Gregory the Great. Register of Epistles (590-604).

September 18, 2007

Generic Book“My writings which I have sent to the peasants cause thou to be read over throughout all the estates, that they may know in what points to defend themselves, under our authority, against acts of wrong; and let either the originals or copies be given to them. See that thou observe everything without abatement: for, with regard to what I have written to thee for abservance of justice, I am absolved; and, if thou art negligent, thou art guilty.”

Pope Gregory the Great wrote a lot of letters, and well, I read them all. These letters fascinating look into the medieval world through the eyes of a Pope. They are also packed full legal tidbits. The letters often act as the Pope’s conveyance of his official rulings on a number of different matters. He, as the Pope, was the judge on numerous canon law activities.

As these are letters (and owing to the difficulties of research law this old), instead af searching out a specific legal theme that runs through them all, I am just going to list the highlights. Of course, I’m positive I’ve missed some. Enjoy.

IX: Gregory sends Peter the Subdeacon to investigate a property dispute in which a group of monks are having their land encroached upon by a farm owned by the church. Gregory rules that if the land has been in their possession for 40 years they are the rightful owners even if it doesn’t benefit the church. If the boundary has been disputed in the last 40 years though then Peter is to appoint arbiters to resolve the problem.

X: Gregory responds to a petition from a group of Jews who claim to have license to hold under the churches authority a synagogue on the grounds of church property. He rules that if the voices from the synagogue can be heard in the church. He commands that if they are expelled that they should be given a new place of worship and one that will keep any complaint from being levied. He notes that the Jews “live under the protection of Roman laws” and therefore have the right to worship. He also notes though that the Jews should not possess Christian slaves.

XIX: Gregory overrules the ruling of a Synod that condemned Archdeacon Honoratus. He does this on the ground that the ruling ofthe synod was biased, stating that “no one who is innocent should be deposed from the ministry of his order unjustly.” He commands that the Archdeacon be restored and that if there is still a problem the Archdeacon should come and present himself to Gregory.

XXV: Gregory first discusses, in this letter to numerous patriarchs, the qualities of a ruler: “He orders well the authority he has recieved who has both learnt to maintain it and keep it in check.” This is a fairly good statement of what good law is, it creates order but does not get out of hand. He then says that “the virtue of humility ought to be so maintained that the rights of government be not relaxed.” He means that the ruler should not be so humble as to relax his own authority and lose the respect of his subordinates. At the end of the letter Gregory upholds the validity of four law creating councils that happened before: the Nicene, the Constatinople, the first Ephesine, and the Chalcedon.

XXXIII: Gregory calls for a synod to determine the guilt of a Blandus who has been held for some time by Romanus Patrician and Exarch of Italy. He asks for his release if he is not being held for a crime.

XXXIV: Gregory declares that “according to the ordinance of the law, it is not lawful to walk on the Sabbath.”

XXXVI: He writes to Peter the Subdeacon that the guidelines Gregory gave him must be “diligently perused” so as to keep Bishops from entangling themselves in secular causes except to the extent that they need to assist the poor. He then notes that their have been reports that in the past that property has been taken by the church without judicial process. He request Peter upon discovery of such a matter to make restoration to a claimant. He also requests that Peter investigate reports of people that have been enslaved illegally without trial. He wants these slave’s possessors dispossessed “by regular process of law.” He also mentions that any decree made under pain is anathema. Early evidence of the illegality of torture.

XLII: Gregory declares that Monks should not migrate from monastary to monastary, they should not hold property, should not have wives, and they should not, if they were once priests, return to being a priest.

XLIII: Gregory is rejoicing at the conversion of King Richard to Catholicism and to a “citizen of the eternal realm.” This comments a bit on the idea of jurisdiction between temporal and divine realms. Or maybe I’m stretching it.

XLIV: He rights to Peter that payment for grain should be in accordance with the Market. He then instructs Peter on collecting of taxes asking him to draw up “Charters o security” which declare what each person is to pay. He also bars the use of “unjust” weights for exacting payments. He rules that relatives of farmers on who live on church property shall have the right to succeed them. Next he decrees that a person who commits a crime shall be the only person punished and not his family as well. This is a long letter in which Gregory also rules on specific cases.

XLVIII: Gregory requests that Theodorus, Duke of Sardinia, send a property dispute to trial so it may be resolved. He also asks Theodorus to look into a will that a person wants to have annulled.

LXII: In this letter he seeks to have a woman saved from the “annoyance of legal proceedings,” but to still submit to a “just judgement.”

VI: Gregory mentions a Demetrius who “has been found to be involved with transactions to such an extent and of such a kind that, if he had recieved judgement without mercy according to the character of his deeds, he would undoubtedly have been condemned to a most hard death by both divine and human laws.”

XIV: The lady Timothea wishes to found and oratory in Ariminum. Gregory lets the local bishop know what must be conveyed to the church in trust for this to be done.

XVIII: Gregory seeks to resolve a dispute between Natalis and Honoratus and while doing so “keep the rule of justice.” The suit involves some finer points of canon law including the use of a pallium, which is a garment granted by the Pope to a church which says something about jurisdiction (I think).

XIX & XX: These two letters follow up on the dispute addressed in XVIII.

XXXIV: Gregory admonishes Maximianus, Bishop of Syracuse to not be so harsh with his punishments when ruling on cases.

XLI: If there is a property dispute between monks and the Church, then the dispute shall be taken up quickly by “selected abbots and other fathers.” A great deal of this letter deals with what an abbot can and con not do under canon law.

XLIX: Gregory sends to trial Januarius, Archbishop for “a mass of complaints . . . against . . . his fraternity.” One of these has to deal with the unjust excommunication of Isidore.

I: Gregory writes to Peterm a subdeacon, about a recent crime of sedition. Gregory asks Peter to punish those that are manifestly guilty. Additionally, he is sending Scholasticus, a judge, there to investigate the matter and bring to trial any others.

V: Here we have a bit of jurisdiction. The Catholic church claims both divine and temporal jurisdiction. Gregory in this letter addresses an instance where a laymen has judged improperly. He says that when judged wrongfully, the decision of the secular judge should be resisted with “moderate authority.” Gregory makes it clear, though, that acting against such judgements “is not to act against the law, but to support law.”

VI: In this letter Gregory acts as an appelate judge. He writes to John, bishop of Prima Justiniana that he has recieved a complaint from Adrian, bishop of Thebae that John had deposed him unjustly. Gregory states that he gives no creedance to such complaints until he reviews the record of the case. He tells John that from the documents he holds, that John “hast investigated almost nothing pertaining to the questions named and assigned” to him. He overrules the lower proceedings. Here’s the catch though he sends a punishment down to John. How many appellate judges would dig on sending punishments down to lower courts.

VII,VIII, IX: He follows up on the previous letter and declares a retrial with a new judge.

XXXVIII: He requests that Libertinus investigate a Jew named Nasas, who has been enslaving Christians. He requests that after the investigation, if this is true that those slaves be freed “according to the injunctions of the laws.”

LVI: This letter addresses a dispute that is ongoing throughout the letters: that of the Pallium. In this letter we find a nice example of the use of precedent wherein Gregory seeks to determine what is just through the examination of historical customs.

LXV: He addresses a Roman law that keeps people in the public administration from holding ecclesiastical office. Old timey Church and State separation. Gregory agress with the implementation of the law. He however with certain provisions of it that keep people from becoming monks, as he thinks that their accounts are easily rendered and their office much different from that of a priest.

LXVI: He follows up on the previous letter to have Theodorus the Physician to lobby the Emperor to change the law.

IX: Gregory counsels Januarius on the proper way to administer his jurisdiction. This seems like an executive order of sorts.

XXI: Again we learn that Jews are to be forbidden from holding Christian slaves.

XXVI: He addresses here a situation in which priest are being “oppressed by lay judges.”

XVIII: This letter and numerous others following it begin Gregory’ account of the dispute of the Universal Bishop in which the Bishop of Constantinople declared himself the head of the Church. Gregory notes that this honor was actually extended to the Roman Bishop (the Pope) by the council of Chalcedon, but was declined, so as to keep the three bishops in equal power. These statements are still used today by many evangelical protestants to dispute the Popes standing. It is fascinating reading if you are into that sort of thing.

XX: Universal Bishop.

XXI: Universal Bishop.

XXXVI: Gregory in this letter discusses issues relating to Agiluph, King of the Lombards and his unwillingness to conclude a general peace. Agiluph will not consent to arbitration unless all parties are present, because “many acts of violence were committed in his regions during the time of peace.” Agiluph has stated that he will make satisfaction for any wrongs committed by his side.

XL: Gregory writes to Mauricius Agustus. Apparently the peace made with the Lombards was violated and the Emperor accuses Gregory of some sort of crime. He uses ecclesiastical history to argue his case citing a case wherein bills of accusations had been presented to the Prince of Constantinople against some bishops. The Prince burned the bills stating that it was not fit for the temporal power to judge the bishops.

XLI: Gregory is writing about pagans in Sardinia who are sacrificing to idols. He comments that many of them bribe judges to get a license to do this.

XLIII: Universal Bishop.

LIII: Gregory discusses the simonical heresy and the unlawfulness of ordaining ministers in exchange for bribes.

LIV-LV: He grants “according to ancient custom” Virgilius, Bishop of Arelate, “vicariate jurisdiction” in the dominion of King Childebert. He will rule on all cases in the region.

I: Gregory settles a dispute over a will and a bequest to the Church.

XII: Gregory executes a will.In this he frees to slaves:”it is a salutatory deed if men whom nature originally produced free, and whom the law of the nations has subjected to the yoke of slavery, be restored by the benefit of manumission to the liberty in which they were born.” One of these slaves recieves property with the annexed “law and condition” that if the recipient dies without legitimate children (those “born in lawful wedlock”) the property will revert to the Holy Roman Church. Gregory sums up with a nice little legal quote: “For the rule of justice and reason suggests that one who desires his own orders to be observed by his successors should undoubtedly keep the will and ordinances of his predecessor.

XV: He rules on an appeal over heresy finding that the judges were motivated only by injuring the accused instea of “justly.”

XVI: Writing about the case in the previous letter, Gregory discusses the evidence that was presented at trial that the judges ignored.

XXIV: Gregory asserts Papal jurisdiction in a case between Marinianus’ Church and the Abbot Claudius after “people have cried out that it is contrary to the laws and canons that the cause” be decided in Rome. He states that the interests of the Abbot are not served by having the proceedings there.

LXVI: Gregory is addressing a case of heresy and he makes an observation about a defense: “. . . things done under compulsion by no means fall under the censure of the canons, and they are rightly accounted to be of no weight (since he himself invalidates them who compels what is unjust to be confessed and done) . . .”

XXXVIII: Slavery law: “The ordinances both of the sacred canons and of the laws allow the utensils of the Church to be sold for the redemption of captives.”

XLII: Gregory notes a canon law that forbids a church to be without a bishop for more than three months.

III: Gregory has rcieved a complaint from a son that his father bequethed some things to a parish that did not belong to the father. Gregory notes the “secular law” that the son must pay for these items to redeem them. He tells Donus, Bishop of Messana who recieved the items, that it should be decided by “the law of God and not the world.”

V: Gregory transmits to his bishops a Roman law forbidding people with public liabilities from taking any ecclesiastical office or becoming a monk.

VI: Gregory seeks an extradition of sorts of a criminal who has taken refuge in another church.

XX: Gregory request a “legal” inquiry into the status of a woman.

XXI: Gregory requests an inquiry into a freed Chritsian slave whom others are trying to enslave again.

Gregory the Great


Rushdie, Salman. Shalimar the Clown (2005)

September 13, 2007

Shalimar the Clown

“Freedom is not a tea party, India. Freedom is a war.”

Shalimar the Clown is another deeply metaphorical tragedy from the pen of Salman Rushdie. He returns to his old theme of partitioning and fragmentation not only geographical, but also personal. In this novel, he tells the story of Kashmir through Kashmiris as well as through foriegn interlopers and a strangers to the land. I am going to avoid plot summary here as it would only get convoluded, and jump right into the legal aspects.

Rushdie’s use of magical realism extends to his manifestations of the law in his novels. In Shalimar the Clown Rushdie goes a step or two further than he did in Midnight’s Children. He takes us outside the minds eye of a single person, and into numerous versions of the same story. These different characters also symbolize the numerous regions that these views and actions originate. This illustrates that the partioning that we understand as legal boundaries also has an effect upon his characters in creating identities that must engage with the legal landscape around them (which is created by the boundaries). All the characters have mixed identities, a fracturing which is enhanced by the legal implications of the borders. Enhancing these ideas and themes is Rushdie’s use of fractured storytelling.

Max Ophuls, in the story, is a European that was transplanted to the United States and later became the US Abassador to India (he is also a lawyer). After that he became a Ambassador to terrorists. He flew around clandestinely supporting movements on behalf of the US government. It is he who tells us the “freedom is war,” invoking the idea that one must struggle in order to have freedom, if it is given then it is not freedom. He also is representative of the Western World’s post World War II architecture of world order:

He tried to believe that the global structures he had helped to build, the pathways of influence, money and power, the multinational associations, the treaty organizations, the frameworks of cooperation and law whose purpose had been to deal with hot war turned cold, would still function in th future that lay beyond what he could forsee.

Max forsaw and helped create the structure of world peace and security as we know it. In the Story, it is his musing on International Relations that helps to create the United Nations. The UN adopts Western ideals about international law, and as it gained power these ideals were carried worldwide.

Rushdie is not entirely damning of the idea that the West created and forced its vision of world order on everybody else, though. By making Max a French Jewish survivor of WWII, he shows us what the Western world feared, and the gravity of the battle just fought. Its vision of order was indeed one sided, but it also meant well in that it was trying to avoid another event as catastrophic as WWII. The West’s identity was fragmented due to the nationalism that results from war. Identity became fluid in the west as Europe’s borders became fluid. This is represented by Max’s work during WW II forging passports an papers to get people out of the battle zone. The West’s vision of order sought to reaffirm and resolidify those identities.

Max represents the Western force that acted on the Eastern world. The Eastern world is represented by Boonyi and Shalimar. The two live in a small village in Kashmir, which boasts a mixed population of both Hindus and Muslims. Boonyi is Hindu and Shalimar is Muslim. They fall in love and despite the religious differences they are allowed to be married. In Kashmir as this story unfolds the idea of partition is beginning to occur. As both Pakistan and India make claims on Kashmir the people of Kashmir are forced to choose a political side. Initially the claim seems to be “Kashmir for the Kasmiri’s,” but as the violence escalates power begins to overtake the people, who are forced to choose political sides. The political division runs down religious lines with Muslims wanting to join the Muslim state of Pakistan and Hindu’s wanting to join the more appealling secular state of India.

That the law in this situation becomes magically real can be found in a a passage in which Rushdie explores the legal pposition of Colonel Kachhwaha of the Indian Army: “[t]he legal stance of the Indian military presence in Kashmir had the full support of the population, and to say otherwise was to break the law.” Kachhwaha makes it clear the breaking the law and being criminal are the same thing. What we see from this is that the law has magically created a situation in which full support of the population is given. The right to dissent is undermined , by the idea of a thought crime. The result is an illusion, but one that is still none the less a fact.

Later, Kachhwaha realizes that the Kashmiris on the Indian side of the partition are ungrateful for the war, that they still sought self determination. On that side, only Kashmiris are allowed to own land, but on the far side anyone can the land was being populated by non-Kashmiris. Kachhwaha sees this as the answer “the valley should be emptied of all these people and refilled with others.” Kachhwaha’s sentiments demonstrate the meaning of identity under the law. On the Pakistani side Kashmiri meant land ownership in Kashmir, an the Indian side it meant something deeper and more historical. Kachhwaha endorses a change in the law to redefine the identy of the people in Kashmir in order to garner support needed for his conquest, a use of the law for political ends and not necessarily justice.

The severe problems in Kashmir arguably could be traced back the West’s disengagement from its colonies in the region, which left a semblence of the Western order, but one that was having trouble adapting to Eastern ideals. It is not fair to say that these former colonies were completely abandoned, the West still sought to control them. Thus Max Ophuls enters the story as the US Ambassador to India. He is sent in the midst of the US trying to exert its power in this part of the world, and India is a problematic area for them. The US is cozy with Pakistan at the time and willing to turn a blind eye on Sino-Pakistan relations. This of course causes tension with India, who is at war with Pakistan. Thus Max is sent to give “those Indian gentlemen . . . a good old American spanking.” Max symbolizes the West’s attempt to re-exert its power and values on the region.

Max attempts to resolve the problems between the two countries by attempting to get them to engage in International Cooperation. At the same time though he has inserted himself between the two. As represented in his seduction of Boonyi and her estrangement from Shalimar. He negotiates a “joint statement of accord” between himself and his new mistress, and she leaves her village, her husband, and more importantly her identity. When Max no longer needs her she is abandoned, pregnant with his child.

Boonyi returns to her village, but finds that she has been declared dead in and official and legal sense. She has been made a ghost by the law as “the dead have no rights” and no property. This idea plays directly into Rushdie’s commentary on identity. The law can change ones identity quite easily, i.e. from Kashmiri to Indian to Pakistani. This identity changed again for Kashmiri’s when Kashmir was declared a “disturbed area.” The criminal code gave immunity to public servants (including soldiers) for crimes committed in the line of duty. Furthermore, “in a disturbed area, search warrants were not required, arrest warrants ditto, and shoot-to-kill treatment of suspects was acceptable.” Thus Boonyi’s fear of attempting to come back to life and claim her rights only to be murdered is realized for the whole region. By asserting rights the ghosts that were citizens can be murdered. The criminal procedure was amended to allow torture and jailing without charges (particularly if the person challenged India’s territorial integrity in Kashmir. A presumption of guilt was allowed, and a failure to disprove the presumption would result in the death penalty.

Shalimar, becomes a terrorist and an assasin. his sole goal in life is to Kill Boonyi and Max (or maybe their mataphorical counterparts. In this we can find what I think is the most important message of the book. Effects of these turmoils are felt world wide. Insurgents in Kashmir tap into a network of terrorists who rely on different nations with shifting allegiances for funding and weapons. Max is one of the people that doles out this secret assistance. Shalimar comes to the states to assassinate Max. He lives with Max and understands Max, but Max never understands him. Thus killing Max can only be an external message (i.e. terrorism), because Max will never understand. This is a wonderful metaphor for terrorism in general. Terrorists often insert themselves into a culture in order to carry out their missions. So often though the people that become their victims have no real understanding of what the terrorists complaints are. It is an external message only.

The book ends with two significant items. First, Shalimar is taken into the American Justice system where justice is given. However, Rushdie doesn’t leave it at that. While the American justice system is one of the most highly developed in the world it has its moments where it is “a mirror of everywhere else.” Rushdie points to high profile Los Angeles cases as examples including the gas chamber, Rodney King, and O.J. There is a wonderful bit of lawyering where Shalimar’s Lawyers attempt to use a sorcerer’s defense wherein he argues that Shalimar has been bewitched by India/Kashmira (Max and Boonyi’s daughter). The defense claims that Shalimar was under the belief that sorcery was real and that he was under “extreme vulnerability to external manipulation.” His case however is lost when India/Kashmira testifies that Shalimar also killed her mother. While Shalimar’s case is interesting it isn’t the legal thrust of the book (but is probably worth a more in depth look than I have given here).

The second event of signifigance is that after Shalimar kills off an old ideal (Max), we find that he too is an old ideal. His ideas about identity are just as out moded as Max’s, thus he has to now confront India/Kashmira who represents a new globalized world. One which recognizes its Western legal traditions, but at the same time is willing to embrace new ideas emerging from around the globe. Significantly, Rushdie leaves us at the moment of confrontation and with no resolution.

Salman Rushdie

Herrnstein, Richard J. and Charles Murray. The Bell Curve: Intelligence and Class Structure in American Life (1994).

July 27, 2007

The Bell Curve

“Lawyers, for example, have higher IQs on average than Bus Drivers.”

The Bell Curve is a mammoth study of the effects of intelligence on social trends. Herrnstein and Murray seek to show that intelligence is the relevent predictor for things such as socio-economic status and unemployment. They then use their study to propose public policy based on this information; they claim this with help to destratify the rising high IQ upper class from the low IQ underclass. They were able to get a lot of press for this massive book by including a completely irrelevant section on ethnicity and intelligence (I’ll bet you can guess what they said). It’s fascinating reading if you can stomach 600 pages of statistics laden writing. If your like me and can only cope with the most basic of math then it is a book that takes some amount of dedication, and in the end might not be worth the trouble.

Before I hit on the law, I’d like to try and come to grips with what I found to be the major flaw of the book. There is nothing new in this discussion, it has been rehashed much better elsewhere. I think that the authors make some basic assumptions in their work that can’t be justified, and this is one of the things that has made the text so controversial. They fail to take into account basic cultural things that I just can’t conclude (even after their extensive proofs) don’t come into play more. For example, they attempt to show that IQ is for the most part set at birth and is not effected by years of education. However, the flaw is that they treat all education as equal. The result is that they assume two people with high school diplomas are similarly situated. This just isn’t the case. My high school education from Thomson High School in Thomson, GA prepared me much better for the SAT (a test they specifically address) than say a student at M.S. Palmer High School in Marks, MS. It doesn’t have a thing to do with the intelligence or race of the students in Marks. It has everything to do with the amount of opportunity embodied in the two different school systems. In the same way they show that Asians have a higher IQ than whites, especially in the area of maths. However, the cultural background emphasizes math and that sort of thinking. Thus culturally math is taught (if you don’t believe me have a look at Chinese school children and their abacuses). I don’t dispute that some portion of IQ may be genetic, but the study seems lacking to show that it works to the extent the authors claim. It excludes that the brain tends to be a muscle that can be exercised and can be developed.

The author’s claim that the main purpose of their book is to address public policy concerns, so I’ll leave all the nature versus nurture talk to the pros. As this is a law blog I’m going to run down the policy that they suggest and its legal implications. For this purpose I’ll simply accept their assertions about intelligence and get to the meat of what they suggest, which I at times find more problematic than their genetics discussion.

First, I think it should be pointed out that the authors are quite naive when it comes to the results of what they suggest. Early on they give a brief summation of the ways in which IQ has been used in the past to disadvantage ethnic and racial minorities. These include immigration policies as well as sterilization laws that were passed in the early 20th century (see Buck v. Bell a 1927 case in which Oliver Wendell Holmes upheld sterilization laws: “Three generations of imbeciles are enough”). Thus the authors are certainly aware of the dangers that racial differentiation have proved to cause in the past. But later the authors, before giving their racial data, seem to be dismissive of the history of racism in the United States. They state, “We cannot think of a legitimate argument why any encounter between individual whites and blacks need be affected by the knowledge that an aggregate ethnic difference in measured intelligence is genetic instead of environmental.” It seems to me that a Havard professor and a Bradley Fellow at the American Enterprise Institute might realize that in the US (and the world in general) “legitimate arguments” aren’t often used to support racism. I agree that study of such things can be extremely important scientifically, but when they begin to base public policy around it, they tread on the exact ground that our forefathers did in cases like Buck v. Bell and risk retrograde motion in society’s achievements.

Their jumping off point for their public policy claim is employment law. They note that both Congress and the Supreme Court (Griggs v. Duke Power) have made it illegal to use intelligence testing in hiring practices, and that this costs the economy up to $80 billion a year. This is due to hiring inefficiencies, which they claim could be beat with an IQ test. I grant intelligence testing is an effective way of determining whether a candidate will be suitable for a job. However, as the authors pointed out early on, this tradition has a history of manipulation. Thus the Supreme Court held that a test should have to do with the skills involved on the job and not general intelligence. Herrnstein and Murray dispute this logic by claiming that general intelligence tests tend to predict job performance better. As you might guess affirmative action also draws their fire, and probably rightly so. They explain the convoluded system which is used to determine whether a business is discriminating or not. But they also forget to put the system in historical perspective, and that we are still feeling the effects socially and culturally of past racism. The systems heart is in the right place, its just an inefficient way of producing the correct results. Thus they point out that the Civil Rights Act did not create a sudden change in blacks being in jobs, but just because those jobs are open to blacks doen’t mean that Blacks have been trained for them. In 1965 education was so ineffective for minorities that the effect of affirmative action would be impossible to feel immediately. The program seeks long term results in changing trends of disadvantage among minorities, who are not as ingrained in the upper eschelons of culture. Thus, they propose a thought experiment in which if all employment laws were abolished would the reader begin to discriminate. Two problems with this experiment. First, they have numerous times pointed out that the average reader is probably well educated and most likely and academic, so no the average reader probably wouldn’t, but the reader isn’t the average American. Second, They have told us statistically that intelligence is the best predictor of job preformance and that statistically a white person is more likely to be the more intelligent person – but suddenly the reader isn’t supposed to use that information. It follows right along with their willing naiveite when looking at racial problems. Essentially, the authors choose to ignore a history of discrimination, which we still feel the effects of today. The government hasn’t fixed the problem, but there is something empty in the authors suggestion.

They also attack the education system. I love this boneheaded quote from way up in the Ivory Tower, “on the whole, America had already achieved enough objective equalization in its schools by 1964 so that it was hard to pick up any effects of unequal school quality.” It is amazing that the South, just integrated had suddenly reached school equality. There are still large portions of the Southeast where de facto segregation still occurs which robs public (black) schools of tax support, because property taxes are voted down while people send the extra money to support private (white) schools. I’m not suggesting that anything illegal is happening, but it seems to me that a declaration of school equality is a bit of a premature and that it occured in 1964 exhibits some sort of backward thinking. They point out the inefficiency of such acts as Elementary and Secondary Education Act of 1965 and project Head Start. But even these don’t seem to get the fairest of shakes. For example they discuss how Project Head start works in the short run, but not in the long run. They never address whether this could be a failing of the environmental parameters. A child with intelligent parents is in that environment all the time, a child that is in the Head Start program shows improvement, but when the program ends backslides. This says to me that thereis an advantage to a continuing nuturing and developmental environment. They also point out that there is a neglect of gifted children through funding, but thi seems bit problematic – if there are so few really gifted and their chances of success are already greater, then why spend extra money on them, especially since they are less likely to be a burden to society (wouldn’t this create more of the stratification they claim to oppose?). They suggest that as a solution that 1. the federal government should support programs that enable all parents to choose the school their child attends; 2. A federal prize scholarship program; 3. reallocate some portion of existing elementary and secondary school federal away from the disadvantaged and to the gifted. My main concern is their reliance on the federal system to effect change in state education systems. I’ll not deny some of these may be helpful, but the state system is where change should be made inorder that all children in that state (not just the ones who have parents with enough gumption to send them to a better school) get a better education.

They also investigate affirmative action in Higher Education. Specifically addressing affirmative action in Law Schools and the evidence that came out of Georgetown University by an impromptu study by law student Timothy MacGuire. I must say that I agree with their assertions on affirmative action. While, initially it was to correct racial abuses, it is now used to enrich university life. That being said it should be reformed so that universities “cast a wide net in seeking applicants.” Giving advantage to disadvantaged students, instead of race based advantages, which are becoming obselete in university systems.

While they seem to appeal to liberal ideas and reforms at some points, at others they take on extreme conservatism. It is like they are a wolf in sheeps clothing or a sheep in wolfs clothing. As a whole their public policy comes up short because it seems not to be a progressive thing as they claim, but instead it is an attempt for them to reclaim some sort of historical life style. They exhibit this throughout the book with simple things such as their attatchment to the term “illegitimate” when referring to children. They base this on anthropological work on primitive cultures. Or when they state that they would like to “return to a state of affairs that prevailed until the 1960s, when children born to singloe women . . . were more likely to be given up for adoption at birth.” Or there assertion that to stop children being born out of wedlock the goverment should give unmarried mothers no recourse to child support and unmarried fathers no recourse to visitation (because obviously the mother is always deserving of the child). It seems they want to have their cake and eat it, too. They talk big about a free society, but at the same time want to revert to a culturally oppressed one, in which the government may regulate less, but society still disadvantages and stigmitizes numerous people. The race implications of the book don’t help. They do have some good policy ideas, but being linked so inextricably to race soils them way too much. Basing any new policy on a study that says that blacks are dumber, no matter how effective the policy is unacceptable. They would probably claim that this isn’t their intention. In fact, they make claims about the fact that people won’t discriminate in light on this information, but they have presented no proof on that front. Racism isn’t as dead as they would have you believe; it is alive and well. Reading objectively, the case for the authors racism is in the book: the inclusion of the section on race and intelligence is irrelevant for proving the point they sought to prove. It was included to be inflamatory. Congrats.

A few other legal tidbits from the book that I might include. There is a bit of Ph.D. elitism going on: The authors mention, as advanced degrees Ph.D.s, M.D.s, and LL.B.s. Don’t they know that we lawyers get J.D.s these days or are they still holding a grudge that we get that Doctorate in three years? Later of course they do pay homage to the fact that lawyers can be of great worth (including those that never see the inside of a court room) by gaining favorable decisions or even through such things as jury selection. They also claim that attorneys are likely to be, on average, one standard deviation above the mean intelligence, but of course we already knew that. They claim that the destruction of the concept of negligence in tort law is based on the egalitarian principle that endorses the redistribution of goods to the underpriviledged. I would like to direct them to Torts I – Negligence. They suggest redoing the criminal law system to make it simpler (against dumbing dowm school books, but for dumbing down the law), they completely overlook why the system is complex in the first place: Justice isn’t easy.

Richard J Herrnstein
Charles Murray

Dunlop, Eileen and Antony Kamm (eds.). The Scottish Collection of Verse to 1800 (1985).

July 10, 2007

Generic Book

“Wha for Scotland’s King and law
Freedom’s sword will strongly draw,
Freeman stand, or freeman fa’?
Let him follow me!”

This is a great little collection of Scottish poetry. It limits itself to stuff written before 1800 which includes Burns but excludes Scott and is fairly well selected. It includes obscure Gaelic ballads as well as some of the most popular verse by Burns. What really sets it apart though is its organization. Instead of the poems being organized by poet or by chronology, they are instead organized topically thus there are sections on Food and Drink, The Sea, Sports and Games, etc. It helps to give a new perspective to the poems as one could, while reading, compare and contrast the representations of the topics. Unfortunately there was no law subdivision, oh well.

As it is a compilation, I’ll hit the law that I found in particular poems. Generally, the section on Kings and Queens is probably as a whole the most topical for law as it deals a great deal with issues of soveriegnty.

“Scots Wha Hae” by Robert Burns – The lines (quoted above and purported to be Robert the Bruce’s speech to his troops before Bannockburn) demonstrates the implicit linkage between the King and the Law that was at work in the middle ages. The two were so joined that if Scotland’s King was not ruling then Scotland wasn’t free (despite liberties that may be given under English rule). Of course we still see vestiges of this today with the Scottish Nationalism movement.

“Remonstrance to the King” by William Dunbar – This was written by Dunbar to protest the matter of his pension. Initially, it lists many of the types of people that would be at the kings court and includes “doctouris in jure.” The list though and the full account give a glimpse into life at the court of James IV.

“An Exhoartation to His Grace the King” by Sir David Lindsey. This is a popular type of work for the time in which the author attempts to tell the King what makes a great ruler. It starts with lines that state that God “of his preordinance,/Haith grantit thee to have governance.” This illustrates the idea that the Kings rule was granted by God and was used to back up the argument that his soveriegnty was unchallengable except by God who will not “excuse thyne ignorance” in governing. Since this is the case the King is told to “keip the observance” of the “lawis” of God. He is later told that in court the King should use both “Justice and Temperance,” and to “Do equale justice boith to gret and small.”

“The Queen’s Marie” (unattributed) – We find a bit of criminal law in this as one of the Queen’s ladies murders her own child. The Queen summarily sentences her to death. When one person embodies all three branches of government then there is no appeal.

“Lines on the Execution of King Charles I” by James Graham. This reflection expresses sorrow over the execution of Charles I. It is legally related because it was one of the first times that a King had his soveriegnty taken from him by the people in a court. It occurred in a trial wherein Charles I challenged the jurisdiction of the court on the grounds that his powers flowed from God and not the people.

“Battle of Otterbourne” (unattributed) – There is a smigden of the law of war here when Lord Percy refuses to surrender to anyone but the head of the Scottish Army; upon being presented with the fact that the leader is dead he hands over his sword with no complaint to the next in command. Despite the fact that the Scottish leader died the troops did not take vengeance on Lord Percy (which would have been a recognized law of war in the day).

“On Thanksgiving for a National Victory” by Robert Burns – In this poem Burns declares that it is wrong to “murder” in war and then give thanks. Burns obviously wasn’t familiar with the idea that not all killings are murder, and the killing of the opposing army in war is one that isn’t murder.

“My Last Will” by Robert Fergusson – Fergusson writes out his last will in verse and signs it. Its the way to go if you don’t have much to leave.

Eileen Dunlop
Antony Kamm

Jerome, Jerome K. Three Men in a Boat (1889).

June 19, 2007

Three Men in a Boat
“It must have been worth while having a mere ordinary plague now and then in London to get rid of both lawyers and the Parliment.”

Somewhere between a travel guide and a satirical victorian novel, Three Men in a Boat is a crafty piece of writing that takes the reader up the Thames river from London to Oxford with three men weary of the city but not quite adept at coping outside it’s bounds and a dog who at times seems more like a kidnap victim than a pet. Jerome, leads us up the river with a self deprecating narrator and his two pals, all of whom know exactly what they are doing but have no idea how to do it. The trip itself is laden with comedic tales, historical lessons, and sublime meditations on the beauties of nature. I found it a great read and highly reccomend it.

As for the law. It comes in a few different divisions. Probably the largest chunk could be looked at as Legal History. As the trip goes up the river the narrator points out numerous sights where Kings and Queens have inhabited. The first with real legal connotation is when he is at Runnymede where in 1215 Magna Carta was signed on Magna Carta Island in the middle of the Thames. He recounts the story as if he were there amongst the barons who were forcing the hand of the slippery King John. The narrator also notes that Magna Carta was “translated to the common people some four hundred and odd years later by on Oliver Cromwell, who had deeply studied it.” The trip then passes Old Windsor where, according to Jerome, Earl Godwin was “proved guilty by the justice of that age of having encompassed the death of the King’s Brother.” Godwin apparently said that if he was guilty the bread that he put in his mouth would choke him, and it did. Finally they pass through Reading where Parliment would move to if there were a plague in London and the “Law followed suit” in 1625.

Property law is addressed in a scene where the trio are on the bank of the river and man comes up and asks whether they are trespassing. After a comical exchange they send him away and note that he was only after a bribe and the best way to handle these situations is to “offer your name and address, and leave the owner, if he really has anything to do with the matter, to summon you, and prove what damage you have done to his land by sitting down on a bit of it.” This interaction though leads to a short diatribe at the riparian land owner on the Thames who placards up no trespassing signs, and that this selfishness creates an urge in the narrator to hammer the placards down on their heads. It reminds me of that Tesla song. Of note here though, is that under common law there was no need for the owner to show damage only that the defendant had actually trespasses, so the party could have been held liable.

There is a smidgen of criminal law as George recounts a morning in which he got up too early and wandered about London. It raised the suspiscion of the police who escorted him back home. This scared him a great deal and he “pictured the trial, and his trying to explain the circumstances to the jury, and nobody believing him, and his being sentenced to twenty year’s penal servitude, and his mother dying of a broken heart.” Illustrating the coercive power of the police force to even disuade a person from legal activities. Poor George is later charged with playing the banjo badly in public. The evidence is clear and he is given a six month restraining order. Another run in with the police is suggested when lodging is hard to find. George thinks they could get a free nights lodging by assaulting a police officer, but there is the danger that they would only get hit back, so the thought is abandoned.

Mention of a will is made in which a Sarah Hill, left £1 to be divided amongst two boys and two girls who “had never been undutiful to their parents; who had never been known to swear or tell untruths, to steal or to break windows.” The narrator says that these types of children had been hard to come by and observes that this is alot to give up for 5 shillings a year. I agree.

Finally, there is a funny little moment where the Narrator recalls an attempt by Harris to sing the Judge’s song from Trial by Jury. The lines of which are “When I was young I served a term/ As office-boy to an Attorney’s firm.”

Jerome K. Jerome

Brackstone, Carrie-Anne & Laura Bushell. Oi, Pikey: A Celebration of Cheap Living (2005).

June 15, 2007

Oi, Pikey

“2001 – 36 people attempt to sue McDonald’s after the famous coffee spilling lawsuit in th US. High Court Justice Richard Field said McDonald’s has no obligation to warn customers about the risk of scalding from a beverage that’s made from boiling water. Hard luck pikeys.”

This was a Christmas present purchased by my wife for me because on the back it says that it is for people who “take soaps from hotels.” At least she knows me well. Really, it is a comical book about living on the cheap in England (which becomes an ever harder task). It’s quite tongue in cheek and starts with a reclamation of the word Pikey. It usually refers to a gypsy or traveller, but Brackstone and Bushell want it to mean so much more. They say it should stand for those proud to value value and find liberty in that which is inexpensive. To be honest, though, it’s a fairly amusing book.

There are just random bits of law. The criminal law is treated with a short discussion of a recent ban on police using the word because it refered “to a particular type of criminal usually from the travelling community.” The authors conclude that a ban on “‘you’re,’ ‘under,’ and ‘arrest’ would have helped more pikeys (however they do note the financial advantages to jail time). They later tell us that the pikey child should hone his criminal skills when young, because that is when he is “out of reach of the long arm of the law.”

In addition to the reference above to the McDonald’s Case, they mention comedian Ken Dodd’s trial for tax evasion (he was acquitted). It also tells us that Johnny Vegas nearly had to sue for the ₤1 that he sold his wedding photos for to Viz magazine.

A few lawyers make the book. When tracing the etymology of the words the authors look twice to usage in Charles Dickens, who was at one point a law clerk. Jerry Springer is a pikey hero, who besides being a famous white trash spokesman is also a lawyer. Cherie Blair is a successful ebayer and a barrister. There is also a reference to Ghandi who studied law in England.

Probably the only real legal theme that runs through the book is that Pikeys should take advantage of the law and live on the dole as much as possible. This can be either through the redistributive power of the welfare state or through the redistributive power of tort claims. Margaret Thatcher makes the book as an enemy of the Pikey because she “made massive cutbacks to [Great Britains] infrastructure, paving the way for capitalism.” This in part damaged the welfare state which “was the linchpin of pikey living.” The pikey, in the author’s view, must be able to get as much out of the state as possible.

So, um . . . oi, pikey.

Carrie-Anne Brackstone
Laura Bushell

Rushdie, Salman. Midnight’s Children (1981).

June 6, 2007

Midnight’s Children“Mr. Kemal, who is the thinest man Amina Sinai has ever seen, sets off with his curiously archaic phraseology (derived from his fondness for litigation, as a result of which he has become infected with cadences of the law courts) a kind of chain reaction of farcical panic . . .”

Trying to summarize a book by Salman Rushdie in a small paragraph to start a blog article discussing it is just futile. This is due to the multiple competing topics that one could claim to say one of his books is “about.” Midnight’s Children is no exception and may even be the epitome of his layered and complex storytelling. I will take the overt metaphor from the book though, and make the claim that it is about India, but only with the reservation that this is only one of many themes and in a story about fractured land, fractured people, and fractured plots. In fact this is probably to simple. Thus I could also be very happy claiming that it is about fractures. What I won’t do is attempt to tell you what happens in any detail as it would bog down the legal analysis. Instead I will write from the oh so academic stand point that you the reader have already read the book (and if you haven’t you should) and commence with the legal analysis forthwith.

My reading of the novel is that Rushdie presents the law as a magically real experience that attempts to define and control man but in the end causes postmodernesque fragmentation and fracturing instead. This is a theme that I think can be traced throughout Rushdie’s work, but this is my initial foray into this little project so what I present below is more formative than anything else.

Saleem Sinai is Rushdie’s overt metaphor for the state of India, and was born at the exact moment that India gained independence from Great Britain. This can be seen as an initial jumping off point for Magically Real Law. At this moment India became India again, and not the British Colony of India. The magically real aspect is that this is treated as a birth, but does anything new actually exist, are the people suddenly different? Or instead is it simply that the legal matrix has shifted? Rushdie’s answer, I think is that it is only a legal matrix, which attempts to create a concrete existence for the people.

As is proper, we learn of the birth of India, but we must first look at the history. Rushdie examines Ghandi’s attempt to defeat the British domination with silence, the British counter of the Rowlatt Act (against political agitation), and Martial Law regulations. These are battles that are occuring not so much between peoples as between legal frameworks. That is not to say that people aren’t affected, indeed they are highly affected in that the law helps to support culture. The metaphor for this can be found when Methwold insists that those that buy his estate live like the English until the exact moment of Independence. In doing this he forces his culture, through a contract, upon the Indian Families that move into to his estate. Not only do they must absorb his culture, but they must also absorb his law. The contract is probably based on the British model, as is the property law that supports it. The larger picture is that after the British leave, the remnants of their legal order doesn’t, and those remnants may not support the underlying culture of the people as well.

The theme again arises in light of the partition of Pakistan from India. It was all occupied by the British, but upon independence there were two countries with competeing views. These two regions, before the British colonization had not existed as any sort of nation state, yet afterwards they had embraced the idea of nationalism. This is a very real thing, but its basis is ephemeral. Time even was suceptible to it as the clocks in Pakistan “would run a half an hour ahead of their Indian counterparts.” These partitions and borders, while real and enforced are only magical divisions and do not reflect the actual layout of the culture and the population. Furthermore they are suddenly Western nation states, thus creating the need for a large legal net as opposed to micro legal systems.

Much of this partition is drawn along religious lines, with India becoming a secular state and Pakistan becoming a Muslim state. But this partition can’t hold up under its own terms, because of the deep religious currents in India. We find this when Ahmed’s assets are frozen by the government because he is a Muslim. It is fought in the courts but only won by bribes, which further exposes contradiction within the law, which is meant to be secure and final. As Nehru consults astrologers for his 5 year plan for his secular state, the legal system for the people becomes just as malleable and susceptable to non legal argumentation. Hindu’s and Muslims clash, but they now clash under the framework of a Western legal tradition. Later in the book, there is an attempt to reorganize India into states of Languages, an analysis of this would follow the same sort of reasoning.

The magically real partioning on the territories then becomes magically real in Saleem who feels himself literally fracturing into pieces. What Rushdie has achieved is showing the consequences of the law on the person or body. The fracture is more than legal, more than mental; it is a physical affliction to the people and the culture. This physicality is repeatedly shown in the main character of Saleem.

Saleem describes his existence in India as one of an “infinity of alternate realities,” but in Pakistan where truth is what the law says it is he is beset with and “infinite number of falsenesses.” The differences in the two cultures can be explained by the differences in the law. Secular law allows for possiblity, whereas theocracy allows only for the binary of truth an falseness. When the law enforces this binary the truth becomes magically real as it is supported by an item that is also magically real (if you accept that the law is a magically real structure i.e. that it comes from nowhere yet we accept it as a solid and binding force). The dichotomy between the two exhibits exactly this point. If the law were a real thing it would be substantially the same in each country, instead the law is created in reaction to the presence or lack of religion exposing the law’s preoccupation with rule and its lack of concern with justice.

These are just really initial thoughts and formulations on a somewhat perfunctory read of the novel. It should be noted that legal themes run through out. On can find criminal law, contract law, family law, tax law, immigration law, and probably scads of other items throughout. Each of these in turn can probably have this idea applied to it and be used as a way of exposing weakness in the system.

Salman Rushdie