about law reflect these cultural associations.

Watson uses the term “forensic fictions” to refer to Faulkner’s depictions “of the legal vocation and the practice of law, a practice that extends from the official space of the courtroom and the professional space of the law office to the farthest reaches of the community.”  Thus conceived, law is not only a communicative vehicle but also a way of life, as mundane as it is exciting. 

Watson works out of the paradigms of forensic discourse.  He treats law as a theater of differences and disparate perspectives and as a vast system of interrelated parts.  An “important subtext” for Faulkner’s forensic fictions, according to Watson, “is the conviction that the values and concerns of the storyteller can and must carry over from a limited, private, aesthetic realm into a public world outside, where verbal creations can reinforce, challenge, or otherwise inform social norms.”

Three novels—Intruder in the Dust, Knight’s Gambit, and Requiem for a Nun—make up what Watson dubs Faulkner’s “forensic trilogy.”  These novels portray the lawyer as citizen-spokesperson, able to appropriate the public sphere as a space for social celebration or critique. Read the rest of this entry »

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Teaching Style

In Arts & Letters, Communication, Pedagogy, Rhetoric, Rhetoric & Communication, Teaching, Writing on November 16, 2011 at 10:13 am

Allen Mendenhall

In his essay “Teaching Style: A Possible Anatomy,” Winston Weathers mentions a “definite exercise system” whereby students learn to mimic stylistic writing models.  This exercise recalls writing emulation activities that were popular in late 19th and early 20th century America.  Recently, I have conducted some “emulation exercises” in my classes. 

I had students compare Natalia Ginsburg’s “He and I” with the draft of an essay by Michael Blumenthal (whom I met during law school and who was kind enough to show my students what a professional writer’s “rough” draft looks like).  Then the students undertook an exercise.  They picked out their favorite sentences, which were mostly the sentences they thought were the most “stylistic.”  The students wrote these sentences on the board.  They erased all the words in the sentence so that only punctuation remained.  Finally, they inserted their own words where the authors’ had been, maintaining the integrity of the sentence structure (i.e., the punctuation) but conveying an entirely different message.  After doing this with several sentences, my students, some of them at least, began to see how professional authors use colons, dashes, and semi-colons.  They began to see how professional authors use different styles.  I believe they also learned ways to experiment with syntax. 

To employ Weathers’s wording, I hope the students learned “(1) how to recognize stylistic material, (2) how to transfer this stylistic material and make it a part of compositional technique, (3) how to combine stylistic materials into particular stylistic modes, and (4) how to adapt particular stylistic modes to particular rhetorical situations” (369).  I’m not sure my exercise provided much guidance as to # 4, but it seemed to teach the lessons of # 1, # 2, and # 3. 

Since I gave this exercise, I’ve noticed one sign of improvement among my students:  they have become better readers.  They know, for instance, what style they like.  Some students preferred Ginsburg’s style to Blumenthal’s, and vice versa.  At first, they weren’t sure why, but after the exercise, they slowly gained a sense of why they liked one more than the other.  One student claimed that Ginsburg’s piece was a faster read because it had fewer commas.  This student preferred short, matter-of-fact sentences with a quick rhythm.  I don’t think he realized this preference until he did the exercise.  I later gave this student a Hemingway passage and asked, “Is this the style you like?”  The student said that, indeed, this was the style he liked, and also that he was afraid that my reading assignments were encouraging students to write sentences in a New Yorker style: long, meandering, and comma-heavy.  This last comment was interesting on many levels.

Writing instructors ought to teach or at least encourage style. 

Style is important; style can be cultivated.

 

For further reading, see Winston Weathers, “Teaching Style: A Possible Anatomy,” in The Writing Teacher’s Sourcebook, Fourth Edition.  Edited by Edward P. J. Corbett, Nancy Meyers and Gary Tate (Oxford University Press, 1999).

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Habermas for Law Professors

In Art, Arts & Letters, Communication, Creativity, Essays, Ethics, Habermas, Humanities, Information Design, Jurisprudence, Law, Law-and-Literature, Legal Education & Pedagogy, Legal Research & Writing, Literary Theory & Criticism, Literature, Pedagogy, Philosophy, Politics, Pragmatism, Rhetoric, Rhetoric & Communication, Teaching, Western Civilization, Western Philosophy, Writing on November 4, 2011 at 3:12 pm

Allen Mendenhall

This post is an adaptation of this printable, PDF document. 

This post is intended to assist law professors who wish to incorporate critical theory (in general) and Habermas (in particular) into their teaching.  This post addresses just one essay by Habermas that is representative of his thought.  It does not address other important areas of Habermasian theory such as the “public sphere” (a concept that the essay nevertheless implicates). 

This post should provide some basic insights into Habermas that could be incorporated into a law school classroom.  Contracts in particular would benefit from Habermasian analyses, which could just as constructively be applied to torts, evidence, constitutional law, or any course dealing with litigation and the courtroom.  This post provides basic information.  It does not tell law professors how to use the information.  The use will require creativity. 

 

Fundamental to the paradigm of mutual understanding is … the performative attitude of participants in interaction, who coordinate their plans for action by coming to an understanding about something in the world.  When ego carries out a speech act and alter takes up a position with regard to it, the two parties enter into an interpersonal relationship.  The latter is structured by the system of reciprocally interlocked perspectives among speakers, hearers, and non-participants who happen to be present at the time. 

        —Jürgen Habermas, “An Alternative Way Out of the Philosophy of the Subject”[1]

In a way, “An Alternative Way Out of the Philosophy of the Subject” is a response to Foucault’s theories of subjectivity that treat subjects as produced by forces of power.  Habermas seems to consider Foucault’s theories as so preoccupied with knowledge formation and structural preconditions for knowledge formation that they (the theories) become pseudoscience abstracted from practical realities.  A Foucaultian paradigm centers on subjectivity trained by mechanical forces whereas a Habermasian paradigm explores communicative reason in the context of discourse enabled by the ideations of individual subjects articulating their positions to one another in mutually intelligible utterances.       

Contra Foucault, Habermas submits that reason—articulated, assimilated, and mediated by language—must be understood as social.  For social interaction to be meaningful, its interlocutors must believe that their articulations are objectively “true” or sincere (I place “true” in quotations because the “pragmatically expanded theory of meaning overcomes [the] fixation on the fact-mirroring function of language”).  Speech must be governed by points of common understanding.  These points are reached when “ego carries out a speech act and alter takes up a position with regard to it.”  Ego, here, refers to a person’s conscious awareness that is capable of being conveyed in speech.  “Alter” does not refer to alter ego, but to some agent outside the subjective world of cognition, intention, and belief.  This “alter” is part of the external or objective world to which the ego can articulate feelings or thoughts, provided that ego and alter have in common a familiar discursive space (a lifeworld) for their subjective expressions.  By this reading, alter has an ego, and ego can be an alter.  The terms simply depend upon which subject is articulating his position in a given speech situation; the terms are merely descriptive.  

To claim that we can comprehend events or things in the world is to suggest that we can speak about them.  To speak about events or things in the world is to convey information about them from one party to another using shared vocabularies governed by rules that the parties accept unconditionally. The interpersonal relationship among or between parties, as Habermas suggests, is “structured by the system of reciprocally interlocked perspectives.”  The study of this relationship brings Habermas further away from the Foucaultian paradigms of subjectivity and towards the paradigm of mutual understanding that has come to mark Habermasian thought.  Read the rest of this entry »

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BOOK REVIEW | Autobiography of Mark Twain, Vol. 1: The Complete and Authoritative Edition

In American History, Arts & Letters, Book Reviews, Essays, Fiction, History, Humanities, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Nineteenth-Century America, Novels, Politics, Rhetoric, Western Civilization, Writing on November 1, 2011 at 9:26 am

Allen Mendenhall

The following post originally appeared here at Prometheus Unbound: A Libertarian Review of Fiction and Literature.

Good things come to those who wait, the old adage goes, and the world has waited a century for Mark Twain’s autobiography, which, in Twain’s words, is a “complete and purposed jumble.”

This 760 page jumble is a good thing. And well worth the wait.

Twain, or Samuel L. Clemens, compiled this autobiography over the course of 35 years. The manuscript began in fits and starts. Twain, while establishing his legacy as a beloved humorist and man of letters, dashed off brief episodes here and there, assigning chapter numbers to some and simply shelving others. In 1906, he began making efforts to turn these cobbled-together passages into a coherent narrative. He met daily with a stenographer to dictate various reflections and then to compile them into a single, albeit muddled, document. The result was a 5,000 page, unedited stack of papers that, per Twain’s strict handwritten instructions, could not be published until 100 years after his death.

To say that we’ve waited a century to view this manuscript is only partially accurate because pieces of the manuscript appeared in 1924, 1940, and 1959. But this edition, handsomely bound by the University of California Press, and edited by Harriet Elinor Smith and others of the Mark Twain Project, is the first full, printed compilation of the autobiographical dictations and extracts. The editors, noting that “the goal of the present edition [is] to publish the complete text as nearly as possible in the way Mark Twain intended it to be published before his death,” explain that “no text of the Autobiography so far published is even remotely complete, much less completely authorial.” The contents of this much-awaited beast of a book, then, are virtually priceless; no doubt many of Twain’s previously unread or unconsidered passages will become part of the American literary canon.

Stark photographs of the manuscript drafts and of Twain and his subjects — including family members and residences — accompany this fragmentary work. The lively and at times comical prose is in keeping with the rambling style of this rambling man whom readers have come to know and appreciate for generations.  Read the rest of this entry »

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The Emersonian Oliver Wendell Holmes Jr.

In American History, Art, Arts & Letters, Emerson, History, Humanities, Jurisprudence, Law, Law-and-Literature, Literary Theory & Criticism, Literature, Nineteenth-Century America, Oliver Wendell Holmes Jr., Philosophy, Poetry, Pragmatism, Rhetoric, The Supreme Court, Western Civilization, Western Philosophy, Writing on October 26, 2011 at 9:16 am

Allen Mendenhall

Writers on Holmes have forgotten just how influential poetry and literature were to him, and how powerfully literary his Supreme Court dissents really are.  The son of the illustrious poet by the same name, young Holmes, or Wendell, fell in love with the heroic tales of Sir Walter Scott, and the “enthusiasm with which Holmes in boyhood lost himself in the world of Walter Scott did not diminish in maturity.”[1]  Wendell was able to marry his skepticism with his romanticism, and this marriage, however improbable, illuminated his appreciation for ideas past and present, old and new.  “His aesthetic judgment,” says Mark DeWolfe Howe, author of the most definitive biography of Holmes and one of Holmes’s former law clerks, “was responsive to older modes of expression and earlier moods of feeling than those which were dominant at the fin de siècle and later, yet his mind found its principle nourishment in the thought of his own times, and was generally impatient of those who believe that yesterday’s insight is adequate for the needs of today.”[2]  Holmes transformed and adapted the ideas of his predecessors while transforming and adapting—one might say troping—milestone antecedents of aestheticism, most notably the works of Emerson.  “[I]t is clear,” says Louis Menand, “that Holmes had adopted Emerson as his special inspiration.”[3]      

Classically educated at the best schools, Wendell was subject to his father’s elaborate discussions of aesthetics, which reinforced the “canons of taste with the heavier artillery of morals.”[4]  In addition to Scott, Wendell enjoyed reading Sylvanus Cobb, Charles Lamb’s Dramatic Poets, The Prometheus of Aeschylus,[5] and Plato’s Dialogues.[6]  Wendell expressed a lifelong interest in art, and his drawings as a young man exhibit a “considerable talent.”[7]  He declared in his Address to the Harvard Alumni Association Class of 1861 that life “is painting a picture, not doing a sum.”[8]  He would later use art to clarify his philosophy to a friend: “But all the use of life is in specific solutions—which cannot be reached through generalities any more than a picture can be painted by knowing some rules of method.  They are reached by insight, tact and specific knowledge.”[9]     

At Harvard College, Wendell began to apply his facility with language to oft-discussed publications in and around Cambridge.  In 1858, the same year that Dr. Oliver Wendell Holmes Sr. gifted five volumes of Emerson to Wendell,[10] Wendell published an essay called “Books” in the Harvard undergraduate literary journal.[11]  Wendell celebrated Emerson in the piece, saying that Emerson had “set him on fire.”  Menand calls this essay “an Emersonian tribute to Emerson.”[12] 

Holmes had always admired Emerson.  Legend has it that, when still a boy, Holmes ran into Emerson on the street and said, in no uncertain terms, “If I do anything, I shall owe a great deal to you.”  Holmes was more right than he probably knew. 

Holmes, who never gave himself over to ontological (or deontological) ideas about law as an existent, material, absolute, or discoverable phenomenon, bloomed and blossomed out of Emersonian thought, which sought to “unsettle all things”[13] and which offered a poetics of transition that was “not a set of ideas or concepts but rather a general attitude toward ideas and concepts.”[14]  Transition is not the same thing as transformation.  Transition signifies a move between two clear states whereas transformation covers a broader and more fluent way of thinking about change.  Holmes, although transitional, was also transformational.  He revised American jurisprudence until it became something it previously was not.  Feeding Holmes’s appetite for change was “dissatisfaction with all definite, definitive formulations, be they concepts, metaphors, or larger formal structures.”[15]  This dissatisfaction would seem to entail a rejection of truth, but Emerson and Holmes, unlike Rorty and the neopragmatists much later, did not explode “truth” as a meaningful category of discourse.  Read the rest of this entry »

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Teaching Audience

In Arts & Letters, Communication, Pedagogy, Rhetoric, Rhetoric & Communication, Teaching, Writing on October 21, 2011 at 12:04 pm

Allen Mendenhall

The following post comes from a journal entry I wrote to myself in the fall of 2010.  The post addresses the importance of audience to writing, and more specifically to the teaching of writing.  Other posts on this site have addressed this topic: see here, here, here, here, and here. 

I’m sitting here at a small wooden desk in my hotel in Destin, Florida, beneath a window that overlooks crowded parking lots, ivy-lined tennis courts, swaying palm trees, and beyond all these, white sand and an emerald-blue ocean.  I haven’t shaved all weekend.  I’m slightly sunburned.  I feel refreshed, except that Giuliana keeps insisting I get a haircut before I head back to Auburn and she to Atlanta.  Instead of walking the beach with her, I’m reading The History of the Kings of Britain and considering what I’ll teach my college freshmen this week. 

I’ve skimmed my syllabus and revisited each underlined phrase and barely legible marginalia from my teaching notes, and now I’m considering a line by Douglas B. Park.  It says, “Locating and discussing the audience for a given piece of prose can be frustrating.” 

Indeed it can.  Just this week I gave my students an assignment that I hoped would teach a thing or two about audience.  I handed out two pieces of paper on which I had copied and pasted three articles about Cancun, Mexico.

I had drawn the first article from the website of a tourist agency, the second from a newspaper, and the third from a literary journal.  I asked my students the same question that Park posed to his students: “Who or what. . . is the audience for this piece?”   

My students replied that tourists—surprise, surprise!—were the targeted audience for article one (perhaps “brochure” is a better term than “article”).  But they couldn’t name the audience for the second and third articles.  They responded with things like “the general public” or “the average reader,” categories so broad as to lack any clear referent.  So I tried, without really knowing what I was doing, asking something like Park’s next question: “How does audience manifest itself to writers writing?”   

I think I put the question more simply: “What’s the point of each piece?”

Perhaps stuck on the first brochure, my students answered, “To persuade you to go to Cancun.” 

I was making progress, but not enough. 

“How,” I asked, “does the article accomplish that?”

One student said, “By bolding words like ‘vacation,’ ‘beach,’ and ‘fun.’”

“What could make this article more effective?” I said.

One student, in so many words, said, “More adjectives.  Some pictures.  Maybe a story or two.” 

The students seemed to “get” article one.  But articles two and three were harder to pin down.  When I repeated my question—“Who is the audience for this piece?”—the students said something like “smart people.” 

Not until this weekend did I realize why my exercise failed.  The failure had something to do with Park’s claim that in the “case of unstructured situations where we would call the audience ‘general,’ where no simple, concrete identifications of audience are possible, the whole concept [of audience] becomes much more elusive.”

Articles two and three were elusive.  Or maybe my exercise for articles two and three was elusive because it created an unstructured situation. 

What documents could I have used to show how different kinds of writings signal different audiences? 

One problem with my activity was that even I couldn’t determine the intended audience for articles two and three.  Presumably there were several audiences.  The point of advertising, after all, is to appeal to as many audiences as possible.     

To satisfy my students, I lumped together articles two and three and said something like, “Now you see how a persuasive piece is different from leisure reading or newspaper reading.” 

That was that.  My activity failed.  I learned, however, about what Park calls the “elusiveness of audience in written discourse.”  I learned that I needed a better exercise to show my students how to anticipate their audiences.  Read the rest of this entry »

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Lyotard’s “Differend” and Torts

In Arts & Letters, History, Humanities, Jurisprudence, Law, Law-and-Literature, Legal Education & Pedagogy, Libertarianism, Literary Theory & Criticism, Philosophy, Politics, Rhetoric, Rhetoric & Communication, Western Civilization, Western Philosophy on October 13, 2011 at 12:53 pm

Allen Mendenhall

 

“I would like to call a differend [différend] the case where the plaintiff is divested of the means to argue and becomes for that reason a victim.  If the addressor, the addressee, and the sense of the testimony are neutralized, everything takes place as if there were no damages (No. 9).  A case of differend between two parties takes place when the ‘regulation’ of the conflict that opposes them is done in the idiom of one of the parties while the wrong suffered by the other is not signified in that idiom.”

                             —Jean-François Lyotard, from “The Differend”

Lyotard’s term “differend” does not refer to a concrete, tangible thing; it refers to a situation.  The situation is one where a plaintiff has lost the ability to state his case, or has had that ability taken from him.  He is therefore a victim.  If the plaintiff has no voice, he has no remedies because he cannot prove damages.  Just as one cannot prove something happened if the proof no longer exists, so one cannot prove something happened if the proof depends upon the approval of another person or party denying or erasing the proof, or having the power to deny or erase the proof.  Lyotard describes this situation in relation to power or authority.  Because of the nature and function of power or authority, a person or group possessing power or authority can divest the plaintiff of a voice.  This divestiture results in what Lyotard calls a “double bind” whereby the referent (“that about which one speaks”) is made invisible.  A plaintiff who is wronged by the power or authority cannot attain justice if he has to bring his case before the same power or authority.  As Lyotard explains, “It is in the nature of a victim not to be able to prove that one has been done a wrong.  A plaintiff is someone who has incurred damages and who disposes of the means to prove it.  One becomes a victim if one loses these means.  One loses them, for example, if the author of the damages turns out directly or indirectly to be one’s judge.”  Specifically, Lyotard uses the differend to describe the situation where victims of the Nazi gas chambers lack the voice to articulate their case in terms of proof because, among other things, the reality or referent is so traumatizing and tragic as to be ineffable. 

If Entity A harms me in some way, and Entity A also represents the arbiter or judge before whom I must appeal for justice, Entity A can (and probably will) neutralize my testimony.  That is why a State may tax its citizens.  In effect, a State has the power or authority to do something—take a person’s earnings against his will and punish or threaten to punish him, by force if necessary, when he fails or refuses to yield his earnings—that a private person or party cannot do.  When a private party demands money from a person, and threatens to use force against that person if he does not yield the money, the private party has committed theft.  The difference between theft (an unauthorized taking by one who intends to deprive the other of some property) and taxation (an authorized taking by an institution that intends to deprive the other of some property) is the capacity or ability to sanction.  The difference depends upon who controls the language: who has the power to privilege one form of signification over another and thus to define, determine, or obliterate the referent. 

“Sanction” is a double-edged term: it can mean either to approve or to punish.  Both significations apply to the State, which, in Lyotard’s words, “holds the monopoly on procedures for the establishment of reality.”  (Note: Lyotard is not referring to any State, but to the “learned State,” a term he borrows from François Châtelet.)  Sanction is implicated when a party is harmed, or alleges to have been harmed, whether by the State or by a private party.  The State then resolves whether the harm, or the act causing the harm, is “sanctionable”—whether, that is, it receives State approval or condemnation.  The State either validates [sanctions] the alleged harm (in which case the alleged harm officially is not a harm), or it condemns the alleged harm (in which case the alleged “harm” is officially constituted as a “harm”) and then punishes [sanctions] the one who caused the harm.  In any case, the State sanctions; it enjoys the power to decide what the referent ought or ought not to be.  Read the rest of this entry »