Tag Archives: Fluff

The Proctor: A Legal Note from David Copperfield

The more substantial novels of Charles Dickens represent a regrettably sizable hole in my reading, one which with time I hope to plug up. I’ve started with David Copperfield and am enjoying it greatly. The writing, as much or more than the story itself, is truly magnificent.

Unlike with some of Dickens’s other work in which it is generally portrayed unflatteringly, the law and legal practice is not an absolutely central theme in David Copperfield, though it does show up from time to time. The ingratiatingly servile Uriah Heep has already been described poring over some legal treatises, and this detail is sure to resurface by and by. But the law does make something of an appearance when David, now a young man of 17 and at the urging of his aunt, selects the profession of “proctor.”

I had not before known what a proctor was. Apparently the proctor was a special kind of solicitor who dealt with both ecclesiastical and admiralty matters, an unusual combination! The position of proctor was merged with solicitor in the late 19th century. Here is a charming bit from Chapter XXIII about proctors and their practice (as relayed only slightly in jest by David’s prepossessing friend, Steerforth):

“What is a proctor, Steerforth?” said I.

“Why, he is a sort of monkish attorney,” replied Steerforth. “He is, to some faded courts held in Doctors’ Commons–a lazy old nook near St. Paul’s Churchyard–what solicitors are to the courts of law and equity. He is a functionary whose existence, in the natural course of things, would have terminated about two hundred years ago. I can tell you best what he is, by telling you what Doctors’ Commons is. It’s a little out-of-the-way place, where they administer what is called ecclesiastical law, and play all kinds of tricks with obsolete old monsters of acts of Parliament, which three-fourths of the world know nothing about, and the other fourth supposes to have been dug up, in a fossil state, in the days of the Edwards. It’s a place that has an ancient monopoly in suits about people’s wills and people’s marriages, and disputes among ships and boats.”

“Nonsense, Steerforth!” I exclaimed. “You don’t mean to say that there is any affinity between nautical matters and ecclesiastical matters?”

“I don’t, indeed, my dear boy,” he returned; “but I mean to say that they are managed and decided by the same set of people, down in that same Doctors’ Commons. You shall go there one day, and find them blundering through half the nautical terms in Young’s Dictionary, apropos of the ‘Nancy’ having run down the ‘Sarah Jane,’ or Mr. Peggotty and the Yarmouth boatmen having put off in a gale of wind with an anchor and cable to the ‘Nelson’ Indiaman in distress; and you shall go there another day, and find them deep in evidence, pro and con, respecting a clergyman who has misbehaved himself; and you shall find the judge in the nautical case, the advocate in the clergyman’s case, or contrariwise. They are like actors: now a man’s a judge, and now he is not a judge; now he’s one thing, now he’s another; now he’s something else, change and change about; but it’s always a very pleasant profitable little affair of private theatricals, presented to an uncommonly select audience.”

If you really want to know what Judge ___ is like, read his opinions

Forgive me for a post not particularly law-and-religion related, but certainly law-related.

I’ve been enjoying Professor Ronald Collins’s series on Judge Richard Posner over at the Concurring Opinions blog. The Collins biography is extremely substantive and scholarly; it’s not really the subject of this post at all. I’m more interested here in “Posner on Posner,” which is basically a collection of interviews, reflections, bon mots, aphorisms, scattered wisdom about cats, opinionation about the virtues and vices of spicy food (or was it jurisprudence?), and so on. The latest installment is a smorgasbord of law professor queries about various scraps of miscellany, answered by Judge Posner in his genially efficient fashion. It’s a fun little window on Richard Posner the man. It reminds me of the way that James Fitzjames Stephen used to produce regular victuals for the insatiably voracious Victorian English intelligentsia.

The Posner on Posner format, though, is such that I’m afraid folks might perhaps be misled to believe that when Judge Posner makes statements like, “I think the role of legal doctrine in judicial decisions is considerably overrated,” that means that legal doctrine is likely actually to play very little role in his judicial decision making. Law professors so like to ask questions about things like pragmatism, and the influence of law and economics and sundry other ideological precommitments on judging, how judging will change “in the future,” and whether Posner reads any Lon Fuller (or enjoys the filmography of Lon Chaney). And, of course, Judge Posner is rather able at providing law professors with what they so much want to hear–interesting, provocative, sometimes perhaps a little shocking (not too much!), always eminently Posnerian responses to these sorts of questions. Indeed, he’s made something of an extrajudicial second career in writing great numbers of books whose theme is a tell-it-like-it-is forthrightness that shows the emperor in his resplendent nudity (and the repeated announcement of that theme, just in case you missed the last 19 times it was pressed, as something altogether novel coming from a judge). Professor Collins’s series is certainly of a piece with this spectacularly prodigious extrajudicial output.

Still, if you really want to know what Posner the judge is like–and here one could substitute really anybody when writing as a judge–you might do better simply to read his opinions. Failing that, or for the sake of saving a little time, may I humbly submit that you read my piece with Kevin Walsh about the several ways in which Posner the judge is often altogether different from Posner the public intellectual who explains what it is like to be a judge. It’s only after pursuing this sort of course that the differences between a judge and an explanation (even from the most able of judges) of ‘what-it-is-like-to-be-a judge’ (with apologies to Thomas Nagel) come into view–differences that for various reasons may run deep in Judge Posner’s particular case.

Stendhalian Interlude

I’m listening to Stendhal’s The Charterhouse of Parma in the car, a wonderful

Farnese Tower, Castell'Arquato, Parma

Farnese Tower, Castell’Arquato, Parma

work of novelistic “realism” set in the early 19th century world of Italian city-state court life. Stendhal’s portrait of these small time courts is none too flattering, but neither is its chief alternative: “From the whole business one can derive this moral, that the man who mingles with a court compromises his happiness, if he is happy, and, in any event, makes his future depend on the intrigues of a chambermaid. On the other hand in America, in the Republic, one has to spend the whole weary day paying serious court to the shopkeepers in the street, and must become as stupid as they are; and there, one has no Opera.”

The hero of the story, Fabrizio del Dongo, is a figure of perfect aristocratic early Romantic integrity–the sort of man who brashly leaves his suffocating palace life in Como to join the army of Napoleon, only to reach him right as the Battle of Waterloo is concluding. For Fabrizio, the only thing that matters is to get confirmation that he has actually participated in a battle–any battle–something about which he is never quite certain.

Since prisons and prison life (and even prison escape!) have been a subject of discussion here at the Center for Law and Religion Forum this past week, and since a large portion of the key section of The Charterhouse of Parma occurs in a prison (the Farnese Tower in Parma, at right), I thought the following was interesting. The prison warden, a General Fabio Conti, is a detestable person and fairly universally hated, including by many of the guards (to say nothing of the prisoners). At one point, it appears that he may have died by poisoning. But he revives. Yet rather than feeling crushed by the news, the prisoners sing his praises. Stendhal writes:

Fabio Conti was a jailer who was always uneasy, always unhappy, always seeing in his dreams one of his prisoners escaping: he was loathed by everyone in the citadel; but misfortune inspiring the same resolutions in all men, the poor prisoners, even those who were chained in dungeons three feet high, three feet wide and eight feet long, in which they could neither stand nor sit, all the prisoners, even these, I say, had the idea of ordering a  Te Deum to be sung at their own expense, when they knew that their governor was out of danger. Two or three of these wretches composed sonnets in honor of Fabio Conti. Oh, the effect of misery upon men! May he who would blame them be led by his destiny to spend a year in a cell three feet high, with eight ounces of bread a day and fasting on Fridays!

Finally, a Use for Reprints

reprintsA little end-of-summer humor for our academic readers.

The Death of the Divine Augustus

blessedToday is the 2000th anniversary of the death of Caesar Augustus. For anyone who has ever seen it, the Divine Augustus will always be associated with Brian Blessed’s portrayal of him (left) in the BBC adaptation of the wonderful Robert Graves novels, I, Claudius and Claudius the God. And so, to commemorate the day, here’s a snippet of dialogue, on a law and religion theme, which captures the charming, cynical urbanity of the series. For those of us nerds of a certain sort, it’s a real guilty pleasure. I’m sure the whole thing is available on Netflix. Watch it — or, better yet, read the books!

[Herod and Augustus are watching a gladiatorial contest.]
Augustus: Herod, what about a little bet? I’ll take the fat one for twenty gold pieces.
Herod: Caesar, it would be against my religion to bet on the life of a man.
Augustus: Oh, really? I would have thought it against your religion to bet on anything.
Herod: Caesar, it’s true: Jews love gambling. But we fear our god more.
Augustus: Which one?
Herod: We have only one, Caesar.
Augustus: I’ve never understood that, it’s quite insufficient. Why don’t you take some of our gods? You know, plenty of people do.
Herod: Believe me, Caesar, the one we have is hard enough to live with.

 

 

From the files of Secretary of Transportation S. Panza

Administrative law at its best.

No Tilting

What, the Flames Already?

Today is the 236th anniversary of the death of Voltaire.

On Commencement Speakers

There has recently been something of a flutter about the withdrawal, under pressure, of several scheduled Commencement speakers for various sorts of reasons diffusely related to politics, controversial viewpoints, or associations and activities with which some administrator feels disquieted (or with which the administrator believes that some influential, or prominent, or loud group of alumni or students will feel disquieted). It is difficult to get a sense for any unifying theme of controversy in these pressured withdrawals, but together they reflect the sort of soft and not particularly committed progressive pastiche of disapproval that prevails at many colleges and universities: Condoleezza Rice was part of the Bush Administration; Ayaan Hirsi Ali said critical things about Islam; Christine Lagarde presides over an organization which is felt by some students to be “patriarchal” and unhelpful to the poor.

Incensed finger-waggers have observed that these pressured withdrawals are very damaging to universities, because, after all, universities are claimed to be sites of open and respectful argument where ideas can be challenged and debated freely. What kind of closed-minded places are these universities if they cannot engage respectfully with controversial views and encourage their students to do likewise? What about the free exchange of ideas? What about confronting perspectives different than one’s own–those that are alien or that induce alienation?

This all seems rather silly. First, is it really the case that graduations are moments where the university displays what are claimed to be its intellectual virtues in chief? Does anybody believe that the very tail end of the higher educational experience, right as the students are walking out the door, is the moment to showcase these qualities–a moment where nobody but the Commencement speaker actually gets a chance to express any views? Speeches delivered at Commencements are nearly universally empty, gaseous, platitudinous, and saccharine. That is by design. That is their function. They are the most perfunctory part of the ceremony. The speaker pumps the bellows for a bit while the assembly listens with half an ear; the other ear and a half is preoccupied with much more interesting matters, like wondering whether one is sweating too much, or about a sudden acrid smell. The parents of the graduates pretend to listen while clucking about their dearest ones in the crowd. And then, at long last, it’s on to the reception bar with all deliberate speed.

What the pressured withdrawals might suggest is that many universities really are not places where students learn and exercise the habits of intellectual engagement and exchange in any appreciable degree at all. The Commencement speech is just the last in a long trail of hot air. Indeed, some have suggested that many American universities are simply gargantuan machines dedicated to the cultivation of middle-class tastes and distinctively shallow civic points of view–mills for producing good and voracious consumers with whatever miscellany of attendant politics one needs to get on without incident or complaint. That seems slightly sour, but if it is true, then the graduation speech is of a piece with the rest of the experience.

I’ve made it to some of my own graduations and skipped just as many. I can’t say I ever felt regret about those I skipped. Of the many Commencement addresses I have heard, not a single one I can remember provoked deep intellectual engagement or reflection in me. Maybe I was unlucky with the speakers; certainly they were unlucky with me. Perhaps the problem is that I can’t remember any of them. I do know that the speeches all contained the requisite elements of vaguely Whiggish optimism, indistinct exhortation, and comfortable banality that characterizes much of university life. They were delivered by people with anodyne, milk-and-water backgrounds and views who had reached prominent positions. So it should come as no surprise at all when a university calibrates the selection of its Commencement speaker accordingly.

UPDATE: An interesting, somewhat different, perspective here (though I can’t subscribe to any claims about a university’s “democratic values”)

Happy 450th Birthday to William Shakespeare

250px-Shakespeare

Measure for Measure (Act II, Scene 2):

ANGELO.
Your brother is a forfeit of the law,
And you but waste your words.
ISABELLA.
Alas, alas!
Why, all the souls that were were forfeit once,
And He that might the vantage best have took
Found out the remedy. How would you be
If He, which is the top of judgment, should
But judge you as you are? O, think on that,
And mercy then will breathe within your lips,
Like man new made.
ANGELO.
Be you content, fair maid,
It is the law, not I, condemn your brother.
Were he my kinsman, brother, or my son,
It should be thus with him: he must die tomorrow.
ISABELLA.
Tomorrow? O, that’s sudden! Spare him, spare him!
He’s not prepar’d for death. Even for our kitchens
We kill the fowl of season. Shall we serve heaven
With less respect than we do minister
To our gross selves? Good, good my lord, bethink you:
Who is it that hath died for this offense?
There’s many have committed it.
LUCIO.
Aside to Isabella: Ay, well said.
ANGELO.
The law hath not been dead, though it hath slept.
Those many had not dar’d to do that evil
If the first that did th’ edict infringe
Had answer’d for his deed. Now ’tis awake,
Takes note of what is done, and like a prophet
Looks in a glass that shows what future evils,
Either now, or by remissness new conceiv’d
And so in progress to be hatch’d and born,
Are now to have no successive degrees,
But here they live, to end.
ISABELLA.
Yet show some pity.
ANGELO.
I show it most of all when I show justice;
For then I pity those I do not know,
Which a dismiss’d offense would after gall,
And do him right that, answering one foul wrong,
Lives not to act another. Be satisfied;
Your brother dies tomorrow; be content.
ISABELLA.
So you must be the first that gives this sentence,
And he, that suffers. O, it is excellent
To have a giant’s strength; but it is tyrannous
To use it like a giant.
LUCIO.

 Aside to Isabella: That’s well said.

ISABELLA.
Could great men thunder
As Jove himself does, Jove would never be quiet,
For every pelting, petty officer
Would use his heaven for thunder,
Nothing but thunder! Merciful heaven,
Thou rather with thy sharp and sulphurous bolt
Splits the unwedgeable and gnarled oak
Than the soft myrtle; but man, proud man,
Dress’d in a little brief authority,
Most ignorant of what he’s most assur’d
(His glassy essence), like an angry ape
Plays such fantastic tricks before high heaven
As makes the angels weep; who, with our spleens,
Would all themselves laugh mortal.
Image

How We Get Things Done at the Center

Coffee