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Posts Tagged ‘jurisprudence’

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“Illegal Litigation”: Excerpt from “I am the Raleigh,” by F. L. Light

In Arts & Letters, Britain, British Literature, Creative Writing, History, Humanities, Poetry, Writing on March 2, 2016 at 8:45 am

Fred Light

A Shakespearean proficiency in meter and rhetoric may to F L Light be ascribed. Nearly forty of his dramas are now available on Amazon, and twenty have been produced for Audible. His Gouldium is a series of twenty four dramas on the life and times of Jay Gould which he followed with six plays on Henry Clay Frick. The whole first book of his translation of The Iliad was published serially in Sonnetto Poesia. He has also appeared in Classical Outlook and The Raintown Review. Most of his thirty five books of couplets are on economics, such as Shakespeare Versus Keynes and Upwards to Emptiness the State Expands.

For his defense in this part of the play, Raleigh asserts that two witnesses are required for the charge of treason.

Raleigh:       The primacy in law is presence,
The testifying presence of a man
Where answers and rejoinders in a court
Proceed, procedurally set right in full
Protection of the truth. Not one but two
For treason are required. This case without
Accusers here illicit must become.
Illegal litigation the Attorney
General of England never should allow.
If no premeditated certitude
You mean in court, let my accusers come
Before me. The sheerest hearsay you assert
In court, if now unsifted inferences
Obtain without an oath, with no subscription,
Nothing demonstrable in testified
Exposure of the truth, simply enlarged
Upon a paper imputation by
A desperate man. How should unscrutinized
Reproaches credible remain unless
The Jesuit Inquisition you regard
As just? Were Cobham dead or gone abroad,
No case you’d have. But in this very house,
Winchester Castle, he abides. My lords,
Perpend how over-guessed assumptions are
Not rare in court, and lightless allegations,
Of darkling likelihood, have dazzled lawyers.
Why, Sir John Fortescue, of reverend estimation
As a Chief Justice in this realm, relates
How in his time a judge condemned a wife
At Salisbury for her husband’s death upon
Gratuitous prejudice to peasants or
On the suppositious sophistry of looks
Or likely baseness in the wife, whom one
Accuser had belied. But he that killed
Her husband was discovered after she
Was burned. The judge that had her die then told
Sir John the mordant penance of his mind
Would never pall in conscientious smart
With caustic memories. And you, Sir John
Popham, are too exultant in damnations
To regret my doom.

Popham:                   The damnedest imputations you
Deserve, far prouder to exalt prodition than
All traitors heretofore.

Raleigh:                      By fallible
Ferociousness your wisdom may default.
You’d proudly consummate your preconceptions.
And if you say the statutes I adduced
Before abide no longer in the courts,
Because religious mutability
Required removes, yet faultless equity
Remains in them, not failing reason. Now
Impartial exemplarity you lawyers find
In them, and for the common law they are
Considered sacred. Jurists never doubt
In Deuteronomy that one condemner shall
Not doom for his enormities a man,
But double attestations may suffice
Or triple for attesting treason to
A judge. There’s no dissentient scripture, old
Or new, thereon. Thus by the law of God
No men are immaterial nullities
In court. Untenable disgrace they need
Not suffer from one man.

Popham:                         Sir Walter Raleigh,
No statute you adduced can aid you now.
Those of Edward the Sixth no longer hold,
Too inconvenient for convictions, all
Repealed by Philip and Mary when their fires
Began. As the Chief Justice of this realm,
I know the common law’s commensurate
Extents to measure treason. Here in court
One requisite assertion that attests
To treason is enough. And, should one
Accomplice carry allegations how
The others were conjoined, that proof will hold.
But he that blames himself before he blames
Another cannot be denied in court,
For mouthed authority demonstrable.

Warburton: I muse, Sir Walter, measurably considerate
As you are, how you stretch yourself to stress
This point, for horse-thieves never could be judged
Thereby, requiring witnesses. By law
Upon deduced presumption we condemn
The guilty or on circumstantial presence
Or incidental revelation we
May judge events. Should regicidal gore
Not prove a swordsman guilty who had been
In covert presence with a king? He’d be
Too sanguinary for misjudgment, Sir.
No inquisition requisite therefore!

Raleigh: Yet by the common law, my lord, all trials
Of fact by juries and witnesses proceed.

Popham: No, sir, examination satisfies
The common law. Where traitors have confessed,
Redundant witnesses might not in court
Condemnatory tales unfold.

Raleigh:                                As you
Conceive the law therewith, I cannot grasp
The incongruity unknown to me.

Popham: Nay, Sir, the law is not conceived by us
But known in full.

Raleigh:                My lord, so how so laws
Suffice in process, here I suffer life
Or death thereby. Not with insufferable
Exorbitance should English rigor be
Enforced. At his asserted coronation
King James to nurture equity in England
And not fixed rigor force has sworn. And as
Benignant furtherance he would effect
In law, so should his ministers and judges no
Less happy prove.

Popham:               Procedural monarchy
Provides you equity. But our judicial course
Will be confined to justice.

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Balance and Imbalance in E.M. Forster’s A Passage to India

In Arts & Letters, Books, Britain, British Literature, E.M. Forster, Eastern Civilizaton, Fiction, History, Humanities, Jurisprudence, Law, Law-and-Literature, Literary Theory & Criticism, Literature, Modernism, Western Civilization on November 11, 2015 at 8:45 am

Allen 2

E.M. Forster’s A Passage to India is in many ways about losing balance. Characters like Turton, Fielding, and Mrs. Moore represent centers of gravity, fixed between competing tensions and antagonistic binaries: reason and emotion, Indian and British, human and animal.

Situated between the nested oppositions, Turton, Fielding and Mrs. Moore denote compromised identity, the reconcilability of two cultures; as middle-markers they refuse rigid categorization and maintain symmetry in power relations. Instead of opening channels of communication and understanding, however, their mediating presence has tragic results: Turton goes crazy, Fielding loses hope and Mrs. Moore dies. These characters are necessary as fulcra; but when they align themselves with one binary or leave India altogether, they trouble the balance and stability of society writ large.

In a strictly separatist microcosm, they occupy the geometric center. When their positions shift, equilibrium breaks down: society becomes a mass of madness. The only go-between characters in the novel are English, suggesting that the story is a mirror held up to placate white guilt.

The demise of these characters in particular, and of Anglo-Indian relations generally, turns on the overarching, structural antinomy between reason and emotion that comes to a head during the abortive kangaroo trial. An interrogation of this antinomy and its collapse into muddledom reveals how law and justice in Chandrapore bear a systematic and determinative relation to race and gender.

The above text is adapted from an excerpt of my essay “‘Mass of Madness’: Jurisprudence in E.M. Forster’s A Passage to India,” published in Modernist Cultures, Vol. 6, No. 2 (2011). To view the full essay, you may download it here at SSRN or visit the website of Modernist Cultures.

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The American Founders and Natural Law Jurisprudence

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

Allen 2

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

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

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

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

 

NOTES

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

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

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

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

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

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

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

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

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

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

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

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

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

[xiv] Ibid. at 403-404.

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

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

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

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

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

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

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Review of “Teaching Law and Literature”

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

Allen Mendenhall

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

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

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

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

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

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

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

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

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

In Arts & Letters, Britain, Fiction, Historicism, History, Humanities, Jurisprudence, Justice, Law, Law-and-Literature, Liberalism, Literary Theory & Criticism, Literature, Politics, Western Civilization, Writing on March 13, 2012 at 1:00 am

Allen Mendenhall

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

As the sovereign, or king, was never fixed in Geoffrey’s lifetime, even if the idea of sovereignty was, The History treats law as transcending any particular human sovereign. Geoffrey creates a need for law by portraying it as sovereign, anchored in a classical past and cloaked in religious terms. Austin works as a functional lens through which to view The History’s suggestion that law is necessary to provide shape to the nation-state. Geoffrey’s text signals what Mooers calls the “outgrowth” of twelfth-century legal principles that enabled coercive, nationalist projects and agendas before people could speak of concepts like nation-states. Put another way, Geoffrey was an originator of and a participator in twelfth-century jurisprudence not necessarily a transcriber of an ancient corpus juris.5 This claim is not to reduce Geoffrey’s text to the grade of propaganda but rather to adduce jurisprudence from The History to support a claim that Geoffrey champions legal theory instead of simply documenting it. Because the term “uniform and rational justice” does not admit ready definition, I defer to Mooers’s clarifying focus on the comprehensive systemization of law manufactured by royal writs and other like instruments (341). Uniform and rational justice had to do with the proliferation of court systems whereby centralized authorities could begin to impose and enforce sets of common, consistent rules. The twelfth century was, after all, the age laying the institutional structures of the Anglo common law.6 The common law was the distillation of custom (a claim made by its iconic protagonists such as Bracton, Fortescue, and St. German) and thus was of time immemorial, beyond the memory of man. But the solidification of the common law as a mass system enforceable by a centralized body – the precursor to the modern state – began in the twelfth century. Roman law may have influenced these common, consistent rules and inspired Henry I, Matilda, Henry II, Geoffrey and their contemporaries, but tracing the concept of uniform and rational justice back to pre-Britain is not my aim, for that would entail looking beyond Britain in a way that Geoffrey refuses (or fails) to do. Medieval and early modern common law derived its authority from religion, and medieval jurists claimed unequivocally that common law was derived from God.7

Geoffrey’s first sustained treatment of law and the sovereign and their relationship to uniform and rational justice appears at the end of Brutus’ section. Here, Geoffrey submits that when Brutus built his capital on the River Thames, Brutus not only presented the city “to the citizens by right of inheritance,” but also gave those citizens “a code of laws by which they might live peacefully together” (74). Coming as they do after Brutus’ many battles and conquests, these laws suggest peace and order befitting a civilization prophesied by a goddess: Diana. No sooner is this putative history of a nation professed in terms of law than it is consumed in mythology and institutional legend. That Brutus, the eminent Trojan, would establish this city (“Troia Nova” or “New Troy”) suggests that the British legal system had the proper pedigree, according to Geoffrey and his contemporaries. 

Authored during the reign of Henry II in the late 1180s, roughly half a century after the publication of The History, Ranulf de Glanvill’s landmark legal treatise, The Treatise on the Laws and Customs of the Realm of England Commonly Called Glanvill, is important as it suggests that The History reflects ideas common to the period, showing the workaday application of various strands of jurisprudence. Moreover, like The History, The Treatise anchors law in history and tradition, asserting that the “laws and customs of the realm had their origin in reason and have long prevailed,” and as if to neutralize anxieties about the fact that many of these laws remained unwritten, Glanvill adds that if “merely for lack of writing, they were not deemed to be laws, then surely writing would seem to supply to written laws a force of greater authority than either the justice of him who decrees them or the reason of him who establishes them” (2). The epigram preceding the prologue of Glanvill, apparently affixed to the text after Glanvill’s death, adds to this invocation of history and celebrates Glanvill himself as “the most learned of that time in the law and ancient customs of the realm” (1). Foregrounding custom and tradition seems like a strategy for both Geoffrey and Glanvill as well as other contemporary writers who sought to anticipate objections to law or to mobilize support for legal mechanisms currently in flux (because the monarchy is in flux).     

The History is thus a model for government and for those subject to government. It mythologizes what law can be – derivations of divine prophesy couched in terms of Roman mythology and not Christian truth – and so inspires readers to ensure that law realizes its full potential. From Geoffrey’s attention to Brutus, for instance, readers are supposed to learn that law corresponds with peace and that the king initiates and sanctions law. It is Brutus, after all, who drives away the giants from the caves of Britain into the mountains and who commands the populace to “divide the land among themselves,” “cultivate the fields,” and “build houses” (72). Geoffrey uses Brutus to establish the image of an authoritative king and, more specifically, a glorified body as a site of sanctified authority.8   

Glanvill underscores the centrality of peace to law and even suggests that law, which vests in the king, endeavours primarily toward peace and harmony. Glanvill opens by rendering law as the sovereign’s decorative yet lethal façade: “Not only must royal power be furnished with arms against rebels and nations which rise up against the king and the realm, but it is also fitting that it should be adorned with laws for the governance of subject and peaceful peoples” (1). Like Geoffrey, Glanvill does not put a name on the sovereign; he merely extols law and its utility to the king. These lines suggest that peace cannot exist without war and that law obtains in the jurisdiction not to make peace or war but to assist the king in the functioning of his office. Uniform and rational justice does not arise for its own sake but for the service of the sovereign so that he “may so successfully perform his office that, crushing the pride of the unbridled and ungovernable with the right hand of strength and tempering justice for the humble and meek with the rod of equity, he may both be always victorious in wars with his enemies and also show himself continually impartial in dealing with his subjects” (1). For Glanvill and for Geoffrey, law is mostly about utility to the king in that it sanctions sovereign violence and centralizes power such that one individual, the sovereign, can issue commands to his subjects, demand the submission of his subjects to his authority by visiting punishment upon those who violate his commands and, therefore, ensure the habitual obedience of multiple subjects across a vast territory.

The lack of a centralized authority or definite sovereign is the reason that Britain falls into disarray when, after Brutus’ death, Brutus’ sons Locrinus, Kamber, and Albanactus divide the kingdom of Britain into thirds (Geoffrey 75). As a result of this partition, the brothers are unable to maintain the military presence necessary to preserve the polis and its laws, and therefore the island suffers from foreign invasion and bloodshed. Likewise, Maddan’s sons quarrel over the crown upon Maddan’s death, and as a result, law becomes something oppressive as one son, Mempricius, given to sodomy and other “vices,” murders the other son, Malin, and “by force and by treachery” does away with “anyone who he feared might succeed him in the kingship” (78). Unlike Brutus, Mempricius exercised “so great a tyranny over the people that he encompassed the death of almost all the more distinguished men” (78). Geoffrey redeems law by giving Mempricius the fate of being devoured by wolves, presumably due to his despotism (78). The suggestion here is that although laws are, as Austin claims, the commands of a sovereign, a sovereign like Mempricius will forfeit sovereignty if his commands take on forms that the polis cannot or will not habitually obey. God or Nature will destroy him for that failing, since the devouring by wolves seems to have some kind of divine justice. Such bodily mutilation signifies destruction of law itself; as Goodrich points out, law and the body are interactive in religious terms:

[The annunciation] is logos, the word as incarnation of divine presence, the spirit made flesh. For the law, the spirit made flesh takes the form of a text, vellum or skin in which is inscribed the form of the institution, of society and its subjects as the unified members and membrane of a body, the corpus iuris civilis or civilised body, the corpus mysticum or body politic, Leviathan or law. (248-49) Read the rest of this entry »

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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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BOOK REVIEW: Laura F. Edwards. The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (Chapel Hill, North Carolina: University of North Carolina Press, 2009).

In Advocacy, American History, Arts & Letters, Book Reviews, Civil Procedure, History, Humanities, Jurisprudence, Law, Laws of Slavery, Nineteenth-Century America, Politics, Rhetoric, Slavery, Southern History, The South on September 28, 2011 at 10:41 am

Allen Mendenhall

Since Mark Tushnet revived the study of slave laws in the American South, several historians, most notably Paul Finkelman, Thomas D. Morris, and Ariela Gross, have followed in his footsteps.  Laura F. Edwards’s The People and Their Peace is a book that extends this trend in scholarship.  Focusing on North and South Carolina from roughly 1787 to 1840, and more specifically on three North Carolina counties and four South Carolina counties during that time, Edwards situates local law in contradistinction to state law, portraying the former as polycentric and heterogeneous and the latter as centralized and homogenous.  Edwards suggests that state law was more aspirational than practical in the early nineteenth-century Carolinas because it failed to inform ordinary legal practice at the local level in the same way that resident culture or custom did.

Pitting “reformers” (elite individuals who sought to create a uniform and consolidated body of rules that appellate courts could enforce at the state level) against locals, Edwards demonstrates that the legal system was bottom-up and not top-down and that law on paper or in statutes was different from law in practice.  On paper or in statutes, law subordinated lower courts to appellate courts and seemed, in keeping with the reformers’ ideals, systematized into a unitary, integrated order that reflected the supposedly natural and inevitable unfolding of history.  Reformers selectively compiled local laws and practices into lengthy works to forge the impression that law was a set of consistent, underlying principles.  In practice, however, law was variable, contingent, and contextual.  It emerged from the workaday and quotidian operations of individuals in towns and communities.  Law was therefore as messy as it was unpredictable, and it cannot be understood today without a deep knowledge of interpersonal relationships and cultural conditions in locales where courts sat.  Slave codes, for instance, did not reflect realities on the ground because they were handed down by state legislatures and could not account for the reputations and routines of people in local communities—people who cared less about consistency in the law or about fixed principles than about their personal stake in any given legal matter. 

This book is a corrective to histories interested principally in local legal sources but neglectful of the particularities that brought about these local sources.  It marshals evidence from legal documents—especially case decisions, including appellate opinions—while considering why and how those documents were produced.  The development of state law became increasingly important during the antebellum years, but the rise in state law—which privileged narratives of individual rights, standardized legal principles, and enabled southern distinctiveness—does not make sense apart from local data.  Local data reveals much about the processes (as opposed to philosophies) of law.  Put differently, local law remained discretionary because it was fluid and not subject to abstract and purely notional mantras about rights. Read the rest of this entry »

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Konrad Graf on Action-Based Jurisprudence

In Austrian Economics, Humane Economy, Humanities, Jurisprudence, Law, Liberalism, Libertarianism, News Release, Politics on August 14, 2011 at 7:54 pm

Allen Mendenhall

Konrad Graf, who, with me, contributes to Prometheus Unbound: A Libertarian Review of Fiction and Literature, has published the following essay in Libertarian Papers:  “Action-Based Jurisprudence: Praxeological Legal Theory in Relation to Economic Theory, Ethics, and Legal Practice.”  Here is the abstract to the piece:

Action-based legal theory is a discrete branch of praxeology and the basis of an emerging school of jurisprudence related to, but distinct from, natural law. Legal theory and economic theory share content that is part of praxeology itself: the action axiom, the a priori of argumentation, universalizable property theory, and counterfactual-deductive methodology. Praxeological property-norm justification is separate from the strictly ethical “ought” question of selecting ends in an action context. Examples of action-based jurisprudence are found in existing “Austro-libertarian” literature. Legal theory and legal practice must remain distinct and work closely together if justice is to be found in real cases. Legal theorizing was shaped in religious ethical contexts, which contributed to confused field boundaries between law and ethics. The carrot and stick influence of rulers on theorists has distorted conventional economics and jurisprudence in particular directions over the course of centuries. An action-based approach is relatively immune to such sources of distortion in its methods and conclusions, but has tended historically to be marginalized from conventional institutions for this same reason.

This piece is striking for a number of reasons, not least of which is the way it came about.  As the Mises Economics Blog explains,

This is an interesting, provocative analysis of libertarian theory that highlights the strength of the Mises Institute’s approach and model of openness. First, this piece was inspired by the author’s participating in a Mises Academy course.

Second, the author is not a professional scholar or academic. In days past such authors–who are often the source of new ideas–would be shut out by credentialism and the iron grip certain institutions had over the few avenues of publication. The open model of the Mises Institute’s Libertarian Papers–rigorously double-blind peer-reviewed but open to private scholars as well as academics, as its focus is on ideas–breaks free of this hidebound model.

Third, the article is 75 pages long, much longer than many journals can accept. But this is no problem for the Libertarian Papers model as it is online, not centered on paper.

To sum up, this provocative piece was stimulated by the Mises Institute’s being on the forefront of technology (Mises Academy), not to mention the gargantuan volume of free, online resource such authors are able to draw on (Mises.org), and then was offered a publishing platform (Libertarian Papers) despite its length and the author’s private, “non-credentialed” status. In my view, this is all to the good and a testament to the heroic work done by the Mises Institute.

Libertarian Papers is edited by Stephan Kinsella.  Visit Kinsella’s website here.  Visit Mises Academy (which inspired Graf’s article) by clicking here.

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Conservatives and the Natural Law vs. Positive Law Debate

In American History, Arts & Letters, Conservatism, History, Humanities, Jurisprudence, Law, Legal Education & Pedagogy, News and Current Events, Politics on July 14, 2011 at 5:30 pm

Allen Mendenhall

Three days ago, the Claremont Review of Books posted two interesting reviews on jurisprudence.   The first, “Natural Law Man,” is a reprint of a piece that appeared in the Winter/Spring 2010-11 issue.   Here, Michael M. Uhlmann praises Hadley Arkes’s Constitutional Illusions and Anchoring Truths: The Touchstone of the Natural Law.  In the second review, “A Plea for Positivism,” Bradley C. S. Watson comments on Gary L. McDowell’s The Language of Law and the Foundations of American Constitutionalism.  (Click here to read McDowell’s discussion of the book with Edwin Meese, III.)  Both reviews situate their subjects alongside conservative theory.  Both books are worth reading. 

The prevailing tendency among some uncritical commentators is to binarize natural law theory and positive law theory as polar opposites.  That’s understandable if the terms “natural law” and “positive law” are reduced to cliché.  But cliché, although helpful to students first getting introduced to concepts, doesn’t do justice to the complexities and challenges of natural law or positive law jurisprudence.  In any event, it is curious that both natural law theorists and positive law theorists claim to have influenced, and to have been influenced by, conservatism.  That fact alone suggests that natural law theory and positive law theory are complicated.  Here are some readings that will complicate the complicated:  Murray Rothbard’s excerpts “Introduction to Natural Law” and “Natural Law versus Positive Law,” F. Russell Hittinger’s short pieces “Natural Law” and “The Rule of Law and Law of Nature,” Robert P. George’s “Witherspoon Lecture,” and Fred Hutchison’s overview “Natural Law and Conservatism.”

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Transnational Law: An Essay in Definition with a Polemic Addendum

In Arts & Letters, Austrian Economics, Economics, Humane Economy, Humanities, Jurisprudence, Law, Law-and-Literature, Libertarianism, Literary Theory & Criticism, Rhetoric & Communication, Transnational Law on May 24, 2011 at 8:56 pm

Allen Mendenhall

The Libertarian Alliance (London, U.K.) has published my article “Transnational Law: An Essay in Definition with a Polemic Addendum.”  View the article here, or download it from SSRN by clicking here.  I have pasted the abstract below:

What is transnational law? Various procedures and theories have emanated from this slippery signifier, but in general academics and legal practitioners who use the term have settled on certain common meanings for it. My purpose in this article is not to disrupt but to clarify these meanings by turning to literary theory and criticism that regularly address transnationality. Cultural and postcolonial studies are the particular strains of literary theory and criticism to which I will attend. To review “transnational law,” examining its literary inertia and significations, is the objective of this article, which does not purport to settle the matter of denotation. Rather, this article is an essay in definition, a quest for etymological precision. Its take on transnationalism will rely not so much on works of literature (novels, plays, poems, drama, and so forth) but on works of literary theory and criticism. It will reference literary critics as wide-ranging as George Orwell, Kenneth Burke, and Edward Said. It will explore the “trans” prefix as a supplantation of the “post” prefix. The first section of this article, “Nationalism,” will examine the concept of nationalism that transnationalism replaced. A proper understanding of transnational law is not possible without a look at its most prominent antecedent. The first section, then, will not explore what transnationalism is; it will explore what transnationalism is not. The second section, “Transnationalism,” will piece together the assemblages of thought comprising transnationalist studies. This section will then narrow the subject of transnationalism to transnational law. Here I will attempt to squeeze several broad themes and ideals into comprehensible explanations, hopefully without oversimplifying; here also I will tighten our understanding of transitional law into something of a definition. Having tentatively defined transnational law, I will, in section three, “Against the New Imperialism,” address some critiques of capitalism by those cultural critics who celebrate the transnational turn in global law and politics. Although I share these critics’ enthusiasm for transnational law, I see capitalism – another hazy construct that will require further clarification – as a good thing, not as a repressive ideology that serves the wants and needs of the hegemonic or elite.