Law and Custom

A sequel of sorts to Manners, Duties, and Society.

Bill McGurn has a noteworthy piece in yesterday's Wall Street Journal in which he treads into a thorny thicket of issues all centering on how colleges deal with sex crimes. He concedes that a collapse of traditional morality has a part to play but his argument is this:

[the] real threat to civility and common decency is this: the substitution of codes and committees for responsible adults exercising humanity and judgment.

Now this observation may sound wise and true enough, perhaps even self-evident, but it seems to me to raise a challenging political science question when applied to life outside a university campus. First, a little backtracking:

We must back track a little and ask, "What is a law for?" There are to this question two common answers: A) to punish criminals and achieve justice, B) to deter a particular act. We then may ask "How does it come about" to which we can reply that a law comes about when a group of people perceive some wrong and seize the moral authority to rectify the wrong by punishing the offender.

Now we must distinguish in a society between laws and customs, the former being compulsory and the violation of which is punishable, and the latter which is preferred and rewarded but not mandated. We could sensibly propose a hierarchy between the two, laws being thought to preserve more important (or at least more pragmatically important) values than customs.

In a free society, though, those two categories are always going to be in some tension. What ought to be a law and what ought to be left to the freedom of the individual? Clearly the more that is mandated the less liberal the society. Similarly, people have different ideas as to what the government ought to do, though but that is not my concern in this post. Nor is my question here whether universities or societies ought to legislate morality. My questions is this: when customs pass out of tradition and into obscurity can a minority of people rejuvenate the customs by enforcing them upon the people, i.e. by turning the customs into laws?

While voluntary conviction is clearly preferable to force for the purpose of establishing order (or anything), is it more or less reliable for preserving what it wants to protect than force (i.e. law and government)? And as a corollary, does forcing something via law makeless likely to be preserved because its care and administration has been taken (or delegated) from the people? (Bill's hypothesis seems to fall squarely in one of these camps.) We might, more radically, ask: to what degree does any law really work, i.e. to what degree is a law itself (and/or its enforcement) the prime cause of a given situation. After passing a law do we often, ever, bother to see if it actually changed anything? Does anyone care whether it does, or is the attempt enough to satisfy people's desire to bring about the good.

For conservatives these political science questions center around two pragmatic political topics. First, we must consider that while we want to "conserve" something that the government should not be the default tool for conserving. The government is not the proper, or perhaps even a possible, tool of conservation. Second, we should be aware that conserving something via government intervention or monopolization might have the opposite effect, even on liberty itself (c.f. Jefferson, "The people are the only safe depositories of their own liberty.") (from a letter to L.W. Tazewell, 1805.)

Perhaps the conservative rule should be simply "to do good" in contrast to the "I want good to be done" (i.e. by the government) attitude of state-centered modern liberalism.  People produce a culture and a society, and the society creates the government. Not the other way around.

To pose a final more philosophical question, I would borrow from de Tocqueville and ask: does equality under law beget (or encourage) a desire for total equality? Does then that desire, or the sating of it, make centralization of law easier by 1) shrinking the individual in relation to the state by making all individuals equal and thus equally small and interchangeable relative to it, and 2) making a law easier and more appealing to pass because of the reasoning that, "if it affects everyone it must be fair?" Does (or may), then, Liberalism, somehow contain the seeds of or propensity for illiberalism?

Perhaps either way the best defense against this infantalization, whether from "tyrannical ambition" or "servile temptation" (to borrow a pair of phrases from Paul Rahe's Soft Despotism) is a belief in liberty and not a contentment with servility in the hearts of the American people and a specific, limited body of laws. (Again, it seems always to be the lack of specifics, the lack of limits or finite ends, of the progressives which causes concern amongst conservatives and Classical Liberals.) A return to limits, liberty, and diffusion, not centralization, of responsibility amongst us is needed, lest the growing state slowly, imperceptibly render us as Tacitus said the rule of Augustus left the Romans, "capable neither of complete servitude nor of complete freedom."

Liebst du mich?

– Schubert. Schwanengesang - Ständchen (Rellstab)

[German & English Text via lieder.net]

– Mozart. Das Veilchen, KV.476 (Goethe)

[German & English Text via lieder.net]

– Mahler. Lieder eines fahrenden Gesellen: Die zwei blauen Augen von meinem Schatz (Mahler)

[German & English Text via lieder.net]

Bernstein on Beethoven, Mozart, and Music

From the Unanswered Questions Norton series of talks at Harvard, given in 1973. The series, happily, is available in paperback and on DVD.

On Beethoven's Piano Sonata No. 18, op. 31, in E-flat major
and Musical Semantics

On Mozart's Symphony No. 40 in G minor, op. 550

Part I | Part II | Part III

A Terrifying Rhetorician?

Martin Amis has a column in yesterday's Guardian in which he puts contemporary intellectual, author, and famed debated Christopher Hitchens on par with Cicero and Demosthenes. Now first please try to understand how difficult it was for me to write that. It is nearly inconceivable for anyone who has in fact read Demosthenes and Cicero in Greek and Latin to compare anyone to them. Yet in this case I think they are merely invoked as totems of excellence rather than set up as examples for comparison. That this is not a scholarly article and there are, in fact, no meaningful comparisons, or comparisons of any kind, supports this statement. In fact were not for the amiable tone of the piece I would be tempted to borrow a phrase I used last week to describe Terry Eagleton's piece on Marx: embarrassing encomium. Yet this essay, from its prefatory picture of the two boozily unkempt friends to its apostrophe to Mr. Hitchens himself, resists such an evaluation. It does not, however, resist some scrutiny.

Actually I don't so much care to evaluate the accuracy of Amis' assertion than I want like to unpack the implications of his praise. Of course I balk at the comparison itself, more than I would at referring to Patrick Henry as the "Cicero of Virginia" but less than referring to President Obama's speeches as "worthy of marble." Perhaps one day we will examine some of Mr. Hitchen's writing against Demosthenes but right now I'm simply concerned with the analogy Amis uses to describe Hitchen's rhetorical ability, which is to the supercomputer Deep Blue, which defeated several chess grandmasters, both of whom described the encounter thus: It's like a wall coming at you.

In contrast I call to mind the timeless statement about Demosthenes, that he was δεινὸς λέγειν (deinos legein) a phrase which unfortunately requires a little explanation in itself. On the one hand it can simply mean a "clever speaker" and indeed it means this and such is how it is most often translated from Greek. The first word, though, δεινὸς, has more associations, namely with the seemingly contrasting pair of ideas, "terrible" (or fearful, dangerous) and "wondrous" (or marvelous.) Yes, to be called δεινὸς λέγειν might simply mean you were a clever speaker, a speaker clever with your tongue who, like Odysseus, could beguile and outwit an opponent. (It may be of interest to recall Dante in Canto XXVI of the Inferno has Odysseus in in the Eighth Circle (with Diomedes) for his trickery (agguato, arte.)) Too Socrates begins his famous defense by addressing the accusation that he is a clever speaker, asserting that he is not clever unless by clever you mean truthful. 

That distinction, I think, is essentially the one Amis is making. (Unless he is making the unexpectedly banal assertion (i.e. not an argument) that Hitchens is a good rhetor "because he makes good arguments quickly.") For while the descriptions of Demosthenes and Amis' of Hitchens share a common theme of power, the Greek is tinged with many subtler ideas. Amis means Mr. Hitchens is a great speaker not because he is artful or clever or because his prose is beautiful, his images vivid or because he uses figurative language and paints a persuasive picture, but because he is truthful. Hitchens' argumentation is a wall of truth coming at you. Thus Amis is essentially saying that truth is persuasive. This statement, put clearly by Aristotle as, "what aims at truth is better than what aims at appearances" (paraphrased, see Rh. I.vii, 1365a) and beautifully by Keats, "Beauty is truth, truth beauty–" poses a serious question: is what is true naturally more appealing or easier to prove? It might seem so today of certain facts, but in many cases "facts" to a great deal of time to be considered so. One could undoubtedly come up with simpler, wrong, explanations of physics than those of quantum mechanics.

To digress once more, it might make an interesting exercise, dear reader, to read a work of fiction, something presenting a complete world view like the works we discussed in reviewing Santayana's "Three Poets" or at least something a clear single concept that is explored. Then consider whether you find it beautiful: is that world a beautiful one. Then, consider whether you find it more or less beautiful and truthful than the world in which you live. Are they the same?

Is there truth in fiction? Is truth the source of beauty in fiction? Aristotle considered fiction (ποίησις, (poieisis) from ποιέω (poieo) to make) more philosophical because it deals in absolutes whereas history, which seemingly is more scientific and truth-seeking because it deals with facts and things which have actually happened, deals only with specific things which have happened and not universal truths about what must happen.

I would call attention to the fact that Amis goes on to praise Hitchens' "crystallizations," i.e. aphorisms. This is odd in contrast to his opening in which he essentially praises Hitchens' rationality as being persuasive, because of course aphorisms are not arguments. Maybe Amis just means that being persuasive can take many forms, both through rigorous argumentation and through indivisible aphorisms. Perhaps, but I'm not sure.

Let us revisit, though, his actual argument for Hitchens as rhetor. Can it really be called an argument?

. . . his judgments are far more instinctive and moral-visceral than they seem, and are animated by a child's eager apprehension of what feels just and true); he writes like a distinguished author; and he speaks like a genius. As a result, Christopher is one of the most terrifying rhetoricians that the world has yet seen.

What does that mean? How does that make him persuasive? The phrase "as a result" implies some kind of causality, some argument, that has not been introduced. Perhaps he is a great rhetor because he thinks in paragraphs and does not get bogged down in "a mess of expletives, subordinate clauses, and finely turned tautologies. . . " What? He is persuasive because he makes good arguments? This is simply, and ironically, not enough of an argument comment on. Perhaps we might say that persuading consists not simply in constructing a rational argument, but making use of all the means of persuasion, as Aristotle says. Such a definition would necessitate a significantly more elaborate argument from Amis. We could belabor the point that the word "rhetorician" implies much not addressed here, in part and separate from "an argument," small-scale and large-scale structure, diction, imagery, figurative language and rhetorical devices, different types of argumentation, moving the emotions, and using the right combination on the particular audience at the particular time you must speak. Yet such would be a mere list against such a lack of formal argument.

In fact this his lack of argument for Hitchens as rhetor, this insistence that he is one, and the thread of "persuasion" throughout the essay, suggest he feels that because he agrees with Hitchens, that Hitchens must be a good rhetor, which is not quite right. Someone has persuaded you if he has changed your mind to agree with his, hence the Greek fear of a clever speaker who could "put a thought in your head."

If I may offer a conjecture, Amis is not confused. He has simply been persuaded by Hitchens the man, in toto. He praises Hitchens as charismatic and highly thought of qua author by other authors. Clearly he has some sense of the Aristotelian definition of rhetoric as utilizing all means of persuasion and he has been persuaded, but Cicero and Demosthenes are the wrong analogues. He has seen and known Hitchens throughout many years and today he sees all of the books deeds amounting to something significant to him, "Christopher's most memorable rejoinders, I have found, linger, and reverberate, and eventually combine, as chess moves combine." Amis being persuaded by Hitchens is not so different from being persuaded by a great rhetor, the essential difference being the means of persuasion are spread out over many times, means, and places, the only common thread being the man himself. Yet all of these talents and occasions are not rolled up into one speech or performance which can be sensibly be compared to a speech by Cicero or Demosthenes in any meaningful way. Too the differences in occasion and debate structure between Demosthenes' and Hitchens' venues make the comparison even more off-the-mark. These things being so, Amis' comment is sincere but little-considered praise.

In all, Amis has not persuaded me Hitchens is a "terrifying orator" or that he is correct (or incorrect) about anything in particular. He has, though, persuaded me that he loves his exceptional friend. Unfortunately the hyperbolic title (probably not Amis' own) is misleading and will probably do more to increase the blind adulation of Hitchens the intellectual than it will to put the reader in the proper frame of mind to appreciate Amis' happy recollection of his life with his dear friend.

Christ is Risen!

Christos anesti!

Khristos voskrese!

Christus resurrexit!

Part 2

Great Composers: Bach

From the 1997 BBC Documentary narrated by Kenneth Branagh and featuring Georg Solti, Charles Rosen, Zuzana Parmova, and Michael Tilson Thomas.

Part I | II | III | IV | V | VI | VII

Himmelskönig, sei willkommen

J.S. Bach: Cantata BWV.182, Chorus 'Himmelskönig, sei willkommen'

Himmelskönig, sei willkommen,
King of heaven, welcome,
Laß auch uns dein Zion sein!
let us also be your Zion!
Komm herein,
Come within,
Du hast uns das Herz genommen.
You have taken our hearts from us.

More information on this cantata via Bach-Cantatas.com

Not nearly as famous as No. 140, "Wachet auf. . ." this cantata too is a glorious and vivid depiction of great multitude of people.  Here the scene is the throng greeting Christ as He enters Jerusalem and the chorus is open and airy in G major. The fugal form is a naturally fine fit to depict such a scene, the entrances of the voices providing a perfectly appropriate structure for Christ's procession. Too the counterpoint provides a structure for the busyness, though the fugal subject itself contributes to the sense of liveliness with its shift into semiquavers:

BWV.182, Chorus I, m.1-2

After the theme enters in all of the solo voices it enters in canon in the strings and at last up high in the flute, which proceeds to elaborate on it. Then a shorter fugal subject on "Laß auch uns dein Zion sein! Let us also be your Zion!" enters in the soprano and alto, gently lifting the fervor of the expression and excitement of the scene without it becoming garrulous.

BWV.182, Chorus 1, m.12-14

As the flute continues on over the crowd the rising and falling gestures of its figures now seem to give them a palmy character as the choir repeats, "let us also be your Zion." The flute and violin then treat the first subject in canon as the choir exclaims together "welcome" and is answered by the violas and cellos.  They conclude together, "Komm herein, Come within." Bach then treats the second and last lines of the text with a series of four short canons at the octave and only a crotchet apart, all beginning S. A. T. B., a treatment which emphasizes that two lines both ask for unity with Christ.

A joyous, moving piece and a concise example of Bach's profound unity of style, structure, and expression.

Well-Temperament with Trevor John Stephenson

Another wonderful and enlightening discussion of temperament with Trevor John Stephenson.

Part I | Part II

Tom Shippey on Tolkien

Medievalist and scholar of modern fantasy and science fiction Tom Shippey on J. R. R. Tolkien and "filling the gaps" of medieval English literature.

Part I | Part II

The Politics of Leisure

It is curious the following pair of articles came across my desk in the same week, Terry Eagleton's encomium for Marx in The Chronicle of Higher Education and Wendy McElroy's reflection on values and economics at Mises Daily. I would certainly wager the authors are not in communication. While Eagleton's essay, a condensed version of his book sans the scholarship, I would assume, embraces more issues, both articles add an uncommon spin to the topic of economics: culture. Now your humble bloggers have discussed leisure and culture as well as economics but I thought this was a novel take. This pair of articles in particular yields a fruitful comparison.

In Praise of Marx, by Terry Eagleton
The Case for Frugality, by Wendy McElroy

First and foremost they both examine the concept of leisure in the light of economics, albeit from opposing economic camps. Both authors embrace the idea that leisure time is of value and both realize that some excess production is necessary to achieve excess time.  Both authors even admit the excess production can be spent on anything at the discretion of the individual: perhaps what pleases you is expensive and you must work more to afford it or perhaps you work less because you would rather have leisure time or what goods please you are inexpensive.

Yet Eagleton's position demands, since inequality is unacceptable, that the excess production be split to achieve equal leisure. While both embrace the value of leisure Eagleton in essence declares it a right. There being no legitimate and acceptable reasons for inequality, either of resources or ability, and because this condition of leisure does not naturally exist since people have to support themselves via work to create food, shelter, and so forth, some people have to provide it for others. He also seizes the moral authority to act and balance the inequality, adding, "We would no longer tolerate a situation in which the minority had leisure because the majority had labor."

Thus it becomes the case that an individual is not free to value and trade his labor, i.e. his finite time and life, since he must support others, others who define what the "minimum standard" of "leisure" is and distribute the resources to achieve it. He may have to work more than he wants to (and achieve less leisure, either of time or goods) because someone else cannot.

Eagleton clearly wants to present the spiritual, "enlightened," side of Marxism, i.e. Marxism as un-economic and essentially unconcerned with material goods. Yet lack of such considerations merely neglects the economic and moral effects of planned economies, it does not eliminate them. He says that people would be free how to spend their leisure without acknowledging the processes used to determine how much leisure he is allowed to keep in the first place (as well as the moral implications and economic ramifications.) His romantic view ignores the fundamental fact that central planning destroys the ability of an individual to ascertain the cost and result of a given activity. That individuals are free to act and act unpredictably further confounds any attempt at centralization. The gross and repeated failures of planned economies to react to change are usually glossed over as failures of implementation rather than of essence. Too critics often attempt to distinguish between planned economies and taxation, the latter being acceptable because merely redistributes and does not interfere with the economy, a false assertion.

Like Christopher Hitchens' "libertarian" argument for "free" health care, [1](that it makes you more free) the fatal flaw of this very similar article is its lack of attention to the fundamental paradoxes of socialism. As a pair the articles show that anyone can value culture and a leisurely, philosophical life.  Too they demonstrate that such leisure comes at a price. The question is "who pays it?" You or someone else? Eagleton's article has value insofar as it spurs the non-socialist to review an author often caricatured and scoffed at rather than studied. Such a love letter, though, however romantic and sincere, does not vindicate the ideology.


N.B. No doubt Eagleton's reference to Ludwig von Mises makes his apparently persuasive article, expertly tailored to appeal to a wide audience, more so by imbuing in it a semblance of equanimity and scholarly rigor. Readers should follow with Mises' "Socialism."

[1] http://www.aplvblog.com/2009/09/libertarian-case-for-free-health-care.html