Can Law and Literature Function without Historical Narrative? 3


When I took law and literature in law school, it was frankly the best class experience of my education (sorry unnamed property prof — the rule against perpetuities still haunts).

But one thing that was missing when I took law and literature was the connection of the literature to any emerging cultural narrative or norm. We read lots of great books, many of which I have incorporated into my own law and literature course. But they were all disconnected from one another, except for the shared discussions of authorship, irony, the task of writing, etc… The course essentially became a course in the Great books of the world… with legal narratives behind them. Don’t get me wrong. That’s is a wonderful course, and I suspect for most law and literature profs it functions as an ethics alternative to the universe of professionalism that has engrafted legal education for the last hundred years — retrenching liberal education in the law school halls if you will.

In my own law and literature course (this is the third time that I have taught the class) I have attempted to incorporate a greater sense of historical connection between literature and the law. Perhaps my view of literature and the law is best summed up by Robert Penn Warren reflecting on Cass Mastern in All the King’s Men:

Cass Mastern lived for a few years and in that time he learned that the world is all of one piece. He learned that the world is like an enormous spider web and if you touch it, however lightly, at any point, the vibration ripples to the remotest perimeter and the drowsy spider feels the tingle and is drowsy no more but springs out to fling the gossamer coils about you who have touched the web and then inject the black, numbing poison under your hide.
Each time that I have taught the course, it has been a reflection of the culture of American law — so only literature by Americans or about America (my students read Margaret Atwood’s Handmaid’s Tale which is set in Gideon or Evangelically reformed America). So out are Antigone, or even Jean Anouilh’s version of Antigone (set against a German occupied France in World War II). We don’t read Charles Dickens’ Bleak House, or Fydor Dostoyevsky’s Crime and Punishment or Brother’s Karamozov. And we don’t read Kazuo Ishiguro’s Remain’s of the Day, one of my favorites. And of course, no Shakespeare.

Looking back over the list of works that my students miss out on, started me thinking about what other ways I could incorporate the historical narrative against the backdrop of literature and the law. Perhaps a study of 19th century literature would reveal a growing consciousness between wealth and poverty. That would be fun — Dickens’ Oliver Twist and Doystoveski’s Poor Folk anyone? Perhaps an obvious catalyst would be a course “Literature in the Age of Revolution.” William Wirt’s Letters of the British Spy , Victor Hugo’s Les Miserable, and Dickens’ Tale of Two Cities would be great. Perhaps even some twentieth century memoirs/ biographies around revolutions –, maybe Reading Lolita in Tehran for the Iranian Revolution and Che Guevara, A Revolutionary Life for the South American/ Cuban Revolution? (At the very least, we could educate our students about who the guy on their t-shirt is).

What other historical narratives could you see using in Law and Literature. Also, then, how is law and literature different from Legal History?

Why Arizona’s Undocumented Person’s law will fail — Actual Empirical Evidence — Part II Reply


Well, with our household resources being used up by additional persons that we did not count on, we knew something had to be done. We could have taken an approach that favored those that were already here. Just stop more from coming in. Instead, we decided the only solution was to purge the house of any manifestation of their presence. We went on a witch hunt burning books, destroying Dora Castles, breaking CDs. We even went so far as to completely outlaw the use of maps or spanish in the house. We would become francophonic (albeit difficult in Southern California).

Our initial decision was very popular amongst several groups. First the labor groups openly supported our decision. wpid-images.jpeg The leader of the labor party called this “a smurfingly positive step towards the establishment of equal opportunity. Other groups also saw new opportunity. For instance Toot and Puddle, two male companions that travel the world together, initially supported our decision, saying that equality should first be guaranteed for currently legal persons. Little Bill chimed in stating that this would certainly add to his popularity and therefore could not be bad.
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But not everyone was on board. One unintended consequence of our decision was that we alienated Handy Manny. Apparently, Handy Manny felt like our new decision to only extend access to non-annoying programing put him at risk of being alienated, even though he had never been annoying in the past. We were certainly at a dilemma. While Dora and her friends brought about certain characteristics that we did not care for, we did not anticipate losing out on Handy Manny. Also, very soon, Toot and Puddle and Little Bill both changed their minds about the new decision. They realized that we could very easily decide that we wanted to limit cartoons to only male and female pigs together, or even force certain cartoons in unattractive time slots at the end of the day. Losing their support made us reconsider.

But what really pushed us over the edge and back into reality was realizing who liked the law — namely the labor movement. At first, they were quite congenial. “We are just interested in smurfing work for those that are here legally.” But the more things moved along, the more belligerent they became. “They began to organize into militias, guarding the remote control, and even telling my daughter, “Don’t you Smurf with us! Don’t you even think about Smurfing with us.” I don’t even know that means I told her, but it sounded very obscene. Also, the Smurfs, did not really even bring value. We tried to build a tree house with them, but they insisted that we use their proprietary mushroom design and pay four times the cost of what it would have cost before.
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We finally realized that we messed up. We listened to the group that we should have ignored all along. I mean its not like they were not vested in seeing that our household tune away from Dora. We also realized that Dora and all her friends maybe created some inconveniences, but also brought about good things too. They made our children more diverse and open to a diverse world. And because of that, I am happy to say that Dora has been made welcome into our home again. And the costs, whatever they may be, are well worth it.

Why Arizona’s Undocumented Person’s law will fail — Actual Empirical Evidence — Part I Reply


As everyone is well aware, Arizona recently passed a law making it illegal for undocumented immigrants to be present in the state. What you may not know is that similar experiments have taken place and failed. I have first hand experience with one of those experiments.

About three years ago, my wife and I decided to ban Dora the Explorer from our house. It was a particularly difficult decision. In fact, we were quite aware of the irony that we ourselves invited Dora into our house. Frankly, the decision made allot of sense to invite her over. In Dora, we got all of the benefits of a babysitter, at approximately 1/1016 of the market rate. (If we paid $12.00 per hour for a babysitter in thirty minute blocks for twice a day for thirty days, the financial decision makes complete sense — and yes, Dora did work for us seven days a week).

To be honest, we knew that Dora came with some complications. For instance, we had to decide whether Dora would have her own television to broadcast from or whether she would have to share the community television at the times that were available. We elected the later, though we recognized that it would have been more fair for Dora to have her own access to a unique broadcast opportunity.

We also knew that Dora would come with friends. We were willing to accept that Dora’s friends Map, Boots, Tico, Benny, Swiper, and Izza. Frankly, we did not mind too much. Dora’s friends often provided added value without additional expenditure of resources. wpid-images3.jpeg

But what sent us down the road towards expelling Dora from the house was that Dora began co-opting additional resources. Not only was there the Television program once, but twice, and then three times. There were the videos. There were the books. And then there was the dora Castles, blanket, and ugly pajamas that she wanted to wear everywhere. We could not get away from Dora!

Then more started coming around. Dora’s cousin Diego began hanging around. After observing Diego we became convinced that he was involved in the illicit drug trade — I mean what nine year old has a submarine.wpid-1____images3.jpeg

We were also certain that the baby Jaguar that he kept was being trained for pit bull fighting at a later date. Investing resources in Dora was one thing. But investing in Diego — a certain drug pusher and pit bull orchestrator — could not be tolerated. And it did not stop with Diego.

Soon this new gang, which we heard came from the same places that Diego and Dora came from (the Republic of Nickelodeon) started hanging around. This gang, called the Backyardigans are a bunch of idle ne’re do wells that we believed were affiliated with the infamous M-16 gang. For instance, they are always, always, hinting that they want more food. (Always talking about getting a snack).

Their ringleader Pablo seems to be insistent that wearing a bowtie makes him respectable.

The problem is that non-white people wearing bow-ties and leading gangs leads to violence every time. Really, it makes the whole wearing bow-ties business look seedy. Just think for a moment — when have white people wearing bow ties caused the types of crises that non-white people have caused?


Well obviously what started with an innocent attempt to save money created an irrepressible circumstance. Something had to be done

Random Thoughts while Driving Through Arizona and New Mexico Reply


  1. Interstate 40 in Arizona is better than Interstate 40 in California.
  2. Northern Arizona is greener than I would have thought. However, its not as pretty as New Mexico.
  3. DON’T SPEED THROUGH THE NAVAJO NATION. Spotted twelve (yes 12) cops lined up ready to catch speeders.
  4. Finding a hotel in Albuquerque that takes dogs is difficult. I still can’t believe the Residence Inn wants to charge $100 non-refundable pet deposit.
  5. New Mexico does not know how to move traffic through construction. One hour to move five miles!
  6. At what point during a twelve hour drive do you defer to Christmas music to stay awake — apparently at the 10:30 mark. We’ll see if that changes since there will be another twelve hour day.
  7. I started the day listening to the Brothers Karamazov. Heard a line that I did not recall reading — Habitual Liberal Irony. I’ll have to think about that one — perhaps a post later.

Ok — That’s all for my random thoughts.

Islam & Poetry: Addendum 1


In the final introductory post on Islam and Poetry (Part 3), I wrote in response to several lines from Sanā’ī’s Hadiqa al-haqīqa (Enclosed Garden of the Truth) that what Sanā’ī “lack[ed] in aesthetic unity [he] makes up for in rather proud religious purpose.” My original and somewhat sarcastic response to the quoted passage is akin to the manner in which others have reacted to the following final verses from Farīd al-Din ‘Attar’s celebrated mystical epic, the Mantiq al-tayr  (The Conference of the Birds):

This book is the adornment of time, offering a portion to both elite and common.

If a frozen piece of ice saw this book, it would happily emerge from the veil like the sun.

My poetry has a marvelous property, since it gives more results every time.

If it’s easy for you to read a lot, it will certainly be sweeter for you every time.

This veiled bride in a teasing mood only gradually lets the veil fall open.

Till the resurrection, no one as selfless as I will ever write verse with pen on paper.

I am casting forth pearls from the ocean of reality. My words are finished and this is the sign.

If I praise myself a lot, how can that praise please anyone else?

But the expert himself knows my value, because the light of my moon is not hidden.

These lines are in fact missing from the well-known English translation of the epic poem by Afkham Darbandi and Dick Davis (1984). In the Introduction, Davis notes that they have translated the entire poem “with the exception of the invocation and the epilogue. The invocation, a traditional prelude to long narrative poems in Persian, consists of praise of God, of the Prophet [Muhammad] and of the founders of Islam. [….] The epilogue, again a traditional feature of such poems, consists largely of self-praise and is a distinct anticlimax after a poem devoted to the notion of passing beyond the Self.” One wonders if that is sufficient justification for omitting the end of the poem (and the invocation for that matter!).

In his essay, “On Losing One’s Head: Hallājian Motifs and Authorial Identity in Poems Ascribed to ‘Attār,”* Carl Ernst well captures the puzzlement that inevitably follows reflection on such lines from renowned Sufi poets like Sanā’ī and ‘Attār. Discussing the aforementioned epilogue from the Mantiq al-tayr, Ernst writes that

“This passage is remarkable for the boast it contains in which ‘Attār claims that no one has ever annihilated his ego as successfully as he. Conjoined as it is with a bold advertisement of the quality of ‘Attār’s literary works, this paradoxical boast of ego-annihilation raises a difficult question regarding the nature of authorship of Sufi writings. If the goal of the Sufi is the annihilation of the self, what sort of self may be ascribed to the authors of the central writings of Sufism? As ‘Attār himself remarked in comparing Hallāj’s utterances with Moses’ encounter with the burning bush on Sinai, it was not the bush that spoke, but God. ‘Attār’s declaration is a specimen of the rhetoric of sainthood which permitted the spiritual elite to engage in a boasting contest (mufākhara) to demonstrate the extent of God’s favours to them.”

Familiarity with this “boasting” rhetoric of sainthood should temper if not eliminate the reaction I had to the lines from Sanā’ī’s Hadiqa al-haqīqa as well as help one appreciate why the omission of the epilogue from the Mantiq al-tayr might be troubling. With Ernst, we need to consider the extent to which the Sufi tradition incorporated the pre-Islamic Arabic tradition of mufākhara into “its earliest dialogical pronouncements,” a fact “explicitly recognized in early Sufi manuals of conduct,” and thus “what is distinctive about the Sufi rhetoric of sainthood is that unabashed boasting is permitted and even encouraged as a means of indicating one’s direct contact with God” (From Ernst’s Ruzbihan Baqli: Mysticism and the Rhetoric of Sainthood in Persian Sufism, 1996: 45 and 146 respectively). Thus what at first glance appears as grandiose self-praise, the very antithesis of selflessness, turns out to be a refrain from the traditional rhetoric of sainthood, one in which it could be said that we witness “the flickering of the authorial ego in the storm of divinity.”

Finally, yet another perspective is provided by the following lines from ‘Attār’s Mantiq al-tayr, reminiscent of the disparaging comments Rūmī came to write about his own poetry:

With his dying breath that sage of faith [Sanā’ī] said,

‘If only I knew long before this

How more honorable is listening to speaking,

When would I have wasted my life with words?’

If words were as fine as gold,

Still, they would be inferior to unuttered words!

Doing it is the lot of true men!

Alas, my fate was just talking about it.

Such sentiment, held in common by both the “practical” man and the true mystic, arguably contains an implicit critique of the limitations of reason, in particular of the, in the end, spiritual constraints of both theology and philosophy (especially a rationalist metaphysics), when viewed in the supernal light of Divine silence. Put differently, words, or reason, can only “point” or indirectly refer to that kind of mystical experience which has, I think, been properly characterized as a “pure consciousness event”  (i.e., consciousness without an object), involving a non- or para-cognitive form of “knowing” or awareness said to encompass one’s entire being and thus beyond the realm of subject-object duality.

*In Leonard Lewisohn and Christopher Shackle, eds., Attar and the Persian Sufi Tradition: The Art of Spiritual Flight (London: I.B. Tauris in association with The Institute of Ismaili Studies, 2006: 330-343). This essay is also found online here.

The (original) image is here.

For an illuminating analysis of Habīballāh’s painting (the image above) as a “complete visual rendition of ‘Attār’s entire cosmology,” please see Michael Barry’s essay, “Illustrating ‘Attār: A Pictorial Meditation by Master Habīballāh of Mashhad in the Tradition of Master Bihzād of Herat,” in Lewisohn and Shackle, eds., pp. 135-164.

Brief biographies of both Sanā’ī and ‘Attār (the former penned by yours truly) can be found in Oliver Leaman, ed., The Biographical Encyclopedia of Islamic Philosophy, 2 Vols. (A-I and J-Z) (London: Thoemmes Continuum, 2006).

Nathaniel Hawthorne’s Roger Malvin’s Burial and the Question of Conduct 2


Nathaniel Hawthorne’s short story Roger Malvin’s Burial (1832) is set following Lovewell’s fight in the French and Indian Wars. Besides Roger Malvin’s Burial, Lovewell’s fight has been mentioned in a ballad of Lovewell’s fight, which was written anonymously after the 1725 fight as well as the painting Chamberlain and Paugus at Lovewell’s Fight, 1725.

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Roger Malvin’s Burial is a story about conduct and the guilt that flows from one’s conduct. It follows two soldiers returning from Lovewell’s fight, both wounded. At a certain point, one soldier, Roger Malvin, decides that he cannot go further. He pleads with his companion Reuben Bourne to leave him and return to the settlement. After telling Roger Malvin that he would not leave him, Reuben finally agrees. Before leaving on his own, Roger asks Reuben to promise one thing — return to bury him.

When Reuben Bourne makes it back to the settlement, his wounds have overcome him, leaving him unconscious for several days. When he does recover, Reuben is treated as a brave man and Reuben is not given to tell Roger’s daughter Dorcas that he left Roger to die in the woods alone. Reuben ultimately marries Dorcas and accedes to Roger Malvin’s farm. They also have a child named Cyrus. And Reuben never returns to bury Roger Malvin. Over the next several years things fell apart for Reuben. The farm fails, his community begins to question his integrity, and eventually Reuben, Dorcas, and Cyrus leave the community.

Cyrus is, by all accounts the embodiment of Cyrus of Persia, both in his ethic and his treatment of others. Recall that Cyrus of Persia in the Biblical text is responsible for rebuilding the Jewish Temple in Jerusalem (Book of Ezra and Nehemiah). He is hailed by the Prophet Isaiah as “the Lord’s anointed,” despite the fact that he himself is not an Israelite. (Isaiah 45:1-8) Reuben on the other hand in the biblical account is filled with complexity and contradiction. He is intimate with his mother Rachel’s handmaid (like his father before him), leading early biblical scholars to suggest that Reuben engaged in incest (Genesis 35:22). Reuben is also the model of indecision, who at first saves Joseph’s life, but then merely comes up an alternative to death by throwing Joseph into a well and selling Joseph into slavery. (Genesis 37:21 et seq.). Later, when famine strikes Israel, its Reuben that recognizes the connection between the action of the brother’s and the state of the land (Genesis 42:22). In short, like the Biblical Reuben, Hawthorne’s Reuben was a deeply conflicted character who recognized his faults without being entirely clear about how to resolve them.

As Reuben and Cyrus are hunting for food, in the same woods where Roger Malvin died (Hawthorne loves irony), Reuben shoots his musket at a deer. He then discovers that he has actually shot and killed Cyrus, on the very spot where Roger Malvin was left unburied to die (Hawthorne really loves irony)! Several questions arise in reading Roger Malvin’s Burial in the context of the law — principally, should Reuben have left Roger Malvin? Whatever our answer, as the story goes forward we get a picture that Reuben would not be held out of esteem by the community even by leaving Roger Malvin. Nevertheless, Reuben can’t bring himself to tell the truth about leaving Roger Malvin alone to die.

When I have taught torts, I always end the class with this story — largely because this story encapsulates the tension between rights and wrongs as decided by communities versus rights and wrongs as individualized. Torts as a legal matter only enforces those wrongs which we jointly recognize as being remedied by force of law. Yet, its the individual wrong that causes the most lasting consequences — often the inverse of our social legal recognitions. In Roger Malvin’s Burial, the consequence is guilt — and the expiation of that guilt is itself something that one normally feels guilt over — the killing of one’s own son.

There is much more to Roger Malvin’s Burial, including the confusion of Indian and Puritan symbols between Roger Malvin and Rueben Bourne, and Hawthorne as historian presenting his own unique view of New England.

The “Safe” Conference Reply


I am returning from a truly exceptional weekend conference. The conversations were insightful, deep, and very interdisciplinary. The two keynotes were incredibly insightful, and at least one, is a leading authority in his area of expertise. The conference’s size was such that we sat with the keynote for dinner, clinging to his words like groupies at a Beetles tribute concert. So, despite my fondness of this conference, I am not inclined to encourage others to attend. Let me be clear — I am being selfish on this one. If the conference remains a small conference (twenty or so academics from various fields), I would be tickled. That’s because this conference is, for me, a “safe conference. Its a place where I can be relatively anonymous and present a paper that I am beginning to vet without worry that it might sound incomplete, have inarticulate holes, etc…. Its also a place where I can go and feel safe about real discussions in academia. So despite the fact that I truly enjoy this conference that I will return, your not likely to hear a thing about the conference from me, except that I was in some exotic far away place for three days.

Do you attend safe conferences in your field? Are you as possessory about keeping them “safe places?”

Happy May Day! 1


The Chimney Sweeper (from SONGS OF INNOCENCE, 1789)

When my mother died I was very young,
And my father sold me while yet my tongue
Could scarcely cry weep weep weep weep.
So your chimneys I sweep & in soot I sleep.

There’s little Tom Dacre, who cried when his head,
That curl’d llke a lamb’s back. was shav’d: so I said
”Hush. Tom! never mind it, for when your head’s bare
You know that the soot cannot spoil your white hair.”

And so he was quiet & that very night,
As Tom was a-sleeping, he had such a sight,
That thousands of sweepers, Dick, Joe, Ned or Jack.
Were all of them lock’d up in coffins of black.

And by came an Angel who had a bright key,
And he open’d the coffins & set them all free;
Then down a green plain leaping, laughing, they run,
And wash in a river. And shine in the Sun.

Then naked & white, all their bags left behind,
They rise upon clouds and sport in the wind;
And the Angel told Tom, if he’d be a good boy,
He’d have God for his father & never want joy.

 

The Chimney Sweeper (from SONGS OF EXPERIENCE, 1794)

A little black thing among the snow:
Crying weep, weep, in notes of woe!
Where are thy father & mother? Say?
They are both gone up to the church to pray.

Because I was happy upon the heath,
And smil’d among the winters snow:
They clothed me in the clothes of death,
And taught me to sing the notes of woe.

And because I am happy, & dance & sing,
They think they have done me no injury:
And are gone to praise God & his Priest & King
Who make up a heaven of our misery.

─William Blake

For more on May Day, please see here.

Sita Sings the Blues 2


I am at a conference this weekend, and one of the panelists was Nina Paley.  Nina is an illustrator and a very talented film maker.  If you have not seen her film Sita Sings the Blues, I have embedded the first part below.  Its wonderful.  It is one of only a few films to receive a 10 out of 10 from Rotten Tomatoes. Nina is a wonderful proponent of the creative commons and open sharing, which is described on her website.

A Call for a Symblogium — Sort of… Reply


What is the single best text that you use in Law and Literature. I would like to issue a call for suggestions and reasons why that particular text best captures your vision for law and literature. I would like to post these comments as separate entries under Law and Literature Cannons. Send me an email at warren[dot]emerson[at]gmail[dot]com and I will post them to the blog.