E. B. White and International Law

For those of you interested in Charlotte’s Web and Stuart Little, my article “Talking Animals and the Internationalist Liberal Imagination: The Case of E. B. White” has just been published in the Swedish law journal Juridisk Publikation. You can find the article here. The article draws on a series of blog entries posted here in 2013.

Narrative, Deconstruction, and Counter-terrorism

My colleagues at the strategy, national security, and military affairs journal The Bridge published my review today of some recent works by Ajit Maan, who brings a background in post-structuralist literary theory to her work in counter-terrorism. The post includes an extended close analysis of a recent ISIS video to highlight the care Daesh takes in producing and editing its propaganda (warning: the video is very graphic). Maan’s work points the way toward how high-level literary theory can help guide the use of “soft power” on behalf of democratic, post-colonial, and multi-cultural ideals—a fascinating and important blend of the philosophical and the practical.

 

A publisher, a library, a cemetery, a party

In part three of “Walking with Horatio Alger,” I take a train ride to Philadelphia’s Chinatown, spend an afternoon in a lonely academic library, drive to a Massachusetts cemetery while listening to Fats Waller, and relax at a party with a bunch of fun-loving kids. How can video help bring a 1909 edition of Ragged Dick back into some of its original spatial and temporal relationships?

Here’s the complete video:

Here are links to individual sections: part one; part two; and—the latest—part three.

 

 

A Literary Ramble through New York

In Part II of “Walking with Horatio Alger,” I follow the path taken by Horatio Alger’s Ragged Dick on the first day of the novel. I’m accompanied by friend, former student, and lawyer Matt Milford, and we reflect on the story and its meaning while try to recapture its original sense of place. We also eat a delicious Vietnamese bánh mì sandwich.

For Part I of my Horatio Alger video series, see here.

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September 13, 2014: This post has been moved to March 31, 2014 for organizational purposes.

Walking with Horatio Alger

Horatio Alger doesn’t have much to do with law or legal history—except for the extraordinary fact that he was Justice Benjamin Cardozo’s private tutor for a spell. But I hope you’ll enjoy this video all the same. It’s about a wonderful old book I found a couple of weeks ago after a long hike.

The video is the first, draft installment in a series which, among other things, is giving me great practice in video editing in Adobe Premiere Pro—which, in turn, will allow me to create a long-planned series of videos that will tell the story of the development of the common law through the linked story of ten rare books.

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September 13, 2014: This post has been moved to March 30, 2014 for organizational purposes.

Love’s Empire

In the latest issue of Telos, I review two books by Paul Kahn of Yale Law School, Political Theology: Four New Chapters on the Concept of Sovereignty and Finding Ourselves at the Movies: Philosophy for a New Generation. In both books, Kahn reads contemporary American law and politics through a framework influenced by the writings of Carl Schmitt. The theme of the issue is “After Faith” (for readers not based in a university, I’m afraid the issue is behind a pay wall).

In the review, I write that Kahn’s books “crisply document and provide a provocative theoretical account of an important feature of America’s distinctiveness: its social imaginary of ‘the political,’ particularly the conceptual, cultural, and affective place the social imaginary affords to law. In Kahn’s view, law in America is different. Most notably, law is imaginatively inextricable from the willingness of American citizens to engage in sacrificial acts of political violence. The reason for this potent union, he explains, is theological. The American nation-state—born of revolution and deriving its legitimacy from a trans-generational popular sovereign (‘we, the people’)—provides a source of ultimate meaning for its citizens analogous to religious belief. In Kahn’s analysis, that is, both the American experience of judicial review and the nation’s openness to the use of existential violence stem from a common source: the fact that ‘our political practices remain embedded in forms of belief and practice that touch upon the sacred.'”

Written last October, my review, titled “Love’s Empire,” begins with a reference to Vladimir Putin’s critique of the notion of American exceptionalism in his New York Times editorial of September 11, 2013. It concludes this way:

“Kahn’s compelling description of the American social imaginary thus would seem to raise more insistently Schmitt’s question about the capacity of societies governed by liberal normativity to survive. This question seems especially significant in the context of contemporary pessimism about trans-Atlanticism. For the past seventy years, the security of those European nations that most embody the de-politicized bourgeois liberalism that Schmitt deplored was underwritten, ironically, by a nation that Kahn convincingly describes as living entirely within the exception. Whether an increasingly centralized European Union or some future system of international law can provide similar security and stability while preserving essential domains of human freedom—including by resisting elite managerialism at home and the blandishments of authoritarians from abroad—remains an open question.”

Liberal Society and the Dialectic of the Clan

The Erasmus Law Review has published a special issue on legal pluralism edited by Sanne Taekema of Erasmus Law School in Rotterdam and Wibo van Rossum of the University of Utrecht. I contributed an essay in which I reflect on the intellectual context in which I wrote The Rule of the Clan and try to recuperate a culturalist approach to the study of the rule of law.

The introduction to the issue can be found here. My essay, “Imagining the Rule of Law in Nineteenth-Century Britain: Liberal Society and the Dialectic of the Clan,” can be found here. The links are to the website of international publisher Eleven Journals.

Here’s how my contribution begins:

“In this essay, I provide a historical and theoretical framework for understanding the imaginative relation between the liberal rule of law and the kin-based form of socio-legal organization I call ‘the rule of the clan’ – a classic example of law created ‘from below.’ Specifically, I believe that a culturalist disciplinary perspective reveals that the modern liberal state and its more centralized rule of law always stand in an ironic, dialectical relation to the rule of the clan as a legal form. Liberal society, that is, nurtures itself through an anti-liberal utopian imaginary.

“This article provides an intellectual history backdrop for theorizing that dialectical relationship by examining two contrasting ways in which nineteenth-century British intellectuals imagined the rule of law. Following the work of Charles Taylor and, more specifically in the legal field, Paul Kahn, my goal is to depict a social imaginary of modern liberalism that has been neglected within contemporary liberal theory – and, in doing so, provide a way to appreciate the cultural foundations of liberal legality. The article considers the stories that nineteenth-century British intellectuals told about the relation between the rule of law and the rule of the clan as a way to think about the rule of law today. It thus tacks between three different shores: the world of legal pluralism (the rule of the clan), the world of nineteenth-century British analysis of the rule of the clan and the contemporary relation between culture and modern liberal society.”

I associate the “culturalist approach” to the rule of law with a group of nineteenth-century intellectuals I describe this way: “Writing before the full professionalization of the disciplines, these men forwarded a vibrant if unsystematic form of analysis that sought to describe in precise, anthropological detail the cultural foundations of the new liberal nations they were seeking to wrest into being, and they were attentive to the aesthetic qualities of liberalism and its legal traditions.”

In Britain, the group includes the novelist Walter Scott. Internationally, it includes Domingo Sarmiento in Argentina, Jón Sigurðsson in Iceland, and István Széchenyi in Hungary.

Overcoming Feud in the Oresteia

This afternoon, a question posed to me about Aeschylus by an outstanding college student sent me to an essay by Michael Dirda titled “The Oresteia: Law & Order,” which appeared in Lapham’s Quarterly. The following lines struck me, and for readers familiar with some of the issues I discuss in The Rule of the Clan, I thought I’d post them here:

“In the broadest sense, Aeschylus’ plays trace a progress from a culture of bloody, multigenerational vendettas to a culture based on jury trials in a court of law. Because of impossibly contradictory yet divinely appointed sanctions—you must revenge the death of a family member, you must not murder a family member—there has finally emerged a solution that shifts the responsibility of punishment from the individual to the state. The Oresteia ends, in scholar George Thomson’s phrase, ‘with the ratification of a new social contract, which is just because it is democratic.’ Athens is transformed: the polis will now rely on the so-called Areopagite court for the proper redress of murder.

“The chief impetus behind this new social contract has been the judicious and reasonable Athena. She represents the middle ground—a compromise between feuding parties as well as feuding sexes—being neither wife nor mother and having been conceived without sexual intercourse. (She emerged full-grown from Zeus’ forehead.) Nonetheless, her actual explanation for why she acquits Orestes still arouses controversy and argument.”

I’ll be thinking of this description as I continue to read about recent events in South Sudan, and about the latest headline-making abuse of a khaap panchayat in rural West Bengal—and the ongoing effort of the Indian government to put an end to vigilantism (which I discuss in my book).

I’ll be thinking about it as well in the wake of the recent warning by Chief Justice Roberts that budget cuts have imperiled the ability of federal courts in the United States to deliver prompt justice—and could “pose a genuine threat to public safety.”

I’ll be thinking also about writer Jillian Abbott’s argument in an article published this week in the Irish Times: that without robust government, western democracies can become “a paradise for predators.”

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On February 15, I’ll be speaking at the eighth annual Telos conference, “The Difficulty of Democracy: Diagnoses and Prognoses.” My talk is called “The Legal Foundations of Individualism,” which will be the subject of my next non-fiction book.

Why International Law is Like Webster’s Third Dictionary (at least, for E. B. White)

United Nations Security Council Chamber

E. B. White disliked the name “the United Nations”—he thought it dishonest and phony. The structure of the institution, from its weak emergency force to the veto power of the Security Council, seemed to him to sell out the ideal of global unity. It offered a thin bill of fare whose underlying ingredient was the principle of national sovereignty.

“Some people, perhaps most people, think words are not really important,” he wrote in Points of My Compass, “but I am a word man and I attach the very highest importance to words. … The newspapers, with their sloppy proofreading, sometimes call the world organization the United Notions, sometimes the Untied Nations. Neither of these typos would make a serviceable title, but curiously enough, both are pat.”

Because White was at bottom “a word man,” I’d like to conclude this thread by suggesting how his legal vision is implicated in The Elements of Style—a book that many readers of this blog will know more intimately than all his other works. White’s views about English prose, it turns out, also register his views about world federalism.

In Stuart Little, the book’s hero draws a distinction between two proposed laws: “Don’t eat mushrooms, they might be toadstools” and “Nix on swiping anything.” The first, says the young mouse, acting as Chairman of the World, is merely “advice.” The second is a “good law.” Why? Foremost among its qualities, it is enforceable. In its propositional clarity, it can be backed up with punishment and power—which Stuart demonstrates by encouraging Harry Jamieson to steal Katharine Stableford’s scented pillow.

White believed that the standards for international conduct developed by the United Nations were nothing more than a litany of recommendations not to eat mushrooms—and that they probably could never be anything more than that. The institution’s rules, after all, were developed through mere diplomacy. “To speak as though we had law,” he protested in The Wild Flag, “when what we’ve got is treaties and pacts, to use the world ‘law’ for non-law, is to lessen our chances of ever getting law among peoples.”

To vindicate the equality of mankind, to protect “the ‘I’ in man which Hitler has set out to destroy,” to protect all the world’s peoples—including, in Stuart Little, rats—treaties and pacts were not enough. “Government is the thing,” White argued. “Law is the thing. Not brotherhood, not international co-operation ….” What was needed were objective, inflexible, normative rules of conduct whose meaning everyone could apprehend.

Charlotte the Spider, Supreme Court Justice

Very soon, my wife and I will be spending a few days in Maine. We’re going there for a wedding, and rather than spend money on a hotel, we’re going to camp. We’re looking forward to putting on our formal wear beneath the pine trees. And I’m looking forward to visiting the state again after a long absence. The last time I was in Maine, I was in college:

Isn’t that some lobster? I believe we cooked that lobster right where we stood, on the beach, in a tin bucket.

Our impending trip makes me feel especially close to E. B. White, whose views about world government I’ve been considering in a recent thread. They also put me in mind of Justice William O. Douglas of the U.S. Supreme Court. I don’t think that the two ever met—at least, there are no letters between them in the E. B. White Collection at Cornell or the Justice Douglas papers at the Library of Congress. But they share a great deal in common.

Most obviously, they share a love of Maine. White spent much of his life there, at his farm in North Brooklin, and some of his greatest essays, such as “Once More to the Lake,” evoke the beauties of its distinctive, unspoiled landscape. I especially like the collection The Points of My Compass, which also contains some of White’s writings on international law. As for Justice Douglas, as I noted in an October post, he was a nature writer of real skill—and one of his greatest sources of inspiration was Mount Katahdin. That’s the highest peak in Maine and, for hikers traveling north, the end of the 2,200-mile Appalachian Trail (which Justice Douglas also completed).

“Katahdin has been like a haunting melody since the day in the late twenties when I first saw it against a buttermilk sky,” he wrote in My Wilderness. “For some years I explored the dark woods and marshy lakes at its feet, and climbed its rough points. Then came a long period of absence. But the pull of Katahdin, like that of an old love, was always strong. The memories of it were especially bright every May, when the ice went out and the squaretails started jumping—every June, when the salmon-fly hatch was on. Fiddlehead ferns—partridgeberries—alpine azalea with tiny cerise flowers … all of these—and more—were Katahdin.”