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?

Nietzsche on the Writer or Artist 2


“[O]ne does well to separate the artist from his work, which should be taken more seriously than he is.  Ultimately, he is no more than its pre-condition, the womb, the soil, possibly the manure and midden upon which, from which it grows—and thus, in most cases, something which must be forgotten before the work itself can be enjoyed.  Insight into the origin of a work is a matter for physiologists and vivisectors of the spirit: but never one for the aesthetic men, the artists!”

—Friedrich Nietzsche, On the Genealogy of Morals

It’s easy, reading Nietzsche, to fall into anachronism: to consider his comments about divorcing the author from the text as indicative of something akin to the New Criticism, a hermeneutic that isolated texts from externalities such as authorial intent and that treated the aesthetic object as self-contained and autonomous.  That is not at all what Nietzsche meant.  For Nietzsche, the text, or the aesthetic object, is not isolated from externalities, but merely removed from and, in a way, prior to the author; the text is plugged into externalities, shaped and molded by them, so much so that the author is but the incidental medium through which the text speaks.  The text, in other words, has its own authority apart from its creator, who, through the will, channels social and cultural energies to generate aesthetic output.  The writer or artist is “no more than its pre-condition, the womb, the soil, possibly the manure and midden upon which, from which it grows.”  Discourse impregnates the writer or artist, who, thus implanted with ideas and alphabets, carries vocabularies through their prenatal stages and into a rebirth—or new expression—in the form of art.  

According to Nietzsche, the objects and ambitions of the writer or artist as a thinking actor are not, or ought not to be, overstated because the writer or artist is the ultimate example of the effect of action and will.  For the writer or artist is not independent from discourse and ethos—indeed, he is constituted by them, and so, by extension, is his textual production: the aesthetic object.  We may forget the author; if anything, he or she only impedes the pleasure we derive from texts and aesthetics.  The author is “something which must be forgotten before the work itself can be enjoyed.”

Why does Nietzsche posit this view?  What is he after?  Among other things, he’s criticizing the writers and artists who would have us believe that they are above and beyond others, somehow able to divine the real and the eternal.  These writers and artists treat the ascetic ideal as part and parcel of aestheticism—i.e., they conflate the ascetic with the aesthetic to maximize their feeling of power.  Although writers and artists promote themselves in this way, as if they had privileged access to universal yet remote knowledge, they realize, Nietzsche says, that on some level their ascetic ideal is an unreality or falsity—what Baudrillard might have called a hyperreality or simulacrum.  The ascetic ideal is escapism: a fleeting respite from the reality of the will to power, the impulse that the writer or artist seeks to evade, suppress, and disguise.  The conflict of the writer or artist lies in the desire to escape both to and from asceticism; for the intoxicating powers of the ascetic ideal are sobered by the boredom and angst of knowing that the ideal is but therapy and relief.  That realization means that therapy and relief are themselves, paradoxically, the grounds for further escapism—for further therapy and relief. 

All of this suggests that ascetic ideals do not signify.  As Nietzsche says, ascetic ideals “mean absolutely nothing!”  What is so remarkable about these ideals is that they are contingent and contextual such that they amount to nothing and everything at once, and that we will, despite ourselves, and despite our longing for meaning, chase after nothing rather than not chase at all.  That, alas, is why the artist lacks independence in this world.  That, alas, is why no artist is disinterested.   

Allen Mendenhall

Osnabrück Update: Law, Literature, and the Nation Reply


The following is cross-posted from Legal Lacuna.

Law, Literature, and the Cultural Presence of the Law,” a workshop convened by Claudia Lieb and Brook Thomas as part of the Summer School, has been examining the many possible relationships between law and literature by focusing on “the nation” as a site of disciplinary convergence.

The workshop’s well-structured reading list began by tracing the history of citizenship and the nation-state, and moved on to literary theory treating law and the nation, including work by Guyora Binder/Robert Weisberg and Homi Bhabha. As a “law and literature” case study, the workshop then examined E.E. Hale’s Civil War-era short story, “The Man Without a Country” (1863) in view of the historical controversy that inspired it: Clement Vallandingham, a Union politician, was arrested and punished for speaking out against the Civil War. The Vallandingham case sparked a “reply” by President Abraham Lincoln arguing that the government may, during times of rebellion, suspend habeas corpus, prohibit anti-war speech, and try protesters in military court. The case raised constitutional issues that have resurfaced several times in U.S. history, most recently, of course, during the wars in Iraq and Afghanistan.

Hale’s patriotic short story should interest those who study nationalism and citizenship. It concerns a young American man who speaks out against his country and is sentenced to spend the rest of his life never seeing or hearing another word about the United States. Over time, the man (named Nolan, a play on “no land”) feels the loss of his country deeply and by the end of his life is a fully reformed, though still exiled, patriot. Although the story is fictitious, Thomas notes, some readers took it to be true and its nationalistic message resonated widely; it was a staple of American high school curricula until the 1970s and has experienced something of a revival since 9/11.

Law, Language & Culture Reading Lists from Osnabrück Summer School Reply


The following is cross-posted from Legal Lacuna.

Many thanks to Director Peter Schneck and the faculty of the Summer School for giving permission to share these valuable reading lists.

The reading list for Workshop 1, entitled “The Complex Relation between Culture and Law: Methods, Concepts, Approaches,” was posted earlier.

Detailed workshop descriptions can be found here (scroll down for links).

Workshop 2: From Human Rights to Civil Rights to Cultural Rights

Convened by: Helle Porsdam & Cindy Holder

  • Anaya, S. James. Indigenous Peoples in International Law. 2nd ed. Oxford: Oxford UP, 2004. Read p. 129-48.
  • Jones, Peter. “Human Rights, Group Rights and Peoples’ Rights.” Human Rights Quarterly 21.1 (1999): 80-107.
  • Porsdam, Helle. “Divergent Transatlantic Views on Human Rights: Economic, Social, and Cultural Rights.” From Civil to Human Rights: Dialogues on Law and Humanities in the United States and Europe. Cheltenham: Edward Elgar, 2009. Read p. 92-113.
  • —. “Divergent Transatlantic Views on Human Rights: The Role of International Law.” From Civil to Human Rights: Dialogues on Law and Humanities in the United States and Europe. Cheltenham: Edward Elgar, 2009. Read p. 114-35.
  • —. “Transatlantic dialogues on copyright: cultural rights and access to knowledge From Civil to Human Rights: Dialogues on Law and Humanities in the United States and Europe. Cheltenham: Edward Elgar, 2009. Read p. 136-64.
  • Raz, Joseph. “Rights and Individual Well-being.” Ratio Juris 5.2 (1992): 127-42.
  • Reidel, Laura. “What are Cultural Rights: Protecting Groups with Individual Rights.” Journal of Human Rights 9 (2010): 65-80.
  • Supreme Court of Canada , R v Van der Peet [1996] 2 S.C.R. 507

Workshop 3: Law, Literature and the Cultural Presence of the Law

Convened by: Claudia Lieb, Brook Thomas

Session 1:

  • Pocock, J. G. A. “The Ideal of Citizenship Since Classical Times.” Theorizing Cituizenship. Ed. Ronald Beiner. New York: State U of NY P, 1995. 29-52.
  • Bosniak, Linda. “Citizenship.” The Oxford Handbook of Legal Studies. Ed. Peter Cane, Mark Tushnet. Oxford: Oxford UP, 2003. 183-201.
  • Habermas, Jürgen. “Citizenship and National Identity: Some Reflections on the Future of Europe.” Theorizing Citizenship. Ed. Ronald Beiner. New York: State University of NY P, 1995. 255-81.
  • Bader, Veit. “Citizenship and Exclusion.” New York: St. Martin’s P, 1997. Selection from “Fairly Open Borders.”
  • Thomas, Brook. “(The) Nation-State Matters: Comparing Multiculturalism(s) in an Age of Globalization.” Globalization and the Humanities. Ed. David Li. Hong Kong: Hong Kong UP, 2004.135-57.

Session 2: 

  • Bhabha, Homi K., ed. Nation and Narration, London/New York: Routledge, 1990. Ch. 1 (p. 1-7), Ch. 2 (p. 8-22), Ch. 8 (p. 138-53), Ch. 16 (p. 291-322).
  • Binder, Guyana, and Robert Weisberg. Literary Criticism of Law. Princeton: Princeton UP, 2000. Read Ch. 3: “Conclusion: Performing the Law and Narrating the Nation,” p. 287-91; Ch. 6 “Introduction” to “6.1 Theoretical Sources,” p. 462-79.
  • Jhering, Rudolph von. Law as a Means to an End. Trans. Isaac Husik. Boston: Boston Book Company, 1913. Read p. 59-68.

Session 3:

  • Hale, E. E.  “The Man without a Country.” Atlantic Monthly 12.74 (1863): 665-79.
  • “Mr. Lincoln’s Reply.” Union Pamphlets of the Civil War, 1861-1865. Ed. Frank Freidel. Cambridge: Belknap P. 1967. 742-51.
  • Thomas, Brook. “The Case of Clement L. Vallandigham.” Associations/Dissociations: The Social Instinct and Its Consequences: Humanities Core Course Reader. Boston: Pearson, 2004. 50-54.

Workshop 4: Legal and Policy Approaches to Culture as Heritage, Property, and Resource

Convened by: Rosemary Coombe, Fiona Macmillan

Session 1: Law as /and Culture

  • Coombe, Rosemary J. “Contingent Articulations.” Law in the Domains of Culture. Eds. A. Sarat and T. Kearns. Ann Arbor: University of Michigan Press, 1998. 21-64. Read 21-45 and 52-64.
  • Mertz, Elizabeth. “Introduction: Legal Loci and Places in the Heart: Community and Identity in Sociolegal Studies.” Law & Society Review 28.5 (1994): 971-992.
  • Porsdam, Helle.  “On European Narratives of Human Rights and their Possible Implications for Copyright.” New Directions in Copyright Law: Volume 6. Ed. F. Macmillan. Cheltenham: Edward Elgar, 2007. 335-358.
  • Robbins, Bruce and Elsa Stamatopolou. “Reflections on Culture and Cultural Rights.” South Atlantic Quarterly 103 (2004): 419-434.

Session 2: Approaching Human Rights Culturally

  • Cowan, Jane and Marie Benedicte Dembour. “Introduction.” Culture and Rights: Anthropological Perspectives. Eds. Jane Cowan, Marie Benedicte Dembour and Richard Wilson. Cambridge: Cambridge University Press, 2001. 1-26.
  • Engle Merry, Sally. “Changing Rights, Changing Culture.” Culture and Rights: Anthropological Perspectives. Eds. Jane Cowan, Marie Benedicte Dembour and Richard Wilson. Cambridge: Cambridge University Press, 2001. 31-55.
  • Goodale, Mark. “Locating Rights, envisioning Law between the Global and the Local.” The Practice of Human Rights. Eds. Mark Goodale and Sally Engle Merry. Cambridge: Cambridge University Press, 2007. 1-38. Read1-27 ONLY.
  • Speed, Shannon. “Introduction: Human Rights and Chiapas in the Neoliberal Era.” Rights in Rebellion: Indigenous Struggle & Human Rights in Chiapas. Stanford: Stanford University Press, 2008. 16-37.

Session 3: Intellectual Property between Property and Personhood

  • Macmillan Fiona. “Human rights, cultural property and intellectual property.” Intellectual Property and Traditional Cultural Expressions: Legal Protection in a Digital Environment. Eds. C. Graber & M. Burri-Nenova. Cheltenham: Edward Elgar, 2008. 50-63.
  • Carpenter, Kristen A. Sonia K. Katyal, and Angela R. Riley. “In Defense of Property. ” Yale Law Journal (2009): 100-157.
  • Coombe, Rosemary J. “Possessing Culture’: Locating Community Subjects & their Properties.” Ownership and Appropriation. Eds. Mark Busse and Veronica Strang. Oxford: Berg Publishers, 2011.

Session 4: Traditional Knowledge as Property and as Culture

  • Coombe, Rosemary J. “Intellectual Property, Human Rights and Sovereignty: New Dilemmas in International Law Posed by the Recognition of Indigenous Knowledge and the Conservation of Biodiversity.” Indiana Journal of Global Legal Studies 6 (1998): 59-115. Edited. Read pages 1 and 7-18.
  • Teubner, Gunther and Andeas Fischer-Lescano. “Cannibalizing Epistemes: Will Modern Law Protect Traditional Cultural Expressions?” Intellectual Property and Traditional Cultural Expressions: Legal Protection in a Digital Environment. Eds. C. Graber & M. Burri-Nenova. Cheltenham: Edward Elgar, 2008. 11-30.
  • Zent, Stan Jord and Eglee L. Zent. “On BiocuItural Diversity from a Venezuelan Perspective: Tracing the Interrelationships among Biodiversity, Culture Change and Legal Reforms.” Biodiversity and the Law: Intellectual Property,Biotechnology and Traditional Knowledge. Ed. Charles L. MacManus. London: Earthscan, 2007. 91-114.

Session 5: Cultural Heritage and Cultural Rights

  • Brown, Michael F. “Heritage Trouble: Recent Work on the Protection of Intangible Cultural Property.” International Journal of Cultural Property 12 (2005): 40-61.
  • Coombe, Rosemary J. “The Expanding Purview of Cultural Properties and their Politics.” Annual Review of Law and Social Science 5.18 (2009). 1-18.
  • Silverman, Helaine and D. Fairchild Ruggles. “Cultural Heritage and Human Rights.” Cultural Heritage and Human Rights. Eds. H. Silverman and D. F. Ruggles. Berlin: Springer, 2007.
  • Smith, Laurajane. “Empty Gestures? Heritage and the Politics of Recognition.” Cultural Heritage and Human Rights. Eds. H. Silverman and D. F. Ruggles Berlin: Springer, 2007.

Session 6: Revisiting the Public Domain

  • Boyle, James. “Why Intellectual Property” and ”The Second Enclosure Movement.” The Public Domain: Enclosing the Mind. Ed. James Boyle. New Haven: Yale University Press, 2008. 1-16, 42-53.
  • Hemungs Wirten, Eva. “Don’t Fence me In: Travels on the Public Domain.” New Directions In Copyright Law/, Volume 6. Ed. Fiona Macmillan. Cheltenham: Edward Elgar. 2006. 112-121.
  • Hardison, Preston. “Indigenous Peoples and the Commons.” November 2006. Available for online download: approximately 7 pgs.
  • Macmillan, Fiona. “Altering the Contours of the Public Domain.” Intellectual Property: the Many Faces of the Public Domain. Eds. H. MacQueen & C Waelde. Cheltenham: Edward Elgar, 2007. 98-117.
  • Bowrey, Kathy and Anderson, Jane. “The Politics of Global Information Sharing: Whose Cultural Agendas are Being Advanced?” Social and Legal Studies (2010): 480-504.

Video Games & Literature 2


At The Faculty Lounge, Professor John Kang is, rightly I think, disturbed by “Justice Scalia’s suggestion [in Brown, et al v. Entertainment Merchants Association] for the Court that these vile video games are like. . . literature.”  Kang responds to this analogy as follows:

“What?  Maybe I’m missing something here but that can’t be an analogous description for the violent games prohibited to minors by California.  In these games, you—the player—are besieged by people trying to kill you and thus you have to kill them before they do you.  You thus don’t have time to ‘identify with the characters’ and ‘judge them and quarrel with them’ or ‘experience their joys and sufferings as the reader’s own.’  The enterprise of the game, made unequivocally clear before you even have thought about purchasing it, is that you either kill or are killed. 

And the action is relentless and heart-pounding.  For you are not reading about someone else killing enemies, raping women, and shooting up a mall.  In the video game, you are killing your enemies, raping women, and shooting up a mall, or risk the danger that you will be targeted.  And there is no time to reflect on why you’re doing these things other than to stay alive and indulge your most atavistic impulses.   

There is no time to think, reflect, deliberate, and, most certainly, there is no time to ‘judge the characters and quarrel with them.’  In short, when you are busy killing people who are trying kill you, you don’t do those conventional things you do for literature.    

Scalia points to violent scenes in Homer, Dante, the Lord of the Flies; violence has been part of our best literature, he insists.  But these works do invite the reader to do those things that Posner recognizes about great literature:  identify with the characters, invite him to judge them and quarrel with them, to experience their joys and sufferings as the reader’s own. 

The violent video games don’t [do] any of these things.”

As Kang notes, others things might be said about these games (or the analogy for that matter), as well as the constitutionality of the California law, but the analogy is indeed troubling for at least the reasons he identifies.

Image found here.

Osnabrück Summer School on Law, Language & Culture: Methodology Reading List & Keynote Talk 1


The following is cross-posted from Legal Lacuna.

Greetings from Osnabrück, Germany, where I am attending the International Summer School on the Cultural Study of the Law, this year themed “Correlations: Law, Language and Culture.” The program is an annual, two-week series of workshops for graduate students and new scholars, taught by faculty from various disciplines. I am grateful to Professors Peter Schneck and Sabine Meyer (and their staff) for organizing the Summer School, as well as to DAAD, Osnabrück University, and the other organizations that fund the program.

The opening workshop took place over two days and concerned methodological problems in interdisciplinary study of law, language, and culture. Workshop convenors Kay Schaffer and Martin Zeilinger compiled this reading list for participants (shared with permission):

  • Brown, Wendy. “‘The Most We Can Hope For’: Human Rights and the Politics of Fatalism.” South Atlantic Quarterly 103.2/3 (2004): 451-63.
  • —. “Neo-Liberalism and the End of Liberal Democracy.” Theory and Event 7.1(2003): n. pag.
  • Coombe, Rosemary J. “Contingent Articulations.” Law in the Domains of Culture.” Ed. Austin Sarat, Thomas R. Kearns. Ann Arbor: U of Michigan P, 1998. 21-64.
  • Holder, Cindy. “Culture as an Activity and Human Right: An Important Advance for Indigenous Peoples and International Law.” Alternatives 33 (2008): 7-28.
  • Kymlicka, Will. Multicultural Citizenship. Oxford: Oxford UP, 1995. Read Chapter 3: Individual Rights and Collective Rights; p. 34-48 and Chapter 5: Freedom and Culture; 84-101.
  • Mezey, Naomi. “Law as Culture.” Cultural Analysis, Cultural Studies, and the Law: Moving beyond Legal Realism. Ed. Austin Sarat, Jonathan Simon. Durham: Duke UP, 2003. 37-72.
  • Olson, Greta. “De-Americanizing Law and Literature Narratives: Opening Up the Story.” Law and Literature 22.1 (2010): 338-64.
  • Porsdam, Helle. From Civil to Human Rights: Dialogues on Law and Humanities in the United States and Europe. Northampton, MA: Edward Elgar, 2009. Read Chapter 8: Transatlantic dialogues on ‘law and literature’: from ‘law and literature’ to ‘law and humanities’; p. 165-81.
  • Schaffer, Kay, and Sidonie Smith. Human Rights and Narrated Lives: The Ethics of Recognition. Basingstoke: Palgrave, 2004. Read p. 35-53; 123-52.
  • Thomas, Brook. “Reflections on the Law and Literature Revival.” Critical Inquiry 17.3 (1991): 510-39.

Much can be (and was) said about these readings, but I will just note that the Olson and Thomas pieces help establish a tentative genealogy of “law and literature” scholarship in its many forms. Olson, for instance, roughly distinguishes scholarship produced in the U.S., the U.K., and continental Europe, which arise from differing legal systems and intellectual lineages and, therefore, feature different methods and concerns. While any genealogy is inevitably incomplete and to some extent arbitrary (and Olson herself warns against the intellectual traps labels can produce), the lines drawn by Olson are nevertheless useful to those seeking to situate their own “law and culture” studies within the diverse international body of scholarship that exists.

Last night, the Summer School had its “official” opening, as participants and faculty were ceremoniously welcomed by the mayor of Osnabrück in City Hall, in the room where one part of the Peace of Westphalia was signed.

Afterwards, Kay Schaffer gave a keynote talk revisiting her 2004 book Human Rights and Narrated Lives: The Ethics of Recognition (co-authored with Sidonie Smith) in light of new historical and scholarly developments. The book concerns the role of storytelling in human rights, paying particular attention to the global publishing, circulation, and reception of personal narratives of violation. One chapter from her book examines the stories of so-called “comfort women” abducted and held as sex slaves by the Japanese during World War II. While the ascendancy of the global human rights regime in the 1990s helped give these women a framework within which to tell their stories and pursue some measure of justice (however limited), the circuits within which such stories are told is also problematic. Among other things, Schaffer argues, they repress individual stories in favor of a sympathetic “ur-narrative” and they never escape prevailing social hierarchies (the “first” comfort woman the world paid attention to was actually European, not Asian).

The main workshop to which I am assigned will begin Monday and concerns the relationship between law, literature, and national formation. More to come next week on that.

Call for papers: Law and literature conference focused on justice and Amartya Sen Reply


Mark D. White

Sen_idea_of_justice From the Law & Humanities blog (and Mai-Linh Hong’s Twitter feed) comes this pre-announcement which should be of interest to our readers (especially the followers of Amartya Sen):

Save the Date/Call For Papers

Third Biennial Literature and Law Conference

TENTATIVE DATE March 30, 2012 (Friday). Please check conference website for confirmation of final conference date—this date will be posted in mid-September.

Conference Location: John Jay College of Criminal Justice (CUNY) (59th Street and 10th Avenue). The conference will take place on the newly expanded John Jay campus, near Lincoln Center in Manhattan. The facilities include a brand new, state of the art conference center.

Conference Organizer and Contact Person: Andrew Majeske, ajmajeske@gmail.com

Theme: The Idea of Justice

This conference aims to bring scholars of literature and law into an interdisciplinary setting to share the fruits of their research and scholarship. Generally this full day conference consists of between 8 and 10 paper panels and roundtables, two talks by prominent speakers, and a post-conference reception. The conference fee will be $75, which will be payable by credit card through a link on the conference website.

Conference Speakers

Amartya Sen, Keynote Speaker: The conference’s keynote speaker is Amartya Sen, winner of the 1998 Nobel Prize in Economics, the Thomas W. Lamont University Professor and Professor of Economics and Philosophy at Harvard University and, until recently, the Master of Trinity College, Cambridge. He has served as President of the Econometric Society, the Indian Economic Association, the American Economic Association and the International Economic Association. He was formerly Honorary President of OXFAM and is now its Honorary Advisor. Of particular interest to this conference is Professor Sen’s celebrated 2009 book, The Idea of Justice. His other books, which have been translated into more than thirty languages, include Identity and Violence: The Illusion of Destiny (2006), The Argumentative Indian (2005), Rationality and Freedom (2002), Development as Freedom (1999), Inequality Reexamined (1992), The Standard of Living (1987), On Ethics and Economics (1987), Resources, Values and Development (1984), Choice, Welfare and Measurement (1982), Poverty and Famines (1981), and On Economic Inequality (1973, 1997) . His research has ranged over a number of fields in economics, philosophy, and decision theory, including social choice theory, welfare economics, theory of measurement, development economics, public health, gender studies, moral and political philosophy, and the economics of peace and war. 

George Anastaplo, Feaured Speaker: The conference’s featured speaker is Professor George Anastaplo from Loyola University School of Law in Chicago, whose life and career been devoted to the idea of justice, both in theory and practice. Professor Anastaplo is the author of more than 15 books, and innumerable articles, including The Constitutionalist: Notes on the First Amendment (1971, 2005), But Not Philosophy: Seven Introductions to Non-Western Thought (2002), The Thinker as Artist: From Homer to Plato & Aristotle (1997), The American Moralist: On Law, Ethics and Government (1992), The Constitution of 1787: A Commentary (1989), The Artist As Thinker: From Shakespeare to Joyce (1983) and Human Being and Citizen: Essays on Virtue, Freedom, and the Common Good (1975). Professor Anastaplo, during his Illinois Bar interview in 1950, took a principled stand against McCarthy era questions asking about his political affiliations, and whether he believed in a right of revolution—he cited the Declaration of Independence to support his view that he and all Americans believe or should believe in such a right. The committee interviewing him was not pleased with his responses, and as a consequence, he has never been admitted to the Bar. Supreme Court Justice Hugo Black, in his dissent in Professor Anastaplo’s case seeking admission to the Illinois Bar (In Re Anastaplo 1961—which Anastaplo lost 5-4), vigorously defended Anastaplo’s position on first amendment grounds and asserted, among other things, that “we must not be afraid to be free”—Justice Black arranged for this quote, and others from his dissent, to be read at his funeral.

Call For Papers and Panels: We invite proposals for papers and panels that address topics that relate the humanities & arts (especially literary texts (broadly conceived)), to this year’s conference theme, the “idea of justice.” Of particular interest are papers and panels that in addition engage aspects of Professor Sen’s book, The Idea of Justice, or that attempt to integrate the theory with the practice of justice, and/or that engage and compare differing notions and perspectives of justice.

CFP Deadline: Please submit abstracts (250 words or less) to Andrew Majeske, ajmajeske@gmail.com, by Friday, January 13, 2012.

Conference Website: More information will be available in September 2011 at http://litandlawjjay.blogspot.com

(This post originally appeared at Economics and Ethics.)

Musings on Utopia: Historical & Philosophical Reply


We conclude our introduction to utopian thought and imagination with a small sample of historical and philosophical musings on utopia. In sum, I think they well capture the essence—the necessity and value—of the utopian enterprise. I’ve appended a list for references and further reading should you be inspired by these snippets and the general argument outlined in the previous post. This should further help us appreciate the series of posts on the notion of “general emancipation” in the work of Rudolf Bahro (at ReligiousLeftLaw here, here, and here), which I hope to continue anon. In particular, we’ll examine Bahro’s transition, so to speak, “from red to green” (the title of a book of interviews by New Left Review with Bahro), including his Gandhian-like ideas on the virtue of introducing the monastic (aśramic) ideal into civil society by way of “purifiying” conventional power politics.

“By perfectible, it is not meant that he [i.e., man] is capable of being brought to perfection. But the word seems sufficiently adapted to express the faculty of being continually made better and receiving perpetual improvement; and in this sense it is here to be understood. The term perfectible, thus explained, not only does not imply the capacity of being brought to perfection, but stands in expression to it. If we could arrive at perfection, there would be an end to our improvement. There is however one thing of great importance that it does imply: every perfection or excellence that human beings are competent to conceive, human beings, unless in cases that are palpably and unequivocally excluded by the structure of their frame, are competent to attain.”—Wlliam Godwin

“There are recognizable barriers from which men have always sought to emancipate themselves, in order to obtain access to something, and appropriate something, that is conceived time and again in the ideas of freedom, joy, happiness, etc., which no cynical irony can expunge. The inexhaustible possibilities of human nature, which themselves increase with cultural progress, are the innermost material of all utopias, and moreover a very real, and in no way immaterial material at that. They inevitably lead to the desire to transform human life.”—Rudolf Bahro

“Wittgenstein, Elizabeth Taylor, Bertrand Russell, Thomas Merton, Yogi Berra, Allen Ginsburg, Harry Wolfson, Thoreau, Casey Stengel…Baba Ram Dass, Gandhi, Sir Edmund Hillary…Freud, Norman Mailer…Thomas Edison, H.L. Mencken, Thomas Jefferson, Ralph Ellison…Emma Goldman, Peter Kropotkin, [Frank Lloyd Wright, Muhammad Ali, Kenneth Rexroth, Dorothy Day, Malcolm X, Oprah Winfrey, Vaclav Havel, Dorothy Healey, Leonardo Boff, Seyyid Hossein Nasr, James deAnda, Nelson Mandela, Helen Mirren, Pico Iyer, Mose Allison, Jewel, Dame Judi Dench, Aretha Franklin, His Holiness the 14th Dalai Lama (Tenzin Gyatso), Leonard Cohen], you and your parents. Is there really one kind of life which is best for each of these people?”—Robert Nozick

“Utopia will consist of utopias, of many different and divergent communities in which people lead different kinds of lives under different institutions. Some kinds of communities will be more attractive to most than others; communities will wax and wane. People will leave some for others or spend their whole lives in one. Utopia is a framework for utopias, a place where people are at liberty to join together voluntarily to pursue and attempt to realize their own vision of the good life in the ideal community but where no one can impose his own utopian vision upon others. The utopian society is the society of utopianism. [….] Half of the truth I wish to put forth is that utopia is meta-utopia: the environment in which utopian experiments may be tried out; the environment in which people are free to do their own thing; the environment which must, to a great extent, be realized first if more particular utopian visions are to be realized stably.”—Robert Nozick

“We may distinguish three utopian positions: imperialistic utopianism, which countenances the forcing of everyone into one pattern of community; missionary utopianism, which hopes to persuade or convince everyone to live in one particular kind of community, but will not force them to do so; and existential utopianism, which hopes that a particular pattern of community will exist (be viable), though not necessarily universally, so that those who wish to do so may live in accordance with it.”—Robert Nozick

“It is, Martin Buber wrote, ‘the goal of Utopian socialism…to substitute society for the State to the greatest degree possible, moreover a society that is ‘genuine’ and not a State in disguise.’ That is as good a definition as you will find—even though it is more complex than it might at first seem.”—Michael Harrington

“The classic utopia anticipates and criticizes. Its alternative fundamentally interrogates the present, piercing through existing societies’ defensive mechanisms—common sense, realism, positivism and scientism. Its unabashed and flagrant otherness gives it a power which is lacking in other analytical devices. By playing fast and loose with time and space, logic and morality, and by thinking the unthinkable, a utopia asks the most awkward, the most embarrassing questions. As an imaginative construction of a whole society, the utopia can bring into play the rich critical apparatus of the literary form and a sensitivity to the holistic nature of society, enabling it to mock, satirize, reduce the prominent parts, to illuminate and emphasize the neglected, shadowy, hidden parts—and to show the interrelatedness—of the existing system. Utopia can be seen as the good alternative, the outline of a better future, an ‘ought’ to the current ‘is.’ The possibility of such a future helps undermine the complacency and overcome the inertia of existing society by showing that it is neither eternal nor archetypal but merely one form amongst many. This need not lead to teleology (i.e. ‘this is your future’), for the alternative has many shapes.”—Vincent Geoghegan

“For [Ernst] Bloch, the enemies of hope are confusion, anxiety, fear, renunciation, passivity, failure and nothingness. Fascism was their apotheosis. But since all individuals daydream, they also hope. It is necessary to strip this dreaming of self-delusion and escapism, to enrich and expand it and to base it in the actual movement of society. Hope, in other words, must be both educated and objectively grounded; an insight drawn from Marx’s great discovery: ‘the subjective and objective hope-contents of the world.’ The Principle of Hope is an encyclopaedic account of dreams of a better existence; from the most simple to the most complex; from idle daydreams to sophisticated images of perfection. It develops a positive sense of the category ‘utopian,’ denuded of unworldliness and abstraction, as forward dreaming and anticipation. [….] This then is Bloch’s great masterpiece. His achievement was to see that utopianism is not confined to intellectuals and their various blueprints of a better life. He saw that, in countless ways, individuals are expressing unfulfilled dreams and aspirations—that in song, dance, plants and plaster, church and theater, utopia waits.”—Vincent Geoghegan

“Marxists have a defensive attitude towards utopias. It was so laborious to escape from them in the past. But today utopian thought has a new necessity. For that historical spontaneity that Marx conceived as a process of natural history and which our Marxist-Leninists celebrate in the name of objective economic law, must be overcome. [….] The problem is to drive forward the ‘overproduction’ of consciousness, so as to put the whole historical past ‘on its head,’ and make the idea into the decisive material force, to guide things to a radical transformation that goes still deeper than the customary transition from one formation to another within one and the same civilization. We are now facing, and what has in fact already begun, is a cultural revolution in the truest sense of the term: a transformation of the entire subjective form of life of the masses….”—Rudolf Bahro

The early utopian socialists: Henri de Saint-Simon, Charles Fourier, and Robert Owen, while not democrats, inspired democratic movements concerned with morality, community and feminism. “It was a movement that gave the first serious definition of socialism as communitarian, moral, feminist, committed to the transformation of work. This tradition came to be regarded as an immature first step, a prelude, rather than as something of enduring value. If there is to be a twenty-first-century socialism worthy of the name, it will, among other things, have to go two hundred years into the past to recover the practical and theoretical ideals of the utopians.”—Michael Harrington

“Certainly, the concept of utopia is only one of the many possible demonstrations of the anxieties, hopes, and pursuits of an era and of a social milieu. The questioning of the legitimacy and rationality of the existing order, the diagnosis and criticism of moral and social defects, the search for remedies, the dreams of a new order, etc.—all these favorite themes of utopias are found in political systems and popular myths, in religious doctrines and in poetry. If the critique of social reality and the expectation of a new City turn toward utopia, that means that a choice has been made among available forms of discourse. What is said in utopia and as utopia cannot be said otherwise. There are ‘hot’ eras when utopias flourish, when the utopian imagination penetrates the most diverse forms of intellectual, political, and literary activity; eras when opposing points of view and divergent main themes seem to rediscover their point of convergence in the very invention of the descriptions of utopias. But there are other ‘cold’ eras, when utopian creativity is weakened and cut off from social, intellectual, and ideological activities.”—Bronislaw Baczko

1. “There is no utopia without an overall representation, the idea-image of an alternative society, opposed to the existing social reality, and its institutions, rites, dominant symbols, systems of values, norms of interdictions, hierarchies, relations of dominance and property, its domain reserved to the sacred, and so forth. In other words, there is no utopia without a synthetic and disruptive representation of social otherness. [….]
2. The representations of a different and happy City are the products of a particular way of imagining the social; utopias are one of the places, occasionally the privileged place, where the social imagination is put into practice, where individual and collective social dreams are welcomed, gathered, worked on, and produced. Moreover if utopian imagining activity is focused on overall and synthetic idea-images, it nevertheless is developed through day-to-day reality. The dreams of the happy City are, then, articulated with images of a renewed daily life, and utopias often offer a great luxury of detail in their descriptions of individual and collective daily life. The structural relationships between the representation of the overall society and the detailed images of the ordinary aspects of life are as complex as they are revealing. [….]
3. The alternative society is not only imagined, it is also thought to be consonant with reason, and prides itself on the rationality it brings into play. Utopias want to install reason in the realm of the imagination; in utopias, constant exchanges among social dreams and critical, theoretical, and normative reflection are carefully worked out. The term idea-image to which we often have recourse has the sole aim of bringing these distinctive characteristics of utopian representation to the fore. [….]
4. Utopia is not only imagined and thought, it is made intelligible and communicable in a discourse by which the merging of the idea-images and their integration into a language is accomplished. [T]wo classic paradigms were imposed in utopian discourse from the sixteenth through nineteenth centuries. The first is the utopia of the imaginary voyage. [….] The other paradigm is that of the utopia-proposal for ideal legislation. [….]
5. Every utopia is not necessarily proposed as a program of action or even as a model that would demand intellectual or emotional support. The novelistic utopias are offered most frequently as intellectual games. They only seek to stimulate both the imagination and the critical and moralizing reflection of the readers…. However, sometimes even the utopias presented in the form of an imaginary voyage inspire a will to act and to give some of their ideas a practical application. [….] But there are utopias that proclaim themselves as both a prophetic and a founding word, and that find their extensions in the establishment of exemplary communities professing to put them into practice.”—Bronislaw Baczko

“Plato in fact comes in rather late, if we focus first on the world of classical antiquity. Utopian themes reach back to the earliest Greek writings. From Hesiod’s Works and Days, of the early seventh century BC, came the canonical depiction of the Golden Age, the bitterly-lamented vanished age of Kronos’ reign: when men ‘lived as if they were gods, their hearts free from all sorrow, and without hard work or pain;’ when ‘the fruitful earth yielded its abundant harvest to them of its own accord, and they lived in ease and peace upon their lands with many good things.’ Reworked by Virgil and Ovid as the lost age of Saturn (the Roman Kronos), the pastoral perfection in the Golden Age reappeared as the classic Arcadia, a time and place of rustic simplicity and felicity.”—Krishan Kumar

“If Arcadia showed man living within, and according to, nature, the Hellenic ideal city represented human mastery over nature, the triumph of reason and artifice over the amoral and chaotic realm of nature. Hence the importance, in the ideal city tradition, of those who gave the law and made the rational order of human society: the founders and framers of cities and constitutions, the philosopher-kings, the architect-planners. An early Greek tradition already venerated the semi-mythical figures of Solon of Athens and Lycurgus of Sparta as the founders and law-givers of their respective city-states. Their idealization, common throughout the classical period, was boosted by Plutarch’s Lives (first century AD), which made of Solon and Lycurgus virtually the creators of utopian societies. As received in Europe through various translations of the fifteenth and sixteenth centuries, the Lives, eked out with such celebrated set-pieces as Pericles’ funeral oration from Thucydides’ History, set before European thinkers two sharply contrasting utopian models. There was Athens: democratic, tolerant, boisterous, given over to a cultivated hedonism; and there was Sparta: authoritarian, ascetic, communistic. European utopian writers, along with most other kinds, were clearly fascinated by the alternative possibilities suggested by these two great exemplars of the ancient world. Right up to the French Revolution and beyond, one way of classifying utopias was as ‘Athenian’ or ‘Spartan,’ with Sparta predictably the favourite not simply for matching more closely the utopian preference for a tightly regulated communal order, but as much for its status as the putative model of the most admired ancient utopia, Plato’s Republic.”—Krishan Kumar

“[Thomas] More shows himself, and his Utopia, to the product of a new age. His Utopia has a rationalism and a realism that we associate typically with the classical revival of the Renaissance, and that are to be found equally in the architectural utopias of the fifteenth and sixteenth-century Italy. We should remember that Utopia was published less than three years after Niccolò Machiavelli’s The Prince (1513). More’s urbane and witty style, his profound sense of political realities, constantly evoke the relentlessly de-mystified world of Machiavelli’s notorious treatise (and, incidentally, remind us that utopia and anti-utopia [‘dystopia’] shadow each other very closely).”—Krishan Kumar

“The realm of utopia is wide but it is not boundless. Utopia is not some unchanging human archetype or universal human propensity. Distinctions have to be made and these must be largely historical. If utopia is not in one very obvious sense concerned with the here-and-now, for the most part it draws both its form and content from the contemporary reality. Whether or not we choose to call Plato’s Republic a utopia, or to accept the idea of a Christian utopia, we must recognize the fundamental difference of intention and concern between them, a reflection of the very different conditions that gave rise to them. Both classical and Christian utopianism persisted well into the modern age. They had—and have—a continuing influence on conceptions of utopia. This can make it difficult to see the even more important differences between these utopian “prefigurations” and the utopia proper, the modern utopia that was invented in Europe in the sixteenth century. The utopia of the ancient world is hierarchical, economically undeveloped and static. The modern utopia is egalitarian, affluent and dynamic. Such a conception emerged under unique historical conditions. As these changed so the content and even, to an extent, the form of utopia changed. So we should not be surprised to find ourselves dealing with utopias of many different kinds, and with many different purposes, in the more than four centuries since More’s Utopia. A strict definition of utopia would serve no useful purpose; as Nietzsche says, ‘only that which has not history can be defined.’”—Krishan Kumar

There was a “direct and dynamic connection between the idea of the American nation as utopia, and the foundations of scores of utopian communities that, dismissing this idea, still sought and found refuge on the American continent. We might borrow a term from the American philosopher Robert Nozick and consider America, in this aspect, as meta-utopia. In this conception, utopia is not one community, one vision of the good life, but a “framework for utopias,” a place which freely allows people to form and re-form themselves into utopian communities of diverse kinds. [….] Nineteenth-century America was this meta-utopia on a grander and more generous scale than ever before or since. The vast size of its still relatively unsettled territory, coupled with the utopian notions that accompanied its entire development as a nation, drew utopian groups to it as to a magnet. On both physical and ideological grounds, nineteenth-century America was the ideal framework for utopias in Nozick’s sense. It set up a dynamic counterpoint between the larger national experiment—America as utopia—and the host of small experimental communities, each pursuing its individual utopian vision. Meta-utopia, like utopia, produced a characteristic literature, the literature of the experimental community. There were the reports and survey of founders, sympathizers and observers, such as John Humphrey Noyes’s History of American Socialisms (1870), Charles Nordhoff’s The Communistic Societies of the United States (1875) and William Alfred Hinds’ American Communities (1878). Noyes founded Oneida; Hinds was a founding-member of it. There was also the autobiographies and memoirs of those who had actually been born or lived for much of their time in utopian communities, such Frederick Williams Evans’s Autobiography of a Shaker (1869), Robert Dale Owen’s Twenty-Seven Years of Autobiography (1874) and Pierrepont Noyes’s My Father’s House: An Oneida Boyhood (1937). All these combine, to a remarkable degree, personal involvement and sympathy with a wide-ranging outlook and refreshingly clear-sighted analysis.”—Krishan Kumar

“[T]here was probably more genuine communism practiced in nineteenth-century America than in any society, at any time, beyond the hunting and gathering stage. This certainly seemed self-evident to many Europeans. The young Friedrich Engels was among the many European socialists who were stirred by the reports of the American communities, and who first looked to them to provide the example and model for European communism. ‘The first people in America,’ wrote Engels, ‘and indeed in the world who brought into realization a society founded on the community of property were the so-called Shakers.’ The American communities, he confidently declared, had demonstrated that ‘communism, the social life and work based on the common possession of goods, is…not only possible but has actually been realized…and with the best result.’ The communities were themselves to a good extent the product of a wider movement of reform that enthusiastically embraced socialism. Socialism in mid-nineteenth-century America was far from being the ‘un-American’ thing it has now become.”—Krishan Kumar

“Gandhi’s fascination as a thinker lies in his inward battle between two opposing attitudes—the Tolstoyan socialist belief that the Kingdom of Heaven is attainable on earth and the Dostoevskian mystical conviction that it can never be materialized. The modern Hindu standpoint has generally been anti-utopian: Rama Rajya lies in the bygone Satya Yuga, and Kali Yuga is the age of unavoidable coercion. Gandhi began by challenging this view under the influence of Tolstoy, but he ended his life with more of a Dostoevskian pessimism. This does not mean that he abandoned either his imaginative, utopian, political vision or what he called his practical idealism embodied in concrete programs of immediate action. He did not feel that he was wrong to urge men to set themselves, as he did in his own life, seemingly impossible standards, but he came closer to seeing that it is wrong to expect them to do so. [….] ‘Euclidean’ models—of the satyagrahi, of a society based on satya and ahimsa, of Rama Rajya—are not without their value in political theory, but they must not be mistaken for definitely realizable concretions. [….] Gandhi’s concepts of satya, ahimsa and satyagraha, of tapas, and, above all, of the satyagrahi, are such ideal constructions—‘Euclidean’ models as he himself called them. They do involve a ‘momentous truth,’ but they are also deceptive representations, in a sense. In constructing these, Gandhi was in the oldest political tradition that goes back to classical Chinese and Indian thinkers, and to Plato in the West. They could serve in the serious task of civic education (paideia) provided they are not taken to represent precisely the political realities of the future.”—Raghavan Iyer

“Utopia has, for four centuries, accompanied that hope of progress and that striving for betterment. It has been itself a principle of expression of that belief and a potent agent of that impulse. It now struggles against a confused but widespread sense that this has been an illusion, or an impossible dream. A strong utopian current has persisted…. It may be that, once invented, the utopian idea can never entirely disappear—not, that is, so long as Western society itself continues. But utopia as a form of the social imagination has clearly weakened—whether fatally we cannot say. It has not in recent times found the power to instill its vision in the public consciousness. If it cannot do so again some time in the future, we should be aware of the seriousness of the failure. Karl Mannheim, who was as thoughtful a student of utopias as anyone, considered that the elimination of the ‘reality-transcending’ power of utopia would mean ‘the decay of the human will:’ The complete disappearance of the utopian element from human thought would mean that human nature and human development would take on a totally new character. The disappearance of utopia brings about a static state of affairs in which man himself becomes nor more than a thing. We would then be faced with the greatest paradox imaginable, namely, that man, who has achieved the highest degree of mastery of existence, left without any ideals, becomes a mere creature of impulses. Thus, after a long tortuous, but heroic development, just at the highest stage of awareness, when history is ceasing to be blind fate, and is becoming more and more man’s own creation, with the relinquishment of utopias, man would lose his will to shape history and therewith his ability to understand it.”—Mannheim qtd. in Krishan Kumar

References and Further Reading:

  • Baczko, Bronislaw. Utopian Lights: The Evolution of the Idea of Social Progress. New York: Paragon House, 1989.
  • Bahro, Rudolf (David Fernbach, trans.). The Alternative in Eastern Europe. London: NLB (New Left Books), 1978.
  • Bahro, Rudolf. Building the Green Movement. Philadelphia, PA: New Society Publ., 1986.
  • Bartkowski, Frances. Feminist Utopias. Lincoln, NE: University of Nebraska Press, 1989.
  • Berryman, Phillip. Liberation Theology. New York: Pantheon Books, 1987.
  • Bloch, Ernst (Neville Plaice, Stephen Plaice, and Paul Knight, trans.). The Principle of Hope, 3 Vols. Oxford, UK: Basil Blackwell, 1986.
  • Bloch, Ernst (Jack Zipes and Frank Mecklenburg, trans.). The Utopian Function of Art and Literature: Selected Essays. Cambridge, MA: MIT Press, 1988.
  • Breines, Wini. Community and Organization in the New Left, 1962-1968: The Great Refusal. New Brunswick, NJ: Rutgers University Press, 1989 ed.
  • Buber, Martin. Paths in Utopia. Boston, MA: Beacon Press, 1958.
  • Dolgoff, Sam, ed. The Anarchist Collectives: Workers’ Self-Management in the Spanish Revolution, 1936–1939. New York: Free Life Editions, 1974.
  • Elster, Jon and Karl Ove Moene, eds. Alternatives to Capitalism. Cambridge, UK: Cambridge University Press, 1989.
  • Erasmus, Charles J. In Search of the Common Good: Utopian Experiments Past and Future. New York: Free Press, 1985.
  • Galston, William A. Justice and the Human Good. Chicago, IL: University of Chicago Press, 1980.
  • Geoghegan, Vincent. Utopianism and Marxism. London: Methuen, 1987.
  • Godwin, William. Enquiry Concerning Political Justice. Middlesex, England: Penguin Classics, 1985 (1793).
  • Harrington, Michael. Socialism: Past and Future. New York: Arcade Publishing, 1989.
  • Hine, Robert V. California’s Utopian Colonies. Berkeley, CA: University of California Press, 1983 (1953).
  • Iyer, Raghavan. Parapolitics: Toward the City of Man. New York: Oxford University Press, 1979.
  • Iyer, Raghavan. The Moral and Political Thought of Mahatma Gandhi. Santa Barbara, CA: Concord Grove Press, 2nd ed., 1983 (1st ed., New York: Oxford University Press, 1973).
  • Jacoby, Russell. The End of Utopia: Politics and Culture in an Age of Apathy. New York: Basic Books, 2005.
  • Jacoby, Russell. Picture Imperfect: Utopian Thought for an Anti-Utopian Age. New York: Columbia University Press, 2007 ed.
  • Joll, James. The Anarchists. Cambridge, MA: Harvard University Press, 2nd ed., 1979.
  • Katsiaficas, George. The Imagination of the New Left: A Global Analysis of 1968. Boston, MA: South End Press, 1987.
  • Kohn, Livia. Cosmos and Community: The Ethical Dimension of Daoism. Cambridge, MA: Three Pines Press, 2004.
  • Kumar, Krishan. Utopia and Anti-Utopia in Modern Times. Oxford, UK: Basil Blackwell, 1987.
  • Kumar, Krishan and Stephen Bann, eds. Utopias and the Millennium. London: Reaktion Books, 1993.
  • Levitas, Ruth. The Concept of Utopia. Syracuse, NY: Syracuse University Press, 1990.
  • Luntley, Michael. The Meaning of Socialism. La Salle, IL: Open Court, 1990.
  • Mannheim, Karl. Ideology and Utopia. London: Routledge & Kegan Paul, 1960 (1936).
  • Manuel, Frank E. and Fritzie P. Manuel. Utopian Thought in the Western World. Cambridge, MA: Belknap Press of Harvard University Press, 1979.
  • Marsden, John Joseph. Marxian and Christian Utopianism: Toward a Socialist Political Theology. New York: Monthly Review Press, 1991.
  • Martineau, Alain. Herbert Marcuse’s Utopia. Montreal: Harvest House, 1986.
  • Melville, Keith. Communes in the Counter Culture: Origins, Theories, Styles of Life. New York: Morrow Quill, 1972.
  • Morrison, Roy. We Build the Road as We Travel. Philadelphis, PA: New Society Publishers, 1991.
  • Nordhoff, Charles. The Communistic Societies of the United States. New York: Schocken Books, 1965 [1875].
  • Nozick, Robert. Anarchy, State, and Utopia. New York: Basic Books, 1974.]
  • Pitzer, Donald E., ed. America’s Communal Utopias. Chapel Hill, NC: University of North Carolina Press, 1997.
  • Rexroth, Kenneth. Communalism: From Its Origins to the Twentieth Century. New York: Seabury Press, 1974.
  • Schaer, Roland, Gregory Claeys and Lyman Tower Sargent, eds. Utopia: The Search for the Ideal Society in the Western World. New York: Oxford University Press, 2001.
  • Smith, Christian. The Emergence of Liberation Theology: Radical Religion and Social Movement Theory. Chicago, IL: University of Chicago Press, 1991.
  • Sonn, Richard D. Anarchism. New York: Twayne Publ., 1992.
  • Stites, Richard. Revolutionary Dreams: Utopian Vision and Experimental Life in the Russian Revolution. New York: Oxford University Press, 1989.
  • Taylor, Michael. Anarchy and Cooperation. London: Wiley, 1976.
  • Taylor, Michael. Community, Anarchy and Liberty. Cambridge, UK: Cambridge University Press, 1982.
  • Weisbrud, Carol. The Boundaries of Utopia. New York: Pantheon Books, 1980. 

Utopian Thought & Imagination Reply


A map of the world that does not include Utopia is not even worth glancing at, for it leaves out the one country at which Humanity is always landing. And when Humanity lands there, it looks out, and seeing a better country, sets sail. Progress is the realisation of Utopias.—Oscar Wilde

[The following draws upon and revises material from several posts in 2008 and 2009 from the Ratio Juris blog.]

Russell Jacoby writes in the preface to his book, Picture Imperfect: Utopian Thought for an Anti-Utopian Age (2005),  “Today most observers judge utopias or their sympathizers as foolhardy dreamers at best and murderous totalitarians at worst.” No doubt this was the consensual judgment crystallized in the “Liberal anti-utopianism” of such widely influential thinkers as Karl Popper, Hannah Arendt, and Isaiah Berlin. Ours is an age drawn to the chaotic darkness of (often technocratic) dystopian nightmares, for we are too chastened or cynical, perhaps as a result of living through the catalogue of collective and genocidal violence conspicuous throughout the twentieth-century, to be enchanted and inspired by the visions and ideals provided by utopian portraits of “the good” or “the best” society. We might, with Raghavan Iyer in an essay on that quintessential nineteenth-century utopian writer, Edward Bellamy, ask ourselves: “Do we despair of our capacity to exercise constructive imagination? Are we doubters of dreams and believers in nightmares?” There are, to be sure, exceptions to the rule, be it Ernest Callenbach’s Ecotopia (1975), Ursula K. Le Guin’s The Dispossessed (1974), or “feminist utopias” (see here, here, and here). But even these utopian vistas seem several times removed from their forebears: comparatively tepid and thus timid in construction, they are but a simulacram of the classical utopian genre. And utopian political thought is rarer still (for a distinguished exception to the rule, see the Real Utopias Project).  

Picture Imperfect identifies “two currents of utopian thought: the blueprint tradition and the iconoclastic tradition.” It is the former that Jacoby would have us jettison, understood as responsible, in part, for the epithet “utopian” being “tossed around as a term of abuse, [as] it suggests that someone is not simply unrealistic but prone to violence:”

“The blueprint utopians have attracted the lion’s share of attention—both scholarly and popular. They describe in vivid colors; their proposals can be studied and embraced or rejected. From Thomas More to Edward Bellamy, their utopias took the form of stories in which travelers report of their adventures from an unknown future or land. They offered characters, events, and particulars. Bellamy’s Looking Backward, a classic of blueprint utopianism, commences with a straightforward narrative. ‘I first saw the light in the city of Boston in the year 1857.”

The use of the adjective “blueprint” here suggests Bellamy’s novel (by 1900, only Harriet Beecher Stowe’s Uncle Tom’s Cabin sold more copies) was meant to be taken as providing detailed plans to be implemented by social reformers and activists in a manner analogous to the architect’s blueprints used by the general contractor to construct a building. This strikes me as a rather uncharitable if not simplistic reading of what is, after all, a work of fiction, a novel. While it is true that “Nationalist Clubs” inspired by Bellamy’s vision soon sprang up with the intention of practically realizing this particular utopia, such works assume the form of narrative fiction precisely so as locate their visions and reflections at least one remove from the realm of political plans and proposals to be realized in toto in the here and now (or not so distant future). They are provocative and suggestive, stimulating the social imaginary as it were, helping us re-think fundamental socio-economic and political ideas or even construct new concepts and categories for critique and praxis. They are not literal blueprints. 

According to Jaboby, in taking to heart the biblical prohibition of graven images of the deity (Exodus 20:4-5), the “iconoclastic” tradition is said to have drawn from the wellsprings of Jewish mysticism and apophatic (or ‘negative’) theology, as well as German romanticism in particular and music and poetry in general. Perhaps its finest and foremost representative is, for Jacoby, the “philosopher of Marxist humanism and revolutionary utopianism,” as well as, it should be said, a one-time apologist for Stalinism,* Ernst Bloch:

“[T]he iconoclastic utopians offer little concrete to grab onto; they provide neither tales nor pictures of the morrow. Next to the blueprinters they appear almost as ineffable as they actually are. They vanish into the margins of utopianism. Bloch’s Spirit of Utopia opens mysteriously. ‘I am. We are. That is enough. Now we have to begin.’ In regard to the future the iconoclasts were ascetic; but they were not ascetics. This point must be underlined inasmuch as iconoclasm sometimes suggests a severe and puritanical temper. If anything, it is a longing for luxe and sensuousness that define the iconoclastic utopian, not a cold purity.

In an image-obsessed society such as our own, I suggest that the traditional blueprint utopianism may be exhausted and the iconoclastic utopianism indispensable. The iconoclastic utopians resist the modern seduction of images. Pictures and graphics are not new of course, but their ubiquity is. A curtain of images surrounds us from morning till night and from childhood to old age. The word—both written and oral—seems to retreat in the wake of these images.”

While there’s something to be said for this “iconoclastic” tradition, I find Jacoby’s dichotomous utopian typology to be rather crude. The two category types are both descriptive and normative: as Jacoby aims to demonstrate the “iconoclastic” tradition has been relatively neglected and the “blueprint” tradition rightly castigated for giving rise to all sorts of ethical and political problems if not horrors. The principal problem with the blueprint tradition is that individuals and groups are said to use these blueprints as concrete models for constructing their particular dream of a better world here and now, without delay. Those attracted to this utopian genre apparently lack all ability to discern a logical or political gap between theory and praxis and are not at all reluctant to resort to coercion and violence as means and methods for impatiently instantiating their visions and values in the world. I do not think this is either an accurate summary or plausible picture of the function of utopian thought and imagination in history (see my list of references and further reading in the next post on the subject that allow one to draw contrary conclusions).

The utopian literature Jacoby is referencing does not deserve wholesale categorization as “blueprint utopianism,” and the “images” it contains are of a different order than the literal or concrete images and visual orientation that suffuse the contemporary culture of affluent and hyper-technological societies under the spell of “virtual reality.” Utopian literature, by definition, is not intended to be construed as a blueprint, architectural or otherwise. Of course one might argue that some forms of utopian literature are structurally prone to abuse by readers enamored of their visions, moving them to utilize these works on the model of blueprints, irrespective of the needs and wishes of others. But I suspect even the most ardent admirers of the products of utopian imagination have not mistaken these as detailed instructions readymade for wholesale and immediate implementation (were that even possible or feasible). There is a history of utopian communal experimentation, for example, but it has typically been a far more modest undertaking than one would infer from Jacoby’s discussion.

In Justice and the Human Good (1980), William A. Galston outlines a succinct description of the nature and function of utopian thought and imagination that makes plain the myriad problems with Jaboby’s “blueprint” model:

“Utopias are images of ideal communities; utopian thought tries to make explicit and to justify the principles on the basis of which communities are said to be ideal. [….] [T]he philosophical importance of utopias rests on utopian thought, although the practical effect of a utopia may be quite independent of its philosophic merits [….] Utopian thought performs three related political functions. First, it guides our deliberation, whether in devising courses of action or in choosing among exogenously defined alternatives with which we are confronted. Second, it justifies our actions; the grounds of action are reasons that others ought to accept and—given openness and the freedom to reflect—can be led to accept. Third, it serves as the basis for the evaluation of existing institutions and practices. The locus classicus is the Republic, in which the completed ideal is deployed in Plato’s memorable critique of imperfect regimes.

Utopian thought attempts to specify and justify the principles of a comprehensively good political order. Typically, the goodness of that order rests on the desirability of the way of life enjoyed by the individuals within it; less frequently, its merits rely on organic features that cannot be reduced to individuals. Whatever their basis, the principles of the political good share certain general features:

  • First, utopian principles are in their intention universally valid, temporally and geographically.
  • Second, the idea of the good order arises out of our experience but does not mirror it in any simple way and is not circumscribed by it. Imagination may combine elements of experience into a new totality that has never existed; reason, seeking to reconcile the contradictions of experience, may transmute its elements.
  • Third, utopias exist in speech; they are ‘cities of words.’ This does not mean that they cannot exist but only that they need not ever. This ‘counterfactuality’ of utopia in no way impedes its evaluative function.
  • Fourth, utopian principles may come to be realized in history, and it may be possible to point to real forces pushing in that direction. But our approval of a utopia is not logically linked to the claim that history is bringing us closer to it or that we can identify an existing basis for the transformative actions that would bring it into being. Conversely, history cannot by itself validate principles. The movement of history (if it is a meaningful totality in any sense at all) may be from the most desirable to the less; the proverbial dustbin may contain much of enduring worth.
  • Fifth, although not confined to actual existence, the practical intention of utopia requires that it be constrained by possibility. Utopia is realistic in that it assumes human and material preconditions that are neither logically nor empirically impossible, even though their simultaneous co-presence may be both unlikely and largely beyond human control to effect.
  • Sixth, although utopia is a guide for action, it is not in any simple sense a program of action. In nearly all cases, important human or material preconditions for good politics will be lacking. Political practice consists in striving for the best results achievable in particular circumstances. The relation between the ideal and the best achievable is not deductive. [….]

Thus, the incompleteness of utopia, far from constituting a criticism of it, is inherent in precisely the features that give it evaluative force. As has been recognized at least since Aristotle, the gap between utopian principles and specific strategic/tactical programs can be bridged only through an inquiry different in kind and content from that leading to the principles themselves. If so, the demand that utopian thought contain within itself the conditions of its actualization leads to a sterile hybrid that is neither an adequate basis for rational evaluation nor an accurate analysis of existing conditions.”

We might nevertheless concede that some forms or species of utopian literature are more liable to misuse than others, owing to their mode of presentation, specific contents, what have you. Making such an argument would be similar to what Leszek Kołakowski attempted to accomplish with regard to the writings of Marx in his three volume magnum opus, Main Currents of Marxism (1978):

“It is not enough to say that Nazi ideology was a ‘caricature’ of Nietzsche, since the essence of a caricature is that it helps us to recognize the original. The Nazis told their supermen to read the Will to Power, and it is no good saying that this was a mere chance and that they might equally well have chosen the Critique of Practical Reason. It is not a matter of establishing the ‘guilt’ of Nietzsche, who as an individual was not responsible for the use made of his writings; nevertheless, the fact that they were so used is bound to cause alarm and cannot be dismissed as irrelevant to the understanding of what was in his mind. St. Paul was not personally responsible for the Inquisition and for the Roman Church at the end of the fifteenth century, but the inquirer, whether Christian or not, cannot be content to observe that Christianity was depraved or distorted by the conduct of unworthy popes and bishops; he must rather seek to discover what it was in the Pauline epistles that gave rise, in the fullness of time, to unworthy and criminal actions.”

Compare too Raghavan Iyer’s keen observation in Utilitarianism and All That (1983):

“The search for scapegoats whose crucifixion can atone for monstrous systems of error and evil is itself based, however, on an unduly rationalistic faith in the influence of theory and on an absurdly simple view of both individual and national character. Herder may have had good reason to assert that a history of opinions would really be the key to the history of deeds. It is, however, one thing to stress the impact of ideas and opinions on policies and actions. It is quite another matter to single out certain thinkers or theories or concepts as responsible for what they could neither have visualized nor intended in all its implications. The history of ideas is, as Meinecke so clearly saw, ‘no mere shadow-play or sequence of grey theories; on the contrary, it is the life-blood of those men who are called upon to express the essential element of their epoch.’ In pleading against the tyrannical and tragic consequences of isms and systems, we may foist too easily the entire burden of blame upon those very thinkers whose theories were most vulnerable to distortion as well as exploitation.”

Jacoby provides a salutary analysis of the Liberal anti-utopianism of intellectual luminaries like Popper, Arendt and Berlin. Popper, the most vociferous of the three, castigated the “blueprint” tradition of utopianism, indeed, for him, “”utopian” has purely pejorative denotation and derogatory connotations. Herbert Marcuse was on the mark when, in a review essay of Popper’s The Poverty of Historicism (1957, second ed., 1961), he notes the rather idiosyncratic definition of historicism that animates the work: “Certainly, it would be entirely unjustified to insist on conformity with lexicographical usage. However, I think such a strange deviation from usage should have firmer grounds than a construction built from disparate elements of theories.” These words apply with equal force to Popper’s more-than-stipulative definition of utopianism, in fact, he proffers a textbook example of a “persuasive” definition, one contrary to a philosophical temperament and useless for dispassionate philosophical analysis. Popper contends that the “blueprints” or “ends” of utopians are necessarily resistant to proof (or, conversely, falsification), and this structural feature, including its abstract qualities and orientation to the distant future, is what motivates the utopian to a single-minded and exclusive resort to violence so as to realize these ends, so as to instantiate the utopian blueprint. If we truly care about the relief of suffering or the amelioration of evil, Popper argues this is best achieved by means and methods of an incrementalist sort or in piecemeal fashion, utterly divorced from the entertainment of any lofty ideals, a Platonic-like focus on the Good, or dreams of a better world. Jacoby is sympathetic to what he terms Popper’s “reasonable argument,” one suspects if only because it provides no small measure of support to his own thesis about “blueprint” utopianism. The  quality of Popper’s 1947 lecture, “Utopia and Violence” is an appallingly poor attempt at characterizing the utopian genre, especially in as much as it issues from a philosopher. Thankfully, Jacoby’s sympathy for Popper’s argument does not extend too far nor cloud his assessment of its reductionist consequences:

“Popper’s reasonable argument has echoed down the intellectual corridors of history, each decade it gains more recruits. In the immediate future it would be supplemented by ‘end of ideology’ thinkers such as Raymond Aron in Europe and Daniel Bell in the United States. Other refugee thinkers would confirm and collaborate Popper’s positions. They would expand the category of utopians to include all those with a plan, and they would charge utopians with violence. Implicitly or explicitly, utopians meant ‘Marxists.’ That much, perhaps most of twentieth century mass violence had little to do with utopians barely intruded upon the argument.” [emphasis added]

Liberal anti-utopianism has been enormously influential in cultivating an ideological animus that lumps together, in Jacoby’s words, “utopianism, totalitarianism, and Nazism.” Any systematic appraisal of the evidence would find that are no necessary ties whatsoever between utopian musings and Marxist-Leninist or Maoist ideologies, or between the fertile products of utopian thought and imagination and anti-Semitism, fascism, xenophobic and ethno-nationalism, racism, authoritarianism, or any genocidal ideology.

For now, we close with the following from Judith Shklar’s illuminating study of the “last of the classical utopists,” Jean-Jacques Rousseau (blamed by some conservative ideologues for the Jacobin terror of the French Revolution):

“Utopia is an attack on both the doctrine of original sin, which imposes rigid limits on men’s social potentialities, and on all actual societies, which always fall so short of men’s real capacities. The object of these models, however, was never to set up a perfect community, but simply to bring moral judgement to bear on the social misery to which men have so unnecessarily reduced themselves. For the fault is not in God, fate, or nature, but in ourselves–where it will remain. To recognize this, to accept it, to contemplate and to judge: that was the function of the classical utopia.” (Judith N. Shklar, Men & Citizens: A Study of Rousseau’s Social Theory, 1969: 2)

* See Jack Zipes, ‘Introduction: Toward a Realization of Anticipatory Illumination’ in Ernst Bloch, Jack Zipes and Frank Mecklenburg, trans., The Utopian Function of Art and Literature: Selected Essays, 1983: xi-xliii.

[Cross-posted at ReligiousLeftLaw.com]