Brushing up the Table 1


As I periodically do, I thought I would point to a few items.

  • Allen Mendenhall has two new posts up at The Literary Lawyer titled A Tale of the Rise of Law Part I and Part II.  From the posts: “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.”  Check them out.
  • JK Rowling news seems to be pouring out of the watershed this week.   Her publisher announced that her first post-Potter work would be released later this year.  Additionally, the anticipated Pottermore website is slated to go live in early April.
  • Dr. Seuss’s the Lorax has a message.… apparently…. the sponsors have not yet gotten though… Ironic
  • I recently found a new blog, This Ruthless World.  Check it out.
  • This week, a couple of us from the table, Mai-Linh and myself will be at the Association for the Study of Law, Culture and the Humanities conference in Fort Worth, Tx.  Please come say hello.  I mean, we won’t have a booth or anything, which means you’d have to look around.   So on second thought, Mai Linh and I will be playing hide and seek somewhere in Fort Worth, Texas beginning Thursday.  A free drink to the first one to find us.  Go.
  • Lastly, its March Madness time.  Which means that as every other year I will be poorer by about $10. I thought about constructing a bracket of writers or lawyers tied to Universities in the bracket.  Put suggestions in the comments.

Melville to Hawthorne: “Well, the Hawthorne is a sweet flower; may it flourish in every hedge.” 1


Yale University Libraries is posting letters between various authors, including a letter between Melville and Hawthorne.  This is an interesting project.  I am not sure if its the quaint interlude, but I find the reading of these letters interesting.  I will try to post them periodically.

Hawthorne and Melville met in 1850, and maintained a correspondence until 1852.  From the life and writings of Herman Melville posted at Melville.org:

The two authors met for the first time in Stockbridge on August 5, 1850, on a picnic excursion hosted by David Dudley Field. Hawthorne was forty-six and was familiar with at least a portion of Melville’s work, having favorably reviewed Typee in the Salem Advertiser (March 25, 1846); Melville was thirty-one and had just written or was about to write an exceedingly warm and enthusiastic piece on Hawthorne’s Mosses From an Old Manse, a copy of which had been given to him by an aunt a few weeks before.

Early in the course of the excursion, a sudden thunderstorm forced the party to take shelter, giving Melville and Hawthorne an opportunity to become better acquainted. The two men took to each other at once, and as their conversation continued were delighted to discover a growing bond of mutual sympathy and comprehension. Two days later Hawthorne wrote to a friend “I liked Melville so much that I have asked him to spend a few days with me.” This would be the first of a series of visits, supplemented by written correspondence, that would continue until the gradual cooling off of the friendship late in 1852.

On their last meeting, Hawthorne records:

“Herman Melville came to see me at the Consulate, looking much as he used to do (a little paler, and perhaps a little sadder), in a rough outside coat, and with his characteristic gravity and reserve of manner…. [W]e soon found ourselves on pretty much our former terms of sociability and confidence. Melville has not been well, of late; … and no doubt has suffered from too constant literary occupation, pursued without much success, latterly; and his writings, for a long while past, have indicated a morbid state of mind…. Melville, as he always does, began to reason of Providence and futurity, and of everything that lies beyond human ken, and informed me that he had “pretty much made up his mind to be annihilated”; but still he does not seem to rest in that anticipation; and, I think, will never rest until he gets hold of a definite belief. It is strange how he persists — and has persisted ever since I knew him, and probably long before — in wondering to-and-fro over these deserts, as dismal and monotonous as the sand hills amid which we were sitting. He can neither believe, nor be comfortable in his unbelief; and he is too honest and courageous not to try to do one or the other. If he were a religious man, he would be one of the most truly religious and reverential; he has a very high and noble nature, and better worth immortality than most of us.”

Herman Melville, letter to Nathaniel Hawthorne, July 17 [1852?].
From the Nathaniel Hawthorne Collection.

My Dear Hawthorne:—This name of “Hawthorne” seems to be ubiquitous. I have been on
something of a tour lately, and it has saluted me vocally & typographically in all sorts of places
& in all sorts of ways. I was at the solitary Crusoeish island of Naushon (one of the Elisabeth
group) and there, on a stately piazza, I saw it gilded on the back of a very new book, and in the
hands of a clergyman.—I went to visit a gentleman in Brooklyne, and as we were sitting at our
wine, in came the lady of the house, holding a beaming volume in her hand, from the city—“My
Dear,” to her husband, “I have brought you Hawthorne’s new book.” I entered the cars at Boston
for this place. In came a lively boy “Hawthorne’s new book!”—In good time I arrived home.
Said my ladywife “there is Mr Hawthorne’s new book, come by mail” And this morning, lo! on
my table a little note, subscribed Hawthorne again.—Well, the Hawthorne is a sweet flower;
may it flourish in every hedge.
I am sorry, but I can not at present come to see you at Concord as you propose.—I am but just
returned from a two weeks’ absence; and for the last three months & more I have been an utter
idler and a savage—out of doors all the time. So, the hour has come for me to sit down again.
Do send me a specimen of your sand-hill, and a sunbeam from the countenance of Mrs.
Hawthorne, and a vine from the curly arbor of Master Julian.
As I am only just home, I have not yet got far into the book but enough to see that you have most
admirably employed materials which are richer than I had fancied them. Especially at this day,
the volume is welcome, as an antidote to the mooniness of some dreamers—who are merely
dreamers—Yet who the deviant a dreamer?
H Melville
My remembrances to Miss Una & Master Julian—& the “compliments” & perfumes of the
season to the “Rose-bud.”

Dystopian Controls: Contraception, Rush Limbaugh and the Unwomen. 1


 

On today’s Diane Rehm Show, Terry O’Neill President of the National Organization of Women squared off with conservative commentator Phyllis Schaflay.   (I know right — its like a powder keg waiting to explode — the podcast of the show is here.) One of the many points of discussion was the impact of the Republican Congress and the Candidates on the contraception discussion as it has evolved over the past few weeks.   Of key interest was the Rush Limbaugh comments from a week ago in which Limbaugh labeled Sandra Fluke, a Georgetown Law Student as a “slut” and “prostitute” because of her testimony before congress on the importance of employers paying for contraceptives.   [Note: I am not linking to Rush Limbaugh's site out of respect for Ms. Fluke and the disrespect paid to her by Mr. Limbaugh].

I have been a little surprised that I have not seen more references to Margaret Atwood’s Handmaid’s Tale linking Rush Limbaugh and the Presidential candidates to the tale.  Clearly the denomination of women as economic tools or as promiscuous beings is an attempt to dehumanize women.   We see the same category of dehumanization in the labeling of women as feminists.  Schaflay for example described the feminist agenda as one to destroy marriage and decry the role of women who chose to be house wives.    By labeling women beyond their human characters and associating them with some “non-human” objective, like sex, money trade, and working, the labelers lessen their value and their message.  We need not listen to them because they lost their investment in the greater human enterprise long ago.  Moreover, in the Handmaid’s universe, we better understand them by grouping them together in homogenous groupings.  By labeling people, we define the qualities we believe render people more human (and I would argue as well, within our theological frameworks, by implication we also assert the qualities that tend to render them more divine — no one ever has a vision of Jesus that strays very far from what they themselves look like).

In that regard, I recalled a not-s0-recent interview with Margaret Atwood published in Critique Magazine in 1997.  The question asks Atwood if she agreed with the Flannary O’Connor quote that “people without hope do not write novels.”

Atwood: Yes, that’s true. Well, I think there’s a human paradox, which is that hell is what you often get when you try to impose heaven. The key word is “impose.” I don’t think that, subject as we are to the laws of chemistry and physics, we are ever going to have “a perfect world”–by that I mean one in which no one ever dies, everybody is happy all the time, nobody ever gets sick, everything always goes well. We can’t hope for that. What we can hope for is human cooperation, and this is what is different from the word “impose.” So I think that you only can get something better when you don’t try to take a kind of cookie cutter and stamp out a limited idea, or one person’s idea, or one group’s idea of what is convenient.

It seems, taking Atwood a little further, as we begin to conscript the moral vision in “cookie cutter swaths,” we become embroiled into a game of labeling, minimization, and ultimately dehumanizing — ultimately sorting out those that are worthy to participate in the creation of the moral vision that society should adopt, and the dehumanizing of those who are less capable or worthy of shaping the vision of the world we would like to see fulfilled.

In short, in a community built upon the central role of dialogue, one way of making one’s message more prominent is to disassociate the alternative message from a hopeful reality — that is what Limbaugh has done.  He has converted Sandra Fluke from a woman with a problem, to a problem as a woman.

 

 

“Excuse me, I believe you’re in my pew:” Servitudes and Church Pews 2


So I have been doing some work on the meaning of place in defining the sacred and have considered how people claim space in religious venues. [You can take my survey here].  One of the more interesting entanglements of English legal history is how church pews became treated as a servitude to one’s real property.  Of course, England was not alone in this regard.  As Kelly Olds writes in her article Privatizing the Church: Disestablishment in Connecticut and Massachusetts, prior to disestablishment in America, pews were taxed.  Afterwards, they were auctioned in order to raise money for the church’s work.  It seems that entitlement to space in church has long been a problem.

But the English had a particularly… well… property way of resolving the problem.  I discovered an english treatise on… yes… property law surrounding church pews.  The work: Church Pews, Their Origin and Legal Incidents with Some Observations on the Propriety of Abolishing them in Three Chapters, by the esteemed lawyer John Coke Fowler (See notes below for information on Fowler). From the treatise:

 “We have also heard that the parishioners of divers places do oftentimes wrangle about their seats in church, two or more claiming the same seat; whence arises great scandal to the Church, and the divine offices are sore let and hindered: wherefore we decree that none shall henceforth call any seat in the church his own, save noblemen and patrons; but he who shall first enter, shall take his place where he will.”

So what, do you say is the best way to establish your entitlement to a particular pew?  Property, of course.  Again from the 1846 treatise:

Again, as an example of the practice amongst private individuals of obtaining grants of separate and distinct seats for themselves and their families before the fashion became general, I will adduce a faculty, dated in 1579, for the erection of a pew in the church of Chesterton, in the county of Cambridge, part of which I quote from the same source. It is granted by [14/15] an officer of the Bishop of Ely, and sets forth that the churchwardens and another parishioner of Chesterton appeared on a certain day before him, and stated in writing that “Thomas Lorkine, or Larkin, gentleman, Doctor in Medicine, and Regius Professor in the University of Cambridge, had held for five or six years past freehold property in the aforesaid parish, equal in extent to that of any other parishioner: and that up to that time no seat, or place, or stall, had been granted to the said Thomas Larkyn, suitable to his rank, estimation, and property in the aforesaid parish-church. Which premises considered, they judged it most convenient that the said Thomas Larkyn, his wife and heirs, should for ever sit apart and by themselves in a place on the north side of the church nearest the chancel, on the left hand of the chancel-door, next to the chapel where John Balfude, gentleman, hathbeen wont to sit during the time of divine service; from east to west the space to be assigned to him containing eleven feet, from north to south seven”

A pew still stands in Barking Church, Suffolk, bearing date 1601; another in St. Mary, Geddington, in the county of Northampton, dated 1602, and the building of pews went on increasing as we approach the civil war. The Cambridge critic quotes the following entry of [15/16] 1611 from the St. Margaret’s accounts. “Item: paid to Goodwyfe Wells for salt to destroy the fleas in the churchwardens pew 6d.;” which not only shows, as he justly remarks, that pews were even then baized, but also proves that they were not an entire novelty at that time.

Lastly, to show the period at which pews came into general use, I refer to a letter of Dr. Corbett, Bishop of Norwich,written to his clergy in 1622, in which he says, “Stately pews are now become tabernacles with rings and curtains to them. There wants nothing but beds to hear the word of God on: we have casements, locks, and keys, and cushions, and for those we love the church. I will not guess what is done within them: who sits, stands, or lies asleep at prayers, communion, &c.; but this I dare say, they are either to hide some vice, or to proclaim one; to hide disorder, or to proclaim pride.” So in the orders and directions of Bishop Wren, issued in the Diocese of Norwich in 1636, it is directed “that no pews be made over high, so that they which be in them cannot be seen how they behave themselves, or the prospect of the church or chancel be hindered; and therefore that all pews which do much exceed a yard in height, be taken down near to that scantling.” [See note to Archdeacon Hare's primary Charge, p.50.] [16/17]

In general, the entitlement to seating in a church in English Common Law was perceived to be a common right of the parishioners.  That is, the community held the same equal right of access to sit wherever they like.  But some instances warranted greater certainty of seats for some over others.   So how does one enforce such expectations (you know, without being so tacky as having the pastor withhold holy communion from someone that won’t agree) — property. And particularly, either creating a servitude or a prescriptive claim.   Again, from the treatise:

A faculty, which in these cases either actually exists, or is supposed by the law to have existed, is the instrument by which some privilege is granted to a man by the favour and indulgence of ecclesiastical authority, and in the case of church seats is, generally, a license granted by the ordinary, or some officer to whom the bishop delegates his authority in such matters, to a certain person and his heirs, being owners and inhabitants of a certain dwelling-house, for him, and them, and their families, to sit, stand, and kneel, in a certain pew, in the church of the parish in which the house is situated, during divine service, exclusive of all other persons whatsoever. The form of the instrument may vary, but in substance it ought [27/28] always to annex a certain pew (whether already built, or about to be built, by virtue of the same faculty,) to a particular dwellinghouse; as the annexation of a pew to the person of the grantee, (or party to whom the faculty is granted,) though it has not unfrequently been attempted, is, in fact, invalid in law. These instruments are at present not often applied for, or granted; but when a faculty for appropriating a pew is required from the ordinary, notice must first be given in the church, calling upon the incumbent, churchwardens, and parishioners, to show cause why it should not be granted; and if no good cause is shown, in due time the faculty is issued….

Thus it has been said by an eminent judge, Lord Tenterden, that “in no case has a person the right to the possession of a pew, analogous to the right he has to his house or land, for trespass would lie for injury to the latter, but for intrusion into the former the remedy is by action on the case. That furnishes strong reason for thinking that the action is maintainable only on the ground of the pew being annexed to the house as an easement, because an action on the case is the proper form of remedy for disturbance of the enjoyment of any easement annexed to land, as for instance, a right of way,” &c. [Mainwaring v. Giles, 5 B. & Ald. 362. And again in the same case, Mr. Justice Holroyd [36/37] remarked, that “the mere right to sit in a pew is not such a temporal right, as that in respect of it an action at common law is maintainable. Where a right is annexed to a house in the parish, an obstruction to that right is a detriment to the occupation of the house, and I apprehend it is only on account of the pew being annexed to the house that the temporal courts can take cognizance of an intrusion into it.”

Like one’s driveway that borders another’s property, one’s pew could be treated as a right attached to one’s home.   Who knew?  Similarly, simply being there longer could also establish a claim to the pew:

A title by prescription is a title to property corporeal or incorporeal, (that is, to the realty or land, or to mere rights, as distinguished from the ownership of land, exercisable over, or by means of, the land of another, such as a right of way, or of common,) acquired by unobstructed usage and the lapse of time, and which, in the absence of any circumstances tending to repel the usual inference, the law supposes to have had a valid commencement. [Prescription is a term derived from the Roman law, and is nearly the same as usucapio. There were different periods recognized as making the title by usage respectively inchoate and complete; "longi vel longissimi temporis praescriptio;" which is accurately illustrated by the provisions of the Prescription Act, 2 & 3 Wm. IV. c. 71.] ….And thus when [30/31] long enjoyment, and the tacit acquiescence of all other interested parties, are proved, then, whatever the nature of the conveyance, grant, or transfer, which is necessary to pass the thing in question directly, may be, the law presumes that it once existed, and was, in fact, the commencement of the title in dispute.

In general, long length of tenure, plus exerting money for the repairs and maintenance of a pew (as long as one owned property in the parish — very important) created an entitlement to the pew.   And as a most curious exception, one need not prove repairs with regards to aisle seats.  [Did they not appreciate the kind of high end real estate exists at the aisles?  Apparently not...]

There is one other case, in which, in setting forth a prescriptive title to a pew, it is not necessary to allege reparation. It is where a person prescribes for a seat in an aisle. Here, even in a dispute with the ordinary, it is not essential to allege in the declaration that the claimant has done any repairs. For, in the first place, the law regards aisles, chapels, and lesser chancels as minor parts, or adjuncts only of churches, and as differing in origin and legal properties from the nave or body; and in the next place, it considers that the title may be derived from the circumstance of the claimant [45/46] or his predecessors having been the founders of or contributors to the building of the aisle; and hence it liberally presumes that the claimant does repair, without requiring from him an allegation of that fact ‘

So, the interesting issue that I think this piece raises is the question of legal entitlements used to alter social expectations or to enforce social expectations.    Have you ever sat in someone else’s preferred seating at church?   If so, I’d love to hear about your experience.  Please post comments below. In my next post, I will describe how we protect sacred space — both legally and non legally.

A couple of notes:

I am not sure who John Coke Fowler was, but his son was William Ward Fowler –  memoir available here.    Also, googling his name, he wrote wrote on many aspects of the law, including the entanglement of William the Conqueror and the Feudal System, and on coal law in his work Collieries and Colliers. He also wrote other works on the disestablishment including: Disestablishment: A Church Catechism.   Incidentally, if you like your treatises in hard copy, you may also purchase Church Pews, Their Origins and legal Incidents, here, through Amazon here.]

For more information on American Disestablishment see Kelly Olds, Privatizing the Church: Disestablishment in Connecticut and Massachusetts, 102 Journal of Political Economy 277 (1994).  

Image: Church Pew with Worshipers, Van Gogh (1882).

“You ever tried to argue with a barber?” 1


Flannery O”Connor had a way of writing irony.   She, like other southern writers like Warren, Faulkner, and Clancy, understood that Southern relations are rarely only about authority or correctness — they are about ironic structure, which may raise issues of authority or correctness, but exists as a distinctive ptolemaic of the Southern mind.  Irony — like the lonely companionship in Warren, or the role of poor authority in Faulkner.  This tension of southern ironic structure is best exemplified in southern race relations — where class structure dictates ones capacity to speak.  We have seen this tension in the past as well as our present.  Consider the following clip posted by my friend Eric Fink.

The shouts in the audience “go home,” the threat that any other outburst would result in an arrest…”   all point to this ironic structure.   Individuals are given a voice as long as they are a part of the structure.  If they are not a part of the structure, then no matter how loud their voice may be, its unheard.   And therefore has no capacity for challenging the structure.  Thus, the structure is only challenged from within — an impenetrable quagmire asking citizens to place financial concerns below justice and rightness.

This ironic structure shows up in O’connor’s short story The Barber.  There,  a college professor (probably in Georgia) finds himself embroiled in a dialogue over several visits about the impending Governor’s election.  The discussion of the candidates is centered around race – one candidate is perceived by the audience to be a racial progressive, while one candidate is a status quo candidate.   The story though, is threaded around two people who are entitled to debate the merits of the structure, and one person who is impacted by the structure, but has no voice (nor appears to want one).  The Barber and his friends are foils that are responding sharply against the candidate that challenge the status quo.

Clearly, the Barber and his companions represent the types of people that educated persons like O’Connor (and I presume most people that read this blog) struggle to engage.  The Barber and his companion’s believe that the progressive candidate represents change.  They ask the college professor “are you a Mother Hubbard?” — an allusion to one that seeks to change the status quo.  [Old Mother Hubbard is a nursery rhyme  believed to refer to King Henry VIII's desire to divorce his wife Queen Katherine of Aragon so he could marry Anne Boleyn -- a significant change in social and property relations if allowed.  As the story goes, the King is the Dog, the Cupboard is the church, and the bone is the divorce.   Thus, "Old Mother Hubbard, went to the Cupboard to get her poor doggie a bone.  When she got there, the Cupboard was bare, and so the poor doggie had none."]  The Barber’s companions also refer to the progressive candidate as a “Boy Blue” another nursery rhyme reference, this time to someone that gloats or toots one’s own horn — ["Little Boy Blue, come blow your horn..."].  Thus, two sticking points in general for the literati – people that avoid change for change sake, and people that accuse those seeking change of merely boasting about their own worth or being braggarts.

This story is where O’Connor is at her best.   Throughout the story, its the college professor (and not the Barber and his companions) that plays the fool.  He finds himself arguing with an audience that won’t listen.  He is corrected by his audience who seem to understand the economic stakes he has up for grabs with the election better than he does.  And in other places its the Barber that reminds the college professor to “think” and to use his “horse sense.”  Finally, though, we understand how obtuse our College Professor is when he is confronted by his own useless task.  Having spent the night writing a “systematic analysis” for why voting for his candidate is a good idea, he presents his work to a colleague — Jacob, referred to throughout the story as a thoughtful yet elusive figure [characters think they see him, but can't seem to find him, and his opinion is referred to as, well, inexact].   Jacob, having read our professor’s analysis says:

“Well,” Jacobs said, “so what. What do you call yourself doing?”

“Defending myself against barbers,” he said. “You ever tried to argue with a barber?”

“I never argue.”

“That’s because you don’t know this kind of ignorance…. You’ve never experienced it.”

“Oh yes I have,” Jacobs snorted.

“What happened?”

” I never argue.”

“But you know you’re right.”

“I never argue.”

“Wel, I am going to argue.  I’m going to say the right thing as fast as they can say the wrong.  It’ll be a question of speed.  Understand, this is no mission of conversion; I’m defending myself.”

Our fool, on his errand is disappointed and reverts to violence at the end, shoving the barber away — and foolishly runs out of the barber shop with his cape flapping and shaving cream dripping off of his face.

The ironic structure is the presence of one who is persistently in the shadows of the ignorance, and does not seem to give any indication of caring. George is the african american shop-boy that cleans up for the barbers.   George, unlike our Professor, is profoundly impacted by these larger social issues.   Asked at one point who he’d vote for, George says “I don’t knows if they gonna let me vote.”  And then says, “I’m gonna vote for Hawkson,” the candidate the Barbers supported.  George is a character the none of the white participants respect.     In another exchange, the Barber asks our college professor if he would like to teach both white and black students.   When the professor says he’d teach everyone, the question is then given to George:

“How’d you like to go to a white school, George?” the Barber shouted.

“”Wouldn’t like that,” George said.  We needs sommo powders.  These here the las in the box.”

The Barber and his companions treat George as a fools foil, asking George to validate their opinions and contradict the professor, and then satisfactorily sitting back as George does so.  Ironically, so does the professor.  But George understands the social dynamic better than anyone.  He understands that disobedience means not having a job — from his perspective, going to a white school is not better than fetching white powders.  He understands that going to white schools, while probably better, makes him no better off and likely results in greater violence to him.  And George, understands that people like the professor, whether well-intentioned or not, have less at stake than he does.

Which brings us back to the video of the protestors in North Carolina.  These young people understand the stakes.  They appreciate the risks.   They engage the ironic structure with a voice that does not want to be heard .  Kudos.

Reading Twice or Thrice or more Reply


What books do you read over?  There are a handful of books that I turn back to now and again, like old friends.   I’ve read All the King’s Men (7); The Great Gatsby (3); The Hand Maid’s Tale (2) ; Billy Budd (3);  and a handful of short stories that never fail to captivate my attention.   I am also rereading right now The Hobbit and plan to reread Crime and Punishment, A Confederacy of Dunces, and the Harry Potter Series.

So what books do you reread?   What makes a book the kind that you want to reread over and over again?  Post your comments below.

“What would a night student want with Law and Literachure?” or Law and Literature’s Virtue Reply


I have been wrestling with something for a while.   The question is often raised in my environment, do lawyers need law and literature, law and religion, or law and…. to be good lawyers?  For that matter does Law and Literature actually foster better lawyers?   The simple answer is “I don’t know.”

Oh we can talk about the nature of reading and writing (which we do).  We can hypothecate upon cultural dimensions of law that are reflected in literary traditions (which we do).  We can work on their writing skills (which we do quite a bit).  But, I can’t tell you that a single lawyer that has crossed the thresholds of my law and literature class ever was a better lawyer because of it.  But what I can tell you is that making them better lawyers is not my primary goal.

A few years ago, I interviewed with a law school in the South and during the interview one of the faculty members asked me “What would a night student in [insert Southern city] want with a course like Law and Lit-er-a-chure.” (Spelling intended to mimic the pronunciation).  I was frankly taken aback and responded (and can remember my response word for word): “I don’t know.  I mean I don’t know why a night student would want to take law and literature.  But they should.   Because law and literature challenges the basic presumptions upon which we build our daily existence by allowing our imaginations to freely function.”  (That answer did not get me a job). So let me explain further.

Law and Literature’s virtue is the rest of the legal curriculum’s down fall.  As students memorize the rule against perpetuities, or try to decipher the battle of the forms in contracts, law school constricts their imaginary capacity — leaving them with the distinct belief that every problem has a distinctive legal solution.  I shutter to say this but I worry that we actually create human beings who are less capable of engaging in human endeavors after a few years of law school than had we never gotten a hold of them in the first place.

Law and Literature’s virtue then, is a reminder to our imaginary roots — to the return to literature about human relations, rather than literature that governs human relations.  Law and literature teaches us to question the basic suppositions of life — that questions may be hard, and answers may be hard to come by.   Law and literature teaches us that ambiguity is not such a bad thing, and that every problem does not deserve an answer, but rather deserves simply time — like time turning the pages of a book, or time writing prose that seems plain and mystical at the same time.  That would be my answer today to the question — night students need Law and Literature because their imaginations have stopped, and they need time to allow them to grow. (And I am still certain this answer would definitely not get me a job).

Everyone needs a stop in Rivendell, every now and then… Reply


A bit of introspection, if you will this morning…

I find myself immersing in a strange topic lately: exiles.  Really, its not so strange.  After all, one of my name sakes perceived the world in which he grew up as one filled with exiles — wanderers who were cut off from the world they occupied while never really entering another.  But notably, its not just my namesake’s work that draws me to the exiles dilemma.  In about two weeks, I will chair a panel gathered to discuss the import of the exile in foreign literature; I will also present a paper considering Robert Penn Warren, the Southern Exile and the law in a paper I have tentatively called Re-entering the Loneliness.  And in a few months, I will leave the west, and return to my home in the South, permanently I hope, though one can never tell these days.

I waffle between feelings of excitement and worry.   Returning home is always exciting, and yet as a good student of the Bible knows, the prophet never can quite go home.  He’s learned too much on the outside.  He’s like Cass Mastern after Louisiville, Jack Burden after California, OfFred after the discovering the Latin writing on the wall…  Things happen that render people exiles in the familiar places they occupy.  And home never quite feels like home felt before you left.

A few days ago, I picked up the Hobbit.   Its been twenty years (or more) since I read the Hobbit and I determined to read the book again before the movie comes out later this year.  I am struck by the presence of Rivendell — at the beginning of the epic quest and at the end.  It is a place that affords unmitigated rest against the impending tide of uncertainty — uncertainty entering upon an adventure, and uncertainty in coming home.  Rivendell is a place where both the edges of fear are perceived, but not confronted or recalled. In the words of Tolkien:

Now it is a strange thing, but things that are good to have and days that are good to spend, are soon told about, and not much to listen to; whiles days that are uncomfortable, palpitating, and even gruesome, may make a good tale, and take a good deal of telling anyway.

I’m not sure if my queries and endeavors into exiles (and my returning to a home that doesn’t quite feel like home) will afford a stop in Rivendell.  I sure hope so, though I doubt there will be very many words used to describe it.  Most likely, my words will describe the things along the way, and Rivendell will remain a quiet moment – a sanctuary in the tumultuous life of an exile.

Call for abstracts: Edited volume on law and social economics Reply


Call for abstracts for edited volume

Law and Social Economics

To be edited by Mark D. White, College of Staten Island/CUNY

Planned for inclusion in the “Perspectives from Social Economics” series from Palgrave Macmillan

By its very nature, law is a social enterprise concerned with values such as justice, dignity, equality, and efficiency, but the economic approach to law (or law and economics) focuses on the last goal to the exclusion of the rest. Social economics emphasizes the importance of ethical values to economic theory, practice, and policy, but it has engaged very little with legal studies (or law and economics).

In 1993, Steven Medema published his article “Is There Life Beyond Efficiency? Elements of a Social Law and Economics” in the Review of Social Economy, in which he laid out various ways in which social economics could contribute to the economic analysis of law. In the twenty years since his article appeared, however, few have picked his baton, much less run with it.

This book is an attempt to rectify this situation. Proposals for chapters are welcome on any aspect of law-and-economics on which social economics can make a contribution, and are welcome from economists, legal scholars, and scholars from related disciplines.

Possible topics include:

  • Social-economic approaches to the various categories of legal studies, such as
    • Private law (tort, contract, property)
    • Criminal law
    • Procedure
    • Jurisprudence
  • Methodological critiques of mainstream economic approaches to the law, such as
    • Maximizing conception of individual choice
    • Efficiency criterion for evaluating laws and institutions
    • Application of game theory, behavioral economics, or experimental economics to legal issues
  • Examination of the history of law-and-economics scholarship
  • Suggestion of topics neglected by mainstream law-and-economics

Proposals should include name and affiliations of all authors, tentative chapter title, and abstract, and should be sent to Mark D. White at profmdwhite@hotmail.com by April 30, 2012. Tentatively, first drafts of chapters will be expected by November 30, 2012, with final drafts due by February 28, 2013.

A Model for Qur’ānic Interpretation & The Qur’ān: A Select Bibliography Reply


I have liberally adapted the bulk of what follows from Abdullah Saeed’s Interpreting the Qur’ān: Towards a Contemporary Approach (New York: Routledge, 2006), pp. 150-154. The additional material is largely by way of clarification or explanation and although some of it is wholly new, I believe it is in the spirit of, if not faithful to, Saeed’s proposed model.

 A Model for Qur’ānic Interpretation

Stage 1—Encounter with the world of the text

Stage 1—A  broad and general familiarization with the text(s) and its (their) world(s).

Stage 2—Critical Analysis: (a) Linguistic considerations; (b) Literary context; (c) Literary form; (d) Parallel texts; (e) Precedents

Stage 2—Here we are interested in what the text says about itself (its ‘self-referential’ character). This involves various fundamental analyses:

  1. Linguistic considerations: this entails analysis of the language of the text (linguistic units), semantics (the meaning of words and phrases involving features of the context, conventions of language use, and goals of the speaker), syntax of verse(s), and in general all linguistic and grammatical issues intrinsic to the text. It also covers different ways in which particular words and phrases can be read (qirā’āt).
  2. Literary context: how the text in question functions within a particular sūra and/or the Qur’ān as a whole. For instance, examining what comes immediately before or after the verse(s); the composition and structure of the text as well as its rhetorical style and qualities.
  3. Literary form: identifying whether the text is (largely or principally historical), has liturgical function (e.g., a prayer), is a proverb, a parable or other kind of narrative, or has a legal function. Detailing the connection between literary form and meaning (including, possibly, pragmatics: extra-linguistic context of utterance, generally observed principles of communication, goals of the speaker, presuppositions vis-à-vis new information, speech acts, implicature, etc.).
  4. Parallel texts: exploring whether there are other texts that are similar to the text under consideration in the Qur’ān and, if so, the extent to which they are similar and different.
  5. Precedent(s): identification of texts that are similar in content or import and whether these were revealed or inspired before or after the text under consideration.

Stage 3—Meaning for the first recipients: (a) Socio-historical context; (b) Worldview; (c) Nature of the message: spiritual, theological, ethical, legal; (d) Message: contextual v. universal; (e) Relationship of message to overall revelatory message of the Qur’ān

Stage 3Relating the text to the recipients of the Qur’ān:

  1. Wider contextual analysis: historical and social information that would shed light on the text in question; analysis of the worldview, culture, customs, beliefs, values, and institutions of the first recipients of the Qur’ān in Hijāz (region in the northwest of present-day Saudi Arabia and includes the cities of Mecca and Medina). This analysis includes close examination of the time and place in which, for example, specific cultural, legal, political and economic issues arose.
  2. Determination of the nature of the message the text conveys: spiritual, theological, ethical, legal, etc.
  3. Exploration of possible layers of meaning: ‘outer’ and ‘inner,’ overt and implied, or specific and underlying messages of the text; investigation of whether or not the text has universal or simply contextual import and application in the context of the first recipient community. Are there different ways or means other than those specified that can accomplish the specific and clear reason, purpose, or goal of the text in question (e.g., punishment, deterrence, and mercy but without this prescribed form of punishment (which ‘made sense’ at the time and place of the first recipients of this revelation).
  4. Determination of where message the message is located in a hierarchy of values (metaphysical, devotional and ritual, legal, ethical, etc.).
  5. Consideration of how the message relates to the broader objectives and concerns clearly evidenced in the Qur’ān.
  6. Evaluation of how the text was received by the first community of Muslims and how they interpreted, understood and applied it.

Stage 4—Contemporary meaning: (a) Analysis of present context; (b) Contemporary context vis-à-vis socio-historical context; (c) Meaning through time: earliest recipients to the present; (d) Message: contextual v. universal; (e) Applicability to contemporary circumstances and conditions

Stage 4—Relating the text to the contemporary context:

  1. Determining the current concerns, problems, and needs that appear to be relevant to the message of the under consideration.
  2. Exploring the present social, political, economic and cultural context relevant to the text.
  3. Exploring the specific values, norms, and institutions that have a bearing on the message of the text.
  4. Comparing the present context with the socio-historical context of the text under consideration, taking into account similarities and differences.
  5. Relating how the meaning of the text as understood, interpreted and applied by the first recipients of the Qur’ān and subsequent historical recipients to the present context, taking into account similarities and differences.
  6. Evaluating the universality or specificity of the message the text conveys and the extent to which it is related or unrelated to the well-known (i.e., uncontroversial within the tradition) broader objectives and concerns of the Qur’ān.

Most of the last two stages (3 & 4) are not covered by classical tafsīr.

 The Qur’ān: A Select Bibliography (in English)

This list includes translations of the Qur’ān into English as well as works examining this sacred scripture from both within and outside Islamic (theological, philosophical, mystical, and legal) traditions.

  • Abdel Haleem, M.A.S., trans. The Qur’an. Oxford, UK: Oxford University Press, 2004.
  • Abdel Haleem, M.A.S. Understanding the Qur’an: Themes and Style. London: I.B. Tauris, 2001.
  • Abu-Hamdiyyah, Mohammad. The Qur’an: An Introduction. New York: Routledge, 2000.
  • Akhtar, Shabbir. The Quran and the Secular Mind: A Philosophy of Islam. New York: Routledge, 2008.
  • Ali, Abdullah Yusuf. The Holy Qur’an: Text, Translation and Commentary. Washington, DC: Amanah, 1989.
  • Ali, Abdullah Yusuf. The Meaning of the Holy Qur’ān. Beltsville, MD: Amana Publ., 1989.
  • Ali, Ahmed. Al-Qur’an: A Contemporary Translation. Princeton, NJ: Princeton University Press, 1988.
  • Aresmouk, Mohamed Fouad and Michael Abdurrahman Fitzgerald, trans. The Immense Ocean—Al Bahr al-Madīd: A Thirteenth Century Quranic Commentary on the Chapters of The All-Merciful, The Event, and Iron, by Ahmad ibn ‘Ajība. Louisville, KY: Fons Vitae, 2009.
  • Asad, Muhammad. The Message of the Qur’an. Gibraltar: Dar al-Andalus, 1980.
  • Ayoub, Mahmoud. The Qur’an and Its Interpreters, Vols. 1-2. Albany, NY: State University of New York Press, 1984.
  • Baljon, Jon M.S. Modern Muslim Koran Interpretation (1880-1960). Leiden: E.J. Brill, 1961.
  • Barlas, Asma. “Believing Women” in Islam: Unreading Patriarchal Interpretations of the Qur’an. Austin, TX: University of Texas Press, 2002.
  • Bell, Richard. Introduction to the Qur’an. Edinburgh: Edinburgh University Press, 1963.
  • Bell, Richard. The Qur’an Translated, 2 Vols. Edinburgh: T. & T. Clark, 1960.
  • Boullata, I.J. Literary Structures of Religious Meaning in the Qur’an. London: Curzon Press, 2000.
  • Burton, John. The Collection of the Qur’ān. Cambridge, UK: Cambridge University Press, 1977.
  • Cook, Michael. The Koran: A Very Short Introduction. Oxford, UK: Oxford University Press, 2000.
  • Cooper, John. The Commentary on the Qur’an by Abu Ja‘far Muhammad ibn Jarir al-Tabari. Oxford, UK: Oxford University Press and Hakim Investment Holdings, 1987.
  • Cragg, Kenneth. The Event of the Quran: Islam in its Scripture. London: George Allen & Unwin, 1971.
  • Cragg, Kenneth. The Mind of the Quran: Chapters in Reflection. London: George Allen & Unwin, 1973.
  • Cragg, Kenneth. Readings in the Qur’ān. Brighton: Sussex University Press, 1988.
  • Dawood, N.J., trans. The Koran. Harmondsworth: Penguin, 1956.
  • Draz, M.A. Introduction to the Qur’an. London: I.B. Tauris, 2000.
  • English Translation of the Meaning of Al-Qur’an: The Guidance for Mankind (Muhammad Farooq-i- Azam Malik, trans.). Houston, TX: The Institute of Islamic Knowledge, 1997.
  • Esack, Farid. Qur’ān, Liberation and Pluralism. Oxford, England: Oneworld, 1997.
  • Esack, Farid. The Qur’ān: A Short Introduction. Oxford, England: Oneworld, 2002.
  • Fakhry, Majid, trans. An Interpretation of the Qur’an. New York: New York University Press, 2002.
  • Gätje, Helmut (Alford T. Welch, trans. and ed.). The Quran and Its Exegesis. Berkeley, CA: University of California Press, 1976.
  • Al-Ghazālī, Shaykh Muhammad. A Thematic Commentary on the Qur’an. Herndon, VA: The International Institute of Islamic Thought, 2005.
  • Gwynne, Rosalind Ward. Logic, Rhetoric, and Legal Reasoning in the Qur’ān: God’s Arguments. London: RoutledgeCurzon, 2004.
  • Hamza, Feras and Sajjad Rizvi, eds. An Anthology of Qur’anic Commentaries, Vol. 1: On the Nature of the Divine. New York: Oxford University Press in association with The Institute of Ismaili Studies, 2008.
  • Hawting, G.R. and Abdul-Kader A. Shareef, eds. Approaches to the Quran. London: Routledge, 1993.
  • The Holy Qur’an: Arabic Text with English Translation and Short Commentary (Maulavi Sher  Ali, trans. and Malik Ghulam Farid, ed.). Tilford, Surrey, England: Islam International Publ., 1994.
  • Izutsu, Toshihiko. Ethico-Religious Concepts in the Quran. Montreal: McGill-Queens University Press, 2002.
  • Izutsu, Toshihiko. God and Man in the Koran. Salem, NH: Ayer Co. Publ., 1980.
  • Izutsu, Toshihiko. The Structure of Ethical Terms in the Qur’ān. Chicago, IL: ABC International Group, 2000.
  • Jansen, J.J.G. The Interpretation of the Koran in Modern Egypt. Leiden: E.J. Brill, 1974.
  • Kassis, Hanna E. A Concordance of the Qur’an. Berkeley, CA: University of California Press, 1998.
  • Khalifa, Rashad. Quran, Hadith, and Islam. Fremont, CA: Universal Unity, 2000.
  • al-Khu’i, ‛Abu’l Qasim al-Musawu. The Prolegomena to the Qur’an. Oxford, UK: Oxford University Press, 1998.
  • The Koran. J.M. Rodwell, trans. London: J.M. Dent & Sons, 1909 (reprint ed., 1974).
  • The Koran Interpreted. Arthur J. Arberry, trans. New York: Macmillan, 1955.
  • Leaman, Oliver, ed. The Qur’an: An Encyclopedia. New York: Routledge, 2005.
  • Madigan, Daniel A. The Qur’an’s Self-Image: Writing and Authority in Islamic Scripture. Princeton, NJ: Princeton University Press, 2001.
  • Mattson, Ingrid. The Story of the Qur’an: Its History and Place in Muslim Life. Malden, MA: Blackwell, 2008.
  • McAuliffe, Jane Dammen, ed. The Encyclopedia of the Qur’an, 5 Vols. Leiden: E.J. Brill, 2001-2006.
  • McAuliffe, Jane Dammen, ed. The Cambridge Companion to the Qur’ān. Cambridge, UK: Cambridge University Press, 2007.
  • Mir, Mustansir. Dictionary of Qur’anic Terms and Concepts. New York: Garland, 1987.
  • Nelson, Kristina. The Art of Reciting the Qur’ān. Austin, TX: University of Texas Press, 1985.
  • Pickthall, M.M. The Meaning of the Glorious Koran: An Explanatory Translation. New York: New American Library, 1930.
  • The Qur’an (Muhammad Zafrulla Khan, trans., with Arabic text). Northampton, MA: Olive Branch Press, 1997.
  • The Qur’an Translated, With a Critical Rearrangement of the Surahs. Richard Bell, trans. Edinburgh: T. & T. Clark, 1939.
  • Rahman, Fazlur. Major Themes of the Qur’an. Minneapolis, MN: Bibliotheca Islamica, 1980.
  • Rippin, Andrew. The Qur’an and Its Interpretive Tradition. Aldershot, UK: Ashgate, 2002.
  • Rippin, Andrew, ed. Approaches to the History of the Interpretation of the Qur’an. Oxford, UK: Clarendon Press, 1988.
  • Rippin, Andrew, ed. The Qur’an: Formative Interpretation. Aldershot, UK: Ashgate/Variorum, 2000.
  • Rippin, Andrew, ed. The Qur’an: Style and Contents. Aldershot, UK: Ashgate, 2001.
  • Robinson, Neal. Discovering the Qur’an: A Contemporary Approach to a Veiled Text. London: SCM Press, 1996.
  • Saeed, Abdullah. Approaches to the Qur’an in Contemporary Indonesia. New York: Oxford University Press, 2006.
  • Saeed, Abdullah. Interpreting the Qur’ān: Towards a Contemporary Approach. New York: Routledge, 2005.
  • Sands, Kristen Zahra. Sūfī Commentaries on the Qur’ān in Classical Islam. New York: Routledge, 2006.
  • Sells, Michael. Approaching the Qur’an: The Early Revelations. Ashland, OR: White Cloud Press, 1999.
  • Stowasser, Barbara Freyer. Women in the Qur’an: Traditions and Interpretations. New York: Oxford University Press, 1994.
  • Tabarī, al (J. Cooper, trans.). The Commentary on the Qur’ān. Oxford, UK: Oxford University Press, 1987.
  • Taji-Farouki, Suha, ed. Modern Muslim Intellectuals and the Qur’ān. Oxford, UK: Oxford University Press, 2004.
  • Turner, Colin, trans. (Mohammad Baqir Behbudi, textual exegesis). The Quran: A New Interpretation. Richmond, Surrey: Curzon Press, 1998.
  • Versteegh, C.H.M. Arabic Grammar and Qur’anic Exegesis in Early Islam. Leiden: E.J. Brill, 1993.
  • Wadud-Muhsin, Amina. Qur’an and Woman: Reading the Sacred Text from a Woman’s Perspective. New York, Oxford University Press, 1999 reprint ed.
  • Wansbrough, John. Qur’anic Studies: Sources and Methods of Scriptural Interpretation. Cambridge, UK: Cambridge University Press, 1977.
  • Wansbrough, John and Andrew Rippin. Quranic Studies: Sources and Methods of Scriptural Interpretation. Amherst, NY: Prometheus Books, 2004.
  • Warraq, Ibn, ed. The Origins of the Koran: Classic Essays on Islam’s Holy Book. Amherst, NY: Prometheus Books, 1998.
  • Warraq, Ibn, ed. What the Koran Really Says: Language, Text, and Commentary. Amherst, NY: Prometheus Books, 2002.
  • Watt, William Montgomery. Companion to the Qur’an. Oxford, UK: Oneworld, 1994.
  • Watt, William Montgomery and Richard Bell. Introduction to the Qur’an. Edinburgh: Edinburgh University Press, 1970.
  • Wild, Stefan., ed. The Qur’an as Text: Islamic Philosophy, Theology, and Science. Leiden: E.J. Brill, 1997.

[cross-posted at ReligiousLeftLaw]