True History of the Kelly Gang 4


In his recent post at this site, Warren Emerson asked us to consider the role of memoirs in “law and literature.” He points out that autobiographies “in a powerful way force us to ask a central question of literary criticism” and legal analysis: “Do you believe the author?” And, if you don’t believe the court’s or memoirist’s justification, then is the untruth deliberate? Moreover, how can you make these determinations about places and time periods beyond your comfort zone? In exploring these issues, I recommend the fictitious memoir, True History of the Kelly Gang, by Peter Carey. This exciting and superbly written novel about Australia’s most famous outlaws raises many significant legal questions. Just as importantly, it urges its readers to ponder what modes of writing can best contribute to a “true history” — an autobiography, court documents, newspaper accounts, or a novel?

To some admirers, the leader of the real-life Kelly Gang, Ned Kelly, attained the heroic stature of a “social bandit” comparable to Robin Hood. Indeed, the actual Ned came to envision himself as a Robin Hood figure and a political revolutionary. He famously wrote a long apologia (the “Jerilderie Letter”) defending himself against criminal charges but also indicting the oppressive government and ruling class (of the colony of Victoria in the 1870’s) and promulgating an “order.” I advisedly invoke these legal terms because the actual Mr. Kelly used juristic language in an idiosyncratic and self-justifying manner. In the novel, the fictional Ned goes even further in brooding about law and justice and in creating his own imaginative version of a “legal system.”

Before delving into the law, though, let’s generally consider the advantages of reading this novel rather than merely primary sources or history books. As Carey himself notes, the historical record consists of “fragments” that may represent perhaps only 10% of “a man’s whole life.” Through the conceit of the protagonist “Ned” writing installments of his autobiography for his daughter (whom he’s never met), the novelist Carey can flesh out his hero. Ned’s voice in the novel remains as brave, loyal, defiant — and self-serving — as the real outlaw’s. But, the author (Carey) behind the pseudo-author/narrator (“Ned”) is, of course, a master storyteller. He employs the tricks of his trade not only to accentuate Ned’s wit and pathos, not only to make the legal aspects fascinating, but also indirectly to deflate Ned’s rhetoric. This added layer of “tricks” of course complicates and enriches any reading. While Anthony Quinn believes that Carey has all but canonized his hero, I read the novel as giving hints that Ned has massively deluded himself and, indeed, may harbor some awareness of this delusion. Most obviously, we suspect from the title page alone that the book won’t prove a “True History” after all. [Optionally, read my endnote #1.]

On legal topics, the novel wisely dramatizes how local, personal conditions and relationships sometimes matter more than what’s written in the statute books. This insight recurs in the book in multiple ways. I’m not, however, going to attempt a comprehensive list of the novel’s “facts” and “fictions.” Nicky Cowie has assembled just such a (generally non-legal) list of Carey’s inaccuracies. I’m not equipped, nor do I think it prudent, to render many detailed “verdicts” here. Rather, here are just a few examples from the fictional Ned’s legal landscape:

Ned continually portrays the politicians, courts, police, and rich landowners (“squatters”) arrayed in a conspiracy against the interests of the poor and the children of convicts: “They could bankrupt or hang you as they pleased.” It’s true that Victoria’s constitution bequeathed a great deal of power to the squatters, and that corruption and prejudice infected the local police and magistrates. Real-life Ned and his relatives certainly faced persecution even before his gang killed policemen (at Stringybark Creek) and stirred up enormous hatred. But, “several instances over the years… indicate there was a civilized aspect to the Kellys’ relationship with the police that has been frequently overlooked” (Castles 119). Five years before this quotation was published in the Castles book, Carey’s novel admirably elucidated (in a way that non-fiction cannot) how complicated these relations (involving Ned’s mother and siblings) might have been.

True History emphasizes the abuses suffered by working-class “selectors” (similar to homesteaders in the U.S.) after land legislation introduced in the 1860’s. It notes some of the tactics used by the rich (such as “peacocking” and “dummying”) to grab the best land. Yet, the novel also records the historical reality that both rich and poor tried to manipulate the system. For example, Ned’s mother illegally uses her real estate for bootlegging. Ned’s father can’t bear to risk his money on a selection, and he condemns the author of the statute as a “fool.”

Carey accurately depicts Ned destroying some mortgage deeds at a bank he robs, to obliterate the debts of the poor. The narrative fails to mention that, here, Ned was imitating the real-life exploits of the most famous bushranger to precede him, a man named Ben Hall, who burned storekeepers’ ledgers with a similar motive.

Throughout his criminal career, Carey’s protagonist shows himself as a slow-to-anger protector of the underclass. While in fact over 30,000 people signed a petition to spare Kelly’s life after his apprehension, Castles reports a far more sinister version:

Anti-Kelly sentiment was at least partly due to Ned’s widespread reputation for bullying and his penchant for threatening physical harm at the slightest provocation…. For many locals, antipathy towards Ned ran far deeper. It was particularly so for landholders both rich and poor who had suffered from the depredations of the highly organized wholesale horse and cattle stealing that had plagued the area in recent years. By his own admission, Ned Kelly was one of the chief operators in this illicit trade.… [T]he smaller landholders suffered catastrophic losses.… [T]he thefts left many near destitute, unable to replace the [draft horses] that were the mainstay of their farming operations. (114-15)

In the novel, Ned starkly admits the “cupboard love” of the poor: they continue to support him only so long as he brings them a net gain of material comfort. Nevertheless, he’s also quick to credit the rumor that poor farmers would rise up and revolt at his command. Was he perhaps duped by the very journalists he despised? Many newspapers vastly over-reported the number of his supposed “sympathizers,” in order to whip up support for a draconian law leveled against anyone appearing to assist the Gang (Castles 115-16).

Carey captures the desperation, and freedom, of men condemned to “outlawry” under that draconian law. The colonial legislature hurriedly passed the Felons Apprehension Act to wipe out the Kelly Gang. (Read a detailed analysis here.) The ancient English writ upon which the new law was based literally pronounced its subject to have the legal status of a wild animal — caput gerat lupinum (“Let his be a wolf’s head”). He was stripped of all legal rights and could be lawfully killed on sight by anyone. One finds here disturbing parallels to twenty-first century anti-terrorism laws (see Nick Bleszynski’s book). Astoundingly, though, once outlawed, a person could no longer be tried, for a second time, in the normal way. Nor could he be held legally accountable for anything he does after he’s declared an outlaw. These constitute the bizarrely logical consequences of having no legal personhood! [See my endnote #2.]

Once outlawed, the historical Ned Kelly certainly knew he faced mortal danger (his celebrated armor notwithstanding), and he acted accordingly. He daringly robbed banks, attacked towns, and tried to derail a train filled with policemen, among many other exploits. He also created a new legal regime of sorts, by issuing an executive “order” in the final paragraph of his Jerilderie Letter:

I give fair warning to all those who has reason to fear me to sell out and give £10 out of every hundred towards the widow and orphan fund and do not attempt to reside in Victoria but as short a time as possible after reading this notice, neglect this and abide by the consequences, which shall be worse than the rust in the wheat in Victoria or the druth of a dry season to the grasshoppers in New South Wales[.] I do not wish to give the order full force without giving timely warning. but I am a widows son outlawed and my orders must be obeyed.

Carey beautifully stages how Ned might have felt living like a hunted “wild animal,” literally outside of the law: He becomes enraged, forlorn, then increasingly megalomaniacal, and he more confidently assumes the mantle of a revolutionary and a potential martyr. But, as I alluded to above, he also intensifies his effort to manipulate and create the law. Again and again, the fictional Ned (even more than the real one) enacts his new mantra: “We would write our own damned history from here on.” For one thing, Carey extracts from the above-quoted Jerilderie passage but substitutes even more dramatic language. Furthermore, Carey’s hero defends himself in front of the countrymen he is holding captive at Faithfull’s Creek, in a mock trial of sorts (“before a jury of our peers”). He concludes that they acquit him of multiple counts of murder on grounds of self-defense, with some jury nullification thrown in.

Historically, the Victorian prosecutors had to carefully scrutinize the evidence to find hangable offenses with which to try Ned to a unanimous verdict. In the novel, however, the bandit seems mistaken about the scope of available defenses. True, the Ned character knows a fair amount of law: He plausibly threatens to sue for slander; he quotes his lawyer (e.g., “time is of the essence”); he recognizes exactly when he becomes a participant in highway robbery in the eyes of the law. Yet he seems to believe that he could be exonerated for three different shootings (Bill Frost, Fitzpatrick, Strahan) in defense of third parties. He’s apparently oblivious to the felony murder rule, in force at that time and place.

Is he oblivious? Or is he “writ[ing] his own damned history” for an alternative court? Is he deluding himself, or us?

Above all, Ned appropriates legal concepts. Thus, when his victims try to verbally outwit him (nowhere near a courtroom or notary), he accuses them of “perjury.” He uses self-help to recover a horse to which he believes he has a “right.” When in danger of arrest, he has his alleged victim’s testimony transcribed “as evidence.” And so forth. As much as anyone writing an autobiography, the narrator becomes the hero of his own tale, and in this tale, he struggles to triumph over or through the law. The novelist’s technique here enhances our understanding of Ned’s psychology, our own gullibility, and the reach of legal imagination and power. [See my endnote #3.]

Three Notes on True History of the Kelly Gang 3


Notes to my post on True History of the Kelly Gang:

[1] Personally, I dislike such obvious “Beware!” signs posted throughout the book. Literature graduate students become overjoyed when “texts” display this “self-referentiality,” but the game is too easy: Water damage erases both a dying man’s last letter and Ned’s favorite novel (which itself is about outlaws). Later, the ink from Ned’s manifesto “bleeds” down his shirt. Etc.

Even later, the cunning scholar Curnow flatters Kelly, which results in Kelly releasing Curnow as a hostage and consequently to Kelly’s last desperate showdown with the police. Curnow does so by noting that the manuscript of Ned’s memoirs, although admittedly not classically elegant, “should always be a little rough that way we know it is the truth.” Of course, Curnow is untrustworthy here, saying whatever he believes necessary for his escape. The novel’s gesture is not wholly unambiguous — Kelly’s writing skill does amaze and “captivate” Curnow — but we don’t need yet another reminder that “Ned” is misleading us and himself.

A more subtle literary device occurs when Carey’s Ned and his wife pore over newspaper accounts of his gang’s activity. They note multiple inaccuracies in the reporting, but the bushranger becomes most outraged when the journalists refuse to print his own words yet brand him as “a clever illiterate person… filled with morbid vanity.” According to Alex Castles, by 1880, “Victoria’s literacy rate was among the highest in the world,” with per capita sales of newspapers in the colony probably as great as in London or New York. Yet after Ned’s gang killed some policemen (in the so-called Stringybark Creek incident), even the liberal newspapers uniformly reviled him and cried out for his execution. Thus, both the actual and the fictitious Ned are horrified that the tendentious press won’t tell the outlaw’s side; but, the novel permits us to imagine Ned worried that he is, in fact, relatively illiterate and vain — that his self-created political and mythic aspirations amount to little.

[2] And, historically, the outlawry legislation expired before Ned’s arrest, so the government might on this technicality have been legally compelled to set him free. As Alex Castles describes in Ned Kelly’s Last Days, the authorities instead stacked the deck against Kelly before and during his trial, and he was hanged 137 days after his apprehension. (For book reviews, see here, here, and here.)

Incidentally, Carey introduces Ned’s lawyer Zinke as the outlaw’s staunch ally. In reality, Zinke was unprofessional, to say the least. He consorted with witnesses for the prosecution before Ned’s trial, and Ned fired him. The historical Ned then hired an intelligent, skilled, energetic, and radical solicitor (David Gaunson), who dauntlessly defended such an unpopular prisoner. Unfortunately, at trial, the barrister (not Guanson) was young, inexperienced, and ill-prepared (according to Castles 132 ff., 177).

[3] My post has only obliquely addressed whether it’s ultimately profitable to assess the “truth value” of autobiographies or indeed novels purporting to be autobiographies. Years before the James Frey debacle, I presented a paper on “Law and Autobiography.” As a practitioner of publishing law, I suggested to the audience that I wouldn’t be surprised if, in the foreseeable future, a class of readers sued an author of a faked memoir. Everyone was skeptical. By now, however, post-Frey discussion is rife. Allen Mendenhall has published a provocative piece. I’ve also enjoyed recent work by Ben Yagoda, Dan Kornstein, and Simon Stern. Is anyone interested in commenting further on this topic?

Announcements: New Additions to the Zotero Project/ Call for Contributors 1


The Zotero Project. Thanks in large part to Andrew Adler’s sending a wonderfully put together bibliography, we have added some substantial resources to the Billy Budd collection at the Zotero project (and there is still more to add)!

William Faulkner. I have added a link to some recordings of William Faulkner from his days at the University of Virginia.  The Faulkner recordings are available either through iTunes or through the University of Virginia Library (which is linked through the Zotero site). They are quite intriguing.  I plan to run a series of Faulkner coming up shortly, so stay tuned.

Call For Contributors:  I have been lucky to have such wonderful and thoughtful contributors as Patrick, Allen, and Andrew at the Table.  But we would like to hear from you as well.  Drop me a line at warren[dot]emerson[at]gmail[dot]com and let me know if your interested in contributing.

Some Advice (and Demands) of New Law Students 3


I have decided that this year, I am going to include some advice and demands of my law students beyond the normal variety.  I have prepared a letter describing that advice.  What do you think? What would you add?  What would you take out?

As you begin your law study (and law career) things are moving quickly around you.    You are building new relationships, continuing old ones that will have to adapt to your new surroundings, and engaging in a life-altering, rigorous study of the legal discipline.  Some of you chose to be lawyers because of family.  Some of you chose to become lawyers for the money.  Some of you chose to be lawyers because of some meaningful interaction with the law some years ago.  Some of you chose to become lawyers to pursue justice.  Some of you had other reasons.  Whatever was the basis for your decision, I am glad you made it.   It shows that you are willing to take up a challenge.

Let’s be honest for a moment.  Some of you that start will not finish law school.  Some of you will decide that you would rather do something else.  Kudos to you for making that decision!   You came and tried the law and decided that it just wasn’t for you.  Frankly all of you come to law school without significant personal experience being a lawyer.   Its ok to decide that you do not want to be a lawyer.  Some of you will not be able to handle the rigors of law school’s academics.  Don’t get me wrong — we think you are capable.  But some of you will decide that other things are more important than engaging in the type of study that law school requires.  Some of you will face insurmountable obstacles that just don’t allow you to devote yourself to legal study.  Let me say right now: that’s ok too.   Some people are just not meant to be lawyers.   It may be because they have more important work ahead of them.  Or it may be that the timing is just not quite right at this moment.   Seasons of life change slowly, and often we do not obtain the perspective necessary to know whether we should have stayed with something or not until years down the road.  Don’t worry.   Do your best and make the best decisions you can.

Now for some advice and demands, if I may.

First, be diligent in your work. Law school can feel overwhelming.  Trust me, it is overwhelming.  But you can make it and you can succeed.   What you can’t do is just coast by.  Remember that you are sitting next to people every bit as smart and talented as you are.  For every minute that you are not working, someone else is working and gaining.   Maintain a discipline of devotion to your studies – force yourself to work hard and not accept shortcuts.   Treat this like a job.   Designate reading hours for each week and keep to your schedule like you are being paid to do so.

Every year, students ask me what supplements I recommend. And every year, my answer is the same: your textbook is a supplement to our class periods; your notes are a supplement to the textbook; and my lectures are a supplement to your inquiry into both.   Class supplements train your brain to be lazy in the disciplines of the primary things we do as lawyers – thinking.   When you purchase a supplement you are allowing someone else to think for you.   That will short-circuit your brain over time and leave you impaired. If you do choose to engage supplements, do so cautiously and in a very limited form.

Along those lines, don’t wait to begin your fidelity to diligence. Begin now with setting out the plans for how you think you will attack this course of study.  Two things about that.  First, don’t expect those plans to remain the same.  Be flexible and allow them to change as they need to in order to meet your study demands.  Second, don’t think that intelligence or other factors will make up for a lack of discipline.  There is a fable of a boy who owned a corn field.  Everyday he would wake up and say, I’ll hoe the corn tomorrow.   Finally, the corn grew up so tall that rot began to set in.   Still, the boy said, I will hoe my corn tomorrow.  In early September, an early frost came and wiped out the boy’s corn crop.   The moral of the story is start developing your work discipline now.  I can assure you, December will be here before you know it.

In maintaining your discipline, don’t assume that you will be taught anything. This sounds odd doesn’t it?  After all, you entered law school to learn from people, like me, who have had successful careers in the law.  Notice I did not say that you would not learn.  But law school is not a process in which you are given information to digest.  Rather, you must engage actively in the learning process.  Thus, expect that you will do a lot of self-learning, self-reflecting, and gain some understanding from that process.  When you come to class, we will challenge your learning and understanding, and hopefully refine it in a way that forces you to reenter your textbook and re-examine what you thought you learned. Thus, class can be at times a demoralizing and often frustrating time.  Be open to understanding and allow your Professors to challenge your knowledge.  Let me say, I know this is an exhausting process.  However, you will be a better law student, a better lawyer, and a better person by engaging in the type of discipline that assumes that you have created a base level of knowledge to work from.

Second, in your devotion to being diligent about work, communicate with those in your lives about what you are doing. Trust me, they do not want to hear it all.  Trust me, they will tell you to stop very often.  Rather than communicate about what you are learning, communicate about the process.  Be honest with them about what you like, what you hate, what you are scared of, and what you expect to be coming out of this process.  We often assume when we take on life-altering processes that everyone in our lives are on board for the change as well.  That’s not always the case.   Remember: You are the one that is in law school.  You are the one that is changing.  And you are the one with responsibilities and obligations to your professors and classmates.  Your significant other, your partner, or your family may not be on board completely.  You will find out soon enough.   The most important thing you can do is communicate with them about this process and what you expect all along the way.

Finally, don’t assume that law school is only about learning the law. It’s not, though a great deal of our time is spent doing so.  Law school, as part of the liberal education tradition, has a role in shaping you as a human being.  We are also a professional school in that you are being trained to enter a profession.   Part of being an engaged, and learned human, and being a member of the legal profession, is the ability to critically assess your knowledge and experiences against other people’s knowledge and experiences.  On a personal level we call this self-awareness.  When applied to the law, we call it policy.   Let’s be clear about both.  In order to do well at being both a human being and at being a lawyer, you have to both know the subject and be able to assess where it is going and where it should go.  As a human, you have to know yourself to understand how to adapt.  In the law, you have to know the “black letter law” before you can assess where the black letter law will go.  Law school will do its share of teaching you not only the law, but how to critically analyze the law (and hopefully yourself too).  Don’t resist either part, and don’t assume you can do one without the other.

To that end, be engaged!  You will enjoy law school more, do better, and become a better thinker, and therefore a better lawyer.  You will be thrust into classrooms where there are people from many many different backgrounds and experiences.  Embrace those people, particularly the ones who are different than you.  Learn from them.   Allow your own beliefs and thoughts to be challenged, even the sacred ones.  Particularly the sacred ones! Trust me, if they are meant to stand the test of time, not even law school will overcome them.    Remember, law school, like every other hard venture you undertake will help you put miles on your soul – some of those miles include laughter, some include crying, and some, just are hard!

Because law school puts you in contact with so many different people, remember one key piece of advice and a demand if you are in my class – be courteous to everyone. Remember, your faculty, fellow students, and the staff that make this wonderful law school work are entitled to, and deserve your respect.   As trying as law school is, there is no excuse for discourteous behavior.   Little things matter – being on time to class, being prepared, saying thank you to staff members who assist you, speaking in proper tones – these things are very important.  As an NYU business professor has said, these things in and of themselves will not make you successful – but failure to master them will certainly hold you back and prevent you from achieving the great possibilities that no doubt your talent and intellect prepare you for!  As Ralph Waldo Emerson said: “There is always time enough for courtesy.”

And don’t confuse your Professor’s attempt to frustrate you or challenge your thinking as discourteous behavior. The same is true when we may show intolerance for laziness, lack of preparation, or inartful expressions.  All of these things are for your benefit.   Your Professors are interested in your development and success.   That should be the default assumption regarding any actions that your Professors take towards you.   Until there is evidence to the contrary (and I don’t mean your grade in a particular class) you should assume that your Professors (each one of them) are vitally committed to do whatever it takes to develop you as a law student, lawyer, and more importantly a human being.

And along the lines of courteous interactions, be helpful to everyone – including your fellow students. Share outlines and notes with each other.  Be a resource for each other.  Discuss together.  In short, be a community for each other.   I learned the most by helping friends understand.

Finally, a word of advice to those of you who are more successful than your peers.  Be humble about your accomplishments. Don’t brag.  Be measured and restrained in your accomplishments.  Trust me, there will be many opportunities to celebrate your well-deserved accolades.   However, boasting of your own accomplishments creates an atmosphere of distrust and disdain.  As Ralph Waldo Emerson once said, “The louder he spoke of his virtue, the faster we counted our spoons.”  Decide to believe that everyone, yourself included, are smart capable people.  Do not discount anyone.   Instead resolve to do your best and allow your successes, whether measured or great, to speak for themselves.

You are an accomplished group.  Welcome to the next phase of your life.  Embrace it.  Enjoy it, as hard as it may be.  Allow it to put miles on your soul.

Great Blog on Confederacy of Dunce’s Locales Reply


Check out this great blog I stumbled upon describing locations in John Kennedy O’Toole’s Confederacy of Dunces. I will have more to say about O’Toole’s masterpiece later, but I had to pass this on (particularly since I have spent the last twenty minutes immersed in Ignatius’s Ghost.  Enjoy.

WE

On the “Environmentalists’ Dilemma” Reply


I’m grateful to Allen for bringing these thoughts to the table for discussion.

I suspect the portrait of the “environmentalist’s dilemma” is a bit exaggerated on both sides. It reminds me of the first vociferous “debate” in the environmental movement between so-called “Deep Ecology” and “Social Ecology” Greens (the latter largely the acolytes of Murray Bookchin). This debate was perhaps more imagined than real (insofar as it took place among a handful of writers and intellectuals and was less apparent ‘on the ground’), although it did reflect underlying tensions and questions within the Green movement having to do with the kinds of worldviews that inspired and motivated those engaged in environmentalist/ecological politics in the broadest sense. On one side, the more (loosely) spiritual-oriented folks were busy canvassing if not rummaging through the globe’s various worldviews for philosophical perspectives they believed evidenced a more holistic and harmonious metaphysical and ethical picture of mankind’s relation with the natural world; on the other side (and again, loosely), were those of Left and New Left vintage who understood the new ecological politics to emerge from within a tradition that was more beholden to the likes of Marx and Kropotkin or the Wobblies and the SDS, and thus were prone to carcicaturing their ecological counterparts as New Age whackos with irredeemably bourgeois sensibilities afflicted by historical amnesia utterly lacking in “true” socio-political and economic sophistication when it came to social analysis and understanding the dynamics of social change. There were truths to be learned from both camps, although egos and polemicizing served to obscure that fact (in time, both sides began to dismantle their character armour somewhat and the debate itself virtually vanished).

Robert E. Goodin’s book, Green Political Theory (1992) helps us to understand some of the reasons that animate the above debate as well as a more significant divide within “green political theory” and praxis. Goodin writes of a “green theory of value” that, in short, “provides the unified moral vision running through all the central substantive planks in the green political programme.” Conceptually and politically distinct but thought by many to strictly follow from this green theory of value is a “green theory of agency” that tells us how to go about pursuing the green theory of value(s). Goodin points out that part and parcel among those who concentrate their energies on the “agency” aspect of green politics are a belief in and commitment to the propogation of views revolving around choices of personal life-style, questions of New Age cosmology, and the desire for transformations of consciousness, views that tend to trivialize or crowd out more pragmatic and practical orientations and strategies that rely on conventional politics for the realization of the green theory of value. Those cleaving to such views make the price, so to speak, for subscribing to or endorsing a green politics too high for the vast majority of citizens and thus, in the end, prolong the realization of a green theory of value(s). Some years ago I wrote that while I thought Goodin was a bit hard on some of the “agency” folks, he made a compelling argument. On the other hand, he may not have sufficiently appreciated the very real obstacles presented by conventional politics for the realization of green values (this would be the position, say, of the late Rudolf Bahro or even the late Arne Naess).

The “economists” of the post would therefore be identical with or at least similar to the practical or pragmatic folks (including those willing to ‘dirty’ their hands in conventional politics) Goodin believes better capable of implementing green moral values, in other words, more likely than those “moralists” who, fewer in number, can be a bit too self-righteous or unrealistic in their advocacy of wholesale lifestyle and worldview (‘belief’) changes of the sort that could not, it seems clear, occur anytime soon, a fact with dire consequences if one is convinced of the necessity and urgency of the green political program.

In several respects, I think Goodin’s argument provided a way out of the impasse, in any case, it addressed questions of a more down-to-earth sort than those intrinsic to the theoretical and rarefied debate that took place between the deep ecology and social ecology greens and it made the larger point that “being green” did not strictly entail adopting wholesale the idiosynractic or unfamiliar worldviews of green intellectuals and movement leaders, nor did it mean adopting a radically new lifestyle on the order of the hippies and countercultural devotees of an earlier era.

It often seems to be the case that those who provide the vision and leadership of the green movement are more toward the “moralist” and “agency” end of the spectrum, for what has motivated their own idealism, activism and politics is often a conversion of some sort, to a new worldview (or the radical transformation of an existing one) and or a new lifestyle, the presumption or assumption being that it’s changes of THAT sort that are necessary for others to begin the turn toward ecological and environmental thinking and praxis. But to support and vote for green politics rarely requires such dramatic and wholesale changes among the masses. For us, the changes are more likely of a piecemeal kind (e.g., recycling, buying a more fuel-efficient car, less wasteful consumption decisions generally) and often at the ballot box (voting for a more environmentally sound politics that facilitates the progressive and wider adoption and realization of green values). And with regard to worldviews, this more often that not means people will come to simply modify their existing belief systems in ecological and environmentalist ways (see, for instance: http://fore.research.yale.edu/). Thus, in effect, we overcome the “environmentalists’ dilemma” on the ground, not unlike, at least in some measure and certain respects, Thoreau himself did.

With a brief nod to a literary dimension, it bears noting that “social ecologists” rightly took to task the ideas and tactics of those in the environmental movement who belonged to groups such as Earth First! (and the early writings of its co-founder, David Foreman), that wing of the movement farthest from a Gandhian-like practice of nonviolence (some would claim their praxis was nonetheless a species of nonviolence). These radical ecologists were avowedly inspired by the writings of Edward Abbey (e.g., The Monkeywrench Gang, 1975) who, while not accountable for their actions, most notoriously “eco-sabotage” (or ‘monkeywrenching’), seems to have endorsed them. Insofar as these actions were ‘underground’ (i.e., intentionally not public), and involved destruction of property or possible harm to living beings, they were understandably anathema to others in the environmental movement. Earth First! philosophy or political theory, such as it was, came dangerously close to if not actually espousing an ecological version of Malthusian Social Darwinism, the fundamental or representative ideas of which are enshrined in Paul Ehrlich’s writings (e.g., The Population Bomb, 1968) as well as Garrett Hardin’s formulation of “Tragedy of the Commons” idea (incisively critiqued by Partha Dasgupta, among others), alongside his later and more disturbing notion of “lifeboat ethics” (for a nice discussion of this variation on Malthusian themes, please see Robert C. Paehlke’s Environmentalism and the Future of Progressive Politics, 1989).

The environmentalist “economists” cited in the post are of course constrained in part by conceptual and value presuppositions and assumptions that heretofore have helped define their discipline (cf. S.M. Amadae’s Rationalizing Capitalist Democracy: The Cold War Origins of Rational Choice Liberalism, 2003, and works by Philip Mirowski), especially insofar as they are trained in and beholden to essential tenets of neo-classical economics. Alas, this kind of economics has become increasingly obtuse when it comes to forthrightly addressing questions of ethics or morality (environmentalist or otherwise). Amartya Sen details some of the historical and conceptual shortcomings of the discipline in his book, On Ethics and Economics (1987). In addition to informing his colleagues of how economics  can benefit from a more intimate relation with ethics, Sen makes a subsidiary point regarding the benefits that follow from ethical thinking being informed by a basic knowledge of economics. Another important work by way of addressing the moral shortcomings of contemporary economics as a social science discipline and thus useful for environmentalists of an economics suasion, is Daniel M. Hausman and Michael S. McPherson’s Economic Analysis, Moral Philosophy, and Public Policy (2nd ed., 2006). A book I believe sets the standard for a morally and ecologically sensitive economics, is Partha Dasgupta’s Human Well-Being and the Natural Environment (2001). Finally, a fine example of the  increasing sophistication of environmentalist reasoning and praxis is Moral and Poltical Reasoning in Environmental Practice (2003), edited by Andrew Light and Avner de-Shalit. The entry on “environmental ethics” in the online Stanford Encyclopedia of Philosophy (SEP) is helpful by way of ascertaining to what extent our “dilemma” may afflict environmentalists as well as thinking though these topics more generally.

A word of caution: I think some environmentalists who are making their argument within the parameters of economics, try too hard to demonstrate their capitalist bona fides, thereby unnecessarily constricting the imagination of prospects and possibilities for a more ecologically and environmentally sustainable tomorrow. In short, and by way of a conclusion, we might say that the “Environmentalists’ Dilemma” arises in the first instance because the profession of economics is morally impoverished, a conceptually contingent and remediable state of affairs, foreshadowed in fine fashion, as Allen helps us see, in Thoreau’s Walden.

Readers may also be interested in a compilation from several years ago of titles on “environmental and ecological worldviews:” http://www.jurisdynamics.net/files/documents/environmental_and_ecological_worldviews.doc

Introducing Andrew Adler to the Table Reply


Its my pleasure to introduce Andrew Adler, who will be blogging at the Table. Andrew currently practices intellectual property law and general commercial litigation in New York, but more important for Table readers, has been actively involved in the [inter]discipline of Law and Literature Studies. An article that Andrew wrote that you might check out is Can Formalism Convey Justice?: Oaths, Deeds, and Other Legal Speech Acts in Four English Renaissance Plays, 72 St. Johns L. Rev. 237 (1998). Please join me in welcoming Andrew to the Table.

Thoreau, Environmentalism, Economy 5


Turning to the works of Henry David Thoreau might provide a “third way” and go some length toward resolving debates about the Environmentalists’ Dilemma.  I borrow the words “Environmentalists’ Dilemma” from Bryan G. Norton, who uses the phrase to refer to the competing discourses of two environmentalist camps: the economists and the moralists.  These camps would, Norton submits, provide very different answers to the question, “What is the value of biodiversity?”  Economists would emphasize “the actual and potential uses of living species” whereas the moralists “do not believe our obligations to protect nature can be traded off against other obligations” (Norton 29-30).  Economists would state the value of biodiversity in quantifiable, utilitarian, and anthropocentric terms whereas the moralists “insist that we have an obligation to protect all species, an obligation that transcends economic reasoning and trumps our mere interests in using nature for our own welfare” (Norton 30).  The dilemma for the environmentalist is which of the two realms, economic or moral, to heed.  Norton’s argument is that the two realms are not in fact mutually exclusive and that Henry David Thoreau supplies proof of their mutual reinforcement.  That Thoreau titles the opening chapter of Walden with one simple if unsuspecting word, “Economy,” is no coincidence.  The Environmentalists’ Dilemma, for Thoreau, is no dilemma at all: “most commentators have assumed that we should give one answer or the other,” but an absolute, totalizing separation is neither necessary nor accurate (Norton 31, my italics).  I agree with Norton and would like to extend his reasoning in this brief post, which draws its analysis from Thoreau’s Walden.

If economists first measure value “as contributions to human welfare” and then promise “an aggregation of values”—i.e., if they promise a calculation of “the contribution of nature to human welfare” as “commensurable and interchangeable with other human benefits”—then Thoreau was something of an economist (Norton 30).  As implied by the title of his opening chapter, Thoreau uses nature as an occasion to opine about human affairs, often in purely economic terms; he transforms the humble, small, and common scenes of nature into grand meditations about labor and profit.  “When my hoe tinkled against the stones,” he says of a day in the bean field, “that music echoed to the woods and the sky, and was an accompaniment to my labor which yielded an instant and immeasurable crop” (247).  Here, Thoreau’s profit—his “yield”—is not quantifiable in monetary terms but in vague moral insight:  “It was no longer beans that I hoed, nor I that hoed beans; and I remembered with as much pity as pride, if I remembered at all, my acquaintances who had gone to the city to attend the oratorios” (247).  Thoreau appreciates the value of labor (minimal physical input for cost-effective output—free food) while recognizing that such value goes far beyond the fiscal benefit of planting crops rather than purchasing food at a store: the labor becomes valuable for what it teaches about solitude, individualism, and freedom from materialism, and not just for its potential for monetary savings.  In this respect, Thoreau marries economics and morality.  Or, as Norton, looking elsewhere in Walden, puts it, “Thoreau describes the benefits of the transformation to higher values in terms of human maturation and fulfillment of potential, as improvements within human consciousness, not in terms of obligations to nature and extrinsic to human consciousness” (32).  In other words, in his celebration of nature, Thoreau takes pains to privilege human economy over natural aesthetic, although the former is dependent upon the latter for its “proceeds.”  Nature is a vehicle for arriving at virtue, thrift included.  It is good—and a good—but humanity is essentially of higher importance.

The merger, as it were, of economics and morality finds its most obvious expression in Thoreau’s various price listings: the costs of building a house; the profits turned from harvesting corn, potatoes, turnips, and beans; the expenses of food and clothing; and the overhead in maintaining a self-sufficient lifestyle.  Of these, John Updike writes,

The long opening chapter, “Economy,” joyously details just how to build a house […] down to a list of expenses totaling $28.11 1/2.  Briskly marketing to the world his program of austerity and self-reliance, he itemizes the few foodstuffs he paid for and the profits he obtained from his seven miles of bean rows.  (xiv, my italics)

Updike’s choice of the word “marketing” is important, revealing as it does that Thoreau’s economics did not stop at savings and cutbacks, but actively advertised a lifestyle at once economic and environmentalist.  Thoreau sold his routine and persona to a curious public, a few of whom bought—and bought into—the ultimately published and publicized form (the book). 

On the one hand, Thoreau’s frugality is a lesson about simplicity and prudence; on the other hand, it offers a more environmentally friendly approach to architecture and construction while simultaneously warning about the destructive effects of what today we might call “the tragedy of commons.”  I have neither the time nor space to fully hash out my ideas about the tragedy of commons.  I will, however, quickly supply Steven C. Hackett’s definition for the term and then offer a short justification for my reference to it.  According to Hackett,

The tragedy of the commons is most likely to occur under the conditions of open-access or other poorly designed and enforced property rights regimes.  The tragedy of the commons outcome results from strategic behavior—behavior that an individual takes based on how other people are expected to behave and respond.  At the heart of the tragedy of commons is the belief that if one were to conserve the CPR, others will take what was conserved, and the CPR will degrade (116). 

Thoreau’s worries about the tragedy of commons are evident in a few abrupt asides.  Take, for instance, these lines regarding hunting: 

Almost every New England boy among my contemporaries shouldered a fowling piece between the ages of ten and fourteen; and his hunting and fishing grounds were not limited, like the preserves of an English nobleman, but were more boundless even that those of a savage.  No wonder, then, that he did not oftener stay to play on the common.  But already change is taking place, owing, not to an increased humanity, but to an increased scarcity of game, for perhaps the hunter is the greatest friend of the animals hunted, not excepting the Humane Society (329).

It seems abundantly clear that Thoreau refers here to the phenomenon—now known as the tragedy of commons—whereby people acting in their own self-interest use up a limited shared resource, in this case animal prey, despite their knowledge that doing so will be bad for everyone.  [Consider this point in light of another sentence by Thoreau: “By avarice and selfishness, and a groveling habit, from which none of us is free, of regarding the soil as property, or the means of acquiring property chiefly, the landscape is deformed, husbandry is degraded with us, and the farmer leads the meanest of lives” (257-58).]  Perhaps the tragedy of commons motivates Thoreau’s declaration that “if all men were to live as simply as I then did, thieving and robbery would be unknown” (269-70).  After all, thieving and robbery “take place only in communities where some have got more than is sufficient while others have not enough” (270).    

Economics and morality also apply—albeit more tenuously—to what Michael Berger calls Thoreau’s “study of ecological dynamics in forests,” a “vigorous program of research” about seed dispersal and its spontaneous generation (381-82).  Although Berger does not explicitly say so, he implies that Thoreau’s scientific forays lend authority to his literary works.  This authority allows Thoreau to promote himself and his philosophical vision.  Berger analyzes Thoreau’s The Dispersion of Seeds, which was not published until 1993.  Nevertheless, Berger’s observations apply almost as aptly to various passages in Walden.  Setting out to show that Thoreau’s somewhat Darwinian ideas were not only sophisticated but also pioneering, Berger posits, “Thoreau’s seed dispersal ecology was […] rich in significance regarding the various kinds of complicated mechanisms, principles, and patterns by which species of plants succeed one another in local ecosystems” (382).  To substantiate this point, Berger quotes the following from The Dispersion of Seeds:

In this haphazard manner Nature surely creates you a forest at last, though as if it were the last thing she were thinking of.  By seemingly feeble and stealthy steps—by a geologic pace—she gets over the greatest distances and accomplishes her greatest results.  It is a vulgar prejudice that such forests are ‘spontaneously generated,’ but science knows that there has not been a sudden new creation in their case but a steady progress according to existing laws, that they came from seeds—that is, are the result of causes still in operation, though we may not be aware that they are operating. (383)

This passage recalls Thoreau’s claim in Walden that “where a forest was cut down last winter another is springing up by its shore as lustily as ever” (302).  Thoreau’s point, at any rate, is, in both cases, that forests (in all their various manifestations—trees, plants, etc.) will spring up as if on their own: independent of the botany or vegetation that preceded them.  In the “big picture,” the economics and morality at issue have to do with Thoreau’s ability to market himself and his ideas.  If he could pit himself as both scientist and writer, his writings would gain both cultural and actual currency as well as popular credibility.  This coupling of scientific sophistication with moral sensitivity produces, in Updike’s words, Thoreau’s thinginess: “the thinginess of Thoreau’s prose […] still excites us, the athleticism with which he springs from detail to detail, image to image, while still toting something of Transcendentalism’s metaphysical burden” (xxii).  Without science, Thoreau is little more than a gushing nature enthusiast; without science or the metaphysical burden, he “comes close to being merely an attentive and eloquent travel writer” (Updike xxii).  Fortunately, Thoreau recognizes the need to economize while moralizing, and to do the former well required a certain scientific literacy.  Norton is more generous than I because he casts Thoreau’s scientific observations about the forest as having nothing to do with self-promotion and everything to do with the Environmentalists’ Dilemma.  Thoreau’s self-promotion notwithstanding, Norton’s praise does tend to demonstrate the manner in which Thoreau yoked science to economics and morality:

Thoreau quite explicitly recognized that the forest, a dynamic system, had a ‘language of its own, and that the transition form the immature state was both literary and scientific. […]  He saw that one learns more important things by relating an organism to its environment than by dissecting an organism into parts.  This indicates that Thoreau was on the right track, seeking the secret of life and its organization in the larger systems in which species live.  Especially, he thought we learn more important things about human behavior, and the evaluation of it, by observing organisms in environments.  He believed that if he could unlock the code of nature’s language, it would provide the key to a new, dynamic and scientific understanding of nature.  The key prerequisite for this change to a more contemplative consciousness was development of a new ‘language’ of human values based on analogies from the ‘language’ of nature. (40)

If Norton is right, as I believe he is, then the Environmentalists’ Dilemma is not so paralyzing as some would suggest.  Indeed, Thoreau’s Walden shows how economy and morality can participate with each other in unique and even scientific ways. 

–Allen Mendenhall

For further reading, see the following:

Berger, Michael.  “Henry David Thoreau’s Science in the Dispersion of Seeds.”  Annals of Science.  Vol. 53 (1996:  381-397).

Hackett, Steven C.  Environmental and Natural Resources Economics:  Theory, Policy, and the Sustainable Society.  M.E. Sharpe, 2001.

Norton, Bryan G.  Searching for Sustainability:  Interdisciplinary Essays in Philosophy and Biology.  Cambridge University Press, 2003.

Thoreau, Henry David.  Walden.  Houghton Mifflin Company, 1893.

Updike, John.  “Introduction.”  Walden.  Princeton University Press, 2004.

Dear Diary.. Memoirs and Law and Literature — Part I 2


In this series of posts, I will begin to explore the role of memoirs in the law and literature class.
I have always assigned memoirs in Law and Literature. This year, in my Law and Literature class, I am assigning four sets of memoirs and several autobiographical essays — more than ever before. In fact the course is bookended by reading memoirs of two independent women, at vastly different points in time — Abigail Abbott Bailey, a Congregationalist woman suffering abuse at the hands of her husband and Patricia Williams, the Columbia Law Professor.

When I took law and literature as a student, the first work we read was The Words by Jean Paul Sartre. Memoirs, I think, are fairly standard fares in law and literature. Memoirs, in a powerful way, force us to ask a central question of literary criticism: “Do you believe the author?” Believability and the law force us to consider several viewpoints of the works: did the author openly lie? did the author stretch the truth? and was the author deceived by his own artistry and construct a different world view than their reality suggests? Examining the author’s credibility impacts the way we perceive the role of legislatures and judges in assigning reasons for their decisions — “Do we really believe their rationale?” Like the Church Theology class that requires Augustine’s Confessions , law and literature should include personal tales, both from those powerfully impacted by the law, and those that are instrumental in shaping the law.

Memoirs also exist in historical settings that are not immediately clear to the reader. The writer, as it were, enveloped by historical circumstance writes from a perspective that can be judged as to its sincerity to the historical setting. Slave narratives fall into a category of providing distinctive personal experience enveloped by the historical circumstances of time and place. (For example Twelve Years a Slave: The Tale of Solomon Northup uniquely considers slavery from the perspective of one wrongfully deported under the Fugitive Slave Act.)

This semester I am assigning a new memoir that I believe captures perspective in historical setting quite well: Religion and Domestic Violence in Early New England: The Memoirs of Abigail Abbott Bailey, edited by Ann Taves. (We are actually kicking off the course with the work). Bailey’s memoir is a stunning treatment of law, religion and social norms. Bailey, an 18th Century Congregationalist (translation: puritan descendent) woman suffers at the hands of her controlling husband. The devout woman suffers her husband’s infidelity (occasioned by rape), incest with their daughter, and power plays. Abigail resolves to divorce her husband and settle their property. At one point, Bailey’s husband (Asa Bailey) convinces Abigail to go with him to settle their property affairs by selling their home to an unknown person some miles away. On the journey, Asa Bailey tells Abigail in effect that they were not going to settle their affairs, but rather, had just crossed over the boundary between New Hampshire and New York and that New York was a “better jurisdiction for dealing with women like you.” New York at the time did not allow divorce and so Asa Bailey transported his wife to a jurisdiction where negotiating a property settlement worked better for him.

The memoirs present an opportunity to discuss a number of themes such as: law as power; access to law and law as morality.

I hope that my students can critically examine Abigail’s memoir and that it can begin to shape the course. (We are also reading that week Young Goodman Brown by Nathaniel Hawthorne and several other perspective pieces).

What memoirs do you assign in Law and Literature? What other Memoirs should law and literature classes consider?

Other Memoirs that assign (and which I will talk about at a future date):
Patricia Williams’ Open House: Of Family, Friends, Food, Piano Lessons, and the Search for a Room of My Own
Jack Henry Abbott, In The Belly of the Beast: Letters from Prison
Henry David Thoreau, On Walden
Barbara Kingsolver, Various Essays

Texas is the New Empire of Evil Reply


I’m going to deviate from our normal fare here and offer some from the sports world. If you are only interested in reading about Faulkner and his obsession with Southern landscapes (I happen to share your interests by the way) look away now.

So apparently, the Historians at the University of Texas have been busy, or maybe not.  It appears over the weekend that the Treaty of Versailles Agreement to keep the Big 12 Athletic Conference was reached between the remaining 10 schools.  Texas was rumored to be off to the Pac 10, along with the already defecting Colorado, and Texas Tech, Oklahoma and Oklahoma State.  Texas A & M was reportedly headed to the uncontested strong-man of college football the SEC, while Kansas, Kansas State, Iowa State, Missouri and Baylor were left to try and find friendships elsewhere — maybe the Mountain West Conference.  Lets be clear — this was all about money!

In what appears to be a D*^k move effective negotiating, Texas, Texas A&M and Oklahoma agreed to return to the Big 12 in exchange for a larger piece of the financial pie than all the others.  Specifically, the three schools will receive $20 Million a piece annually in the projected new television deal, while the rest of the schools will receive only $15 Million a piece.  Moreover, Texas, Texas A&M and Oklahoma coerced got the rest of the schools to agree to forfeit their shares of the penalty money that Nebraska and Colorado would have to pay for leaving the Big 12.  In another stunner, the Universities agreed that the coaches wives at Missouri, Kansas, Kansas State, Iowa State, and Baylor all would officially slap their husbands while singing the Eyes of Texas are Upon You, every year when the school played Texas.

Two observations.  First, Is this good bargaining or just a bad idea for business relations?  It strikes me that history tells us that it is never a good idea to gloat in victory at the expense of others.  See e.g., France and Germany, circa 1918, George W. Bush “Mission Accomplished;” Ivan Drago defeating Apollo Creed in the Ring and then believing that he could as easily beat the Italian Stallion Rocky Balboa, etc…It seems that this marriage is destined to end, and if Karma has anything to say about it, watch out Texas, Texas A&M and Oklahoma — your day is a coming.

Second, how diminished must Oklahoma State and Texas Tech feel.  Its one thing to be the ones that were always on the outside looking in.  But to now be forever linked to Texas, Texas A&M and Oklahoma, without any more benefits than the others must be humiliating.  Nice show fellows.