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

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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


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


MacDonald, Bruno (ed.) Pink Floyd: Through the eyes of . . . the Band, Its Fans, Friends, and Foes  (1996).

June 13, 2007

Pink Floyd“I have instituted proceedings in the High Court against myself for blatant plagarism, as I feel that this sort of thing must be stamped out.” -David Gilmour

Ah, the Floyd, a long time musical obsession of mine. Bruno Macdonald, in this book, has put together a compilation of short articles on Pink Floyd which covers pretty much everything up through the Division Bell album. Its a good selection, too. It includes stuff from die hard fans to the scathing critiques of the band. It also has a crafty little A to Z of all the songs. The highlight of the book for me is the article by Tom Hibbert in which he accuses Roger Waters of being the “gloomiest man in rock,” and having recently seen Roger in concert (at Earl’s Court), I think that I might wholeheartedly agree.

And there are some snippets of law in this baby. Brilliant.

The prevailing legal bit is of course about the Waters v. Floyd in which Roger Waters sued David Gilmour, Rick Wright, and Nick Mason from using the name Pink Floyd after Waters left the band. It is described at one point as a “legal football” of “which one’s Pink?” Waters believed that when he left the band it should have terminated because he was the driving creative force, and fair enough, at the time he was. But that didn’t stop the band from continuing when the original driving creative force left group in the form of a mentally fried Syd Barrett. However, Syd didn’t sue, so who knows. But maybe Water’s had a point as alot of the songs are credited primarily to him (i.e. most of The Wall). Of course I wonder how many of them notice that Mason is the only person to have been in the band from start to finish?

But of course its not all that easy as one finds in a David Fricke article from Rolling Stone article in the book. The real problem began when Waters fired a manager because he assumed Floyd was finished and that contractual obligations could not be completed when there was no band. The manager, Steve O’Rourke, wanted to get the royalty penalties that he felt he was entitled to due to an illegal termination under the contract. Waters apparently offered compromise deals to the others (at this time just Mason and Gilmour), which would have allowed them to retain the name by ratifying his dismissal of O’Rourke. They didn’t bite. So O’Rourke is about to sue Waters and Water’s tells Pink Floyd, “Listen, guys, if those papers come through my door, we all go to court. I am not going to be hung out in court for years and years while you guys are calling yourselves Pink Floyd.” As we all know he sued. Water’s characterizes the suit as a legal issue of who owns a piece of property called Pink Floyd, but recognizes that a court can’t determine “what is or isn’t a rock group.” He even recognizes that “no court in the world is interested in this airy fairy nonsense of what is and isn’t Pink Floyd.” As we all know Gilmour and Mason (and Wright, now) still use the name Pink Floyd so Waters lost out. Unfortunately, I haven’t really researched it enough to give you any more details than that.

There are also a few fleeting references to other law topics. There is an reference to the rise of the psychadellic movement in 1960s London, and its use of pirate radio stations. These were on their way out due to the Marine Offences Act “which was being rushed through the Commons.” This is followed by the police attempts at suppression of drugs, by using raids on the clubs where this music was being played (and taking in a few celebrities too). It does talk about one raid wherein the police searched 750 people and made 11 arrests.

Finally lets not forget that there is mention of one of the great rock songs about the law, “The Trial” off The Wall.

Bruno MacDonald


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


Harris, Thomas. Hannibal Rising (2006)

May 22, 2007

hannibalrising“It’s a juvenile crime, Etienne, a crime of passion. I don’t want a conviction, I want him declared insane. In an asylum they can study him and try to find out what he is.”

We should have seen it coming. With the horrendous ending that Thomas Harris gave to Hannibal (luckily rectified in the movie), why would he bother to give Lector a beginning that was worthwhile? I read one reviewer that said that Harris had “gone gay” for Hannibal. I disagree, if he had he might have bothered to write this book with some tender loving care instead of making it read like an “I’m drunk and need money” read (not that I know if Harris is even prone to drinking, but that is what it reads like . . . comparable to Ringo Starr in Shining Time Station.)

Hannibal Rising tells the story of a young Hannibal Lector and his journey from a priviledged child prodigy in Lithuania to his college days in Paris with his Japanese aunt, Lady Murasaki. The story lacks the psychological intrigue that made the previous novels in the series such gripping books. We learn that Lector is twisted due to the fact that his sister was eaten by starving war criminals and . . . and well thats it. I’m not saying that this wouldn’t be traumatic, but it is a hardly adequate explanation for Lector’s perverted predilictions. The book leaves the reader empty in that it is all story and no development, and thats what the reader of this book wants: the development of the monster. Instead, Harris shields Lector within Lector’s own mind. We learn how he gets his skills, but not why he exercises them after his gains vengeance for his young sisters death.

The legal thrust of the book is mainly in the realm of International Law and specifically International Criminal Law in post World War II Europe. Once the war enters the storyline the reader is treated to a series of war crimes committed by a group of pseudo German soldiers or Hilfswillige. For instance at one point Grutas (the antagonist) and his band of merry bad guys go looting disguised as the Red Cross. They also carry a barrage of false documents in order to seem like legal operatives to whomever they may encounter. Of course their war crime of eating Hannibal’s sister is included in the series of atrocities they commit.

Soon after the war ends and the post war era begins, there are references to the War Crimes Trials at Nuremberg. The first of which is a newspaper headline runs “Doctors Indicted at Nuremberg.” Then the reader meets Inspector Popil who delivered evidence at Nuremberg. Popil, as an investigator of war crimes, comes to the small French village to investigate the murder of the butcher that Hannibal kills. He comes because the butcher was suspected of war crimes and these “do not end with the war.” Popil investigates these because he lost his own family in the war. Later it is revealed that Hannibal is hunting (in vengeance) a few war criminals who were charged in absentia at Nuremberg. The result is that there is a conflict of sorts between Hannibal’s substantive justice and Popil’s formal justice. Popil wants to see these men go through the proper channels to recieve punishment. Hannibal, on the other hand, simply wants to see them punished.

The book also deals with crimes of art theft in the post war period. Specifically, a painting that Hannibal’s family owned appears on the market. According to the book it must be exhibited so anyone with a ownership rights my make a claim. When the art is confiscated, Inspector Popil demands the invoice and the Arts and Monuments advisory that is “required” to be on the premisis. The investigator and Hannibal then set a trap for the person that owns the mate to the painting. This man attempts to get Hannibal to sell to him due to the backlog of hearings (created under article 46 of the 1907 Hague Convention) that could keep Hannibal from actually getting ownership until he is an adult.

There are also aspects of general criminal law represented in the book. After Hannibal’s first violent outbreak he is questioned by the French Police. There is false testimony presented to try and protect Hannibal, but the commander is more concerned with protecting Hannibal himself. Thus he takes Hannibal into a jail cell and tells him, “Use judgement and you will never occupy a cell like this.”

Hannibal is later arrested, there is very little evidence against as pointed out by the prosecutor and he secures his release based on good behavior and good references. Hannibal’s incarceration is interesting because it helps to display a bit of the Lector character. He doesn’t feel guilt because he feels that his murders are completely justified. However, there is a gap in his thinking. Because he will kill if there is an attempt to bring him to justice. These enforcement officers are by all means innocent, yet they also recieve his retributive justice. This is the main failing in Hannibal’s thinking. This isn’t fleshed out in the book at all, but just something that occurred to me.

Later in the book, when Hannibal is in medical school, he must get death sentenced inmates to donate their bodies to science. To do this he must get them to sign a release. In probably the best few moments of the book, he must negotiate this deal with an inmate who acts as the lawyer for his client (a pile of clothing). The negotiation ends with the prisoner donating his body for a dose of laudanum before the execution. Inspector Popil is there and doesn’t want it administered because he feels that it diminishes the actual punishment that has been sentenced. Popil, “believe[s] in consequences.” In reality though the inspector wants one last chance to interrogate the prisoner about Klaus Barbie.

This is also a small question of Tax Law. When Hannibal’s uncle dies his chateau must be auctioned off in order to pay for the death taxes that have been levied. Since Lady Murasaki’s “resident status” comes into question with the death of her husband the tax collector cannot accept her sureties.

There is a bit of animal law also. We find out that the law of importation of insects in the “new republic” was “fuzzy” from a cricket dealer, and there is an ordinance against serving a local bird called an ortolan, that “came and went.”

Thomas Harris


Priestly, J.B. An Inspector Calls (1946)

March 1, 2007

Gerald: After all, y’know, we’re respectable citizens and not criminals.

Inspector
: Sometimes there isn’t as much difference as you think. Often, if it was left to me, I wouldn’t know where to draw the line.

Gerald: Fortunately, it isn’t left to you, is it?

An Inspector Calls is a clever little whodunit in which every one and no one dunit all at once. The Birling family has settled down to celebrate the engagement of their daughter to Gerald Croft when an inspector calls upon the household to inquire about the suicide of a young woman. He slowly reveals to each of the family members how they have contiributed to the poor girl’s demise.

J.B. Priestly’s play is more than just a clever whodunit though. He also uses it as a platform from which to preach a socialist agenda. Its not an overt message; Priestly viels it. Arthur Birling, patriarch of the family, former Lord Mayor, and a Magistrate is Priestly’s symbol of capitalism. He is a businessman who looks at the bottom line and the profit margins. It is through his initial actions that girl is set on her downward path. Inspector Goole on the other hand seeks out justice and inflicts a guilty sentence upon each of the family members for their contributtion. It is the aggregate effects of their actions that create the situation. In the same way capitalism (to Priestly) functions as the aggregate effect of numerous people who are guilty as a whole if not necessarily individually.

The other major legal implication, and the one that I find to be more interesting, is that of the mixing of law and morality. This play is essentially a morality play, and the representative of those morals is also a representative of the law. This idea certainly is mixed with the socialist agenda of the play, as socialism is obviously viewed by the author as the morally superior political paradigm. Beyond Priestly’s politics, though, it is significant that a police officer is chosen to deliver a moral message intead of a message of law. In fact, the message that the inspector brings is anything but a legal one. It is a clear cut case of suicide and none of the characters can be held criminally liable for their actions. However, the inspector takes it upon himself to make them feel morally liable for their actions. Inspector Goole blurs the line between law and morals. The line is further blurred at the end of the play when it is revealed that the Inspector is not actually a police officer. His real identity remains unknown, and is irrelevant. It is the fact that the character chose to cast himself as an enforcer of the law that matters. From this position he was able to use the coercive power of law to gain power over the Birlings and to make them feel as though the law itself was condemning their actions. It is the power of law that gives the inspector validity, and his validity that gives his moral agenda power.

An Inspector Calls.
J.B. Priestly