Brown, Dan. The Da Vinci Code (2003).

February 22, 2007

“Teabring held up his right hand and feigned a courtroom oath. ‘Your honour, forgive an eccentric old knight his foolish prejudice for the British court system. I realize I should have called the French authorities, but I’m a snob and do not trust those laissez-faire French to prosecute properly. This man almost murdered me. Yes, I made a rash decision forcing my manservant to help me bring him to England, but I was under great stress. Mea culpa. Mea Culpa.'”

I think that I may be the last literate person on Earth to read this novel, but upon having completed it I shall now add to the din of conversation that surrounds it and makes it a meme of the early 2000s.

Dan Brown weaves a tale that is at once poorly written, well researched and impossible to lay aside about an American college professor named Robert Langdon who teamed up with a french Cryptologist named Sophie Neveu in order that they may solve the secret codes left by the Priory of Sion that lead to the Holy Grail. This treasure hunt has been masterminded by Jacques Saunière who is Neveu’s Grandfather and the Grandmaster of the Priory of Scion, a secret society who reputedly protects the grail). He leaves the initial codes as his last words so that the Grail won’t be lost due to the fact that all the top members of the Priory have been murdered in one night. Pressure is added to this little romp by the fact that Langdon is the prime suspect in the murders. The pair must find the key stone which leads to the grail, and then search out the grail itself. In the process they meet up with Sir Leigh Teabing who is a proffesional Grail hunter, and their only ticket out of France.

There is quite a bit of controversy about this book due to the way it tells the story of the grail. Instead of being the actual chalice that Christ drank from, the grail consists of the tomb of Mary Magdelene and numerous documents which supposedly reveal the true teachings of Christ and reveal a devotion to the sacred feminine. The facts of this story, according to the story line in the book, have been covered up by the Catholic Church in order to sustain its own patriarchal rule over religion. As you might guess the implications of such a thing being true would be crippling for Christianity to say the least, thus an outburst occured as Christian leaders spoke against the book as if it were attempting to be a nonfiction piece of writing. Of course all this is neither here nor there as my intention is to address the legal implications that can be found in the book.

The Da Vinci Code has numerous points of law, but probably the most visible is Brown’s treatment International Law. International Law themes run through out the story, and Brown deals with a couple of different aspects. Primarily, the reader will find aspects of international law and the enforcement of national criminal laws (this is distinct of course from International Criminal Law). One of the first plays made by the French police is blocking off the street to the US embassy in order to keep Langdon away from it, because – due to the workings of International Law – that piece of earth is United States property “and those who stand on it are subject to the same laws and protections as they would encounter standing in the United States.” If Langdon Makes it there Fance must request extradition. The extradition process is discussed but working the other way. Fache “locked horns regularly” with the US ambassador over “shared affairs of state.” This is because the US embacy would intervene on behalf of US citizens accused of crimes in France and extradite them back to the United States where they would recieve “nothing more than a slap on the wrist.” (Aside: yes that is two cliches that I found in one paragraph of the book and now I have two cliches in one paragraph of my blog oh the horror, the horror). If he doesn’t get to the embassy he could spend weeks in jail while the French Government and the American Governement fight it out over where the case should be tried. The key, though, is getting there, as Sophie points out “[c]all your embassy right now, and they are going to tell you to avoid further damage and turn yourself over to Fache. Then they’ll promise to pursue diplomatic channels to get you a fair trial.” In other words you have to get there to be within that jurisdiction.

International law themes are also found in the arena of air law. Teabing has a private plane with the correct credentials to allow him to fly between France and England without dealing with the usual cutoms and immigration officials. However, when he takes off in the middle of the night with and unsceduled unlogged flight it is “highly illegal.” Teabing then decides he will bribe the customs official that does come to the plane. Sophie reminds him that he has transported a hostage over international lines which is “serious.” “So are my lawyers,” he replies. He then goes on to fake his own courtroom defense which is somewhere between duress and mercy. The airfield that he is landing at has customs official that will overlook the importing of some organic foods because “[m]any customs laws were absurd.” Teabing when he gets to the airport denies a police search for the lack of a search warrant, but I think this could be a legal mistake as the plane hasn’t cleared customs yet and would therefore be subject to being searched (but theat is a gut reaction I haven’t researched). Also, the English don’t interrogate the French pilot due to some sort of jurisdictional problem. Aringarosa also manages to get international air law broken when he bribes his pilot to change course for London.

There are further references to this theme that have more to do with the enforcement mechanisms that make enforcement of these crimes possible, especially in the European arena where being a transborder criminal is quite easy. There is a particular reference to the European law that requires passports to be shown at hotel check-in. This law allows interpol to quickly search and find people staying in hotels.

Criminal Procedure and investigation plays a small role in the beginning of the book when Saunierre uses blood as a way to get the police to use a specific forensic investigation procedure that would involve the ultraviolet lights (as seen on CSI). Evidentiary law comes into play as Langdon insists that there is no evidence to connect him with the murder but Sophie says otherwise. While Langdon is thinking that he needs a lawyer Sophie points out that “[i]n France, the laws protect the police, not criminals.” It is interesting that at this point Brown shows us difference between the American concept of law and the French concept. Langdon wants a lawyer, but he obviously is thinking of an American lawyer, but in France’s non-adversarial system a lawyer’s functions for his client a extremely different. Evidence again comes in to play with the investigation at Teabing’s house wherein he has gone to great lengths to not link himself to his crimes i.e. putting the listening post in an area he cannot actually access.

Privacy laws are referenced when they are at the Depository Bank of Zurich. The safety deposit boxes within are protected by these privacy laws to keep the police from randomly inspecting the goods within. Furthermore, because the boxes are attached to numbers and not names police are effectively precluded from getting search warrants for the boxes, thus theives often use the bank as a place to keep stolen goods. While profitable for the bank this system is not without its problems: “The bank had enough battles with law enforcement over the privacy rights of their clients without proof that some of them were criminals.”

There aren’t many lawyers in the book (besides the references already noted). There is a short scene in which the Secretarius Vaticana makes an appearance, he is “the overlord of all legal matters within Vatican City.” Teabring makes reference to his lawyers, once saying “My lawyers will fricassee your testicles for breakfast. And if you dare board my plane without a warrant, your spleen will follow.”

There are references to different aspects of church law, also, including an embarrassing trial of an Opus Dei member, Robert Hanssen, who was a spy and a sexual deviant. The trial itself isn’t Church related but it helps to add to the motives of the Church in the book. The new Pope is seeking to soften Church law, and Bishop Aringarosa notes “that previous tempering of Church law – the Vatican II fiasco – had left a devastating legacy.” It is this softening of church law has been what has led to the Vatican drawing up “legal papers” to separate Opus Dei from the modern church. Modern canon law isn’t all that is mentioned though. The reader will find a reference to a Papal Bull of Innocent II declaring the Knights Templar “a law unto themselves.” Also, Opus Dei’s tenants are referred to as “third century laws.”

Finally, it should be noted that Dan Brown found himself in Court in England in a Copyright suit with the authors of Holy Blood, Holy Grail suit.

The Da Vinci Code
Dan Brown


Currell, Billy. Kentucky Fried Tender (2006).

February 6, 2007

“‘Now before I enter the code,’ Naomi said. ‘Let me tell you the story. It was an eleventh hour deal that Newt Gringrich brokered back in 1995 just before the balanced budget bill was to appear before the White House. Bill was going to sign anyway, but he knew that Gingrich was from Marietta, Georgia and that he had connections with – ‘

‘The Big Chicken.”

Women, Chicken, Money. The Trinity of Tenderness. This is the teaching of Dr. Billy Currell as he takes the reader on a philosophical journey that recasts the evolution of man as being inextricably connected with the Chicken. He shows how chicken (and fried chicken in particular) led to mankind’s big brains, the development of romantic love, the creation of money, and the rise of feminism. Also he shows how it has become the loadstone of peace, security, and capitalism.

Currell’s multifaceted discussion of our existence approaches a social theory that, as far as I am aware, stands with singularity outside the usual realm of sociological studies. It uses the sometimes real, sometimes metaphorical figure of Colonel Sanders as both a Christ-like saviour and as flawed man whose perserverance we should model. The Colonel becomes a founder of both Faith and Government and also a teacher of Love and Eros.

The book covers numerous topics, but it only touches on legal topics tangetially and indirectly. These topics though are most evident in two premises of Dr. Currell: 1) “The first ducat was a bucket” 2) War does not occur in countries with KFCs.

The first proposition looks at the anthropological development of money. He notes that money was first food (the bucket is of course the bucket of Fried Chicken), and that food was the first form of private property. He then quickly traces the evolution of money from meat to grain to gold to paper to plastic. Of course it is at gold (and even more so at paper) level that government becomes entangled in economics. He links paper money to industrialism, and notes that “[i]n 1936, in a move both bold and controversial, President Franklin Delano Roosevelt took the United States off the gold standard, making paper notes ‘legal tender for all debts public and private.'” It is appropriate here to note that the publisher of this book is a company named Legal Tender and Private. Anyway, what Dr. Currell here is implicitly pointing to is the government legitimation of the system of trade that Currell argues is a result of man’s involvement with the Chicken. It also points to a governmental control over economics that heightens when “money . . . costs nothing to make.” Economics cease to be based on scarcity and become based on numerical value set by the government. This system is different from that which Currell argues gave rise to today’s social structure. In Currell’s analysis it is the scarcity of Chicken and the scarcity of eggs that gives those items value and make them the moving force in the development of society.

However, this change in system is not necessarily seen by Dr. Currell in a negative light. Quite the contrary, Currell points out that under a modern regime man is better off than he ever has been before, thus his proposition that Wars don’t take place in countries with Kentucky Fried Chickens. This is really a statement about Capitalism, as he uses the KFC is a metaphor for modern capitalism with an emphasis on its industrious nature which allows it the flexibility to cope with new and diverse problems. As Currell points out the opposite of Legal Tender and Private is “Vegetarian and Public” and thus linked to a Marxist philosophy that destroys the idea of private property. The idea of property is of course an extention of his earlier argument, but now he shapes it to show that the government legitimation of this system is good. Essentially, an economic system is a legal choice in the beginning, and Currell attempts to show with empirical evidence that the Capitalist choice is not only one based in man’s prehistory, but also is the system that has the more desirable outcome of peace, freedom, and a higher standard of living. He claims that if Colonel Sanders had taught Khruschev to fry chicken then the Cold War would have been ended (the Colonel was apparently enroute to Moscow when Khruschev gave up the ghost), and further suggests that The Colonel could have sorted out the current Gulf Conflict with a plate of Chicken (George W. on one side Saddam on the other).

Of course, none of this should surprise the lawyer, as it shouldn’t be forgotten that in addition to his divine qualities, his master cooking abilities, and his bawdy language The Colonel was an “aspiring lawyer (his sixth-grade education did not prevent him from practicing).” The Colonel is systemic, and damn that chicken tastes tender.


*It should be noted for the sake of disclosure, that I do indeed know the Dr. Currell and have had the pleasure of peeking in every now and then as he developed his manuscript. Furthermore, he allowed me the great honor of proofing and commenting on the manuscript prepublication. Thus any biases that the reader would like to interpolate are probably present.

Kentucky Fried Tender
Dr. Billy Currell

Dworkin, Ronald – Freedom’s Law: Moral Readings of the American Constitution (1996)

February 2, 2007

“The moral reading proposes that we all – Judges, lawyers, citizens – interpret and apply these abstract clauses on the understanding that they invoke moral principles about political decency and justice.”

Ronald Dworkin presents, in this volume, a series of essays that he uses to highlight what he calls a “moral reading” of the constitution. This moral reading requires the jurist (or whoever else might be working with the document) to interpret the abstract terms of the Bill of Rights “on the understanding that they invoke moral principles about political decency and justice.” He sets this type of reading up as the opposite of an original intent type reading, the abolition of which seems to be his project. My initial and primary problem with his ideas is that he holds that there is no middle ground between the two readings, and bases it on the fact that no one has yet really defined any sort of reading. I find this to be a bit misleading. Intent is important when we look at the law, and this is why “legislative intent” is so often examined when courts must rule on statutes. The Constitution is a historical document and the intent of the framers is quite important when interpreting it, but that should not be the only factor as the document has grown and must grow to deal with new legal quandaries that the framers would not have or could not have had in mind. Dworkin ignores any sort of balancing test that would allow for a mixing of different views to bring about justice.

Dworkin’s project seems less like an attempt to explain constitutional ideas and more like an assault on conservatives and conservative ideals. In my opinion this assault puts his own credibility into question. His disdain for not just conservative ideas, but also for specific figures becomes overpowering by the end of the book. In the final chapter he quotes, with admiration, Judge Learned Hand, who said, “The spirit of liberty is the spirit which is not to sure that it is right.” Dworkin suffers from being too sure that he is right. I am no constitutional lawyer, but I felt that too often he attempted to shrug off doctrines that he did not agree with as obviously wrong based on the fact that they were conservative in nature. I will try and make this more apparent below in the short discussions of each of his three sections of the book: I. Life, Death, and Race; II. Speech, Conscience, and Sex; and III. Judges.

In the first section of the book Dworkin reveals to the reader the first of his two obsessions in the book: abortion. Of the six chapters the first four cover it directly, the fifth deals with tangentially, and the sixth somehow manages to deal with both abortion and affirmative action at the same time (and abortion is probably mentioned in every other essay in the book). As a result Dworkin seems to repeat himself quite a bit by the end of this section (granted these are collected essays so it has more to do with bad editing than bad writing). Dworkin’s premise is that if one applies his moral reading to the constitution then one will come to the conclusion that Roe v. Wade is (and I remember this word being used somewhere) “obviously” right and that fetuses aren’t Constitutional Persons and thus a state has no right to protect them until the third trimester. I had a few qualms about his argument. First, on a technical note it seems that Dworkin really likes to cite himself as a reference, and I find that inherently problematic. Second, I feel as though Dworkin doesn’t engage with the language of Roe v. Wade at all. Instead, I found that he accepts the result of the ruling, but attempts to write in his own reasoning instead of that which the court used. In other words he justifies it in his own terms. Third, I felt like he did a little dance around the crux of what makes abortion and Roe not just controversial, but also a very difficult subject matter that readily leads to different conclusions for different people. He chooses to frame the question around whether a fetus is a “constitutional person” and twice compares fetuses to corporations (the analogy being that they are a being or a person, but that their rights can’t trump fundamental rights of constitutional persons i.e. potential mothers). He seems to skip, in my opinion, the idea that if we deem a fetus a human being it might very well have rights and that there are reasonable arguments for doing so. Instead he hides the ball by using the term “intrinsic value in human life” and making a misplaced value judgment that a fetus deserves recognition as a person with rights when it is recognizable, or has brain functions, or is viable. I don’t fault him for his opinion on Roe, but I never understood how another person applying the same moral test, might not come to the opposite conclusion based on moral principles? His obvious outcome is tied up in ones personal philosophy, which (and this is my final problem) leads him to then makes an ill-founded establishment clause argument. Essentially: if most Christians believe that abortion is wrong, then banning it violates the first amendment. Most Christians were against alcohol during prohibition (lets assume), but the banning of alcohol was proper function of the commerce clause (as interpreted), thus just because a group supported it it doesn’t follow that it violates the establishment clause. It doesn’t follow that if a state decides that a fetus is human being and has a right to life that this is inherently based on religion because Christians support it. This is not to discount religious involvement in the political arena, certainly any such law would be supported by religious groups, but “support for” is different from religiously based. It really is a question of personal philosophy, and it is not a simple as Dworkin wants one to believe.

The second section on the book, Speech, Conscience, and Sex, is where Dworkin shines in the volume. He, in this section, does engage with the Supreme Courts rulings on free speech in a way that not only explicates those rulings, but also makes his views clear on them. He begins with a discussion of New York Times v. Sullivan in light of two major trials involving slander and military generals, and follows it up with an essay as to why that sort of freedom is essential to our democracy. He ends the section with a discussion of Academic Freedom, which I think manages to effectively deal with numerous misconceptions that people have about the academic freedom and to make a valuable argument as to why a state should not meddle with researchers in its colleges. But Dworkin really shines in his essay “McKinnon’s Words,” which is an assault on Katharine McKinnon’s book Only Words and her anti-pornography statutes. McKinnon is a well known radical feminist whose project seeks to bring equality through the law. She started out as a Marxist and so her views often embrace very radical alterations in legal structures. In her book, she argues that pornography should be banned because it violates women’s fourteenth amendment rights to “equal protection” by subjecting them to prejudice and objectification which alienates them from the political process. Her argument runs that equal protection should not be sacrificed to the freedom of speech. She also managed to pass two anti pornography statutes one in the US and one in Canada. The one in the US was struck down as unconstitutional, the one in Canada (due to her definition of pornography – which is flawed) resulted in numerous items being banned including a book by critic bell hooks (hows that for irony). Dworkin sees these ideas as fundamentally flawed and I think rightfully so. He argues that it is the value that we place on freedom of speech in this country that allows for the open political process to work, and that for it to work some dubious things must be allowed to be communicated (including pornography with no political value). If the government can ban these items the slippery slope is open and we all suffer due to exclusion from the political process. He also prints his reply to the letter she published as a response to his article when it was originally published. He states that she called his article “ignorant, appalling, shocking, rock-throwing junk” and compares him to “kept writers in pornography magazines.” Now I haven’t read her actual letter, but if Dworkin reports correctly (I think he probably does) then it show McKinnon’s inability to take part in the actual conversation; instead she opts for the fireworks.

The final section of Dworkin’s book is entitled Judges and this is where you find his true colors. The first three chapters deal with the nomination and defeat of Robert Bork by president Regean to the Supreme Court. Bork is Dworkin’s second obsession and is mentioned in most, if not every essay, in the book and mentioned with great disdain at that. Dworkin frames this nomination as an important moment in the history of the court, but I don’t think it lived up to Dworkin’s expectations. Instead, it seems as though Dworkin has some sort of petty vendetta against Bork, and maybe more disturbingly his constitutional theory really begins to shine through as one that only accepts liberal views as valid. He seems shocked that Bork’s nomination was politicized by Regean, but openly seems to endorse liberals voting against conservative candidates based on their conservative views. Then he argues that Congress should vote on the virtue of the candidates constitutional philosophy, but hints that anything but a liberal philosophy should be voted down. This is expanded with his discussion in the next two chapters which cover the Clarence Thomas hearings. He is dismayed that the administration is openly nominating candidates that it hopes would overturn Roe v. Wade. He skips what a lot of people skip when discussing stare decisis: What if the tables were turned and Roe went the other way? Would he be as outraged if a liberal administration decided to appoint justices that would overturn that decision? Probably not because he would think that the decision was inherently wrong, but he won’t extend that sort argument to a conservative point of view (because he refuses to accept any sort of conservative critique as valid). He also discusses the constitutional philosophies of these two candidates as if “no constitutional lawyer” would buy into them, but it should read no “liberal constitutional lawyer.” He so sure that he is right that he fails to see that many of the doctrines are currently working to shape our constitution from the bench, and are by virtue of the fact they are quite relevant.

One final point, something that struck me as strange. He mentions that the “black community” supported Thomas and that after he got to the court some tried to justify their support with the idea that if Thomas didn’t make it then it would just be a white conservative (thus better to have a black conservative). Dworkin argues that it is “more insulting” to blacks to have a black conservative on the bench. I wonder if Dworkin thinks Thomas is not a “credit to his race.” Why shouldn’t Thomas be conservative and black, and more importantly, Dworkin, why should that insult black people in a country that prides itself in a multiplicity of views.

To sum up, Dworkin makes some very interesting arguments and is an important jurist, but he is so lost in his political agenda that the law gets left behind so he can pursue his project against conservatism.

Ronald Dworkin