The Devil and Tom Walker — A Property Tale 4


I want to thank Warren, Patrick, Allen and Mai-Linh  for having me here at the Table.

Washington Irving’s The Devil and Tom Walker has been exemplified as a an example of Irving’s use of folklore in constructing narratives of context.  Most writers and commentators focus on the karma-istic nature of the story, the faustian detail (devil story), or the role of greed.   But the Devil and Tom Walker is a property story.  Yes — its about, at its core, the capacity of property to shape relationships amongst people.  A few areas of intersection emerge in a property world.    We see the conflict between entitlements that are respected and those that are not. In fact, as the last assignment for the semester, I am having my students read the Devil and Tom Walker.  These are some of the things I want them to see.  Today I want to point out how landscapes and their surroundings in The Devil and Tom Walker are intertwined in the property world.

The beginning of the story tells us that there are two property conflicts that will shape the story.  We learn that the Pirate Kidd has stashed gold in the hills amongst the trees in an inland swampy area under the watchful “guardianship” of the devil, “as [the devil] always does with buried treasure, particularly when it has been ill-gotten.”  We also learn that Tom Walker and his wife lived in a state of conflict over the things that might be termed their “earthly treasures.”  The wife hid things as they were acquired (like the eggs laid by the hen) and Tom pried about to discover her secret hoards, causing fierce conflicts over what Irving tells us should have been “common property.”  These conflicts left their marks on Tom’s face from time to time, though no one ventured to interfere with their business.

We also get an early glimpse of the poverty in which they lived — poverty which was common amongst their peers.

They lived in a forlorn looking house, that stood alone and had an air of starvation. A few straggling savin trees, emblems of sterility, grew near it; no smoke ever curled from its chimney; no traveller stopped at its door. A miserable horse, whose ribs were as articulate as the bars of a gridiron, stalked about a field where a thin carpet of moss, scarcely covering the ragged beds of pudding stone, tantalized and balked his hunger; and sometimes he would lean his head over the fence, look piteously at the passer by, and seem to petition deliverance from this land of famine. The house and its inmates had altogether a bad name.

Their Property, it seems, began to mimic the desolate nature of their souls.  Their home, like them, was forelorn.  The story does not tell us that Tom or his wife had children, but their property reflecting their nature suggests they were sterile, producing no fruit.  Moreover, the house was unwelcoming — there was no warmth either by fire or welcoming nature and no “traveller stopped at its door.”  The house became anthropomorphasized, at least as it reflected its two inhabitants, similar to the House of Usher in Poe’s tales, or the House of the Seven Gables from Hawthorne.

As Tom went walking one day, through the land, he came upon an area known amongst the common people as a dim place. Tom stops for a rest amongst a great tree and uncovers an indian skull with an ax embedded within it.  The place was known to be one where Indians performed incantations and made sacrifices.  It was a place where the sacred and the profane met.  But Tom was not one to be trifled with such stories.   Here, the story tells us a couple of things.  First, Tom perceives himself differently from the common people.  Common people believe in the mystical nature of the place which shapes the entitlements of people to enter; but not Tom.  Tom’s view of property then is shaped by what we would term entitlements, rather than propriety.  This is exemplified when Tom encounters the devil after kicking away the skull he has unearthed.

“Let that skull alone!” said a gruff voice….

He scowled for a moment at Tom with a pair of great red eyes.

“What are you doing in my grounds?” said the black man, with a hoarse growling voice.

“Your grounds?” said Tom, with a sneer; “no more your grounds than mine: they belong to Deacon Peabody.”

In Tom’s view, the Devil has no right to exclude Tom from the property.  Its only Deacon Peabody, whose entitlement is legally proper — that is respected by the white community.  In this end, it does not matter that Tom does not have an entitlement to the property.  All that matters is that neither does the devil, and from where Tom sees the world, his entitlement is probably better anyway.  Similarly, when Tom learns that the Devil is hewing trees (which represent the souls of the great men of the town), Tom asks what right did the devil have to tear down the trees.  And the Devil responds: “”The right of prior claim,” said the other. “This woodland belonged to me long before one of your white faced race put foot upon the soil.”

There is an irony in the claim of first title that emerges in the discussion between Tom and the Devil.   Tom does not respect the right of the native American’s to occupy the land.   He believes the entitlement is only proper with Deacon Peabody — an opinion which was consistent with the prevailing worldview as title goes.  See Johnson v. M’cintosh for example.  Ironically, Tom seems to accept the Devil’s account when he learns that the devil is not merely native american, but rather absorbs the dark matters across all cultures.   At this, the Devil has trumped Tom’s view of entitlement drawing on a greater source of right, than that which Deacon Peabody claimed his right — the actual right of first occupancy.

Similarly, the question of who has the rights to the chattels on the property are shaped by how Tom and the Devil perceive the entitlement to the wooded area. The Devil tells Tom of the treasure that falls under his protection.   At first, Tom is skeptical of the Devil.  In fact the story tells us that Tom was a “hard-minded fellow” and did not at all fear the devil and asked for proof that what the devil said was true.”  As the story proceeds, we see Tom does ultimately deal with the devil (I am going to cover Tom’s and his wife’s encounters with the devil in part II) and takes possession of the gold.  But what is important is how Tom perceives the Devil’s entitlement to the gold.  The Devil tells Tom that the only way to find the gold is through the Devil, who has hidden it so that none may find it.  As Tom prospers with the Devil’s gold, he begins to think about how he can cheat the devil out of his gold.

Once again, Tom defers to entitlements. His solution is to appeal to the what he believes can conquer the devil — zeal and devoutness.   Once again, relating the property course to this work, we see the American perspective shaped by how entitlements are created.

Some Questions for Students from the Devil and Tom Walker

1. How does Tom’s perception of the entitlements to the forest land shape his interactions with “Old Scratch?”

2. Does Tom’s lack of respect for the entitlements shape the way he respects the things found on the land? Compare the Skull with the Trees, with the Treasure.

3. Considering the reasoning of Justice Marshall in Johnson v. M’Insosh, how should we understand entitlements to the property in the forest.  Could Johnson v. M’Intosh be consistent with Devil’s entitlement to the forest land?

4. How should disputes relating to various chattels be resolved in relation to the Skull, the Trees, the Treasure?  Consider Pierson v. Post, Ghen v. Rich, Popov v. Hayashi, Keeble v. Hickeringill, and NAGPRA.   Does it matter if the Devil’s entitlement isn’t legitimate?

5. How does Property shape the various relationships in the story?   Tom and the Devil; Tom and his wife; Tom and Deacon Peabody; the Devil and Mr. Peabody?

6. Are there entitlements we should respect, regardless of their legal enforceability?

Are there other things that you would ask?  Please post comments below.

Forthcoming — The Devil and Tom Walker: A Property Tale — The Relationships of People to Property.  

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).

Nullem Tempus Currit Contra Regem and the King’s Two Bodies II: Time and Temporal Reflections 1


The legal fiction of the King’s Two Bodies had far reaching consequences — including creation of legal doctrines that are still honored today in various forms (like adverse possession against the state).   Importantly, the development of the king’s temporal exclusion is seen most clearly through the lens of property claims on inalienable property held by the crown.  Ernst Kantorovicz describes the emergence of prescription claims in England and their connection to the inalienability of kingly lands:

The English royal judges of the twelfth century most certainly were familiar the legal concept of prescription, which had capital importance in canon law and to which Graetian in his decretum devoted a whole section on which naturally the Decretists commented over and over again.  But the English judges apparently saw no need in themselves to reflect upon the idea of prescription, since they seem to not mention it at all.  This indifference towards prescription changed in the following century: Bracton dealt repeatedly, and in a scholarly manner, with the principle Longa Possessio Parit its, “long possession creates right.”… By [Bracton's] time reflections upon claims to prescriptive possession had become momentous to the royal judges.  In fact, prescription attained actuality within the public sphere once a certain complex of royal lands and rights had been set aside as “inalienable.”  In that moment, prescription and the prescriptive effects of time acquired considerable importance because they clashed, or might clash, with the notion of inalienability.  That is to say, the royal judges frequently faced situations in which they had to decide not only whether or not a private person could legally claim possession by prescription, but also to what extent such claims would affect royal rights and lands which were labeled “inalienable.”

It is this combination of the declaration of lands as inalienable, with the possibility that such declaration could be undone by the inconvenient reality of private long-term possessors, that forced the royal jurists to consider the nature of the king when claims of time were levied against him.  But just as the king’s duality allowed him the temporal supremacy necessary to defeat prescriptive claims against the inalienable lands (lands that would be defined further under Henry II, and which in oath the King swore to protect, preserve and recover); the king’s duality also recognized that the king was subject to prescription whenever “res non its sacra” or things less holy were concerned — things like tolls, manorial jurisdiction which fell outside the ancient demesne.”  Thus, the King’s two bodies was truly dualistic — completely perfect when it came to matters of the king’s realm, and yet completely subservient when it came to matters which were outside the king’s realm.  Kantorowicz again summarizes this nicely:

[I]n some respects the king was under the law of prescription; he was a “temporal being,” strictly “within time,” and subjected, like any ordinary human being, to the effects of time.  In other respects, however, that is, with regard to things quasi sacrae or public, he was unaffected by time and its prescriptive power; like “holy sprites and angels,” he was beyond time and therewith perpetual or sempiternal.  The king, as least with regard to time, had obviously “two natures” — one which was temporal and by which he conformed with the conditions of other men, and another which was perpetual and by which he outlasted and defeated all other beings.

Stanley Fish on Elena Kagan’s rhetorical style Reply


In today’s New York Times, Stanley Fish comments on Justice Elena Kagan’s rhetorical style in her dissent in Arizona Christian School Tuition Organization v. Winn (as well as his views on the case itself and his deep admiration and appreciation for Justice Scalia). In  Fish’s opinion, Kagan displays

a style of argument that marks her as someone to reckon with, both inside and outside the Court. And that she does, not by attempting to match Scalia’s sentence-by-sentence pyrotechnics (see for example his scintillating and prophetic dissent in Lawrence v. Texas) but by dismantling the majority’s reasoning piece by piece until there is nothing left standing.

If there is a rhetorical gesture that marks her performance (as biting scorn marks Scalia’s), it is “Oh yeah?” — as in, I see you assert X, but here is evidence, often from your own mouths, that X is a bad or inapposite or silly argument. Her weapon of choice is not the hit-and-run example (that is Scalia’s forte), but the extended example that open up and fills the landscape. To illustrate her point that the majority’s distinction between direct and indirect funding “is one in search of a difference,” she asks us to “imagine that the Federal Government decides that it should pay hundreds of millions to insolvent banks” (imagine that!) but finds itself resisted by taxpayers who don’t want “their hard-earned money to reward irresponsible behavior.”

Suppose further that the government thought to disarm the resistance by allowing banks “to subtract the exact same amount from the tax bill they would otherwise have to pay to the U.S. Treasury.” Would the proposal, she asks, “calm the furor or would most taxpayers respond that a subsidy is a subsidy (or a bailout is a bailout ), whether accomplished by one means or the other?” The question answers itself, but she answers it — “Surely the latter” — and she adds “we would think the less of our countrymen if they failed to see through this cynical proposal.” She doesn’t accuse her fellow justices of endorsing a cynical proposal; she just leaves it there.

Next she takes advantage of, without explicitly naming, her own religious identity: “Suppose a state desires to reward Jews — by say, $500 per year — for their religious devotion.” Would it matter to non-Jewish taxpayers “if the state allows Jews to claim the aid on their tax returns, in lieu of receiving an annual stipend” directly? And if Jews are too small a sample, how about subsidizing the purchase by Catholics of crucifixes? The state “could purchase the religious symbols in bulk and distribute them … or it could mail a reimbursement check to any individual who buys her own and submits a receipt … or it could authorize that person to claim a tax credit equal to the price she paid.”

“Now really,” she comments with only a bit of tongue in cheek, “do taxpayers have less reason to complain if the State selects the last of these three options?” (Notice that the question is asked in the negative and thus made at once softer and harder.) This time she doesn’t answer the question, but only says quietly (and devastatingly), “The Court today says they do.”

Nothing flashy here. Just a steady unrolling of point after obvious point in a relatively tranquil and moderate prose punctuated by an occasional flaring of amiable wit — “not really,” “what ordinary people would appreciate the Court’s case law also recognizes.” (Sometimes even the Supreme Court rises to the level of common sense.) If I am right, what we are seeing here is the emergence of a powerfully understated style of argument, inexorable without being aggressive, comprehensive without claiming to be so, regnant even when it is on the losing side. I look forward to more of the same.

The Confucian Worldview and the Odes Reply


 

I have a basic introduction to the Confucian worldview over at ReligiousLeftLaw* that I wanted to let readers know about because in the near future I plan on posting something here at the Table on one of the Five Classics of the “Confucian” canon, namely, the (book of) Odes (also called the Book of Songs or Book of Poetry). Familiarity with my fairly abstract and stylized rational reconstruction of concepts central to the Confucian worldview can thus serve as a propaedeutic backdrop, if you will, to this forthcoming piece on the Odes for the Table.

My status as an ardent amateur with regard to Chinese worldviews (i.e., my standing as an academic and intellectual parasite) means I depend mightily on the scholarly labors of others, in this case, Michael Nylan’s absolutely brilliant book, The Five “Confucian Classics (New Haven, CT: Yale University Press, 2001). For a taste of things to come, I quote from her introduction:

“For most of the time from 136 BC to 1905, the study of the Five Classics of the ‘Confucian’ canon—the Odes, the Rites, the Changes [Yi Jīng/I Ching], and the Spring and Autumn Annals—formed at least part of the curriculum tested by the government examinations required of nearly all candidates for the Chinese imperial bureaucracy. Thus the more cultured members of society in premodern China, even those who had failed the examinations or had passed but never held office, enjoyed a familiarity with the Classics that afforded them a common store of knowledge. As successive governments throughout East Asia came under the cultural sway of the Chinese system, the Classics came to influence thought and politics in Korea, Japan, and Vietnam, so that the collection as a whole once occupied in East Asia a position roughly analogous to that of the Bible in the West, its compelling arguments couched in elegant formulations, ‘subtle phrasing with profound implications’ (weiyan dayi). These texts associated with the Supreme Sage, Confucius, were thought to set the pattern of what it was to become a fully developed human being, and also the principles that allowed for the complex and interrelated processes of political, social, and cultural reproduction. Thus, generation after generation tied the maintenance of the state and of personal identity to the propagation of this textual tradition. [….]

The modern rubric ‘Five Confucian Classics,’ however, has tended to skew understanding of these texts, as it implies both a direct connection with the historical Confucius (551-479 BC) and a closer connection among them than is warranted by their early histories. Most of the texts were evolving in oral as well as written forms for centuries before they acquired the designation ‘classic’ or ‘Confucian;’ hence vastly differing approaches to social, political, and cosmic issues are discernible among and even within the texts. Beginning in Han (206 BC-AD 220), state-sponsored classical learning—often dubbed ‘Confucian’ when ‘orthodox’ or ‘official’ would be more appropriate—drew freely on the teachings of many non-Confucian thinkers, the better to cope with the complexities (many unforeseen by Confucius) of ruling an empire [I would hasted to add that Confucius was not first and foremost concerned with ‘ruling an empire,’ even as he hoped to persuade ruling elites of the moral and political importance of teachings he believed sanctioned by tian and the sages of old].”

*Please see The Confucian Worldview: A Rational Reconstruction.

Image: Seven Scholars Going through the Pass, Li Tang (Chinese, ca. 1050s-after 1130) Ming dynasty. [click on image for enlarged view]

Description:  “Accompanied by a small group of retainers on foot, seven gentlemen riding mules, horses, and an ox leave behind the gate of a pass and casually proceed along a wintry riverbank. Six of the men are dressed against the cold in identical white robes and wide-brimmed hats worn over dark shoulder-length hoods, while the seventh is clad in gray and wears an official’s black cap. Some of the men turn to talk with each other, gesturing with their whips, but there is no urgency in their manner. The bundles of scrolls, umbrellas, and food utensils carried by the retainers—together with the ubiquitous wrapped qin (zither)—suggest that the group is venturing forth on a daytrip to some nearby scenic location.”

This is just the sort of thing I’ve imagined in my mind’s eye taking place with Confucius and his students: on a daytrip to a scenic location to sing and dance, including recitations from the Odes, in other words, a far cry from the rather staid and stern portraits one often finds of Confucius.

Sufi Poetry–I 3


 

“The Arabic world abounds with poetry festivals. Iran’s heritage of great love poetry is close on the lips and in the hearts of a large percentage of Iranians. Throughout much of the classical Islamic world, poetry is at the center of cultural life.”—Michael Sells

Having completed our propaedeutic for poetry and Islam,* in this series of posts I’ll share some representative poems from the Islamic mystical tradition, that is, Sufism. These will be prefaced by introductory biographical sketches designed in part to shed light on the specific subject matter of the poems. Ideally, of course, one would have some familiarity with the Islamic religious tradition generally and Sufism in particular, yet it’s often been said these poems can be appreciated and enjoyed absent such knowledge, if only because they are constructed from words possessing both an indispensable exoteric or outward (zāhir) meaning and an esoteric or inward (bātin) meaning, a contrast that should not be construed as simply coextensive with the difference between the literal and the figurative. All the same, I believe the ideal reader will benefit from an acquaintance with a handful of essential Islamic terms and a basic Sufi vocabulary.

*  *  *  Our poems are in English translation (largely from Arabic and Persian) and it therefore seems appropriate to say a thing or two about issues invariably raised with the translation of literature and especially poetry. Here I’ll defer to the sensitive and sensible observations of the Palestinian poet, translator, and critic, Salma Khadra Jayyusi. In introducing her edited volume, Modern Arabic Poetry: An Anthology (1987), Jayyusi is rightly impressed by “how very similar poetries are, and how unprejudiced and competent poets easily assimilate and interpret the verse of other poets of a completely different language and culture. In this sense it is possible to say that poetry has many tongues but a single language.” Nevertheless,

“Some critics believe that since perfect equivalence in translation is not attainable, there is no point in attempting the task of translation at all. But what a loss it would be if no one could come to know the great poets of the human race who wrote in languages different from their own! In most cases, the only way to read the poetry of other cultures is through the medium of translation. This makes the task of translation not only a major aesthetic undertaking, but also a crucial cultural responsibility: poetry is the main vehicle for expressing the emotional experience of a people, and for revealing their deeper consciousness of the world, and it may bring the reader into a more intimate knowledge of other people’s actual life situations. [Poetry is thus like mythic literature or modern fiction, all of which communicate truths of a kind and different kinds of truth having to do with the human condition, questions of value and meaning, and the motley nature of the human character.]  If we think about it, even when poets read a foreign poetry directly in its original tongue, they tend to go through a process of translation in order to benefit from this poetry in their own work. What usually happens is that they translate this poetry in their own minds, often as they are reading it. In short, the process of translation goes on, in one way or another, all the time.”

*  *  *  The following will suffice as an introduction to a few fundamental Sufi concepts:

The Sufi Path has been described by some as primarily “a path of love,” one in which “the human soul searches out God, and if the grace of God falls upon the searcher, then he or she finds fanā’ (annihilation) in God and ultimately baqā’ [‘abiding’] or eternal existence in the consciousness of God” (Jamal, tr. and ed. 2009: xx). I’m inclined to disagree with arguments on behalf of the primacy of love in Sufism, however accurate the definitions here of fanā’ and baqā’.  Fortunately, I can appeal to one of the foremost experts on Sufism in our time, the Iranian born Islamic philosopher, Seyyed Hossein Nasr, for a different characterization, one that posits instead the primacy of “gnosis,” all the while recognizing a prominent role for love in Islamic spirituality:

“According to Sufism, the supreme goal of human life is to attain Truth, which is also Reality, the source of all reality, and whose attainment, as also stated by Christ, makes us free, delivering us from the bondage of ignorance. Although deeply involved with love, and also on a certain level with action, Sufism is at the highest level a path of knowledge (ma‘rifah in Arabic and ‘irfān in Persian), a knowledge that is illuminative and unitive, a knowledge whose highest object is the Truth as such, that is, God, and subsequently the knowledge of things in relation to God. [….] The knowledge of the Truth is like the light of the sun while love is like the heat that always accompanies that light” (Nasr 2007: 30).

And now we can proceed to account for the relation between the attainment of fanā’ and baqā’ and this Truth, this Reality, or God. Fanā’ is the spiritual experience of loss of individual identity or sense of self in the unity and oneness (tawhīd) of God. God is, so to speak, and in the end, the only (or ultimate) Reality. Fanā suggests the end of purely individual awareness, a condition later symbolized with the metaphor of the Black Light, “the light of bewilderment; when the divine light fully appears in the mystic’s consciousness, all things disappear instead of remaining visible (medieval and Renaissance mystics in Germany would speak of the überhelle Nacht). Such is the experience of fanā’—a blackout of everything until the mystic perceives that this blackness is ‘in reality the very light of the Absolute-as-such’…” (Schimmel 1975: 144). Baqā, on the other hand, “refers to the paradoxical experience of surviving an encounter with the divine,” an encounter which results in the utter effacement of individual identity (Renard: 21) (in which case we might ask, ‘who’ or ‘what’ is having the mystical experience?), and is seen as the complementary correlative of fanā. Such subsistence in God finds the soul “travers[ing] ever new abysses of the fathomless divine being, of which no tongue can speak” (Schimmel 1975: 306), reminding us of what philosophers of mysticism have labeled “pure consciousness events” (PCE), the alleged “’emptying out’ by a subject of all experiential content and phenomenological qualities, including concepts, thoughts, sense perception, and sensuous images” (Jerome Gellman), as well as the theological rationale for apophatic mysticism.  Nasr proffers the following description: “to be fully human is to realize our perfect solitude and to remove the veil of separative existence through spiritual practice so that God, transcendent and immanent within us, can utter ‘I’” (Nasr: 13). Subsistence in God has also been defined as “the annihilation of annihilation” (fanā’ al-fanā’). It is this summit of mystical experience that is said to be responsible for spontaneous ecstatic utterances (shathīyāt) on the order of Hallāj’s notorious proclamation, “I am the Truth.” Nasr explains: “It is through al-fanā’ that human beings gain the ‘Truth of Certainty’ (haqq al-yaqīn). The person in whom such a truth has become all-pervasive is called muhaqqiq, literally, the person in whom Truth has become realized [This sounds remarkably similar to Gandhi’s unconventional conception of avatāra in Hinduism, which is traditionally understood to mean a divine ‘descent’ or ‘incarnation,’ but which Gandhi interpreted to indicate man’s wish to become like God. In the words of Margaret Chatterjee’s discussion of Gandhi’s account, ‘It is possible for every human being to become perfect, as God is, and it is necessary for us to aspire towards it.’] ; this person has become embellished with the Qualities of God…” (Nasr: 135-136). The Qualities of God are equivalent to the “names of God” as well as the “character traits” (akhlāq) of God, as in the hadīth attributed to the Prophet: “Assume the character traits of God” (takhallaqū bi akhlāq). And yet “these states are granted only to the saintly and God-graced few. For most, the Path is a path of loving God through his manifestations [what Hindus call ‘bhakti yoga,’ the path of love and devotion to God most accessible to the masses, the path of knowledge or wisdom, jñāna yoga, being the prerogative of the few]. This is the message Sufism conveys to the common believer: love God, love God’s creation and praise Him and remember Him all the time” (Jamal: xx). Profane or romantic love, that is, the “love of created things” (‘ishq-e majāzī), while in the end illusory, is no less important insofar as it can serve as a bridge to true love, that is, the love of God.

*  *  *  Rābi`a al-`Adawīyya, our first poet, was born in Basra, the city of date palm forests and salt marshes at the head of the Persian Gulf, in 95/714 or 99/717-8. She died in the former garrison town in 185/801. Rābi`a represents the pinnacle of the Basran tradition of women’s ascetic spirituality within Islam. Within Sufism, she is one of the (if not the) earliest exponents and dramatic exemplars of “love-mysticism.” As John Renard notes in his Historical Dictionary of Sufism (2005), “She is one of the few women who consistently merited a place in hagiographic anthologies over the centuries.”

Aptly described as an “ascetic of extreme otherworldliness” (Smith 2001: 105), Rābi`a’s life was bound by an ascetic triune of prayer, poverty (faqr) and seclusion that encompassed the threefold prescription of Sufi conduct: “little food, little sleep, little talk.” Her uncompromising and lifelong ascetic regimen required periodic desert sojourns and the construction of a simple hut for devotional retreat. She defined for the Sufi novice the requisite path of renunciation, the underlying rationale for which is a single-minded and wholehearted love (mahabba) of God.

Physically frail and frequently ill, Rābi`a was no less renowned for the rigors of her asceticism (both ill-health and longevity have been attributed to her vigilant asceticism!). She is reputed to have refused several offers of marriage, preferring the celibate life. Although no school was founded in her name, women and more often men, came for spiritual advice and instruction in deference to her informal mastery of early Sufi doctrine and practice.

The picture of a “highly-strung and emotional recluse” painted by an early biographer suffers in comparison with Sulamī’s portrait of her in his Dhikr an-niswa al-muta `abbidāt as sūfiyyāt (Memorial of Female Sufi Devotees) as “a rational and disciplined teacher who demonstrates her mastery of important mystical states, such as truthfulness (sidq), self-criticism (muhāsaba), spiritual intoxication (sukr), love for God (mahabba), and gnosis (ma`rifa)” (Cornell 1999: 62).

No matter how wondrous, God’s works are but veils obscuring His beauty and essence, obstacles in the way of eventual union of the lover with the Beloved. Thus Rābi`a’s conception of repentance (tawba) is more than mere remorse for sinning and the corresponding resolve to sin no more: repentance denotes the determination to turn away from all save God. Yet, perchance paradoxically, for Rābi`a tawba is a “gift [of grace] from God.” As such, it is a prelude to or necessary condition for a host of psycho-spiritual virtues and emotional dispositions; but most importantly, tawba allows for the abnegation of personal will in the will of God (theologically derived from tawhīd, the acknowledgement and awareness of the oneness of God). In addition to the longing of the lover for the Beloved (shawq), or the yearning of the soul purged of nafs (baser passions, selfish desires) to experience intimacy with God (uns), Rābi`a’s love mysticism therefore entails utter acquiescence of the lover in the will of the Beloved (ridā’, lit. contentment or satisfaction). Not surprisingly, ridā’ signifies God’s satisfaction with his loving servant’s obedience, which is metaphysically if not logically prior to the subjective experience of ridā’, that is, the lover’s contentment with her lot in life, her share of misfortune, adversity or suffering. Like the God of the Hebrew Bible, Rābi`a’s God is a jealous God “who will suffer none to share with Him that love which is due to Him alone” (Smith 2001: 131), hence the prohibition of idolatry (shirk in Islam, the theological converse of tawhīd). Finally, disinterested love of God means the obedient servant is ideally motivated by neither hope for eternal reward (Paradise), nor fear of eternal punishment (Hell). In a theistic variant of Euthyphro’s question, Rābi`a asks, “Even if Heaven or Hell were not, does it not behove us to obey Him?”

While a foretaste of the union of the lover with the Beloved is possible in this vale of tears, only death can bring about kashf, the final unveiling of the Beloved to his lover(s). And it is thus mahabba that, in the end, makes possible knowledge (ma`rifa) of God. Ascetic practice serves both to heighten the sense of separation from, and intensify the longing for, the Beloved: acute awareness of the sin of separation assuming the form of grief and sorrow in Basran mysticism. Such lamentation was often vividly expressed—Rābi`a included—through incessant weeping (bukā’), the prolonged practice of which sometimes led to blindness (Cornell 1991: 61).

Although love for the Creator turned her away from love of created things, she faced her separation from the Beloved with a patience (sabr) and gratitude (shukr) that transcended any feelings of grief and sorrow, befitting one enthralled by a vision of eventual union with the Divine.

Rābi`a’s poetry illustrates the fact the “early Sufis were mystics and philosophers first and poets second. Their greatness, in other words, lies not in their poetry but in their lives and utterances” (Mahmood Jamal). Most Sufis would no doubt prefer to be remembered for “their lives and utterances,” but several later Sufis, most conspicuously and deservedly, Rūmī, are best known in the first instance as poets.

 

You Have Infused My Being

You have infused my being

Through and through,

As an intimate friend must

Always do.

So when I speak I speak of only You

And when silent, I yearn for You.

 

If I worship You

O Lord, if I worship You

Because of fear of hell

Then burn me in hell.

If I worship You

Because I desire paradise

Then exclude me from paradise.

But if I worship You

For Yourself alone

Then deny me not

Your eternal beauty.

 

My Rest is in My Solitude

Brethren, my rest is in my solitude,

And my Beloved is ever in my presence.

Nothing for me will do but love of Him;

By love of Him I am tested in this world.

Whereso I be I contemplate His beauty;

He is my prayer-niche; He mine orient is.

Died I of love and found not His acceptance,

Of mankind I most wretched, woe were me!

Heart’s mediciner, Thou All of longing, grant

Union with Thee; ‘twill cure to the depth.

O Thou, ever my joy, my life, from Thee

Is mine existence and mine ecstasy.

From all creation I have turned away

For union with Thee mine utmost end.

(Martin Lings, tr.)

 

In My Soul

In my soul

there is a temple, a shrine, a mosque, a church

where I kneel.

Prayer should bring us to an altar where no walls or names exist.

Is there not a region of love where the sovereignty is

illumined nothing,

where ecstasy gets poured into itself

and becomes lost,

where this wing is fully alive

but has no mind or body?

In my soul

there is a temple, a shrine, a mosque, a church

that dissolve,

that dissolve in God

(Daniel Ladinsky, tr.)

*Our earlier introductory posts on the subject are found here, here, here, and here. 

Please Note: The poem, “If I Worship You,” is virtually identical to a prayer attributed to St. Francis Xavier, which I discovered in reading James Kellenberger’s discussion of motives for religious belief in The Cognitivity of Religion: Three Perspectives (1985: 125). Unfortunately, Kellenberger does not provide us with a reference. Another version, much longer, but containing the same religious sentiment regarding heaven and hell, is found here. Many of the poems of Rābi`a have not been authenticated, so it’s possible that this is properly attributed to St. Francis Xavier, although he lived and died in the sixteenth century (and visited parts of the Islamic world in his extenstive missionary travels) and Rābi`a in the ninth, so perhaps the borrowing runs in the other direction! I’ve yet to come across any discussion of this in the scholarship on Rābi`a.

References:

Cornell, Rkia E., tr. Early Sufi Women—Dhikr an-niswa al-muta `abbidat as sufiyyat, by Abu `Abd ar-Rahman as-Sulami. Louisville, KY: Fons Vitae, 1999.

Jamal, Mahmood (tr. and ed.). Islamic Mystical Poetry: Sufi Verse from the Early Mystics to Rumi. London: Penguin Classics/Books, 2009.

Jayyusi, Salma Khadra, ed. Modern Arabic Poetry: An Introduction. New York: Columbia University Press, 1987.

Nasr, Seyyed Hossein. The Garden of Truth: The Vision and Promise of Sufism, Islam’s Mystical Tradition. New York: HarperOne, 2007.

Renard, John. Historical Dictionary of Sufism. Lanham, MD: Scarecrow Press, 2005. 

el-Sakkani, Widad. First Among Sufis: The Life and Thought of Rabia al-Adawiyya, the Woman Saint of Basra. London: Octagon Press, 1982.

Schimmel, Annemarie. Mystical Dimensions of Islam. Chapel Hill, NC: University of North Carolina Press, 1975.

Smith, Margaret. Muslim Women Mystics: The Life and Work of Rābi`a and Other Women Mystics in Islam. Oxford, UK: Oneworld, 2001.

Cross-posted at ReligiousLeftLaw.com

Losing their Religion, or The Ironic Reader of Judicial Religious Temperment 1


wpid-mojavecross.jpg

How should our Supreme Court justices embrace their religious preferences? In another stunning blog post on CNN Stephen Prothero confronts the tendency to think that justices of the Supreme Court lose all personal touch with the world in which they have lived — a world that largely includes religious temperaments and experiences. (We have blogged about Stephen’s other posts here). Stephen writes:

If Supreme Court justices were impersonal computers, taking in laws and facts and spitting out impartial decisions, then we would not need religious diversity on the court. We wouldn’t need racial or gender or regional diversity either. Nine old white Catholic men would work just fine. Or for that matter nine young African-American Muslim women. But the world is what it is. And it is in the real world, not the world of should and supposed to, that the flawed and imperfect human beings we call justices operate.
So here is the question I would put to my critics: Are human beings creatures of objective thought, able to click their fingers and magically set aside their biases, passions and “self-love”? Or are we creatures of subjective passions whose interests should be subject to the sorts of checks and balances that Madison so vigorously defended and a diversity of experience offers?
Judges do make decisions based on experience. Holmes’s haiku laden phrase “The Life of the law has not been logic; it has been experience,” begs the question of whose experience (did not know that this quote maintained a 5-7-5 structure did ye?) If the experience of the law is the collected experience of us all, then perhaps the law should be agnostic towards the individual faith. But as we know, the law’s experience has excluded as much as its included, whether by race, wealth, gender, property or sexual orientation, the law’s experience has not been all of our experiences. Why then should we expect the experiences of the whole, to be excluded because we perceive that the whole has been adequately represented. After-all, should we treat our judges as potted plants? See i.e. Richard Posner, What am I? A Potted Plant?, The New Republic (1987).

These tendencies to down play the individual experience in favor of the collected experience is revealed perhaps most acutely in one’s religion. We can see that in the exchanges during oral arguments with Antonin Scalia and Anthony Kennedy, during the Salazar v. Buono hearing. (Salazar v Buono involved the maintenance of a cross in the Mojave National Preserve erected by the Veterans of Foreign Wars after World War I). Both of Scalia and Kennedy are devoutly catholic. At one point, when it was suggested that a Jewish star would more appropriately honor the Jewish soldiers that died in World War I, Scalia responded
It’s [the cross is] erected as a war memorial. I assume it is erected in honor of all of the war dead. It’s the—the cross is the—is the most common symbol of—of—of the resting place of the dead, and it doesn’t seem to me—what would you have them erect? A cross—some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?”

Later in the same oral argument, Justice Kennedy said:

Although certainly a Christian symbol, the cross was not emplaced on Sunrise Rock to promote a Christian message . . . Time also has played its role. The cross had stood on Sunrise rock for nearly seven decades before the statute was enacted. By then, the cross and the cause it commemorated had become entwined in the public consciousness . . . Congress ultimately designated the cross as a national memorial, ranking it among those monuments honoring the noble sacrifices that constitute our national heritage . . . a symbol that . . . has complex meaning beyond the expression of religious views . . . one Latin cross in the desert evokes far more than religion.

I want to point out that both Scalia and Kennedy seem to neutralize their religious sentiments in favor of a secularized view of the cross. Let me say, they are right. The cross serves a secular function in our country, depicting our shared national myth of a Western Christian world. But here is the ultimate question. Who actually believes the justices when they down play their religion. Scalia, more so than Kennedy created substantial commentary largely because it was so shocking to hear him, of all justices, secularize a symbol of his own religion. These justices cause us to consider whether their words are to be read through the lens of an ironic reader. Just as we might question the double meaning of Billy Budd’s “farewell to the Rights of Man” upon being conscripted aboard an English vessel, we might also question the ironic tone of Scalia and Kennedy’s remarks. Scalia and Kennedy want us to believe that they can take off their religion like a coat and commence judging, saying “farewell ye vestments of faith.” Like Prothero, I seriously doubt that they can. Like Billy Budd, I am not sure we should read them literally even if they think that they have succeeded.