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.

The College Football Top 25 as Compared to Literary Classics Reply

As Andy Staples writes, who knew that LSU was compared to Slaughterhouse Five, Alabama to To Kill a Mockingbird, or Oklahoma to Grapes of Wrath. For what its worth, I think All the King’s Men was a Far better choice for LSU and clearly Missouri is Hamlet. Of course Robert Penn Warren taught at LSU….  Need there be any other claim to number 1?

Harry Potter and the Normal: The Law and Harry Potter II Reply

Normal.   One word that captures the latent dividing struggle in the Harry Potter Novels.  Harry Potter simply longs to be; wizards walking through a muggle world can’t seem to be; death eaters long to redefine what it should mean; elves and centaurs seem resolute that they will never be, though responding to that election in different ways.  If we think about the Harry Potter world (and this should not surprise us) the question of normal and how we define it (or should define it) is a central theme of character development.  But this is not the normal of adolescent teenage angst and rebellion — though certainly that is revealed.

The normal world that Rowling’s envisions is the normal in which every living being has a place, if only he accepts it.  The normal is one of choices, structure and well-defined boundaries.  Its the normal of centaurs not reducing themselves to the humiliation of humans riding upon their backs, and elves being content and happy to serve their house masters.  And most prominently, its the normal of the Statute of Secrecy and the battle to redefine normal in the Harry Potter world.  Indeed, both the death eaters and the Order of the Phoenix envision worlds that are different than the one in which the Statute of Secrecy functions.   Death eaters perceive a future world in which secrecy is no longer necessary because wizards rule through their strength and sit upon thrones built of muggles.   The order (or at least elements within the Order) see a different world too — though its a world of cooperation, integration, and peaceful co-existence.  Either way, the war in the end of the novel is not about preserving normalcy — its about redefining it.

One can’t help but notice the role that law plays in this battle to define the new normal in the novels.  Indeed, as suggested by John Gava and Jeannie Marie Paterson in their essay: ‘What Role Need Law Play in a Society with Magic’, law does not serve the needs of repairing wrongs as it does in our muggle world — there simply is no need to do with the law what one could set right immediately by magic.  But broadly, I believe law performs a greater function than Grana and Patterson suggest — it performs the exact functions we expect law to perform even in muggle society.  Namely law defines the social group or groups who are afforded legal entitlements by prescribing certain penalties for either (a) acting outside the social group intended to be protected by the entitlement; or (b) directly violating the entitlement.  In other words, law preserves the normal — or at least what the authority would define as normal.  Let me offer three tangible examples:

Example one -Serious Black.  Serious Black is convicted of murdering muggles and one wizard and then sentenced to Azkaban.  The social order at the time that Serious Black was accused of committing these crimes was one of wizard/ muggle coexistence through secrecy.  Thus, Black was accused of a crime that interfered and directly challenged the entitlements of muggles to not be killed by wizards using magic: his crime directly challenged the underlying presumption of the law — that muggles have certain rights to not be killed by wizards. (Of course we know that Serious Black really did not kill anyone, but as with muggle law, the crimes which one are accused of do not necessarily constitute the actual crimes that one is subject to).

Example two – Harry Potter and the Dementer’s Trial in Book V.   Harry Potter’s trial is clearly a farce.   The orchestrated ambush by umbrage who also sits as judge (isn’t it interesting how judges in trials in the series often turn out to be so biased that it shocks the conscious, see i.e., executioner as appeals judge for Buckbeak’s trial); and the rearranged time of the trial so as to prejudice the defendant amongst other things. But most glaring is the role that the authority of the trial serves in preserving the social group it aims to protect.  The authorities rearrange the trial time.  The authorities set the judge panel. And in this context,  Harry is ambushed largely to keep him quiet n the face of a ministry that refuses to admit that Voldemort has returned.  The law serves the preservation of the normal by sanctioning those that might upset the balance of normalcy.  In other words, Harry’s trial makes it clear that the law is intended to protect those that comply with the ends expected by the ministry of magic. Thus,because Harry refuses to keep quiet regarding Voldemort’s return (a crime he will punished for multiple times in Book V), the law becomes his adversary.

Example three — The Trial of Mary Cattermole.  The new normal is that muggle-born wizards and witches are not a protected class — much less entitled to do magic.  After Voldemort’s return and the fall of the ministry, a new law comes into effect: the Muggle-Born registration commission.  As a result, muggle born wizards and witches are deprived of property they previously acquired lawfully — namely their wands.   Like in the trials of Potter and Black, the new order established that Mary was not a part of the social group that was entitled to protection (or certain property) — therefore, she, like other muggle-borns were subject to trial, marginalization, deprivation of property, even the potential punishment of death.

It seems that law’s place in the magical worlds is exactly the same as it is in ours — defining what is deemed to be the normal and sanctioning those that fall outside.  It seems to me that this is exactly the meaning underlying Robert Cover’s classic beginning to his article Violence and the Word: “legal interpretation takes place in a field of pain and death.”  May we be mindful of the pain and death we inflict and the normal we expect to arise as we do so.

Image above (From Harry Potter and the Deathly Hallows Part I — Snatchers bringing in Muggleborns to the Ministry.  

Please post your comments to below.

Setting the Table: Updated Links, Calls for Proposals and Law, Culture and Humanities Reply

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.

Nullem Tempus Currit Contra Regem and The King’s Two Bodies: Foundations of the Duality 3

Today I wrap up teaching one of my favorite subjects in Property (ok I like them all) — Adverse Possession.  One of the topics we cover is adverse possession claims against the state.   Traditionally, Adverse Possession claims against the state did not stand.  This tradition in the common law stretches to the concept of the King’s duality, the King as Corporation as F.W. Maitland would refer to it, or simply The King’s Two Bodies as eloquently stated by Ernst Kantorowicz.   As Justices Southcoate and Harper in the case Willion v. Berkley said (as reported in Blackstone):

The king has two capacities, for he has two bodies, the one whereof is a Body natural, consisting of natural members as every other man has, and in this he is subject to Passions and Death as other Men are; the other is a body politic , and the members thereof are his subjects, and he and his subjects together compose the corporation as Southcoate said, and he is incorporated with them, and they with him, and he is the head and they are the members, and he has the sole government of them; and this body is not subject to Passions as the other is, nor to death, for as to this Body, the King never dies, and his natural death is not called in our law, the Death of the King, but the demise of the King, not signifying by the word demise that the body politic of the King is dead, but that there is a separation of the two bodies, and that the Body politic is transferred and conveyed over from the Body Natural now dead, or now removed from Dignity royal, to another Body natural.   So that is signifies a removal of the Body politic of the King of this realm from one Body natural to another.

But perhaps the most famous iteration of the King’s two bodies comes from a case involving Edward VI’s lease of certain lands in the Duchy of Lancaster.   The land in question was considered to be the private lands of the Lancastrian Kings, not the property of the crown.  So when the lease that Edward the VI executed during his Regal term was called into question during the reign of Elizabeth I, the Crown lawyers all agreed upon the following:

that by the common law, no act which the King does as King, shall be defeated by his Nonage. For the King has in him two bodies, viz a Body natural and a Body Politic. His Body natural (if it be considered in itself) is a body mortal, subject to all Infirmities that come by nature or Accident to the Imbecility of Infancy or old Age, and to the like Defects that happen to the natural Bodies of other people.  But his Body Politic is a body that cannot be seen or handled, consisting of Policy and Government, and constitutes for the Direction of the People and the Management of the public weal. And this body is utterly void of infancy, and old age, and other natural Defects and imbecilities, which the Body Natural is subject to, and for this Cause what the King does in his Body Politic cannot be invalidated or frustrated by any disability in his natural body.

This notion of the King’s two bodies is not merely an aberration of the law — rather it was a well known complication of living with a king.  As a matter of fact, the notion of the king’s two bodies figures quite prominently in Shakespeare’s Richard II and are referenced in others. For example in Henry V, King Henry V says:

Twin-born with greatness subject to the breath, Of every fool, whose sense no more can feel But his own wringing.  What infinite heart’s ease Must kings neglect that private men enjoy! What kind of god are thou, that suffer’st  more of Mortal griefs than do they worshippers?

In Richard II, the King’s dilemma is the mortality of the body against the feuding and disquiet of his subjects.   And after seeing a long procession of “tortured kings” Richard proclaims:

For God’s sake let us sit upon the ground, And tell sad stories of the death of Kings – How some have been deposed, some slain in war, Some haunted by ghosts they have deposed, some poisoned by their wives, some sleeping killed; All murdered! for within the hollow crown that rounds the mortal temples of a king, Keeps death his Court, and there the antic sits scoffing his state and grinning at his pomp, Allowing him a breath, a little scene, to monarchize, be feared, and kill with looks, Infusing him with self and vain conceit, As if the flesh which walls our life, Were brass impregnable; and humored thus, Comes at last , and with a little pin Bores through his castle wall, and farewell King!

As noted before, this fictionalized view of the King (the persona gemini) had far reaching impacts, including the law of adverse possession.  The next post will consider the King’s two bodies impact on Adverse Possession more directly.

Update:  Read part II: Nullem Tempus Currit Contra Regem and the King’s Two Bodies: Time and Temporal Reflections Here

The Law and Harry Potter: Where is the Remorse? Reply

I was late to the party. The Harry Potter Party that is. Finally, over the past month and a half, I succumbed and read the Harry Potter novels with the goal of finishing before my Birthday on Thursday. I finished them today — so Happy early birthday to me! But that was not the only early birthday present I received — I found in my mailbox a copy of Thomas and Snyder’s The Law and Harry Potter.  Just like it was an eighth installment of the book, I tore it open, looking to see if my entrée’ into the wizarding world was similar to others.  While the essays I read were quite good  (I still have several more to go) one overwhelming question popped in my head  “where is remorse.”  Indeed, scaling the chapter of contents and the essays on criminal behavior, very little is said about Rowling’streatment of this central theme.  In fact, its not until we get to Darby Dickerson’s essay titled “Professor Dumbledore’s Wisdom and Advice” that we see remorse dealt with.  So why doesn’t a book dealing with Harry Potter and the Law deal more directly with remorse? Maybe that in and of itself suggests the answer — that the law is as uncomfortable with the idea of remorse as, well, Voldemort is.   For example, what happens when a lawyer, doctor or other professional says “I messed up?”   How do companies, universities and governments apologize?  How are apologies in the criminal context treated? As mere evidence of reform, no more powerful or less powerful than other factors, like can the person conform to other important social norms — making up one’s bunk, not fighting with inmates, etc… or the need to provide for retribution.  Perhaps the editors of the volume realized this fact — that often, the law and remorse have little to do with each other.   Perhaps the authors simply had nothing to say.

This criticism became most clear when reading Andrew Morriss’ essay Moral Choice, Wizardry Law, and Liberty: A classical liberal Reading of the role of law in the Harry Potter Series.  (I completely agree with Morriss’ assessment by the way that Rowling’s posits a calibration model inviting readers to evaluate themselves against the text).  But what is it that we should be calibrating?   I think Rowlings theme (since the third book — and likely before) is the role that remorse plays in shaping humans as humans, and humans as a part of a greater social group. As a proponent of the “progressive view of law” that asks what law should look like as a reflection of human advancement,  I think we should consider greatly the role that remorse plays on the human condition, and how the law should account for it.

Remorse as Regenerative — One broad theme we find in the Harry Potter saga is the regenerative effect of remorse — that remorse renders the characters as more human (and those that refuse to engage it are less so).  For example, Ronald and Percy Weasley both seem less than human during parts of the novels (like their responses are not a result of their agency, but rather are outside of their control).  Notably, the human character traits that Rowling emphasizes as most important  — family and friendship — are challenged by whether Percy or Ron will seek to repair damage relationships.  Percy’s haughtiness calls into question his position within the rest of the Weasley clan.  After all, is Percy a blood traitor like the rest of the Weasley family or is he different, and therefore should not belong.    For Ron, his betrayal of friendship causes the reader to question Ronald Weasley’s reason for beginning the quest.  Indeed, we have much to worry about leading up to the seventh installment when Ron’s connection to Potter is concerned — a constant internal battle between individual heroics and choices to continue a quest which seems more likely to lead to oblivion rather than exultation.  But through their remorse, both Percy and Ron are restored — Percy to his name and family, and Ron to his self-less role of friend and companion.    Other remorseful characters whose humanness becomes more focused because of their remorse is Lupin, Dudley Dursley, Albus Dumbledore, Regulus Black, Aberforth Dumbledore, Kreacher, and Snape.

But Rowling’s most visual depiction of remorse’s regeneration is when remorse is lacking.   For example, Tom Riddle shows no capacity for remorse, and therefore begins to lose his humanness (we see the humanness slipping from Tom thanks to Dumbledore’s memories in Book VI and realize that the form that we come to recognize as Voldemort has very little human left in — even in appearance, his humanity has slipped away.  When we encounter the fully formed Voldermort from Book IV onward, he is far less human, either by appearance, or action.   In Rowling’s world, its the lack of remorse that renders Tom Riddle as Voldemort and Voldemort as splintered and doomed.  Voldemort’s lack of remorse, begins with his perception that he he superior, with nothing to be remorseful of.  And the things that he does remorse over, are things he can chalk up to other people’s shortcomings — his family, his followers, or his advisors.

Misplaced Remorse — Rowling identifies two forms of remorse that seem to be as harmful as not being remorseful at all.   The first is automated remorse, or remorse that is so covered by one’s transgressions, it simply cannot reveal itself in any conscious manner.  Sometimes, then, remorse becomes the catalyst for betraying our own self-interests.  It may actually be so latent that the holder does not necessarily realize that remorse is working to define the individual’s behavior.  For example, remorse provides the fodder for Peter Petegrew’s betrayal of his own self-interest in the Malfoy manor basement (even if that remorse is automatic, rather than contemplated, as Dumbledore suggests it may be). Automated remorse deprives the holder of the pain that works upon one’s soul.  It therefore, only leads to the destruction of the person.  Interestingly, it is the least human part of Peter Pettegrew (his hand) which demonstrates his most human quality (his mortality).   Perhaps this is the most visible depiction of the reality that remorse holds in the law.  One might say that the very least a person seeking parol must do is “say your sorry” to his victim.  Perhaps the law understands how difficult it is to convert automated remorse into a regenerated human.  Though, perhaps there is even a virtue to being able to say your sorry — even if you don’t mean it.  As Ira Glass says at the beginning of the This American Life episode “Mistakes were made,” sometimes, the fact that people say their sorry is enough to let us know they at least respect the social code of apology, even if they are too hardened to believe the apology themselves.

The second category of misplaced remorse in Rowling’s work could be misdirected remorse (or remorse for the wrong things).  For example, at the end of the seventh novel, I am not sure anyone is fully convinced that the Malfoy’s are remorseful for anything more than choosing poorly.    Likewise, we learn that Aunt Petunia was merely sorry she was turned away.  These instances tend to demonstrate how inhuman, humans are without proper remorse.   Said slightly differently, the Malfoy family and Petunia Dursley are like Voldemort — they are human in form, but lack the central defining feature of regret and the ability to come to terms with one’s own inadequacies.  For these characters, remorse is to be applied to a failure of others, not to their own short comings.  They conveniently omit the reality that humans are at their core, broken and fallible.  Perhaps this remorse is most dangerous — the remorse that regrets actions not because they have consequences for others, but because they have consequences for themselves.

I invite your comments to weigh in.  Should the law consider remorse and if so how?