Patch, Howard Rollin. On Rereading Chaucer (1948).

June 13, 2008

As for the Lawyer, like all the rest he is the best of his kind, no one can catch him amiss, he makes a great show of being busy but we know little about what goes on in his mind.”

On Rereading Chaucer is one of those scholarly volumes that is written in such a tone that you can imagine a jolly, frosty haired, pipe smoking professor having written it as opposed to a prof who is focused on showing off his brain power. This collection of essays all revolve around Chaucer’s use of humor throughout his body of work (that means even the non Canterbury Tales stuff . . . yes there is writing beyond the Canterbury Tales).

Aside from the fleeting reference’s to the Man of Law’s tale and the fact that Chaucer may have studied law at Inner Temple, there is little law in this book. One essay, however, stands out as having some legal content: “Chaucer and the Common People.” In this chapter, Patch discusses whether Chaucer stood out as a voice for the Common People whom he often depicted, and whether Chaucer used his position at court to voice complaints and request better governance. Patch concludes that though Chaucer’s opportunities for access to court for such matters would be limited, he used his poetry to depict the common person in a sympathetic manner. Its and interesting chapter that serves to delve into Chaucer’s thoughts on governance.

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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


Hornby, Nick. High Fidelity (1995).

June 20, 2007

High Fidelity

“Laura was, is, a lawyer, although when I met her she was a different kind of lawyer to the one she is now: then, she worked for a legal aid firm (hence, I guess, the clubbing and the black leather motorcycle jacket). Now, she works for a City law firm (hence, I guess, the restaurants and the expensive suits and the disappearance of the spikey haircut and a previously unrevealed taste for weary sarcasm) not because she underwent any kind of political conversion, but because she was made redundant and couldn’t find any legal aid work.”

High Fidelity tells the story of a record store owner, Rob, with a lawyer girlfriend who doesn’t want to grow up but feels that he is being forced to, so he rebels like a little teenager. She moves out because he acts like a prat then he does all the classic man moping while she’s gone. Nick Hornby’s book is not quite a compelling story, but it’s not a bad read either, and men will identify with the childish behavior of Rob, becuase, hey, that’s what we do best.In this book there is a definite representation of lawyers as “grown ups”. Rob’s girlfriend, Laura, is a lawyer who had “radical spikey lawyer hair” and worked with a legal aid firm when Rob first met her. But Rob is concerned that she has changed as she is now a “different kind of lawyer” working with a City firm in London. She has traded in her spikey hair for expensive suits. He does note that she was made redundant at her legal aid job and couldn’t find more legal aid work, but he is still uncomfortable with the change. He claims that because she could no longer worry about “tenant’s rights, and slum landlords, and kids living in places without running water” that she has become intense about work due to her work load and the pressure of working for a big firm and trying to impress the partners, etc. Laura  is a “lawyer by profession and a lawyer by nature.” To add to this she enjoys her job, and this is what makes Rob uncomfortable: the corporate lawyer is a grown up, powerful position, and he feels unease not only at having one as the bread winner of his relationship, but also at hanging out with more of them. He feels that he can’t justify his place in life to the suits, and doesn’t want to (when he makes a list of dream jobs “nobody asks how to spell solicitor”). Lawyer’s to him are “are people who own dogs and babies and Tina Turner albums.”

There is also a great deal about the politics of sex and it is often defined in legal terms. For instance Rob, while on hiatus from Laura sleeps with an American musician who claims that “sex is a basic human right.” Later when she comes to see him he thinks in his mind that that the one night stand should be the end of their contact: “that is the law of this country.” Even a married couple feels compelled to defend their monogamy to Rob as if “its against the law because we’re [Londoners] all cynics and romantics” and he is there to arrest them. Mostly these legal terms come from Rob and his insecurities about relationships, but a deeper commentary about law, gender, and the body can be detected. He describes dating as an adolescent in terms of “Attack and defense, invasion and repulsion . . . it was as if breasts were little pieces of property that had been unlawfully annexed by the opposite sex – they were rightfully ours and we wanted them back.” The property analogy is one that certainly historically has legal implications, but maybe Hornby represents a somewhat more hopeful picture. Rob does views women through mysoginistic lens (e.g. he is terrified that Laura will sleep with Ray, but he immediately goes and sleeps with Marie and has cheated on Laura before), but throughout the novel he is confronted with Laura’s power, which I would argue is why Hornby caste her a a lawyer (and particularly a corporate lawyer). As a lawyer she is able to, as a character, draw on a host of suppositions about the intelligence level and the power of the proffesion. Rob is confronted by this as well as her power in the relationship being the one that not only makes the money but also makes independant decisions. Rob must learn to cope with his insecurities due to the strength in Laura’s character that will not bend to control by Rob.  Thus in the end a Laura has gained a significant bit of power back and overcome traditional legal setbacks that accompany her gender, and she does this as a lawyer.

Nick Hornby


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